Ah Leong v. Ah Leong ( 1927 )

I concur in the conclusion that no contract, express or implied, is shown to have been entered into by the parties with relation to a joint ownership of property to be accumulated by the husband and in the findings and reasoning leading to that conclusion. I concur also in the conclusion that in this jurisdiction a putative wife, in the position of the complainant, cannot recover a share of the husband's property, accumulated with such assistance as a conscientious or an ambitious wife ordinarily gives her husband and as this complainant gave to the respondent. Except as herein stated, I concur also in the reasoning supporting the latter conclusion.

Imbued, as both parties may well have been, with Chinese notions of marriage and concubinage, the case is, upon the evidence, susceptible of more than one argument as to the meaning attached by the complainant at the time to the ceremony in which she took part in Kohala in 1884. It is unnecessary to determine whether either or both parties believed at the time that the marriage was valid under the laws of Hawaii and that it meant just what marriage means to us. It may be assumed for the purposes of this case that the complainant did so believe and that the respondent knew of its invalidity and intended thereby to deceive the complainant, — for even upon this assumption the prayer of the complainant in this suit cannot be granted.

It seems to me to be beyond doubt that at common law no such remedy as is sought by this complainant was available to a putative wife. In none of the books is the statement to be found that at common law such a remedy was allowed to a woman who had in good faith entered into a marriage which was subsequently found to be, for some reason, invalid. A careful reading shows that practically every decision rendered in favor of that supposed right of the wife is based upon the assumption that at the common law there was no such remedy. In some the civil law is cited as the authority for the rule adopted. In others the community property law, in force in those jurisdictions, and its analogies clearly influence the conclusions reached. In still others resort is had to the theory of partnership or quasi partnership. In none of them is the common law referred to as the authority for the allowance.

In England the court in 1909, referring to the Matrimonial Causes Act of 1907, said: "What, prima facie, are her rights? The object of that Act, so far as nullity suits are concerned, was to remedy a defect that previously existed. In some cases of nullity, for instance, a husband or wife of one of the parties turned up after a number of years, and there was no power, in the absence of a settlement, to do anything for the woman who had believed herself a wife, and perhaps had children, and who might be left destitute." Dunbar v. Dunbar, L.R., Probate Div. 1909, 90, 91. In De France v. Johnson, 26 Fed. 891, 894, referring to annulment of a void marriage and to the fact that the statutes of Minnesota gave no validity to the claim of the wife, although she was in ignorance of a former wife living, the court said that "she is subject to the harsh rule which declares a second marriage ipso facto void, and denies to her any right in Johnson's" (the husband's) "estate" and spoke of this as the injustice of "a rule of the common law which subjects the innocent party to the harsh consequences of such a connection." In Carpenter v. Smith, 24 Ia. 200, 202, the court said: "The fact that S.R. Carpenter had a lawful wife living rendered the marriage with Susan A. Carpenter void ab initio. He acquired no rights thereby; she lost none. The marriage in no way affected her positive or relative rights, for, in truth, it was, in law, no marriage, the man and woman being incapable of entering into the marriage relation with each other. He acquired no right to her property and she none to his, by virtue of the marriage, and they stood in the same relation to each other as though it had never taken place." No statute was cited and the reference evidently was to the common law.

"No authority has been produced in which a feme sole, under the circumstances of this case, has recovered the value of her dower in the estate of her wrongdoer. Had it been allowed, such recoveries must have been frequent, as divorces have often been granted to women for causes which render the marriage null and void, ab initio. But dower does not attach, by virtue of any contract, express or implied, made by the husband to the wife; it is a consequence of marriage, and is a provision made by law for the sustenance of the widow and the nurture and education of her children." Higgins v. Breen, 9 Mo. 497, 501. No statute was cited and the reference was doubtless to the common law.

In Schneider v. Schneider, 191 Pac. (Cal.) 533, 534, 535, the court clearly recognized that under the common law the wife could not recover. It said, inter alia: "It will not do to refer to the decisions in common-law states to sustain the proposition that the woman under such circumstances has no right to any part of the property so acquired. In those states, by entering into the marriage contract, she understood that all the property they might acquire while living together should belong to the husband, but in this state she understood that their rights in the property they might accumulate should be equal. * * * In California, as in Texas, the common law is the general rule of decision, but in both states the law regulating the mutual property rights of married persons is radically different from that law; and, while we do not wish to be understood as saying that the rule of the common law as to husband and wife apply to no case under our system, yet we agree with the Texas courts that the common-law rule as to the consequences of a void marriage upon the mutual property rights of the parties to it is inapplicable where the community property regime prevails."

