The courts of Hawaii having, prior to the annexation, construed
the statute of May 24, 1866, legitimatizing children born out of
wedlock by the subsequent marriage of the parents as not applicable
to the offspring of adulterous intercourse, and the organizing act
of the Hawaii Territory having continued the laws of Hawaii not
inconsistent with the Constitution or laws of the United States,
this Court adopts the construction of the Hawaiian statute given by
the courts of that country.
While in different jurisdictions statutes legitimatizing
children born out of wedlock by the subsequent marriage of the
parents have been differently construed as to the application
thereof to the offspring of adulterous intercourse, in construing
such a statute of a territory, this Court will lean towards the
interpretation of the local court
The construction of a statute affixed thereto for many years
before territory is acquired by the United States should be
considered as written into the law itself.
Page 210 U. S. 150
An
ex parte and uncontested proceeding construing a
statute and directing payment in accordance with such construction
cannot be pleaded as
res judicata in a subsequent
contested proceeding.
17 Haw. 46 affirmed.
By the last will of Joshua R. Williams, duly admitted to probate
by the proper court of the Hawaiian Islands on July 30, 1879,
William R. Castle, the appellee, was appointed trustee to collect
and manage the estate of said Williams. After the decease of
Williams, Castle duly qualified and entered upon the performance of
the trust. He was charged with the duty of paying the income of the
estate to named beneficiaries during life, and, on the decease of
any of such beneficiaries, the share was to be paid to the
children, and the distribution of the principal of the estate was
postponed to a remote period. One of the named beneficiaries was a
son, John. He married, and his wife bore him a son, Othello. While
John was living in lawful wedlock, another woman bore him two
children -- Annie, born in 1879, and a son, Keoni, born in 1883.
Some years subsequent to 1883, his first wife having died, John
married the mother of his two illegitimate children. John died
about 1891, leaving his second wife surviving him, as also the
child Othello by the first wife and the two illegitimate children
referred to. One of these, Annie, married one Kealoha, and in 1905,
after she and her brother Keoni had reached their majority, they
filed in the Circuit Court of the First Judicial Circuit, Territory
of Hawaii, a bill against Castle for an accounting, in which
substantially the facts above stated were set forth. It was also
averred that, although, on an application by the trustee, he had,
in 1891, been instructed by a justice of the court to make payment
to the said Annie and Keoni of their shares, on the theory that
they had been legitimated by the marriage of their parents, the
trustee had ceased to make said payments, and denied that they were
entitled to receive any portion of the income or to share in the
principal of the estate. It was prayed that the trustee might be
ordered to render an account and be compelled to make payment of
the
Page 210 U. S. 151
portion of the income to which it might appear the petitioners
were entitled. A demurrer was filed to the bill, and the question
whether the demurrer should be sustained was reserved to the
supreme court of the territory, it being stated in the certificate
that the following question of law was raised by the demurrer, upon
which the court was in doubt,
viz.:
"Whether or not said demurrer should be sustained or overruled,
which involves the construction of § 2288, Revised Laws of Hawaii,
and its application to the facts as alleged in the bill herein --
that is to say, were the petitioners made legitimate by the
marriage of their parents subsequent to their birth, and thereby
rendered capable of inheriting from their father, J. R. Williams,
deceased?"
The supreme court held that the demurrer ought to be sustained,
and, upon remittitur, the circuit court entered a decree sustaining
the demurrer and dismissing the petition with costs. This decree
having been affirmed by the supreme court of the territory, the
case was brought here by appeal. 17 Haw. 415.
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
The assignments of error assailing the action of the supreme
court of the territory propound two questions for our
consideration:
1. Was it error to hold that, as the appellants were the issue
of an adulterous relation between their father and mother at a time
when the father was the lawful husband of another, they were not
made legitimate by the marriage of their father
Page 210 U. S. 152
and mother after the death of their father's first lawful wife,
and by force of the statutes of Hawaii?
2. Was it error to hold that the instruction given to the
appellee in 1891, to make payment to the appellants of a portion of
the income of the trust property, the title to which is in dispute
in this suit, on the theory that they had become legitimate by the
subsequent intermarriage of their parents, did not make the matters
in dispute
res judicata during the entire administration
of the said trust property?
As to the first question. The law in force at the time
of the death of the testator, Williams, in 1879, which, on the
marriage of the parents, legitimated children born out of lawful
wedlock, was passed on May 24, 1866, by the Legislative Assembly of
the Hawaiian Islands, and appears as the first statute in the
session laws of 1866-67. It is also contained in Comp.Laws 1884, p.
427, and Civil Laws of 1897, § 1876. The statute was carried into
the Revised Laws of 1905 as § 2288, in similar phraseology, and
reads 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."
In the year 1880, in
Kekula v. Pioeiwa, 4 Haw. 292, the
proper interpretation of the act of 1866 was directly involved. The
action below was in ejectment. Plaintiff was the issue of a woman
by a man not her husband, he being then married to another. The
wife having died, the father married the mother of the plaintiff.
