POHNPEI LAW REPORTS
IN THE MATTER OF THE
Pohnpei Civil Action No. 17-88
Trial Division of the Pohnpei Supreme Court
August 3, 1988
Petition for the appointment of administrator and distribution of
the property of an intestate. During the life time of the deceased he
purported to remarry under custom after separating from his statutory wife
without divorcing her. By the two women he had two sets of children. His
undivorced statutory wife entered into a living relationship with another
man and had children by him. The `customary wife' and the decedent
cohabited for 24 years and were known in their families and their
communities to be husband and wife. And the estranged wife and the other
man were also known in their families and communities, including the
decedent and his community, to be customary husband and wife. Further,
members of the three families - that of the decedent, that of the
undivorced statutory wife, and that of the `customary wife' acknowledged
seven children by the `customary wife' to be children of the decedent. The
petitioner, a son of the decedent and the undivorced statutory wife,
listed the decedent's `customary wife' as the surviving spouse, and all
his siblings by the two women as children and surviving heirs of the
decedent. The questions appearing before the Court for determination were
whether the surviving `customary wife' was to be regarded as the "spouse"
of the decedent and the status of the seven children born by her to the
decedent for the purposes of succession to the estate of the
Trial Division of the Pohnpei Supreme Court, JUDAH C. JOHNNY, Associate Justice, granting the petition held (1) that for the purposes of succession on intestacy children under the Pohnpei State Intestate Succession Act of 1977, D.L. 4L-155-78, were male and female children born of a marital union and adopted children (D.L. 4L-155-78, Sections 1 & 6); (2) that a living spouse of the intestate had right to one-third of the personal property of the intestate and non-transferable life estate in all real property of the intestate. (D.L. 4L-155-78, Section 5); (3) that the decedent and his undivorced statutory wife having shown to the whole world that they intended to divorce and sever all
matrimonial rights and duties they once had through their subsequent `marriage' to other persons, no justice would be served to force them to be together if they had lost the mutual love and affection toward each other, and that no justice would be served if the Court would deny them the right to the fruits of their love of another person.
1. Intestacy - Succession - Children of Intestate
For the purpose of succession under the Pohnpei Intestate Succession Act of 1977, D.L. 4L-155-78, children are male and female children born of a marital union and adopted children. (D.L. 4L 155-78, Sections 1 and 6).
2. Intestacy - Succession - Rights of Surviving Spouse of Intestate
The living spouse of an intestate has right to one-third of the personal property of the intestate and a non-transferable life estate in all real property of the intestate. (D.L. 4L-155-78, Section 5).
[Editorial Note: Without declaring whether the decedent's living spouse was the `customary' wife the Court awarded her the living spouse's one-third share of the personal properties and a life estate in the real properties of the decedent.]
Counsel for Petitioners: Ander Norman
Micronesian Legal Services Corporation
JUDAH C. JOHNNY, Associate Justice
This case was heard in the Trial Division of the Supreme Court of the State of Pohnpei on March 10, 1988. Present were petitioner Edwin Benjamin and Rita Benjamin together with their counsel the Micronesian Legal Services Corporation by Ander Norman. The petitioner and Rita Benjamin testified under oath.
The following facts were found:
1. That Ichiro Benjamin was a citizen of the Federated States of Micronesia and of the State of Pohnpei. He died on January 15, 1988.
2. That at the time of his death, Ichiro Benjamin was legally married to Carmina Weilbacher Benjamin who is living. They had however long been separated, and in 1964, he took Rita Benjamin who is living, as customary wife with whom he cohabited until his death.
3. That during his cohabitation with Carmina, the following children were born:
a. Kesusa B. Weilbacher, daughter, 32 years old;
b. Benjamin Roland, son, 31 years old;
c. Edwin W. Benjamin, son, 30 years old;
d. Nick W. Benjamin, son, 29 years old;
e. Josephina W. Benjamin, daughter, 26 years old.
4. During his cohabitation with Rita, the following were born to them:
a. Tony A Benjamin, son, 24 years old;
b. Arthur A. Benjamin, son, 23 years old;
c. John A. Benjamin, son, 22 years old;
d. Merselina A Benjamin, daughter, 21 years old;
e. Tommy A. Benjamin, son, 20 years old; and
f. Ester A. Benjamin, daughter, 14 years old.
