Hawaiian Trust Co. v. Stanley , 31 Haw. 705 ( 1930 )

I respectfully dissent. The provision of section 3033, R.L. 1925, that the father of legitimate children "shall be the natural guardian of their persons and of their property" was enacted April 27, 1846, as part of section VII of Article I of chapter IV of an Act to organize the executive departments, and appears to have been, to the extent above quoted, merely declaratory of the common law of the Kingdom of Hawaii as it then existed. The powers of a natural guardian then included, among other things, the control and management of his ward's property. (See Lot Kamehameha v. J.D. Kahookano, et al., 2 Haw. 118, 122, decided in 1858, and Thurston v. Bishop, 7 Haw. 421, 435, decided in 1888.) The Act of 1846 above referred to was known as Act 2, Kamehameha III. The "Act to organize the judiciary department," known as Act 3, Kamehameha III, was passed the following year, namely on September 7, 1847, and contained certain provisions relative to guardianship in chapter IV, the caption of which is "Practice of the courts of record." Article III of said chapter IV is entitled "Of the judicial powers and duties at chambers." Sections V, XIII, XIV, XVI and XVIII of said article III provide as follows:

"Section V. It shall in like manner be incumbent on the person entitled and desirous to have the guardianship of the person of any minor child or infant under the age of fourteen years, and the custody and care of the property of any such child, to apply therefor by petition to the chief justice of the superior court, or some other judge of a court of record at chambers, who shall upon citation of next of kin, and if necessary of witnesses, have power to confer such guardianship, and again on cause shown, to remove from office the guardian so appointed. He shall also have power upon application and cause shown on citation, to appoint guardians ad libitum, in cases in which minor children or their property are involved before the courts of record."

"Section XIII. In all cases of guardianship, the following order of priority shall be observed: 1. The father of the infant: 2. If there be no father, the mother: 3. If there be no father or mother, the nearest and eldest relative of full age, not being under any legal incapacity; and as between relations of the same degree of consanguinity, males shall be preferred: 4. If there be no father, mother, or other competent relative, any other competent and friendly person."

"Section XIV. The judge appointing administrators and guardians shall always exact bond and security of administrators adequate to secure against fraudulent misapplication of the assets, and of guardians against the squandering and misapplication of the ward's inheritance."

"Section XVI. It shall not be lawful to exact bond and security of the executor of a will, nor of the guardian appointed by a will."

"Section XVIII. They shall have full powers to compel executors, administrators and guardians to the performance of their trusts, and to require them to give account of their administration. They may in case of the moral unfitness or turpitude of the executor to any will appearing after letters testamentary granted, or in case of the death or surrender, or wrongful absconding of any such executor, upon satisfactory proof, appoint any suitable person applying or consenting, administrator de bonis non administravit, annexing to the letters of administration the testator's will, to be scrupulously followed by such administrator. And they may in like manner, and for the like causes, supersede any guardian appointed by will or by letters of guardianship."

That the above quoted sections of the Act of September 7, 1847, with reference to judicial powers and duties at chambers, were not construed to repeal or amend the provisions of the Act of April 27, 1846, with regard to the father's natural guardianship of the property of his child nor to deprive the natural guardian of the powers above referred to, is shown by the opinions in the cases in 2 and 7 Hawaii, above cited. Quoting from the opinion in Thurston v. Bishop, supra, on page 435, "In E.K. Laanui vs. Puohu, et al., 2 Hawn., 162, the supreme court, per Allen, C.J., said: ``By the common law of this Kingdom, prior to the enactment of a law regulating guardians and wards, approved 4th August, 1851, guardians had from time immemorial possessed and exercised the absolute right to dispose of the real and personal estate of their wards as might suit their own will.' The case of Lot Kamehameha vs. J.D. Kahookano et al., 2 Hawn., 118, has greater significance, for the plaintiff is the same person from whom defendants claim in the case at bar. Here Kekuanaoa was not the probate guardian of Lot Kamehameha, but he was his father, and Judge Robertson, for the court, says as against the objection made that he was not the guardian of the plaintiff's estate and could not make a legal dedication of the right of way in question: ``that Governor Kekuanaoa, in 1848, as the natural guardian of the plaintiff, rightfully had and exercised, under the law of this Kingdom, the control and management of the plaintiff's property, is, we think, too clear a proposition to admit of a question.'" Under the opinions last above quoted the power of a natural guardian over the property of his ward continued at least until the enactment of the statute of 1851 above referred to. That the Act of 1851 repealed or amended the Act of 1846 is not decided by either of the two cases above cited. Upon the enactment of the Code of 1859 both the portion of the Act of April 27, 1846, and the Act of September 7, 1847, above referred to, were expressly repealed. See C.C., Sec. 1491. Section VII of article I, chapter IV of the Act of 1846 above cited, with only slight changes in its phraseology and with no change in the portion with which we are now concerned, was then reenacted as section 1288, C.C. 1859. The Act approved August 4, 1851, became chapter XXIX, entitled "Of guardians and wards," of C.C. 1859. The provisions of the Civil Code above referred to all became effective at the same time.

