Mutual Life Insurance Company of New York v. McGrew
This is a writ of error to revise the judgment of the supreme court of the state of California, affirming a judgment of the superior court of the city and county of San Francisco in favor of Alphonsine McGrew and against the Mutual Life Insurance Company of New York. 132 Cal. 85, 64 Pac. 1c3.

The action was brought on a policy of insurance payable to Alphonsine C. McGrew, and in the amended answer to the complaint the recovery of a decree of divorce was averred, and it was alleged: 'That under and by virtue of the Hawaiian law in force at the time said decree of divorce was granted and now in froce, it is provided: 'When a divorce is decreed for the adultery or other offense amounting thereto, of the wife, the husband shall hold her personal estate forever, and he shall hold her real estate so long as they shall live; and if he shall survive her, and there shall be issue of the marriage born alive, he shall hold her real estate for the term of his own life, as a tenant by the curtsey; provided that the court may make such reasonable provision for the divorced wife out of any real estate that may have belonged to her, as it may deem proper.' That under and by virtue of the foregoing provision of law, and decree of divorce, all rights of the said Alphonsine C. McGrew in and to said policy of insurance did pass to the said Henri Golden McGrew and become his absolute property, free and clear of any claims of the said Alphonsine C. McGrew, plaintiff herein, whatsoever.'

The amended answer also averred that after McGrew's death one Carter was duly appointed in Hawaii administrator of his estate; and as such administrator he commenced suit against the insurance company in a circuit court of Hawaii on the policy of insurance; recovered judgment October 15, 1895, for the full amount; that the supreme court of Hawaii affirmed the judgment, and subsequently denied an application for rehearing, and that the judgment was thereafter paid.

The trial court made findings of fact as follows:

'1. On the 14th day of September, 1892, this defendant made, executed, and delivered to Henri G. McGrew, a certain policy of insurance, being the same policy mentioned in the complaint herein, wherein and whereby the said defendant promised and agreed to pay unto the plaintiff, Alphonsine McGrew, the sum of five thousand dollars ($5,000.00), upon the death of the said Henri G. McGrew, during the continuance of said policy of insurance, provided said Alphonsine McGrew were living at the time of the death of said Henri G. McGrew, and upon acceptance of satisfactory proof of the death of said Henri G. McGrew, during the continuance of said policy.

'2. Henri G. McGrew died on the 22d day of October 1894, in Honolulu, Hawaiian islands, and said plaintiff survived him.

'3. Said Henri G. McGrew, upon said 14th day of September, 1892, and continuously and up to the time of his death, was a resident of, and domiciled in, the Hawaiian islands.

'4. On the 9th day of February, 1895, plaintiff presented to said defendant satisfactory proof of the death of said Henri G. McGrew, and demanded of said defendant the payment of the sum of five thousand ($5,000.00) dollars, under and in accordance with the terms of said policy of insurance, but defendant has never paid the same, or any part thereof.

'5. Subsequent to the said 14th day of September, 1892, and prior to the 8th day of February, 1894, the said Henri G. McGrew became of unsound mind, and thereafter, upon due proceedings had, Charles L. Carter, residing in the city of Honolulu, was duly appointed the guardian of the person and estate of said Henri G. McGrew, an incompetent person, and continued to hold such office of guardian at the time of the filing of the libel of divorce, and the proceedings thereunder hereinafter mentioned.

'6. On the 8th day of February, in the year 1894, Charles L. Carter, as guardian and on behalf of Henri G. McGrew, an incompetent person, filed in the circuit court of the first judicial circuit of the Republic of Hawaii, which said court has jurisdiction over said parties and over libels for divorce, a libel praying for a divorce from said plaintiff on the ground of her adultery; and thereafter, and on the 11th day of April, 1894, this plaintiff, being then a resident of, and domiciled in, said Hawaiian islands, appeared in said action and contested the same.

'7. On the 23d day of August, 1894, a decision was rendered, and on the 24th day of August, 1894, a decree was signed in said cause by the said circuit court, dissolving the bonds of matrimony theretofore existing between said Henri G. McGrew and this plaintiff, upon the ground of the adultery of this plaintiff.

'8. On the 5th day of April, 1894, this plaintiff left the Hawaiian islands with the intention of not returning to said islands, but of coming to the state of California and of making her home in, and permanently residing in, said state. And thereafter, and in due course of her boyage from the Hawaiian islands and in said month of April, this plaintiff arrived in the state of California, and with said intention above mentioned, thereupon took up her residence in, and made her home in, said state, and with said intention has ever since continuously remained in, and resided in, and made her home in, said state of California; and on the 23d and 24th days of August, 1894, was actually in, and residing in, said state, with the intention above mentioned of permanently residing and making her home in said state of California.

'9. Prior to said 5th day of April, 1894, this plaintiff had been excluded by said Charles L. Carter, as such guardian, from the home of said Henri G. McGrew, and was by him thereafter prevented from returning, and has ever since and until the death of said Henri G. McGrew been by him prevented from returning to the same, and was, on said 5th day of April, excluded from said home by said guardian.

