The Hawaiian gazette., 1888-05-01

ERToS AND DOLE J. J.J
Opinion OF tie CoRst By PRESTON J.
This is submission under Sections
114O, 1141, 1912 and l143 of the
Civil Code.
The submission states that on the
18th day of June, 1888, an agree
ment was made and signed by. c. w.
Clark as adopting parent, and Har-
riet Dwight, widow, the mother of
the plaintiff, J. G. Dwight. That
on the 18th of July, 1888, the said
Harriet Dwight intermarried with
one Alexander McGregOr, and that
during such Coverture she acknowi-
edged the execution of the said
agreement, before the Chief Justice,
and was afterwards divorced and
married the plaintiff, J. II. Black.
That at the time of the execution of
the said agreement and up to the
time of his death, the said c. w.
Clark was married man, and his
wife was not made party to the
said agreement. That on the 4th
day of June, 1867, the said C. w.
Clark took out life policy in " The
New England Mutual Insurance
Company" for one thousand dollars
payable ito his surviving children"
That the said c. w. Clark died on
the oath day of October, 1887, leav-
ing a will, devising and bequeathing
all his estate TO his wife, and naming
her as executrix, and that said will
had been admitted to probate. That
the sum Of 81, 900, pay able under the
said policy had been paid into the
hands of Castle & Cooke, the Insur-
ance Company's agents, which firm
was composed of the defendants,
Castle, Atherton and G. P. Castle,
and the parties submitted the follow
ing questions of law to the Court:
Is the adoption agreement valid
in law? and under the same is the
said James Gilbert Dwight entitled
To a like share with any surviving
child or children of the said c. w.
Clark, born in lawful wedlock?"
By THE CoURT.-It appears by
the adoption agreement annexed to
the submission, that it was aeknowl-
edged by c. W. Clark and Harriet
Dwight, before the Chief Justice, on
the Sd day of August, 1888, but was
not recorded uncil the 9th day of
December, 1887, after the death of
C. W. Clark.
1t is contended on behalf of the |
defendants, that the agreement is
not valid on the ground that it was
not recorded during the lifetime of
the said c. W. Clark.
Section 1868 OF the Civil Code pro-
vides that among other documents
therein mentioned agreements of |
shall, in order to their val
idity, be recorded in the office of the |
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"
We think that the contention made |
by the counsel on behalf of the de-
PENDANTS is a sound one, and there
fore declare that the agreement of |
adoption referred to in the submits !
sion, not having been recorded dur
ing the lifetime of the said C. W. |
Clark, is invalid in law, and conse-
quently the plaintiff, J. g. Dwight, |
is not entitled, as one of the "sur-
viving children" of C. W. Clark, to |
any share in the said Insurance |
Having thus decided that the |
adoption is invalid, it is unnecessary
to pass upon the other points raised /
by counsel for the parties.
Judgment must be entered for the !
defendants with costs.
a. C. Smith for plaintiffs; A. Rosa /
for defendants.
Honolulu, April 81, 1888.