POHNPEI LAW REPORTS
VOL.3A
[3A PN.L.R.444]
IN THE MATTER OF THE ESTATE OF
YOSHITARO TOKUTAKE,
Deceased
MERCEDES EMELIOS,
Petitioner
Pohnpei Civil Action No. 18-89
Trial Divison of the pohnpei Supreme Court
April 26, 1989
Petition by a woman who had lived in concubinage with a Japanese resident in Pohnpei (now deceased) to recover for her personal benefit the balance of a judgment debt due him on the grounds that the decedent had authorized her during the decedent's life time to collect the debt for their joint benefit, and that the decedent's family in Japan had relinquished to the petitioner any claim thereto. The petitioner and the deceased purportedto have lived togetheras husband and wife by custom and had held themselves out to the community as such. While living in such relationship the deceased had a living wife and children in Japan.
The respondent judgment-debtor objected to the petitioner's request on the ground that the petitioner lacked standing to bring the action because:
a. the deceased died intestate and had a legal wife and two children living in Japan;
b. the petitioner and the decedent were not legally married, and Pohnpei law made no provision for intestate succession by non-relatives of the decedent; and
c. the Pohnpei Statute of Frauds barred the petitioner's claim of right to collect the judgment in question on verbal arrangement of decedent.
The Trial Division of the Pohnpei Supreme Court, EDWEL H. SANTOS, Chief Justice, granting the petition, held that though cohabitation with each other, however long, as purported husband and wife did not create in them the legal right to inherit from each other, if during the cohabitation the man made a gift to the woman, the gift would be valid to transfertitle to property to the woman unless it is rejected by her, in which case
[3A PN.L.R.445]
the man could retract the gift.
1. Domestic Relations - Marriage - Husband and Wife
The relationship of husband and wife with its attendant rights, duties and obligations isacquiredonlythroughmarriage,aftergoingthroughthe formalities whether statutory or customary.
2. Domestic Relations - Marriage - Types
There are three recognized lawful forms of marriage by which the status of husband and wife may be acquired in Pohnpei, namely (1) statutory civil marriage under 39TTC, Section 51; (2) statutory "religious marriage" commonly known in Pohnpei as "inou sarawi" meaning (a sacrosanct vow), and (3) statutory customary marriage known in Pohnpeian as "pwopwoud en tiahk en sahpw"
3. Domestic Relations - Marriage - Statutory Civil Marriage under 39 TTC 51 - Requirements
39 TTC 51 relates to marriages between non-citizens or a non-citizen and a citizen of [Pohnpeij and this type of marriage requires a license to marry issued by the Governor, and solemnization of the marriage to be performed by certain civil authorities, e.g, a justice of the Pohnpei Supreme Court, the Governor or any person authorized by law.
4. Domestic Relations - Marriage - Statutory Religious Marriage - Requirements
In the case of a statutory religious marriage the citizenship of the parties is of no concern though the procedural requirements are similar to those of a statutory civil marriage, except that the marriage is solemnized by an ordained minister of the church according to the rites of the respective churches.
5. Domestic Relations - Marriage - Statutory Customary Marriage - Pohnpel Customary Marriage - Requirements
In a statutory customary marriage known in Pohnpeian as pwopwoud en tiahk en sahpw"both parties must be citizens of Pohnpei (39 TTC 55). The families of both of the parties to the marriage contract must consent expressly or impliedly, to the marriage.
[3A PN.L.R.446]
Solemnization of a customary marriage takes many forms. According to the common forms the man takes the woman and introduces her to his family, and a sister or a close female relative of the man puts special coconut oil on the bride (keiehdi) and places a lei (kamwaramwarehdi) over the bride's head. The application of oil and the placing of head lei on the bride, in many instances lately, are not practiced much. However, there must be some kind of gesture exhibited by the family of the bridegroom to indicate that they accept the marriage to take effect. Where the man is a widower or divorced, he would either take the proposed wife to his family and his eldest daughter, eldest sister, or a clan sister would perform the ceremonial rites. Otherwise, the man would make his proposal to marry known to his children, or to his sisters in a case where the man is childless and his children or sisters, if agreeable to the man's proposed wife, would go to the woman to vouch for their father's or brother's proposal to marry the woman. Any of these acts completes a valid customary marriage under Pohnpei custom. Where the marriage is between persons of nobility, certain special rituals are performed by certain select people of the community. A wedding feast follows all marriage ceremonies performed under custom, and gifts are offered to the married couple. For a valid marriage to be recognized by the statute and under Pohnpeian custom neither of the respective parties shall have a lawful living spouse.
