The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-08-04

brought under any circumstances
would practically amount to choosing
for him one way-aS much so as to
say that such suit might be brought
would amount TO a choice the other
way. The better policy, it seems to
us, would be to allow such suits 10 be
commenced, leaving it to the trial
court TO postpone the hearing in its
discretion until such time as the ward
may recover his reason if there Is sur
ficient prospect of such recovery, and
if not then to be vigilant in seeing
that the ward is fully protected from
fraud, collision or other unfair adj
vantage of any kind. The guardian
is appointed for the benefit OF the
ward, and if it appears for the ward's
benefit to have divorce, the GUARDIAN
should be allowed to bring the proper
proceedings, since the ward himself
cannot do so. This is the business Of
the guardian, and, although mistakes
may be made in this respect as well
as in other matters, by doing what
the ward would prefer, If sound, to
have let undOne, yet on the whole 1t
is better in this case as IN other cases
for the law to provide for the care of
those unable To- take care of them
selves.
On authority, we should be obliged
statute, this suit could not be main
tanned, and the sole question is wheth-
er our statutes go to the extent of
allowing such suit. The question of
policy, of course, cannot alter the law
as passed by the Legislature, but has
considerable bearing upon the con-
struction to be placed upon the statute
insofar as IL is doubtful, and should be
considered in order TO understand the
state of the law in the absence of
statute.
In Massachusetts, the statute merely
provided that libels for divorce should
be signed by the libellant if sane or of
age, otherwise by his guardian. The
Legislature in so doing apparently
considered that it was not altering
the character OF the marriage status,
or making any great innovation in
the law, but rather merely providing
for the method of procedure. Before
the statute no case had arisen in that
State in which the guardian of an in
sane person had attempted to sue for
a divorce on behalf of his ward. In
England the statute did not in any
way refer 10 insane persons, but the
Court held that u divorce might be
obtained even by guardian of the
estate mot of the person. on behalf OF
such person, merely because the di-
vorce statute made no exception as to
such persons.
Our statute of divorce is much like
the English statute so far as the pur-
poses of this case are concerned. 1t
does not refer to insane persons, but
by the reasoning of English Courts
would undoubtedly authorize a suit
for divorce by a guardian on behalf OF
an insane ward. 1t is true that our
statute provides that the libel shall
''be signed by the libellant," and that
an insane person cannot do this. But
the English statute went further and
provided that the petitioner should
verify his petition by affidavit, and
yet it was held that this might be
done by his committee, "who would
in fact be the petitioner on the luna
ties behalf" But, if there should be
any question on this point in our di
vOrce act, it is solved by the provision
of the law relating to guardians Civil
Code, Sec. 1859, that the guardian of
an insane person "shall appear for
and represent his ward in all legal
suits and proceedings, unless where
another person is appointed for that
purpose" And we hold that this pro-
vision of the Code, taken in cOnnec-
ton with the divorce act, authorizes
suits for divorce by guardian of the
person and property on behalf of his
insane ward. AS remarked by the
English Court in Baker V. Baker, SUI
pra: eff an insane respondent must
defend herself as best she may by
means of a guardian cd Item, do not
see where the act has indicated that
an insane petitioner may not institute
a suit for divorce through his COM
mittee, as he might sue for the breach
of an ordinary contract and ''aS pro-
ceedings for divorce are civil, though
no provision for the case of lunaticS is
contained in the Act, recourse must
be had in such case to the ordinary
forms of civil courts where lunatics
are litigants."
1t may be argued that because our
statute relating to nullity expressly
provides for the bringing of such suits
by the guardian of a person insane or
under legal age, and because there is
no similar provision in the divorce
Act, il must be inferred that the leg
islature meant to exclude divorce
suits by guardians, on the principle
that erpreSSiO u1lius est e.rcIusiO
uLteriuS. But this is purely a ques
ton of intention. The divorce Act
was passed some years after the pro-
visions of the Code which relate to
luAiltN1 anu llIcic hdS iiOlIIIuS SlC-
cial TO cali the attention of the legis-
lature to the case of persons insane or
under age IN the divorce law as there
was in the nullity law, for insanity
and homage are made grounds of
nullity but not of divorce. 1t would
hardly be cOntepded that the pro
visions for suits by guardian in the
nudity act would exclude suits by
guardian under sections 100, 11l6 and
Ills, OF the Civil Code which relate to
actions on contract and other matters
or under sections 1886 1911 of the
Civil Code which relate to suits for
but which do not refer TO
guardians in any way.
The demurrer should be OverIuled.
\. >. Hartwell and Carter X Garter
for libellant; G. w. Ashford for libel
lee.
Honolulu, Jul 20, 1894.
DISSENTING OPINION.