McMillan v. Gleason

OPINION OF THE COURT BY LINDSAY, J. (Perry, C. J., dissenting.) This is an appeal from a decree made and entered by a circuit judge at chambers, in equity, in favor of com *259 plainant. The facts in the case are not disputed and are as follows: Complainant was born in Honolulu on February 22, 1894. Her father was David Fyfe Notley and her mother Kamalu Kawelu. Kamalu was at that time a married woman who had for several years prior thereto lived separate and apart from her husband. For more than a year prior to the birth of complainant, her parents had lived together in adultery and, as a result of this adulterous cohabitation, the complainant was born. In June, 1900, the mother of complainant obtained a divorce from her husband and, in the month of September following, six years after the complainant’s birth, her parents were duly and legally married and thereafter continued to live together as husband and wife until the death of the father in September, 1922. The mother died in October, 1922. On March 8, 1909, Notley, the father of complainant, executed a deed of trust under which he conveyed certain property, real and personal, to William Henry, in trust to pay all of the income of the trust estate to the grantor during his lifetime, and, upon his death, “to convey the estate hereby created in equal shares to the lawful issue of said party of the first part then living,” and if the party of the first part should leave no lawful issue him surviving, the trust estate to descend to the heirs at law of grantor according to the laws of descent of the Territory. On the resignation of William Henry as trustee, on May 29, 1914, the respondent Gleason was appointed his successor in trust. Complainant, claiming, under the statement of facts above set forth, to be the sole surviving lawful issue of David Fyfe Notley, brought these proceedings to compel the trustee to convey the property constituting the trust estate to her. The intervenors are those relations of David Fyfe Notley who, in the event that it is held that *260 complainant is not tlie lawful issue of said Notley, will be entitled to take as his heirs at law. It is admitted by all of the parties hereto that this case presents but one question, namely, was the complainant legitimated by the provisions of Act 71, L. 1907 (now Sec. 3043, R. L. 1925) ? If she was so legitimated, she is the sole surviving lawful issue of David Fyfe Notley, and the decree of the circuit judge in favor of complainant Avas correct and should be affirmed. It is contended by intervenors that the decree of the circuit judge is erroneous for the reason that the statute, authorizing the legitimating of children born out of Avedlock, is purely prospective, is confined solely to cases in which the marriage of the parents of such children is posterior to the enactment of the statute, and does not apply to cases such as the present where the marriage of the parents of the bastard admittedly occurred prior to the passage of the statute. The contention of intervenors is that the law looks Avitk disfavor upon statutes that are to be given retrospective operation and that, unless the legislative intent that a statute is to be given retrospective effect is so clearly to be gathered from the very language of the statute as to admit of no doubt of such intention, it is the duty of the courts to declare such statute to be prospective and not retrospective. On the other hand, the contention of complainant is that, under the statute of this Territory, a bastard, whose parents have married, either before or after the enactment of the statute, comes within the provisions of the statute and that such legislative intent is clearly discernible from the terms of the statute itself. At common law a child born out of lawful wedlock was filius nullius and no method for the legitimating of such a child was known. In England this harsh doctrine of the common law is still adhered to, and no statutory *261 method is there provided whereby a bastard may be made legitimate and nothing short of a private Act of Parliament can be resorted to for the removal of the stigma attaching to the unfortunate issue of erring parents. The civil law, however, differed from the common law in its treatment of this class of persons and, at an early date, prescribed that the subsequent marriage of the parents of a bastard would render the bastard legitimate. In Scotland the rule of the civil law has been followed. In this connection it is interesting to note that, under the civil law, the marriage of the parents of a bastard is given retrospective operation in that, such marriage is held to relate back to the time of the birth of the child and to make such child legitimate ab initio. See Kekula v. Pioeiwa, 4 Haw. 292. Not many of the states of the United States have followed the harsh rule of the common law and most of the states have by statute provided ways by which bastards may be legitimated. In most of the states, in order that a bastard may become legitimate, it is required, not only that the parents intermarry, but that thereafter the father shall recognize the child as his legitimate offspring. In Hawaii the statute authorizing the legitimating of bastards does not require recognition by the father, but makes the legitimization depend for validity solely upon the intermarriage of the parents. The first statute in this jurisdiction authorizing the legitimating of bastards was enacted in 1866, and read as follows: “All children born out of wedlock are hereby declared legitimate on the marriage of the parents with each other, and are entitled to the same rights as those born in wedlock.” Notwithstanding the broad and inclusive terms of this statute, this court, in Kekula v. Pioeiwa, 4 Haw. 292, decided in 1880, held that “all children born out of wedlock” were not legitimated by the marriage