6. Domestic Relations - Marriage - Pohnpeian Custom
Under Pohnpeian custom where there exists a lawful marriage between a person and another that bars marriage between that person to yet another woman, and he cannot contract a valid customary marriage to a Pohnpeian notwithstanding that the woman is willing and the family of the woman consent to such marriage.
7. Domestic Relations - Marriage - Criminal Law -Bigamy
A person who has a lawful living wife but contracts any form of marriage to another commits bigamy. (S.L. 1 L-3-85, Section 8-1.)
8. Domestic Relations - Marriage - Customary Marriage - Statutes Construction - Criminal Law - Bigamy
A marriage under local custom is sufficient to constitute "marriage" within the meaning of the bigamy statute even though no marriage ceremony is involved.
[3A PN.L.R.447]
9. Domestic Relations - Marriage - Administration - Personal Representative - Succession
A woman who lives in concubinage with a married man acquires no status and rights of a wife so as to be appointed the personal representative of the man in the event of his death or to lay any claim to inheritance of his property under the intestacy law of Pohnpei.
10. Domestic Relations - Husband and Wife - Property
A joint tenancy may arise where a man living in concubinage with a woman intends without reservation that the woman shares with him the proceeds of a judgment debt due to him and authorizes the woman to pick up and cash checks for the payment of the debt and apply the proceeds for their joint necessities.
11. Property - Joint Tenancy
Joint tenancy is a type of ownership of real or personal property by two or more persons in which each owns an undivided interest in the whole and attached to which is the right of survivorship (20 Am Jur 2d, Cotenancy and Joint Ownership, Section 6, particularly in cases noted in Footnote 15)
12. Property - Joint Tenancy
Ownership by joint tenants involves the four unifies of time, title, interest and possession, and the primary incident of joint tenancy is survivorship, by which the entire tenancy on the decease of any joint tenant remains to the survivors, and at length to the last survivor. (Black's Law Dictionary 5 Ed., Joint Tenancy, P. 1313)
13. Joint Tenancy - Judgment Debt - Enforcement
Where the petitioner and an intestate had by their acts become joint tenants with respect to a judgment debt due to the decedent, under the joint tenancy rule, the petitioner survives the decedent and is entitled to enforce the judgment, and no written will or written contract is necessary to give efficacy to the joint tenancy arrangement, where the decedent and the petitioner lived under one roof "mwomwo-mwomwen pwopwoud" and the decedent
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intended to share with the petitioner the proceeds of the judgment. The proof of the joint tenancy is all that is necessary, and the joint tenants need not be husband and wife.
14. Custom - "Mwar" (Gift) - Types
A "mwar" (gift) made by a man to a woman with whom he cohabits in the relationship of "mwomwo mwomwen pwopwoud" is different from the "mwar" or traditional titles which the Nanmwarkis and chiefs confer upon individuals, the former is a form of gift, inter vivos, commonly made by a man to a woman, as a token of the man's love for the woman, and is given by both unmarried and married men to their loved ones or spouses. "Mwar" may include personally and realty.
15. Custom - Mwar" (Gift) - How Effected
If a man loves a woman, or if he wants that woman to know that he loves her, the man may give a "mwar" to the woman who has discretion to accept or reject it. Once accepted, it is irrevocable by the man. Hence the Pohnpeian term "mwarkihla"( meaning literally has conveyed through the means of "mwar'). An attempt to revoke a "mwar" by the man after it has been accepted by the woman to whom it was given is a shameful undertaking. Hence the phrase "sohte ohl kin mwusikihla kene mwenge oh ih pwurehng kangala" (no man vomits out his food and later takes it back, or eats it again)
16. Custom and Tradition -"Mwar" (Gift) - Examples
Examples of "mwar" in the early days can be seen in Kitti and Nett Municipalities where the early chiefs of these municipalities "mwarkihla" the fourth cup of sakau which is supposedly for the chiefs, which when drunk, signifies completion of the traditional rituals before common men can join in the sakau drinking, or that any discourse could then commence from that point on, that is, after the fourth cup of sakau is given and drunk by the chief. This particular cup is referred to as `sapwehiehn sakau'; "sapwehiehn" meaning the fourth, referring to the cup. The chiefs of these municipalities in the early days, "mwarkihla" this particular cup to certain women with whom they were in love, thus giving rise to the new designation of the fourth cup: "oapoang" in Kitti, and
[3A PN.L.R.449]
'kapahrakih" in Nett. The fifth cup then became and continues to be the "sapwehiehn sakau" in these two municipalities. These particular "mwar" made in the early days of Pohnpeian history could not be and stilt are not retracted.