5. The known assets of the estate of the decedent, Ichiro Benjamin, are as follows:
a. A Kolonia Town lease property known as Parce No. 005-A-11, situated in Ohmine Section of Kolonia Town, Pohnpei State;
b. A parcel of land known as Tract No. 75008 situated in Palikir of Sokehs Municipality, Pohnpei State;
c. A parcel of land known as Tract No. 74634 situated in Palikir Section of Sokehs Municipality, Pohnpei State;
d. A parcel of land known as Tract No. 74635, situated in Palikir Section of Sokehs Municipality, Pohnpei State;
e. A parcel of land known as Tract No. 74636A,
situated in Palikir Section of Sokehs Municipality, Pohnpei
f. A parcel of land known as Tract No. 746368, situated in Palikir Section of Sokehs Municipality Pohnpei State;
g. A parcel of land known as Tract No. 74496, situated in Metipw Section of Uh Municipality, Pohnpei State;
h. KCCA Share Account No. 243 in the amount of $87.00, more or less;
i. Federated Shipping Company Share Account Nos. 00062; 00087; and
in the aggregate value of $700.00 more or less; and
j. Mesenieng Credit Union Share in total value of $290.00.
6. The known debts of the decedent include the following:
a. Federated Shipping Company, $190.00;
b. Farmers Home Administration, $1,127.87;
c. Ukolino Rosario Store, $130.00.
Two reliefs are sought by the petition:
1. That the assets of the estate of decedent Ichiro Benjamin be distributed in accordance with the Pohnpei Intestate Succession Act of 1977, and,
2. That the petitioner be appointed as administrator of the estate.
[1-2] The Pohnpei State Intestate Succession Act of 1977, D.L. No. 4L-155-78 categorizes classes of descent on intestacy in the following order:
1. To the children of the intestate;
2. If there be none, to the parents of the intestate;
3. If there be none, to the grandparents of the intestate;
4. If there be none, to the great grandparents of the intestate, and
5. And so forth, ad infinitum, in accordance with the provisions of [the] Act.
See Section 3. Children under the Act, are male and female children born of a marital union. Section 1. Adopted children are considered children of the intestate. Section 6. Living spouse of the intestate has right to one-third of the personal property of the intestate and non-transferable life estate in all real property of the intestate. Section 5. Under these provisions, the Court has granted succession to assets of estates of intestates in numerous preceding cases. See In re: Estate of losep Losa, 3 PN.L.R 218.
The facts of this case reaffirm a conflict that seems to exist between D.L. No. 4L-155-78, and custom of the people of Pohnpei in the area of inheritance, as was discussed by this Court in an earlier related matter. See In re: Adoption of Anter Plus, 3 PN.L.R
87. In Plus, while the petitioner was engaged to the mother of minor Anter Plus, the mother conceived and gave birth of the child, whom both the petitioner and the mother believed was an offspring of the petitioner. About two years after the birth of Anter, the petitioner
married the mother of the child. In custom, the subsequent marriage by a putative father to the mother of a child legitimatizes the status of the child to the putative father, thereby bringing it into line and right of inheritance. Regardless of that customary acquired right, the petitioner, the natural father sought a decree of this Court to establish his relation to the child through adoption under statutes. This was necessary because without it, Anter, his first born, would not stand in line of inheritance if the petitioner should die intestate. Thus, while as first born, Anter is under Pohnpei custom, the head of the family. D.L. No. 4L-155-78 denies his right to inherit, having been born outside of marital union.
In the case at bar, two problems are before this Court. The first problem concerns the relationship of Ritato the decedent. Can she legally be considered a surviving "spouse"? It is a fact that the decedent and Carmina had not obtained a legal divorce prior to his death. Nevertheless the decedent after their separation took into his household as wife by custom, Rita and through their 24 years of cohabitation, were born to them seven children. Rita and the decedent were known in their families and communities to be husband and wife. Carmina likewise has since their separation,
been living with another man, and has to herself and the other man, children of their own. As to her relation with the other, they are known in their families and communities, including the decedent and his community, to be customary husband and wife. The Court is satisfied that except perhaps for Ester, all the children of the decedent know that they are half-sisters and half-brothers through their father Ichiro Benjamin. The Court is equally satisfied that these children know that Carmina was once a wife of the decedent; that Rita was then his wife at the time of his death. As an example, it can be, seen in the petition that the petitioner identified Rita as a surviving heir in capacity as a wife. See paragraph 4a. It can be seen therefore that the only act that the decedent did not accomplish prior to his death to consumate his marriage to Rita was to obtain a divorce decree from Carmina. The Court takes note that the decedent at one time shortly prior to his death arranged to have his marriage rites to Rita in this Court. That arrangement was cancelled on the appointed day, shortly before calling of the occasion by the Court, even though he and Rita had appeared, prepared for the event, when it became known to the Court that the decedent had not been formally divorced from Carmina. For this
Court to ignore these facts would be grossly injurious to the people whom the decedent had elected to love and cherish - his intended wife Rita and all his children. To do so would be to defy custom. To do so would also deter a right that Carmina cherishes in herpresent relation to a man whom she intends to call husband.