of *262 tlieir parents, since the statute did not apply to children born of parents, either of whom, at the time of the child’s birth, was married to another, and thus incapable of contracting a valid marriage. In 1905, in the case of Kealoha v. Castle, 11 Haw. 45, the question as to Avhether the child of an adulterous cohabitation, whose parents had intermarried after -the removal of the legal impediment to such marriage, was thus legitimated. In that case the court adhered to its ruling in Kekula v. Pioeiwa, supra, Frear, C. J., however, stating: “I concur on the ground that, although I think the decision in the Kekula case erroneous, Ave ought not to overrule it under all the circumstances.” The decision of this court in that case was affirmed by the Supreme Court of the United States (see 210 U. S. 149), not, however, upon a construction of the statute involved, but because the court felt bound by the construction placed thereon by this court in the Kekula case, at which time this was the court of last resort of an independent sovereignty. In its opinion the Supreme Court of the United States did not express its approval of the correctness of the doctrine enunciated by this court, but, on the contrary, seemed rather to question that doctrine, saying: “In other jurisdictions, however, statutes of similar character have been given a broad construction, and where exceptions have not been stated none have been implied” (citing numerous cases). Almost immediately after the decision of the Supreme Court of the United States in Kealoha v. Castle, supra, the legislature of this Territory by Act 71, L. 1907, amended the Act of 1866 to read as follows: “All children born out of wedlock, irrespective of the marriage of either parent to another, become legitimate on the marriage of the parents with each other and are entitled to the same rights as those born in wedlock.” It is under the provisions of this Act that complainant claims to be *263 the legitimate child of David Fyfe Notley. It therefore devolves upon this court to determine whether, from the language of this Act, the contention of complainant is sound. Was it the intention of the legislature that the humane provisions of this statute should extend to all children born out of wedlock or that it should apply only to some of such children? Did the legislature, from the language employed, intend that in case parents of a bastard had married prior to the passage of this Act, they had thereby cut off all means whereby their child could ever afterwards be legitimated? The case of Sleigh v. Strider, 5 Call (Va.) 439, decided in 1805, is nearly all fours with the instant case. In that case William Hall devised lands to his son Richard “during his natural life, and no longer, and after to his eldest son, and his heirs forever; but if no male issue, to his eldest daughter, and her heirs forever.” Richard Hall had a natural son named Thomas Hall born in 1776, and in 1778 married the mother and recognized him as his child until the death of the father in 1798. The father and son, by deed conveyed the lands to defendants. The father afterwards died without ever having any other son, but leaving several daughters, the eldest of whom brought suit for these lands claiming them under the above-named clause in her grandfather’s will. Plaintiff contended that Thomas Hall, the son of Richard, being born out of wedlock and before the Act of 1785, was not the eldest son of Richard Hall in a legal sense, and consequently could neither take as heir or devisee under the will. The statute in Virginia enacted in 1785 provided that “where a man, having, by a woman, one or more children, shall. afterwards intermarry with such woman, such child, or children, if recognized by him, shall thereby be legitimated.” The court held that the marriage and recognition of Thomas Hall, although before the enact *264 ment of the statute legitimated him, saying, “The law intending to provide for all cases generally, this arrangement of the sentence was necessary to embrace every possible case of the kind; and was meant not only to encourage marriages after the passing of the law, but to protect and provide for the innocent offspring of indiscreet parents, who had already made all the atonement in their power, for their misconduct, by putting the children, whom the father recognized as his own, on the same footing, as if born in lawful wedlock.” That caso seems almost stronger than the instant case for the words in the statute of Virginia “shall thereby be legitimated” could, with considerable force, be urged as applying to marriages solemnized only after the passage of the Act, while the language of our statute “become legitimate” and “are entitled,” etc., implies marriages both before and after the enactment. In Rice v. Efford, another Virginia case, decided in 1808, reported in 3 Hen. & M., p. 225, the court of that state again had occasion to construe the statute relating to the legitimating of bastards. In that case the court held that an illegitimate child, born before the enactment of the statute of parents who intermarried also before such enactment, and the father had recognized his son after the passage of the Act, was legitimate. Tucker, J., who wrote the opinion in Sleigh v. Strider, supra, based his opinion in this case on the authority of Sleigh v. Strider as well as on the authority of Stones v. Keeling, decided in May, 1804. In a concurring opinion agreeing with the rest of the court Roane, J., stated that the statute applied only to cases where the father had died posterior to the Act. In the case of Stevenson v. Sullivant, 5 Wheat. 