Dissenting Opinion.
I dissent. This proceeding is a libel for divorce commenced February 8th, 1894. Two weeks prior to that time Henri G. McGrew had, by a competent court, and by proper proceedings for that purpose, been adjudged to be non compos mentis, and this action is brought in his name by bis duly constituted guardian. The bill, in addition to setting forth the above facts, alleges a marriage between plaintiff and defendant, at Paris, in France, on March 25th, *4811890, the good conduct of the husband since the marriage, and then'charges the wife with adultery with divers persons, naming some of them, and that the various acts of adultery have been committed by, her, both in Honolulu and San Francisco, at divers times during the two years next preceding the commencement of this action and prays for a divorce, etc. To this bill the defendant interposes a demurrer, upon the ground that it appears upon the face of the bill that the plaintiff has not the legal capacity to bring or maintain this action. The wording of the demurrer is somewhat sui generis but is sufficient to present the question as above stated. Plaintiff joins issue upon this demurrer, and the Judge of the Circuit Court, First Circuit, reserves the question as to the sufficiency of this demurrer and certifies the same to this Court for its opinion thereon.
The words “ non compos mentis” are defined by Bouvier as constituting “ a generic term, including all the species of madness, whether it arise from idiocy, sickness, lunacy, or drunkenness.” These words themselves import the condition of a person not of sound mind, memory, or understanding. In their legal acceptation they import such want of mind or understanding as renders the. person incapable of contracting, or of managing or conducting his own business affairs with ordinary prudence and discretion. In all civilized governments such persons are confided to the care of certain courts, and by statute such courts are, upon proper showing and proceedings had, authorized and empowered to appoint guardians of the estate of such party, and in cases where such disability renders him incapable of caring for himself, then of his person as well as of his estate.
Sec. 1350 of our Oomp. Laws, taken in connection with Sec. 1372, provides for the appointment of such guardian. Under the provisions of this statute, this libellant has been duly adjudged non compos mentis, and a guardian of his person and estate has been duly appointed, and such adjudication, so long as the guardianship continues, is conclusive evidence *482of the disability of the ward. White vs. Palmer, 4 Mass., 147.
The demurrer interposed by the defendant must be held to admit all the allegations of the bill, including the adultery charged, and that, it is conceded, constitutes good and sufficient ground for a divorce if the action was brought by a libellant of sound mind and without the intervention of a guardian. The questions arising upon this record are : 1st. Can a guardian of an incompetent person, at common Jaw, institute and maintain, in the name of his ward, an action for a divorce? 2nd. If not at common law, do the statutes of these islands confer the power upon, or make it the duty of the guardian to commence and prosecute such action?
First: “ The remedy by divorce is purely a civ.il and private prosecution, under the control and at the volition of the party aggrieved, and he may bar liimself of the remedy in several ways by his own act.” 2 Kent’s Com., 100.
There is no offense which either of the spouses can commit, except the actual killing of the one by the other, which, per se, operates to annul the marriage, neither is there any act or offense by the guilty party, however heinous or revolting, which the innocent party may not condone. That the respondent in this case has often and with divers persons been guilty of acts of adultery, running back through a period of two years immediately preceding the commencement of this action, is admitted by her pleading. It is true ■ she is not finally nor necessarily bound by such admission, for should this demurrer be overruled, upon proper application, she would doubtless be permitted to answer and deny all the accusations made against her, should she be so advised; but as the case now stands all charges against her are admitted, but it will be observed that the plaintiff was not adjudged to be non compos mentis until January 24th, 1894, and this action was commenced only fifteen days afterward, and until such adjudication he is, in law, presumed to have been sane and in the full possession of sound mental faculties, so that it appears from plaintiff’s *483own showing that these acts of adultery now complained of had been running through a period of twenty-three months and a half of his sanity, and during which time he was, presumptively, continuously living and cohabiting with her as his wife. In his complaint it is not averred that he was ignorant of these several offenses, and as it is always presumed that a pleader will state his case in his own behalf as fully as the facts will warrant, it is legal to presume that he had such knowledge; and yet, during all this time, he took no steps looking to a divorce from his wife, or in any way terminating his marital relations with her.