The other problem concerns the right of the seven children of the decedent, born to him and Rita. We see here, again, that these children recognize each other as children of the decedent. The petitioner, on behalf of his siblings, offspring of Carmina and the decedent, lists all the children of Rita to the decedent, as surviving heirs. Members of the three families - that of the decedent, that of Rita, and that of Carmina - acknowledge these seven children as issue of Ichiro Benjamin, and the seven children, themselves recognize that, by virtue of their identification within the family name Benjamin. Yet, Section 2(1) implies their exclusion. I believe, even if the language of Section 2(1) appears to exclude children in this relation, that this was not the status of children the legislature intended to exclude. Additionally, Article 5 of the Pohnpei Constitution provides that the government of Pohnpei shall respect and protect the customs and traditions of the people
of Pohnpei. As here, if the marriage had been customary, that with Carmina would have been dissolved, and that to Rita would have been effected from the facts above. Consequently, the children of Rita would have been born of a marital union.
Our predecessor Trust Territory Court had ruled on the similar legal question in two Pohnpei prior cases. See In re: Estate of Johnson. High Court Civil 1-73 (1977) and In re: Estate of Weilbacher, High Court Civil 60-79 (1980). These cases present conflicting rules, In Johnson, the decedent was wed to Sesuko in the Protestant Church of Kosrae during the late 1950s. In 1964, he left the woman and entered into a relationship with Ernesta, who bore him several children. They lived together until his death in 1973.
Ernesta filed a petition for determination as surviving spouse of the deceased and
sought entitlement to the Social Security benefit of the deceased. The
court held from the record of the case that Sesuko was the only surviving
spouse of the deceased, since the deceased was legally married to her, and
did not legally divorce from her. It held that even though Ernesta
sincerely believed that she was legally married to the deceased at the
time of his death, she was mistaken. It therefore held, considering that
never legally married to the deceased, nor truly married to him under custom, that she could not be declared to be the surviving spouse. In Weilbacher however, the court found that the deceased was marrried to Kristina Sinek in the Catholic Church of Pohnpei on April 26, 1934. They were separated in 1952 or 1953. The deceased and Linathen began living together as husband and wife until the decedent's death on November 28, 1978. The decedent had children, natural and adopted, during both cohabitation. Lina petitioned for a determination in her favor as the surviving spouse. Kristina challenged on the basis of absence of legal divorce. The court held that the decedent and the petitioner were husband and wife under Pohnpei custom at the time of decedent's death. It held that the deceased and the respondent were divorced under local custom, although it did not qualify its holding of its finding of customary divorce. The court therefore held that Pohnpei custom would be followed in the matter, in accordance with Section 14 of Title 1 and Section 4 of Title 39 of the Trust Territory Code.
This Court will not follow the rule in these cases. Though Johnson is legally proper, this Court is of the opinion that the ruling would be unjust in the matter at bar. Here, both Ichiro and Carmina
each has shown to the world that they intended to divorce and sever all matrimonial rights and duties they once had through them subsequent ‘marriage' to another person. No justice would be served to force them to be together if they had lost the mutual love and affection toward each other. No justice would be served if this Court would deny them right to the fruits of their love of another person.
Accordingly, it is ORDERED, ADJUDGED, and DECREED:
1. The estate of Ichiro Benjamin devolves in equal shares to all his children both with Carmina and Rita.
2. Rita has title to one-third of the personal properties of the decedent, and life estate in and over the real properties of the decedent.
3. The petitioner is appointed administrator of the estate as enumerated in this action. While away from Pohnpei and until he shall return to Pohnpei, Rita shall co-administer the estate for the benefit of the children and herself.
4. Remaining debts as identified above shall be ar ranged and paid by and between the administrators.