17. Custom - "Mwar" (Gift) - Existence - Evidence - Proof
In order to prove the existence of a "mwar" the characteristics to be identified include:
a. the item of the "mwar", what it consists of;
b. the identity of the giver of the "mwar" must be known to the receiver;
c. there must be an acceptance and application of the "mwar" by the receiver for her own use; and
d. there must exist some sort of love affair, husband and wife or any common love affair, between man woman.
18. Statutes - Statute of Frauds - Purpose
The purpose of the statute of frauds is to prevent fraudulent practices which are commonly endeavored to be upheld by perjury and subornation of perjury.
19. Statutes - Contracts - Contractual Arrangements Required by Statute to be In Writing
The following contractual arrangements may not be maintainable in court unless they are in writing, or are memorialized or noted in writing, signed by the person to be charged therewith, or by a competent person authorized to sign for the party to be charged:
(1) an agreement to charge an executor or administrator to answer for damages out of the executor's or administrator's own estate;
(2) an agreement to charge any person upon any special promise to answer (pay) for the debt, default, or misdoing of another;
[3A PN.L.R.450]
(3) an agreement to charge any person upon an agreement made in consideration of marriage;
(4) an agreement for the sale of real property (land), tenements, or hereditaments, or of any interest in real property;
(5) an agreement that is not to be performed within one year after it is made;
(6) an agreement to charge a person for that person's agreement which authorizes or employs an agent to purchase or sell real property for compensation or for commission; or
(7) an agreement to charge the estate of any deceased person for that deceased person's agreement which was not to be performed during that deceased person's life time, or an agreement of that deceased person to devise or bequeath any property, or to make any provision for any person by will. (S.L. 2L-38-80, Section 3)
20. Statutes - Statute of Frauds - Custom -"Mwar" (gift)
Customary "mwar" does not fall in any of the types of contractual arrangements enumerated in the Pohnpei Statute of Frauds which require certain contractual arrangements to be in writing, memoralized in writing or to be noted in writing to be enforceable.
21. Statutes - Construction - Ejusdem Generls Rule - Custom - "Mwar" (Gift) Enforcement
In the application of the ejusdem generis rule of statutory construction where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated, and "Mwar" not falling within any of the types of contractual arrangements enumerated in the Statute of Frauds, it was not intended by the Legislature to be covered by that statute, and thus the Statute of Frauds is no bar to the enforcement of a "Mwar" that is not evidenced in writing.
[3A PN.L.R.451]
Counsel for Petitioner: Steven Skipton, Esq.,
Micronesian Legal Services Corporation
Counsel for Respondent: Martin Mix, Esq.,
Pohnpei
EDWEL H. SANTOS, Chief Justice
The petitioner, Mercedes Emelios, petitioned thisCourtforan order to allow her to collect the balance due under a money judgment entered on August 10,1984, by the FSM Supreme Court in favor of the deceased, Yoshitaro Tokutake, against Richard Porter and Antelise Porter, FSM Civil Action No. 1984-012. The petitioner based her claim of right to collect the balance due under the said judgment on two grounds. First, that when the decedent was alive, he had intended and had agreed that the petitioner collect the proceeds of the judgment and to apply same for her personal needs. Secondly, that the decedent's family in Japan have relinquished to the petitioner any claim they might have under the law to the money owed to the deceased, Yoshitaro Tokutake, in Pohnpei.