'10. On said 5th day of April, 1894, this plaintiff had no home, and has never since had a home in the Hawaiian islands.'

[Findings 11, 12, 13, 14, 16, and 17 referred to the filing of a bill of exceptions by Mrs. McGrew in the divorce suit, and the statute and rule of court of Hawaii in respect of the practice in relation thereto.]

'15. The following Hawaiian law was in force in the Hawaiian islands at the time said decree of divorce was granted, to wit: When a divorce is decreed for the adultery or other offense amounting thereto of the wife, the husband shall hold her personal estate forever.'

And the court concluded, as matter of law, that the rights of Mrs. McGrew in and to the policy and the moneys due thereunder never passed to her husband, nor did the policy or money due thereunder ever become his property; and that the insurance company was indebted to Mrs. McGrew on said policy in the sum of $5,000 and interest. Judgment was rendered accordingly October 11, 1897, and the case was carried to the supreme court of the state, and the record filed therein December 13, 1897. The judgment was affirmed February 28, 1901, and a petition for rehearing denied. 132 Cal. 85, 64 Pac. 103. This writ of error was allowed by the chief justice of that court.

The supreme court of California held that the construction given by the courts of the Republic of Hawaii to the statute of that Republic that permitted an action for a divorce to be maintained by the guardian of an incompetent person should be accepted, although such was not the law of California, and that the judgment of divorce rendered in that Republic, in pursuance of the statute so construed, should, by comity, be given effect by the courts of California as a decree of divorce; that the statute of Hawaii declaring that, where a divorce is decreed for the adultery of the wife, the husband shall take her personal estate, could have no operation pending the suit for divorce, and not until after the entry of judgment; that Mrs. McGrew was bound by the decree of divorce in Hawaii, so far as the dissolution of the bond of matrimony was concerned, she having appeared to the action; that when a husband commences a suit for divorce, the wife may acquire a separate actual domicil by change of residence from one country to another pending the suit; that Mrs. McGrew became domiciled in California prior to the entry of the decree, and that the statute of Hawaii declaring the forfeiture of her personal property to the husband could not operate in California to affect her, or to give to the husband a policy of insurance, which, by its terms, was payable to her, and which, at the time of the decree, was governed by the law of her domicil in California. No allusion whatever was made by the supreme court to the treaty between Hawaii and the United States.

The decisions of the supreme court of Hawaii are reported, McGrew, a Person non compos, by his Guardian, Charles L. Carter, v. Alphonsine McGrew, 9 Hawaii, 475; McGrew etc. v. McGrew, 10 Hawaii, 600; Carter v. Mutual L. Ins. Co. 10 Hawaii, 117, 559, 562.

In the opinion on the last hearing, December 16, 1896, the court observed: 'The company, not having brought the widow into court by interpleader, is in the unfortunate position of being subjected to two suits,-one by the administrator here, the other by the widow in California. It must now rely on the assumption that the two courts will take the same view of the law.' The court also considered the point that the statute in question, § 1331 of the Civil Code, was repealed by implication by the married women's act of 1888. But it held that the section was not inconsistent with that act, and that it might 'be regarded as a special provision for a penalty or forfeiture in case of a divorce for the offense of adultery.' And the court said that it was glad to know that the section had been repealed. Section 1331 was repealed May 12, 1896 (Hawaii Laws 1896, p. 70, act 24).

Article 8 of the treaty between the United States and the Kingdom of Hawaii was as follows:

'The contracting parties engage, in regard to the personal privileges, that the citizens of the United States of America shall enjoy in the dominions of his Majesty, the King of the Hawaiian islands, and the subjects of his said Majesty in the United States of America, that they shall have free and undoubted right to travel and to reside in the states of the two high contracting parties, subject to the same precautions of police which are practised towards the subjects or citizens of the most favored nations. They shall be entitled to occupy dwellings and warehouses, and to dispose of their personal property of every kind and description, . . . and their heirs or representatives, being subjects or citizens of the other contracting party, shall succeed to their personal goods, whether by testament or ab intestato; and may take possession thereof, either by themselves or by others acting for them, and dispose of the same at will, paying to the profit of the respective governments such dues only as the inhabitants of the country wherein the said goods are shall be subject to pay in like cases. And in case of the absence of the heir and representative such care shall be taken of the said goods as would be taken of the goods of a native of the same country in like case, until the lawful owner may take measures for receiving them. And if a question should arise among several claimants as to which of them said goods belonged, the same shall be decided finally by the laws and judges of the land wherein the said goods are. Where, on the decease of any person holding real estate within the territories of one party, such real estate would, by the laws of the land, descend on a citizen or subject of the other, were he not disqualified by alienage, such citizen or subject,' etc. 9 Stat. at L. 977.

Messrs. Julien T. Davies, Frederick D. McKenney, Edward Lyman Short, William H. Chickering, and Warren Gregor

[Argument of Counsel from pages 297-304 intentionally omitted]

Messrs. J. Hubley Ashton, Richard Bayne, and H. G. Platt for defendant in error.

[Argument of Counsel from pages 304-306 intentionally omitted]

Mr. Chief Justice Fuller delivered the opinion of the court: 

Notes
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