The Hawaiian gazette., 1894-08-03

/
would practically amount to choosing
for him one way-as much so as tc
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 TO be
commenced, leaving it to the trial
court 10 postpone the hearing in its
discretion until such time as the ward
may recover his reason if there is sut-
ficient prospect of such recovery, and
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 wards
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 it
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
to hold that, in the absence of the
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 to insane persons, but the
Court held that a 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 guardian on behalf of
an insane ward. 1t is true that our
statute provides that the libel shall
''be signed by the libellant,n 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 d. |
vorce act, il 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 1
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 |
Court in Baker V. Baker, SUI
pra: "If an insane respondent must |
defend herself as best she may by |
means of a guardian Gd 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 |
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 person insane or
under legal age, and because there is |
no similar provision in the divorce |
Act, it must be inferred that the leg
islature meant to exclude divorce |
suits by guardians, on the principle
that erpressiO uHius est erclusiO |
dlterius. 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
nullity; and there was nothing spe-
cial to call 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 contended that the pro-
visions for suits by guardian in the
nullity 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 1871 of the
Civil Code which relate to suits for
but which do not refer to
guardians in any way.
The demurrer should be overruled.
A. s. Hartwell and Carter & Carter
for libellant; C. w. Ashford for libel
lee.
uopoI,,I,, TuIy on 1901