Antelise Porter, one of the defendant-debtors in the FSM Supreme Court Civil Action 1984-012, and to whom I will refer in
[3A PN.L.R.452]
this action as the "respondent", filed an objection to the petitioner's request, arguing that the petitioner lacks standing to bring the action because:
a. The deceased Yoshitaro Tokutake died intestate and had his legal wife and two children living in Japan;
b. The petitioner and the decedent were not legally married, and Pohnpei law makes no provision for intestate succession by non-relatives of the decedent;
c. The Pohnpei statute of frauds bars the petitioner's claim of right to collect the judgment in question based on verbal agreement of the decedent.
Trial of the case was had on March 27, 1989, and the testimony of the petitioner was heard.
1. FINDINGS OF FACT
Yoshitaro Tokutake died on August 1, 1987, in Japan, intestate. He was a Japanese citizen who for several years prior to March 1987, was a resident alien worker in Pohnpei, having been employed by several local employers, including the Porter defendants in the FSM Civil Action No.1984-012. Judgment in that FSM
[3A PN.L.R.453]
case was entered on August 10, 1984, in favor of Yoshitaro Tokutake, the decedent, in the sum of $6, 993.76, plus 9 percent annual interest. The balance owing underthat judgment since the last payment received on April 17, 1987 was $2, 718.51 plus 9 percent interest. Hence it is this amount that the petitioner seeks to collect under the judgment.
Beginning in 1986, however, the petitioner and Yoshitaro Tokutake had betrothed themselves and since then cohabited with each other as husband and wife, holding themselves out to the community as husband and wife, each providing to the other the love, companionship, care, and support that are customarily and reciprocally provided by husband and wife companionships. The petitioner and the decedent, however, could not legally be united in marriage because the decedent had a living wife in Japan. Notwithstanding, they continued to cohabit with each other as husband and wife until Yoshitaro Tokutake left for Japan in March, 1987.
However, during the period that the decedent Yoshitaro Tokutake and the petitioner were living together as husband and
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wife, the decedent authorized the petitioner to receive the installment payments made on the judgment in the FSM CA No. 1984-012 as the payments were made by the Porter defendants through the Supreme Court. Petitioner's Exhibits 1 through 5, xeroxed copies of the FSM Supreme Court Trust Fund check stubs, received in evidence, described on the stubs: Restitution Payment on Civil Case No.1984-012, signed received by Mersedes Emelios. The proceeds of the checks were applied for the personal needs of the petitioner and the decedent during the period that they were living together. The last check received was dated April 17, 1987, in the amount of $250.00. Yoshitaro Tokutake was already in Japan when the April 17, 1987, check was received by the petitioner. The petitioner applied the proceeds of the April 17, 1987, check for her personal needs. Additionally, Yoshitaro Tokutake's savings account at the Bank of Hawaii, Pohnpei Branch, was withdrawn and applied by the petitioner for personal needs.
While in Japan, Yoshitaro Tokutake died on August 1,1987. No further payment was ever made underthe FSM judgment in its CA No. 1984-012 since April 17,1987, and the petitioner could no
[3A PN.L.R.455]
longer collect any money under that judgment, nor could she enforce execution of the judgment after Yoshitaro Tokutake had died.
II. ISSUES FOR DETERMINATION
1. Whether or not Yoshitaro Tokutake, the decedent, made any agreement which otherwise conveyed any legal right to the petitioner to collect the balance of the judgment in the FSM Supreme Court Civil Action No. 1984-012.
2. Whether or not Yoshitaro Tokutake's wife and children relinquished to the petltlonerthelr rights to collect any money owed to Yoshitaro Tokutake under the judgment in the FSM Supreme Court Civil Action No. 1984-012.
III. OPINION
A. Husband and Wife Relationship.
[1-3] (1) Statutory Marriage - Civil Marriage. I start my discussion of the first issue on the basis of the relationship of the petitioner and the decedent. It is the marriage of the parties that creates the husband and wife relationship and its attendant rights, duties and obligations. Husband and wife relationship is a status acquired by
[3A PN.L.R.456]
persons after going through the formalities of marriage whether statutory or customary. In Pohnpei, like the other sister states of our young nation, there are three recognized lawful forms of marriage by which the status of husband and wife may be acquired. First is the statutory marriage provided under Title 39, Section 51 of the Trust Territory Code, received as State law. Section 51 provides for marriages between non-citizens or a non-citizen and a citizen of [Pohnpei]. This type of marriage requires a license to marry, issued by the Governor, and solemnization to be performed by certain civil authorities, e.g. a justice of the Pohnpei Supreme Court, the Governor or any person authorized by law.