The power to condone is personal, and can be exercised at the will and pleasure of the innocent party, but by no other person; and it would seem equally clear that he cannot be deprived of this personal right and privilege by any other person; and yet, to successfully prosecute this action to final decree, by a guardian, at a time when the ward is incompetent to give any rational expression to his wishes in the premises, is to so deprive him. If rational he might be not only willing but eager to condone the wrong. There may exist, for aught the court or his guardian can know, many reasons, which, to the ward, when sane, would overcome all resentment against the guilty party, and make it desirable for him to continue the marriage relation notwithstanding the wrong committed. His silence for two years lacking two weeks before the commencement of this suit, and during the time of the commission of those offenses by the respondent, ought not to be ignored by a court. His right, personally, to elect or reject condonation cannot be destroyed at the will of a guardian of his person and estate. The will of the latter may not be, nor is it presumed to be the will of the ward. His will upon this question, expressed at a time when his intelligence is impaired should only be considered by a court. The record before me does notr show that he has ever expressed that will or his election, but it does show that when this action was commenced for and not by him, he was incapable of expressing any intelligent will upon the subject.
*484“The. right to a divorce is strictly a personal right which can be waived by the innocent party, and which cannot be asserted except by his or her will; therefore, if the injured party be insane, no matter how outrageous the conduct of the other-party, no matter what scandal may l'esult, no relative or guardian or committee can bring a suit for divorce.” 5 Am. & Eng. Encycl. of Law, 768, Worthy vs. Worthy, 36 Ga., 46. In the last above cited case the court uses the following language, excepting we change the word “ husband” to “ wife” and vice versa to make it fit this case. “Eor the crime of adultery with which the wife is charged, the law has provided punishment, and the father or friend may prosecute at their will; but whether after gross and repeated infidelities, the husband will continue to regard her as his wife and live with her as her husband, is for Ms decision only. Death only can dissolve the marriage relation without his consent, and no divorce can or ought to be had in this or any case but through the agency and will of the injured party.”
In Birdzell vs. Birdzell, 33 Kan., 433, the court uses the following language: “ Marriage is a personal status and relation assumed for the joint lives of the parties and can never be created or brought into existence except with the free and voluntary consent of the parties assuming the same, and i.t can never be dissolved or destroyed while both parties are living, so as to affect an innocent party thereto, except for a grievous and essential wrong committed against such relation by the other party, and with the free and voluntary consent, and indeed, with the active and affirmative Abolition of the wronged and innocent party.”
Bradford vs. Abend, 89 Ill., 78, was an action to set aside a decree of divorce granted to the Avife, in an action brought by her guardian at a time Avhen she Avas insane and actually confined in an asylum in an adjoining state. That there was collusion between the guardian and the defendant is-patent upon the face of the record, but the Supreme Court of the State of Illinois thought it unnecessary to consider that branch of the case, and based its decision solely upon the *485ground tliat “ being insane, sbe could give no consent to tbe proceedings had in tbe divorce case, and hence everything tbat was done in her name was invalid. Consent involves an act of reason, and when one is bereft of reason, it follows tbat there can be no consent given tbat comes from reflection.” In tbat case tbe decree of divorce was set aside as fraudulent and void.
Under tbe General Divorce Statutes of England, it has been held tbat tbe guardian of a lunatic may bring a suit for a mere legal separation or a nullity suit, or a suit for alimony ; and in some of tbe United States tbe legislature has expressly conferred upon guardians tbe right to sue for and obtain for their insane wards absolute divorces, but in all such cases tbe decrees have uniformly been based upon tbe special statute authorizing them, and not upon tbe common law. Such is tbe case in Bhode Island and since 1860 in Massachusetts.
Second: Do tbe statutes of Hawaii confer such right or power ?
Sec. 1351, Comp. Laws, gives to tbe guardian when duly appointed “ tbe care and custody of tbe person of tbe Avard, and tbe management of all bis estate.” This expresses generally bis statutory powers, but tbe Avife constitutes no part of the estate, real personal or mixed, of tbe husband. Tbe days of such slavery and proprietorship have, among tbe civilized nations of tbe earth long since sunk into endless night; neither is tbe Avife a part of tbe person of tbe husband. Tbe legal fiction of tbe unity of tbe spouses never included their personality or individuality. Tbe guardian, under bis letters, acquires no control of tbe wife, but only tbe person of bis ward.