207, the Supreme Court of the United States held that under the statute of Virginia the recognition required by the father must have been posterior to the *265 enactment of the law, saying in that respect (p. 260) : “It would seem to be most reasonable, so to construe the law, as to enable the father to perceive all the consequences of his recognition at the time he made it.” None of the statutes of other states that have come to our attention are identical with that in this jurisdiction, hence, cases from other jurisdictions are of little aid in the construction of our statute. It is apparent, however, that by the weight of authority, statutes legitimating bastards, being highly remedial in their nature, are to be accorded a liberal construction with a view to carrying out the legislative intent. “This remedy provided by the law for illegal marriages, and for the bastardy consequent thereto, must be liberally construed to advance the remedy, and extend the relief contemplated by the law” (Smith v. Perry, 80 Va. 563, 568); and the Supreme Court of the United States in Kealoha v. Castle, supra, refers to the fact that in many states “statutes of similar character have been given a broad construction, and where exceptions have not been stated none have been implied.” “Such statutes being remedial should receive a liberal construction” (7 C. J. 951, citing Haddon v. Crawford, 97 N. E. 811). “These statutes have also been held to operate in a retrospective sense to the extent of legitimating those whose parents had married before the passage of the act” (7 C. J. 952, citing Brower v. Bowers, 1 Abb. Dec. (N. Y.) 214; Sleigh v. Strider, supra). “Statutes intended to legitimate the issue of a marriage otherwise void are remedial in their nature and may properly be applied retrospectively” (7 C. J. 948). As a matter of correct English, what does the statute under consideration mean? What was the intention of the legislature when it declared: “All children born out of wedlock * * become legitimate on the marriage of the parents with each other and are entitled to the same *266 rights as those born in wedlock”? If an expert writer had wished to convey the universal idea that all children born out of wedlock, whose parents had married either before or after a given event, were to be legitimated, what language would he have employed? It is perhaps conceivable that a trained lawyer, having in mind the point under discussion, might have used a different form of expression and have written the statute thus: “All children born out of wedlock * * * whose parents have intermarried or shall hereafter intermarry shall become legitimate ynd shall be entitled,” etc. It appears to be the contention of the intervenors that if the statute is to be given the construction contended for by appellee it should have been framed in some such terms. We cannot agree with this narrow construction. The statute is broad in its terms. It contains no limitations of conditions and applies to all illegitimates. The legislature has not seen fit to make any exception to its operation, and yet we are asked by intervenors to interpolate into the statute an exception to its operation. As was said in Blythe v. Ayres, 96 Cal. 532, 563, in construing a statute somewhat similar to ours: “This section takes a wide range; its operation is not confined within state lines; it is as general as language can make it; oceans furnish no obstruction to the effect of its wise and beneficent provisions; it is manna to the bastards of the world.” The statute is clearly intended to apply to all persons coming within the class for whose benefit it was enacted and without regard to whether the marriage required was prior or posterior to the passage of the Act. Any other construction would in our opinion be forced. The use by the legislature of the words “become legitimate” and “are entitled to” in the present tense was no doubt intentional, such words denoting the expression of a general, universal truth, true of the past as well as of the future. *267 Such usage is common and is recognized by grammarians as the correct form of expression for the purpose intended. Had an expert writer been seeking for a precise form of expression to exclude cases in which the marriage of the parents had already occurred, he undoubtedly would have felt it necessary to use such expressions as “hereafter,” “shall become,” “shall be entitled,” etc., and, instead of saying as in this statute “become legitimate” and “are entitled” he would have said “shall become legitimate” and “shall be entitled;” and even so, witliout entirely changing the form of the statement, such suggested terms would have inadequately expressed the qualification intended. To give the statute under consideration the construction contended for by the intervenors we would be compelled to depart from both the form and language used by the legislature and construe the statute as though it read: “All children born out of wedlock * * * whose parents shall hereafter intermarry shall thereby become legitimate and shall be entitled to the same rights as those horn in wedlock.” We feel that this court is not at liberty to interpolate so much both of form and of language into the statute and that the language used by the legislature clearly and adequately expresses the intent that the benign provisions of the Act should be extended to all classes covered by the Act without regard to the date of the marriage of the parents. That courts look with disfavor upon statutes not remedial in their nature for which retrospective operation is claimed is true, this being on the theory that retrospective laAvs are often, if not usually, unjust and tend to disturb rights that have become vested. But- the statute involved in the case at bar is not unjust, it does not interfere with vested rights, and is highly remedial in nature. For the foregoing reasons the decree appealed from is affirmed. *268 Prosser, Anderson & Marx and A. E. Steadman for complainant. Lightfoot & Lightfoot for respondent Gleason. F. Schnack for appellant Makaiwi. Huber & Kemp for all other appellants.