[2-4] (2) Statutory Marriage - Religious Marriage. The second form of marriage is like the first, with similar procedural requirements. However, the citizenships of the parties is of no concern. This form of marriage is solemnized by an ordained minister of the church according to certain religious rituals adopted by the respective churches in Pohnpei. This type of marriage is often referred to as "religious marriage", commonly known in Pohnpeian terminology as "inou sarawi", literally meaning "a sacrosanct vow".
[3A PN.L.R.457]
[2-5] (3) Statutory Marriage - Customary Marriage. The third form of marriage is what is being referred to as "customary marriage", "pwopwoud en tiahk en sahpw" as the Pohnpeian phrase denotes. Under pwopwoud en tiahk en sahpw" (customary marriage) both parties to the marriage must be citizens of Pohnpei. 39 TTC 55; In re: Speetjen, (PCA No. 243-88). The families of both parties to the marriage contract must consent to the marriage, expressly or impliedly. Solemnization of a customary marriage takes many forms. According to the common forms the man takes the woman and introduces her to his family, and a sister or a close female relative of the man puts special coconut oil on the bride (keiehdi) and places a lei (kamwaramwarehdi) over the bride's head. The application of oil and placing of head lei on the bride in many instances lately, are not practiced much. However, there must be some kind of gesture exhibited by the family of the bridegroom to indicate that they accept the marriage to take effect. Where the man is one who has lost his former wife by divorce or by death, the man would eithertake the proposed wife to his family and his eldest daughter, eldest sister, or a clan sister would perform the ceremo-
[3A PN.L.R.458]
nial rites. Otherwise, the man would make his proposal to marry known to his children, or to his sisters in a case where the man is childless, and his children or sisters, if agreeable to the man's proposed wife, would go to the woman and vouch for their father's or brother's proposal to marry the woman. Any of these acts completes a valid customary marriage under Pohnpei custom.
[5] Where the marriage is between persons of nobility, certain special rituals are performed by certain select people of the community. A wedding feast follows all marriage ceremonies performed under custom, and gifts are offered to the marries couple. For a valid marriage recognized by the statute and under the forms thus described neither of the respective parties shall have a lawful living spouse.
[6-8] The facts of this case show that the decedent, Yoshitaro Tokutake, had a lawful wife living in Japan during all those times that the decedent and the petitioner were living together in a manner of married persons, or as their status is described in Pohnpeian terminology: "mwomw-mwomwen pwoapwoaud". The existing lawful marriage between the decedent and his Japanese
[3A PN.L.R.459]
wife barred another marriage by him to another woman in Pohnpei, and he could not contract avalid customary marriage to a Pohnpeian notwithstanding that the woman was willing and the family of the woman consented to such marriage. Any form of marriage by the decedent, under the circumstances, would constitute a bigamy under Section 8-1 of Pohnpei State Law 1 L-3-85. See also Umiich v. Trust Territory, 3 TTR 231 Jr. Div. 1967), holding that a marriage under local custom is sufficient to constitute "marriage" within the meaning of the bigamy statute even though no marriage ceremony is involved.
[9] Under the forms of marriage recognized as legal in this jurisdiction, the petitioner and the decedent under the circumstances described cannot be considered legally, nor customarily married. Consequentlythe relationship between the petitionerand the decedent, Yoshitaro Tokutake, gave the petitioner no status and rights of a wife as such, and she cannot rely on any claim of a wife to be appointed the personal representative of the decedent or lay any claim to inheritance of property remaining lawfully in the name of the decedent pursuant to the intestacy law of this State.
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B. Joint Tenancy
[10] It appears from the evidence presented that the decedent, Yoshitaro Tokutake, had intended, without any reservation, that the petitioner shared with him the proceeds of the judgment in question. And in fact the decedent gave the necessary authority to the petitioner to pick up the checks from the FSM Supreme Court in payment of the judgment, (See Petitioner's Exhibit 1 through 5, in evidence). The petitioner then cashed said checks and applied the proceeds of those checks for the joint necessities of the two. This act on the part of the decedent created a joint tenancy arrangement between the decedent and the petitioner, the objective of which was for them to share, own, and benefit from the proceeds ofthesubjectjudgment. Atthatpoint,YoshitaroTokutake, the decedent, and Mercedes Emelios, the petitioner, became joint tenants in respect of the judgment debt.
