24 Haw. 643 | Haw. | 1919
Lead Opinion
OPINION OP THE COURT BT
The agreed case submitted to this court shows inter alios that one Manuel Caetano Baptista, now deceased, married the mother of the plaintiffs when they were both infants of tender age; that he was a member of the defendant society in good standing when he died; that on April 25, 1917, a short time before his death, he filed in the circuit court of the first circuit of this Territory his petition praying that the adoption of the plaintiffs be authorized, legalized and declared valid. They were at this time of the ages of forty-two and thirty-six years respectively. The petition was granted and the decree prayed for ivas duly made by the judge of the circuit court. Soon thereafter the deceased died. By the by-laws of the defendant society when a member in good standing dies a death benefit is payable to certain relatives. Chapter 5 of the by-laws of the defendant society contains the fol
The plaintiffs as children of the deceased claim the said death benefit. The defendant society’s principal claim is that the plaintiffs were not children of the deceased for the reason that the circuit court or judge had no jurisdiction to legalize the adoption by the deceased of the plaintiffs, they being at the time of the decree adults.
While it is true that adoption in its legal sense was unknown to the common law and is a creature of statute in the several states, the majority of which based their statutes upon the civil law, it is beyond question that Hawaii was an absolute monarchy- independent of and uncontrolled by the laws of any country. “He (the King) is the sovereign of all the people and all the chiefs. The kingdom is his. * * * He shall be the Chief Judge of the Supreme Court.” Constitution of 1840', Kamehameha III. That adoption in the broadest sense was practiced among the Hawaiians from very remote times is incontrovertible and most probably was derived from the mammalian instinct, although at times it appears to have been resorted to for the purpose of evading some public duty. “If any parent have five, six or more children, whom they support, * * * then those parents shall by no means be required to pay any poll, land or labor tax until their children are old enough to work, which is at fourteen years of age. * * * But it shall not be proper for any man to adopt the child of another for the purpose of avoiding the labor tax. He may, however, adopt the children of his deceased relations and friends, when the children are thus left orphans.” Laws of Kamehameha III, 1839, Fundamental Law of Hawaii, p. 17.
In the case of the Estate of Nakuapa, deceased, 3 Haw.
While it has been held in several of the states that a statute providing for the adoption of children without any limitation expressed by such words as “minors, infants,” etc., or any words which would logically indicate that the intention of the legislature was to confine the adoption to minors, such statute would be construed to authorize the adoption of adults, we are unable to discover any decision which holds that the word “child,” as used in these statutes, would be construed to include an adult where the language of the statute indicates that the intention of the law-making power was to confine it to minors. An examination of the laws develops the fact, in our opinion, that there never was a law in force in Hawaii providing for adoption which did not, at least by inference, confine the word “child” to minors. In chapter XXI, Laws of Kamehameha III, dated April 24, 1841, we find the following: “It is a great misfortune for children not to be well taken care of. * * * It is well for the law also to aid the parents in taking care of their children. * * *
The language of these laws clearly and logically points to the conclusion that a minor child was exclusively intended. And as these laws were the only written laws authorizing adoption in Hawaii up to the time of the enactment of Act 47, Session Laws of 1915, the adoption of an adult is not authorized by statute in this Territory. These laws of Kamehameha III were never repealed up to 1915,
The next statute upon the subject is section 853 Civil Code of 1859 providing that “The said Justices (of the supreme court) shall severally have power at chambers to * * legalize the adoption of children,” which is followed by section 853 Compiled Laws of 1884 as follows: “The said Justices shall severally have power at chambers to * * * legalize the adoption of children,” while section 883 Compiled Laws of 1884 provides that “The several circuit judges throughout the Kingdom shall he, and they are hereby empowered, to certify and legalize the adoption of children in the same manner with the Justices of the Supreme Court.” The next legislation upon this subject is contained in section 1853 Civil Laws of 1897 providing that “All * * * agreements of adoption, shall, in order to their validity, he recorded in the office of the Registrar of Conveyances, in default of which no such instrument shall be binding to the detriment of third parties, or conclusive upon their rights and interests.” The next reference to adoption is in section 1648 R. L. 1905, providing that “Circuit judges * * * shall have power at chambers * * to legalize the adoption of children,” while section 2994 R. L. 1915 provides that “An adopted child, whether adopted by decree or judgment of a judge or court, or by an agreement of adoption legalized by a judge or court, or by an agreement of adoption duly acknowledged and recorded according to law, shall inherit estate undisposed of by will from its adopting parents * •* The foregoing is a re-enactment of Act 83 Session Laws of 1905. Act 47 Session Laws of 1915, approved April 6, 1915, pro
The effect of this act is to repeal the only laws existing in this Territory authorizing the adoption of children and prescribing- and providing a procedure therefor and as the same was in full force and effect at the time of the decree of adoption of the petitioners by the circuit judge such adoption was entirely unauthorized by law and is null and void.
As this decision disposes of the entire controversy we
Concurrence Opinion
CONCURRING OPINION OF
I am in accord with the conclusion reached in the majority opinion. I base my concurrence, however, solely upon the effect of Act 47 S. L. 1915, which I think necessarily confines adoption proceedings in this Territory to minors. The opinion herein overruled Souza v. Lusitana Society, 24 Haw. 396. The error there would not have occurred but for the failure of counsel to call to the attention of the court the existence of Act 47 S. L. 1915, by virtue of which section 2994 R. L. 1915 was repealed.