Among other duties imposed upon tbe guardian by legislative enactment is tbe following found in Sec. 1357, Comp. Laws: “ Every guardian appointed under the provisions of this chapter * * * shall appear for and represent his ward in all legal suits and proceedings, unless another person is appointed for tbat purpose as guardian or next friend.”
*486This section and Section 1351 were enacted with reference to the same general subject, and to be properly construed must be read together, and especially so when considering such actions as the guardian may bring when his ward is the plaintiff. Of course if the ward is made a defendant whatever might be the action, being an involuntary litigant, it would doubtless be the duty of the guardian to appear and protect the interests of his ward in all such litigation, but such actions as are necessary or proper for the protection of the person or estate of the ward are all, in my opinion, which, by the provisions of -this section, the guardian of his own volition is authorized to bring or maintain in the name of his ward.
“ Guardians are not technically representatives of anybody. They simply stand in the position of protectors. The guardian is the counsel assigned by operation of law, to conduct the suit.” Fox vs. Minor, 32 Cal. 112.
Should the estate real or personal be threatened with waste or loss, the guardian could and should take any action necessary or proper for its protection. Should he deem the bodily presence of the offending wife harmful or injurious to the person mental or physical, .of his ward, he could doubtless find ways and means through the courts for personal protection from such conditions, or he may bring any other action necessary to protect the life or person of his ward, but an action for a divorce does not come within this category; on the contrary, it is held both in England and the United States that an action for divorce is an action in rem not in personam.
This construction of the statute is further borne out by the provisions of Sec. 3, Comp. Laws, relating to divorce, p. 435. “ All proceedings for divorce shall be commenced by libel, to be signed by the libellant, and sworn to.” The verification may be by a third party, but the signing must be by the libellant in pro. per., and since, in this case, he is non compos mentis, he can, in law, no more sign it than he can, in fact, understand it.
*487Again, by the divorce statutes of these islands, the legislature has expressly authorized libels for divorce to be signed by parent or guardian under certain conditions when one of the parties was under legal age at the time of the marriage. Sec. 1314, Comp. Laws.
So the guardian of an idiot or insane person may bring an action for divorce, providing the ward was non compos mentis at the time of marriage. Sec. 1318, Comp. Laws. With those two exceptions the legislative will stopped, leaving all other actions for divorce subject to the common law of England, as ascertained by English and American decisions. Statutes, 1892, Sec. 5, p. 91. Expressio unius est exclusio alterius.
Our statute relating to guardians, their powers and duties, as hereinbefore quoted, are exact and literal reproductions of the statutes of Massachusetts on the same subject, and there, as early as 1810, in the case of Winslow vs. Winslow, 7 Mass. 95, which was an action for absolute divorce on the ground of the adultery of the wife, and the libel was subscribed bj a guardian who had been appointed over the libellant, the Supreme Court said : “It would be monstrous to dissolve a marriage upon such an application. It could not be known that the party ever gave his assent to the prosecution. If he is desirous of a divorce, and has sufficient grounds to obtain one, he must file his libel in his own name.”
This decision is practically a holding that the words “ shall appear for and represent his ward in all legal suits and proceedings ” do not include an action for divorce. The. Legislature of that State recognized this construction, and in the General Statutes of 1860, Sec. 16 of the Divorce Law, p. 533, it is provided that in all cases “ every libel shall be signed by the libellant if of sound mind and legal age to consent to marriage, otherwise it may be signed by his or her guardian, or by any person admitted by the court to prosecute the same as next friend of this libellant.” Since this amendment of the divorce laws of Massachusetts, several actions for the divorce of persons non compos mentis have been brought by the guardian and sustained by the court, but the *488statute is always referred to in the decision as the authority upon which it rests. There is no such statute in Hawaii.
The question of policy in this or any other given case, is one for the legislature and not for the court. Questions of expediency are addressed to the Executive, policy to the Legislative, and the law to the Judicial. Each is declared to be a separate and independent branch of the Government, and neither should trench upon or exereise the powers of the other.
For these reasons I am of the opinion that the demurrer should be sustained and the action dismissed.