[11-12] Under the English common law, as the body of law branched out to this jurisdiction through the American common law system, the gift of the judgment in the FSM Civil Action 1984-012 by Yoshitaro Tokutake to Mercedes Emelios created in them a joint
[3A PN.L.R.461]
tenancy with the right of survivorship. Joint tenancy is a type of ownership of real or personal property by two or more persons in which each owns an undivided interest in the whole and attached to which is the right of survivorship. D' Ercole v. D' Ercole, D.C. Mass., 407 F. Supp 1377, 1380. Ownership by joint tenants involves the four unities of time, title, interest, and possession, 41 Am Jur 2d, Husband and Wife, s. 60, and the primary incident of joint tenancy is survivorship, by which the entire tenancy on the decease of any joint tenant remains to the survivors, and at length to the last survivor. Black's Law Dictionary, 5th Ed., Joint Tenancy, p. 1313.
[13] When the decedent and the petitioner started living together under one roof "mwomw-mwomwen pwopwoud" and Yoshitaro Tokutake made his intention to have the petitioner share the proceeds of the judgment in question, there and then they began and continued to own title to, possession of, interest in the judgment, and at the same time when the intention of the sharing was uttered. Under the joint tenancy rule, the petitioner survives the decedent and is entitled to enforce the judgment entered in the
[3A PN.L.R.462]
FSM Civil Action No. 1984-012. A written will or written contract was not necessary, under the circumstances of this case, to be made by the decedent to give efficacy to the joint tenancy arrangement. The proof of the existence of the joint tenancy is all that is necessary, and the joint tenants need not be husband and wife.
C. Mwar
[14] As has been ruled by this Court, where a Pohnpeian citizen and a non-Pohnpeian citizen cohabited with each other regardless of how long, in the form of married persons, mwomw-mwomwen pwopwoud, such relationship does not create in either of them any legal right to inherit from the other. However, if, during the period of their cohabitation, the man made a gift to the woman, that gift would be valid to transfer title to the item of the gift to the woman, unless it is rejected by her, in which case the man may retract the gift. This form of gift is referred to in Pohnpeian custom as "mwar". It is worthy to note here, however, for the benefit of non-Pohnpeian citizens that this kind of "mwar" is different from the other "mwar"; or traditional titles which the Nanmwarkis and Chiefs confer upon individuals. "mwar" which is of concern here is a form of gift, inter
[3A PN.L.R.463]
vivos, commonly made by a man to a woman, as a token of the man's love for the woman. It is practiced by both unmarried and married men to their loved ones or married spouses. Items of "mwar" include personalty, and realty at times. A "mwar" is effected in the following manner:
If a man loves a woman, or if he wants that woman to know that he loves her, the man may give a "mwar" to the woman. The woman has discretion to accept or reject the "mwar". Once accepted, it is irrevocable by the man. Hence the Pohnpeian term "mwarkihla" (literally, has conveyed through the means of "mwar'). An attempt to revoke a mwar' by the man after it has been accepted by the woman to whom it was given is a shameful undertaking. Hence the phrase, "sohte ohl kin mwuskihla kene mwenge oh ih pwurehng kangala" ; ( no man vomits out his food and later takes it back, or eats it again)
[16] Examples of "mwar" in the early days can be seen in Kitti and Nett Municipalities where the early chiefs of these municipalities "mwarkihla" the fourth cup of sakau which is supposedly for the chiefs, which when drunk by them, signifies completion of the traditional rituals before common men can join in the sakau drinking, or that any discourse could then commence from that
[3A PN.L.R.464]
point on, that is, after the fourth cup of sakau is given and drunk by the chief.
This particular cup is referred to as "sapwehiehn sakau" "sapwehien" meaning the fourth, referring to the fourth cup. The chiefs of the above-named municipalities, in the early days, "mwarkihla" this particular cup to certain women with whom they were in love, thus giving rise to the new designation of the fourth cup. "Oapoang" in Kitti, and "Kapahrakih" in Nett. The fifth cup then became and continues to be the "sapwehiehn sakau" in these two municipalities. These particular "mwar" made in the early days of our history could not be and still are not retracted.
