The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1881-07-09

'1NNa EA6NANNS N1&a
a sun Tor annniment shall not be brought BY the
party who was Of age TO marry is plain, that be
shall not take advantage Of his own wrong. The
marriage then may be confirmed, that is compile
tea ana made valid by voluntary eohabitatiou
aiter reaching the legal age. without another
accumulation The provision for bringing suit
tor annulment is only limited by the negative OF
the party who was of age. Parents, guardians.
or any person admitted by the Court NAV bring
the suit on behalf of the minor. Upon the Judi
cal determination of the fact of non age the
Court finds that the marriage was null, oJ fniiio,
that 1t bad never been a valid marriage. And
IN this CONGESTION il may be observed that n
penal Statute enacted in 1874, subsequent 10 the
provisions OF the Civil Code above cited makes
sexual Intercourse with any female Of this King
dom under the age Of fourteen years an ofense
punishable by Imprisonment at hard labor NOT
less than three nor more than eighteen months,
with no exception in favor of marriage.
Under the proceedings in a probate Court it
becomes necessary to determine an alleged fact
OF marriage. Ii Amin takes in the distribution
OF this estate IL is because he was legally married
to Emmeline Gordon. He can only take on proof
of n legal union with her. This Court must
ascertain ii he stands in an inheriting relation
ship, as well if he claims it by marriage as If the
CLAIM were By co%nsanguinity. There can be no
doubt that the question can be raised by any
person interested in the distribution, and IL has
been raised in this case. The claimant argues
that this marriage differs from some other invalid
marriages in that it may become valid By lapse
OF time with the continued consent OF the minor.
while a marriage between parties within the
prohibited degrees, say of brother and sister must
always be invalid and a marriage which was
bigamy in the beginning would not be validated
by the death or divorce Of the first husband or
wife and that this is therefore a valid marriage
till it is pronounced invalid IN a Court entertain
ing divorce matters. If this proposition is
granted to be true 50 far as the status of the
m ~ .n-~ . nn-,D--~l - 49, -
Capitalization could not be treated as illIsit and
adulterous, 1T is necessary now TO pronounce
atirmatlvely or negatively upon the legality OF
the marriage as it stood at the date of the death
of Emmeline. There was a potentiality of a
valid marriage here, that is If Emmeline survived
to the age OF IA and continued of a mind to keep
Amin for a husband. By Section 1919, upon the
annulment OF a marriage on account of homage
the issue shall be deemed TO be in all respects
the legitimate issue Of the parent who at the time
OF the marriage was capable of contracting. leav-
ing the legitimacy as to the other parent subject
perhaps to the same result as to the marriage itself.
In view of the above cited Statute provisions
what is the force Of the phrase, In order to
make valid the marriage contract IL shall be
necessary, &c?" 1t is clear that such a marriage
is not simply void and without legal force, for
the party who is of age is married as to the Other
party who is under age and as to their issue,
which is Legitimate to him. And it is clear that
the marriage binds the minor until he or she
dissent being yet under the age of consent. 1t il
made a valid marriage by mere consent aud CO.
habitatlon after arriving at age, without a new
solemnization on 4 new license granted by an
agent to grant marriage licenses. The previous
ceremony and license are the license and ceremony
which have married them, for the law of this
Kingdom does not recognize a union by rerba de
present..
There is a clear distinction drawn in the Sta
tutes between marriages void and Yoidable, but
thew are alike in This raSOnot that tho foot ~
which n decree OF nullity may be founded is one
existing at the date Of the marriage, and it is
nothing depending on the conduct of the parties.
Thus the fact of having an undivorced wife or
husband living at the the time of the marriage
has only to be found by the Court to procure a
decree, although the previous husband or wife
may have died or been divorced since the second
marriage. A marriage incestuous, even without
the knowledge of the parties contracting it must
be dissolved whenever the fact appears to the
Court.
But a maEriage voldable from homage, cannot
be made void by the party of age and it may be
confirmed by the minor. The defect is durable.
The phrase - to make valid" must then be
understood to be consistent with the difference
between void marriage and voidable marriage
as to the latter it implies only that there is an
existing condition which may procure an annul-
ment Of the contract.
Counsel for the heirs cite the case of Fornshill
VS.. Murray, from Vol. Is, of - American De-
cisiOns. "a case heard by Bland, Chancellor OF
Maryland. 1t is an action against an admins
traitor, wherein several persons claim as the
children OF one Mary, n sister of decedent.
Against their claim 1t is set up that they were
illegitimate, for the reason that their mother ut
the date of her marriage, had a lawful husband
living in ireland, whom she had deserted. The
Court finds that by the English rule the validity
of 6 marriage which is not absolutely void but
merely %voidable, can only be drawn in question
and 6atarDnJnaH in a Snif inStit,EoI T, - -.
pose in the Ecclesiastical Court, which of course
can only be done in the lifetime Of the parties,
as, by the deatd of husband or wife, the mar
riage is at an end, and that thereafter no
judicial proceeding can be had in any Court for
the purpose of declaring such a marriage null
and void. for the purpose of bastardizing the
ssue of such marriage, or barring the husband
of his courtesy or the widow of her dover. Co.
Lltt. 80. The Court would not therefore enter
tain a proceeding to bastardize the issue of the
said Mary. But when the issue claim and found
their title to recover essentially upon the validity
of the marriage aud their own legitimacy, it has
never been questioned that the Court might in
into and decide upon the validity Of the
or the fact of legitimacy ; and thus
accordingly the Court held that as the marriage
in question was not vOidable but void. the issue
IF it could not take Of the estate.
But there should be a difference between a
=" utterly void, " as in the case cited.
md a marriage merely Voidable. This marriage
vas invalid only in tha5 there was in it a fact,
want of age, upon which it could be
made void, but it had not been so made.
Following the cases cited in Fornshill vs..
by the death of Emmeline the marriage
s at an end, and cannot be annulled. The void
Lbility of the marriage has closed by the death.
If this proposition is correct, it follows that
Anin remains with the rights of a husband in
lis wife's estate.
And 1t is ordered that Amin do take, as the
husband surviving, and without issue, of the
aid Emmeline Gordon, deceased.
A. s Hartwell for Amin, Castle & Hatch, for
he heirs of Henry Gordon.