The right of the plaintiff to recover depended upon the fact of his
constructive legitimacy. It was held, however, that the act of 1866
did not apply to the case of an adulterous intercourse, and that
the offspring of such intercourse could not inherit from the
father. While it was observed in the opinion that to enforce a
contrary doctrine would be opposed to good morals, it is plain that
the conclusion reached was that the statute was adopted by the
legislative department of the Hawaiian government with the
intention that it should have the restrictive effect given to it by
the court. In other
Page 210 U. S. 153
words, it was decided that the statute should not be broadly
construed, as was claimed on behalf of the plaintiff. The statute
was not afterwards modified; the decision in the
Kekula
case has never been disapproved or doubted by the court which
rendered it; it has undoubtedly become a rule of property, and was
followed in the instant case. On the coming of the Hawaiian Islands
under the sovereignty of the United States, this statute was in
force, with the construction given to it by the highest court of
the country, and its continued enforcement was in effect ordained
by the organic act, which, in § 6, provided:
"That the laws of Hawaii, not inconsistent with the Constitution
or laws of the United States or the provisions of this act, shall
continue in force, subject to repeal or amendment by the
legislature of Hawaii or the Congress of the United States."
In Kentucky, in 1887 (
Sams v. Sams, 85 Ky. 396, when
the facts were somewhat similar to those in the instant case), it
was held:
"Legislation admitting illegitimate children to the right of
succession is undoubtedly in derogation of the common law, and
should be strictly construed, and hence it has generally been held
that laws permitting such children, whose parents have since
married, to inherit do not apply to the fruits of an adulterous
intercourse."
In other jurisdictions, however, statutes of similar character
have been given a broad construction, and, where exceptions have
not been stated, none has been implied.
Brewer v.
Blougher, 14 Pet. 178;
Hawbecker v.
Hawbecker, 43 Md. 516;
Ives v. McNicoll, 59 Ohio St.
402.
And see Carroll v. Carroll, 20 Tex. 732;
Monson
v. Palmer, 8 Allen 551;
Adams v. Adams, 36 Ga. 236;
State v. Lavin, 80 Iowa 556. But, under the circumstances
to which we have hitherto called attention, we do not think we may
enter into a consideration of these conflicting decisions. Even in
the case of a law adopted by an organized territory of the United
States at a time when it was subject to the control of Congress,
the rule is that we
Page 210 U. S. 154
will lean towards the interpretation of a local statute adopted
by the local court, and that, where a statute of a territory had
been in existence for a considerable time, and been construed by
the highest court of the territory, even apart from its
reenactment, weight attaches to the construction given by the local
court.
Copper Queen Mining Co. v. Arizona Territory,
206 U. S. 474. The
case at bar, however, more cogently calls upon us not to disregard
the construction given to the statute by the highest court of
Hawaii. Here, the law in question was passed while Hawaii was an
independent government, and its meaning was declared by the court
of last resort of that government; and, as we have said, that law,
as thus construed, was given recognition by the organic act. The
subject with which the law deals, the rights which may have come
into existence during the more than forty years in which the
statute has been in force, admonish us that we may not overthrow
the meaning given by the court of last resort of Hawaii, and which
has prevailed for so many years. Indeed, as the construction
affixed to the statute many years before the islands were acquired
was final, in effect that construction had entered into the statute
at the time of acquisition, and must by us be considered as if
written in the law.
As to the question of res judicata. It was averred in
the petition in the circuit court as follows:
"4. That, in the year 1891, the said respondent, being uncertain
as to the propriety of paying over to the said children, or to
anyone in their behalf, their share or any portion of the income of
the estate of said J. R. Williams, deceased, applied to the supreme
court in probate, said court at that time having jurisdiction at
chambers in matters of probate, for instructions as to the standing
of said children, and that he was instructed and authorized by the
Honorable Richard F. Bickerton, one of the justices of said court,
to make payment to the said children on the theory that they had
become legitimate by the subsequent intermarriage of their parents,
and that thereafter said respondent, as trustee, duly made such
payments
Page 210 U. S. 155
to said Kahalauaola, the mother of said children, in their
behalf, until within a year or two past, since which time
respondent has utterly refused to make payments to the said
children or either of them, or to anyone in their behalf, claiming
that they were not, and are not now, entitled to receive any
portion of the income, or to share in the principal of the said
estate of J. R. Williams, deceased."
These averments cannot bear any other construction than that the
application referred to was an
ex parte proceeding. The
circuit court of the territory, we think, correctly disposed of the
claim of
res judicata by the following ruling:
"As to the instruction by Mr. Justice Bickerton, it does not
appear that any notice was given of the proceedings, or that there
was any contest or issue made concerning the legitimacy of
children."
Affirmed.