In order to prove the existence of a "mwar" certain characteristics need to be identified, among which are the following:
a. the item of the "mwar,"what it consists of;
b the giver of the "mwar" be identifiable by the receiver;
c. the acceptance and application of the "mwar" by the receiver for her own use; and
d. the existence of some sort of love affair, husband and wife or any common love affair, between man and woman.
[3A PN.L.R.465]
As applied to the instant case, it it not difficult to identify the judgment in the FSM Civil Action No. 1984-012 as the item of the "mwar"; decedent Yoshitaro Tokutake being the giver and petitioner Mercedes Emeliosthe receiver. The petitioner had received, accepted, and applied portions of the "mwar" for her own use; and that the two were "mwomw-mwomwen pwopowoud."
By the facts of the case, I hold that the decedent Yoshitaro Tokutake had "mwarkihla" the judgment to the petitioner with all intention that the petitioner collects the balance due under the judgment.
Having come to this conclusion, there leaves no need to address the second issue relating to whetherthe decedent's family in Japan had relinquished to the petitioner their rights to collect any money owed to the decedent under the judgment in question.
D. Pohnpei Statute of Frauds.
The respondent argues that the Pohnpei Statute of Frauds bars the petitioner's claim of entitlement to the balance owing under the judgment in question here.
[18-19] The purpose of the Statute of Frauds, S.L. 2L-38-80, is to
[3A PN.L.R.466]
prevent fraudulent practices which are commonly endeavored to be upheld by perjury and subornation of perjury. Section 3 of the statute enumerates certain contractual arrangements which may not be maintainable in court unless such contractual arrangements are in writing, orare memorialized or noted in writing, signed by the person to be charged therewith, or by a competent person authorized to sign for the party to be charged. The enumeration includes the following:
(1) an agreement to charge an executor or administrator to answer for damages out of the executor's or the administrator's own estate;
(2) an agreement to charge any person upon any special promise to answer (pay) for the debt, default, or misdoing of another;
(3) an agreement to charge any person upon an agreement made in consideration of marriage;
(4) an agreement for the sale of real property (land), tenements, or hereditaments, or of any interest in real property;
(5) an agreement that is not to be performed within one yeas
[3A PN.L.R.467]
after it is made;
(6) an agreement to charge a person for that person's agreement which authorizes or employs an agent to purchase or sell real property for compensation or for commission; or
(7) an agreement to charge the estate of any deceased person forthat deceased person's agreement which was not to be performed during thatdeceased person's lifetime, oran agreement of that deceased person to devise or bequeath any property, or to make any provision for any person by will.
[20] "Mwar" as described, supra does not fall in any of the types of contractual arrangements enumerated in our Statute of Frauds: Accordingly, and in the application of the "ejusdem generis" canon of statutory construction, where general words followthe enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated. I therefore hold that the Pohnpeian custom of "mwar" was not intended by the Legislature to be covered by the Statute of Frauds Act. And the Statute of Frauds does not bar the petitioner from claiming the right to enforce execution of and to
[3A PN.L.R.468]
collect the balance of the judgment debt in the FSM Civil Action 1984-012.
IV. Conclusion
It is Adjudged and Decreed as follows:
1. The petitioner wasthe receiver of a "mwar" given by the decedent, the subject of which i's the judgment in the FSM Civil Action No. 1984-012 (Tokutake v. Porters).
2. On the other hand, the petitioner was a joint tenant in respect of the judgment in FSM Civil Action No.1984-012, with the right of survivorship; the said joint tenancy arrangement was created during the time that the petitioner and the decedent were living together in a manner of husband and wife, "mwomwmwomwen pwopwoud,"and the decedent made his intention clear that the petitioner shares the proceeds of the judgment debt, and the petitioner, in fact, shared the proceeds of said judgment.
3. The petitioner is authorized to effect proceedings in the Supreme Court of the Federated States of Micronesia, in accordance with the rules of that Court, to enforce execution of the judgment entered in that Court's Civil Action No. 1985-012.
[3A PN.L.R.469]
4. The petitioner is not legally married nor customarily married to the decedent Yoshitaro Tokutake, and therefore she cannot be appointed a personal representative of the deceased on that particular basis, nor can she inherit from the decedent as a surviving wife.