Again, in 13 R.C.L. 995: "At common law a valid marriage is necessary in order that the parties may acquire rights in each other's property by virtue of that relation. When a marriage is void, as distinguished from one which is voidable merely, and is deemed perfectly valid unless annulled during the lifetime of the parties, as where one of the parties had a wife living at the time of a second marriage, the broad view is taken, though recognized as a harsh one, that the wife in such a case, though innocent and though she acted in good faith, does not acquire the rights of a lawful wife. Thus it is a well settled rule of the common law, that to entitle a woman to claim dower in the estate of a decedent she must have been his lawful wife and to entitle a man to claim an estate by the curtesy in the realty of a deceased wife he must have been her lawful husband." At page 994 the same authority states the rule of the civil or Spanish law to the contrary. See, also, Schmitt v. Schneider, 35 S.E. (Ga.) 145, 146, referred to in the leading opinion; and 19 A. E. Ency. L. 1221.

Once it is ascertained, as this court now does unanimously, what the rule of the common law was and that that rule is not rendered inapplicable in the particular case by any statute, prior decision or custom of this jurisdiction, the common-law rule is the law and must be enforced. R.L. 1925, section 1, so commands. This court has not the liberty which the supreme court of Kansas enjoys in the matter. By statute in that State the common law is adopted or continued in force "only as modified by constitutional and statutory law, judicial decisions, and theconditions and wants of the people." Cooper v. Seaverns, 25 L.R.A., N.S. (Kans.), 517, 524. The expression italicized gives the court wide latitude in rejecting the provisions of the common law which are deemed to be unsuited to present conditions. An exception or qualification to the same effect was recommended to the legislature of Hawaii at its session just ended and was not adopted. Section 1 of the Revised Laws gives us no such latitude.

I am unable to join in the view that this failure of the common law to authorize a grant to a putative wife of a share of the property of the husband accumulated with her aid after the marriage is, in this Territory, an injustice to her. Under the laws in force here in 1884 and ever since a wife, lawfully married, acquires no right to a share, as such, of the husband's property, accumulated though it be, in part, as a result of her sacrifices and assistance. The ordinary wife renders that assistance, not because of any expectation of reward in the form of an allotment out of that property for herself but from other motives as, for example, an ambition to see her husband succeed and a desire to have him reach a condition financially where he can better provide for and maintain her and her family. If the marriage is valid the wife is legally entitled to receive from the husband nothing more than support and maintenance during his life and dower after his death, if she survives him. This is not a suit for maintenance and support. There is no allegation that the complainant has not received the maintenance and support which would have been her due as a wife; and if she has received that she has received all that she could have lawfully expected to receive when she entered into the supposed marriage. Nor is it a suit for an allowance to her by way of dower. It is not yet known whether the complainant will survive the respondent. If the respondent intentionally deceived her with a spurious marriage she has a right to an action at law against him for damages for the deceit (Cooper v. Cooper,147 Mass. 370, 372); but in such an action the principles governing a recovery would be very different from those sought to be applied in this suit. In an action at law the measure of the recovery would be the amount of damages which she has suffered and not the amount of property which the respondent owns.

For another reason, also, a division of the property as prayed for cannot be decreed. Our statutes sufficiently indicate the policy of the Territory in this respect. R.L. 1925, section 2958, provides: "Every woman who shall be deceived into contracting an illegal marriage with a man having another wife living, under the belief that he was an unmarried man, shall be entitled to a just allowance for the support of herself and family out of his property, which she may obtain at any time after action commenced, upon application to any circuit judge having jurisdiction; provided, always, that such allowance shall not exceed one-third of his real and personal estate. In addition to such allowance, the judge may also compel the libellee or defendant to advance reasonable amounts for the compensation of witnesses and other reasonable expenses of trial to be incurred by the libellant or plaintiff." Enumeratio unius est exclusioalterius. If it had been the purpose of the legislature to permit a similar allowance to every woman who has been deceived into contracting an illegal marriage, irrespective of the method of the deceit or the cause of the mistaken belief, that intention could have been easily expressed. This statutory grant of relief in cases where the erroneous belief of the wife was that the husband was an unmarried man clearly indicates the intention of the legislature not to allow the same or similar relief in cases where the erroneous belief was caused by other forms of deception or, as may have been the case in this instance, was due to ignorance of the law. This partial modification of the common law excludes the possibility of a further modification. In another respect, also, this statute shows the legislative attitude that in the class of cases in which relief is granted at all the allowance shall be purely for the support and maintenance of the wife and family and not by way of a grant of a portion of the husband's estate not needed for this specified purpose. It seems to me that this statute alone, if there were nothing else to the case, would require a denial of the prayer for a portion of the respondent's estate.

I concur in the view that the decree appealed from should be affirmed but I do so without any thought that injustice is being thereby done to the complainant.