If the Act of 1847, as appears to have been assumed in the two cases above referred to, did not curtail the power of natural guardians over the property of their wards, what other and substantially different provisions of the Act of 1851 or of its subsequent amendments have expressly or by implication produced that effect? In the preamble to the Act of 1851, quoted in the majority opinion, the only rights of guardians therein referred to requiring abridgment and clear definition are the rights theretofore possessed of disposition of their wards' real and personal estates. At a time (1884) subsequent to the enactment of the statute last above referred to it was held by a single justice of this court that "a father has no authority as such to lease his children's lands" (Hanuna v. Unna, 6 Haw. 485), and the case last above cited was later (1905) followed by this court in Iona v. Uu, 16 Haw. 432. Some support is thus given to the view that there has been judicial recognition of the fact that the former powers of the natural guardian of a ward's property have been abridged at least in so far as the "absolute right to dispose" of the same is concerned — though the decisions above referred to say nothing about former powers or their abridgment, and the above quoted portion of the decision of 1884 cites in its support only a passage from the text of Washburn on Real Property which was based upon decisions in jurisdictions having a different common law and statutory background from that here involved. However, the question of the natural guardian's right to dispose of his ward's property is not now before us. We are presently concerned only with his right to the custody of the same. The above quoted preamble expresses no purpose to abridge this right and even if it did express such purpose in clear and unequivocal terms, the purpose could only be effected by statutory enactment. Let us examine the body of the statute itself, following the enacting clause, to see if such purpose, if it existed, was there carried out. Sections of the Act of 1851, later amended as set forth in the majority opinion, are as follows:

"Section 1. That any judge of the superior court of law and equity, when it shall appear to him necessary or convenient, may appoint guardians to minors and others, being inhabitants of or residents in any part of this kingdom, or who may reside without this kingdom, and have any estate within the same.

"Section 2. Any circuit judge of this kingdom may, when it shall appear to him necessary or convenient, appoint guardians to minors and others, being inhabitants of or residents in the island in which he is a judge.

"Section 3. If the minor is under the age of thirteen years, the judge of probate may nominate and appoint his guardian, and if he is above the age of thirteen years, he may nominate his own guardian, who, if approved of by the judge, shall be appointed accordingly, and if the guardian, nominated by such minor shall not be approved by the judge, or if the minor shall reside without this kingdom, or if after being cited by the judge, he shall neglect to nominate a suitable person, the judge may nominate and appoint the guardian, in the same manner, as if the minor were under the age of thirteen years.

"Section 4. Every guardian, appointed as aforesaid, shall have the custody and tuition of the minor and the care and management of his estate, and shall continue in office, until the minor shall arrive at the age of twenty years, or until the guardian shall be discharged according to law; provided, however, that the father of the minor if living, and in case of his death, the mother, while she remains unmarried, being themselves respectively competent to transact their own business, shall be entitled to the custody of the person of the minor, and to the care of his education."

Section 5. (Except for subsequent amendments with which we are not now concerned, this section is substantially as set forth in section 3067, R.L. 1925, quoted at length in the majority opinion.)

Sections 6 and 7. (These sections are substantially as now provided by sections 3068 and 3069, R.L. 1925, quoted in the majority opinion.)

None of the foregoing sections of the Act of 1851 expressly repeals any former provision, and the Act as a whole contains no general or specific repealing clause. It is claimed in effect that section VII of article I of chapter IV of the Act of 1846 (which with its amendments, after many subsequent reenactments, is now section 3033, R.L. 1925) is inconsistent with section IV above quoted of the Act of 1851 (now with later amendments section 3066, R.L. 1925), and that the latter provision shows a legislative intent to repeal, amend or construe the former to the extent of taking from natural guardians their right to the custody of their wards' property; but there is no irreconcilable conflict between the two sections and their legislative history as hereinabove set forth forbids such construction. Effect therefore should be given to the still existing provision that the father is the natural guardian of his children's property and this can be done by affirming his right to the custody of the same at least until the jurisdiction of the court has been successfully invoked under the later provisions.

For the reasons above set forth I believe that upon the agreed statement of facts judgment should be for the natural guardian.