
    MARY GOMES v. MANUEL GOMES.
    No. 1318.
    Appeal from Circuit Judge First Circuit. Hon. J. J. Banks, Judge.
    Argued August 5, 1921.
    Decided August 13, 1921.
    Coke, C. J., Kemp and Edings, JJ.
    
      Divorce—separation.
    
    In an action of divorce or separation the trial judge is not authorized to appoint a master clothed with the power and authority vested in masters in chancery.
    
      Same—same.
    
    The trial judge is not authorized upon granting a separation to order a conveyance to the wife of the real estate of the husband and to vest title therein in her.
   OPINION OF THE COURT BY

EDINGS, J.

The libellant-appellee instituted an action in the circuit court of the first circuit of this Territory against her husband, the libellee-appellant, praying for a decree of separation from bed and board upon the ground of excessive and habitual ill-treatment, and for “permanent alimony either in gross or in monthly payments.” At the conclusion of the hearing of said action the court on the 4th day of November, 1920, rendered a decision awarding the libellant a separation as prayed. Some time after this decision granting the libellant-appellee a divorce a mensa et thoro the court issued an order appointing a master “for the purpose of ascertaining and reporting to this court with all reasonable and convenient speed, the financial condition of the libellee herein and his ability to pay either alimony in gross or in periodical payments, or partly in gross and partly in periodical' payments, the said master to have full power and authority to administer oaths and to take testimony of and concerning such matters, and to •diligently examine all witnesses produced and vouchers and books submitted.” Thereafter, to wit, upon the 30th day of December, 1920, the said master submitted to the court a full and voluminous report, practically embracing every phase of the case, and concluding with a recommendation “that libellee be directed and required to convey to libellant by good and sufficient warranty deed the real property described in Master’s Exhibits ‘9’ and HO’ together with the sum of $50 per month until such time as it can be ascertained what income libellant can realize from this real estate, or that libellee be ordered and directed to pay to libellant the sum of at least $150 per month as permanent alimony,” Avhereupon the court on the 14th day of January, 1921, “adopted the recommendation of the master” and ordered the libellee “by way of alimony in gross, forthwith to execute to libellant herein good and sufficient warranty deeds to the folknving described real property” (here follows a description of the real estate to be conveyed by the master and consisting of the entire real estate OAAmed by the libellee), and “further to pay to libellant the sum of $50 per month until the further order of the court and to pay said master the sum of $250 for his services.” From this order the libellee appeals to this court.

The libellee-appellant contends that the master’s report embraced “matters of fact which he wás not authorized .to investigate;” “that the report was not based upon competent evidence” and that “the trial court erred in adopting the recommendations of the master relevant to the alimony to be awarded the libellant.” While these criticisms of the master’s report and the importance attached to the same.by the trial court may not be without merit there seems to this court to be a much more serious objection to this report and its acceptance and adoption by tbe court for any purpose.

Tbe master in tbis action was clothed and Tested with all of tbe power and authority possessed or exercised by masters in chancery and bis appointment was an attempt by a court of law to appoint a master in chancery to perform certain duties and to exercise certain functions in an action at law then pending before tbe court. Tbis assumption of power by tbe court is unsupported by precedent and not conferred by statute. Tbe duties which tbis master was. called upon to perform are duties within tbe exclusive province of the trial judge and cannot be delegated.

Tbe next contention of tbe libellee-appellant was that “tbe trial judge, sitting in divorce, was without power or jurisdiction to decree a specific conveyance of real property as alimony in gross. Chapter 167 R. L. 1915, and tbe amendments thereto, contains all of tbe provisions relative to divorce and separation in tbe Territory and defines the power of tbe court with respect to tbe award of alimony in actions for divorce and separation and tbe care and custody of minor children. Section 2936 of that chapter is as follows :

“Permanent alimony; maintenance of children. Upon granting a divorce for tbe adultery or other offense amounting thereto, of tbe husband, tbe judge may make such further decree or order against tbe defendant, compelling him to provide for tbe maintenance of tbe children of the marriage, and to. provide such suitable allowance for the wife, for her support, as the judge shall deem just and reasonable, having regard to tbe ability of tbe husband, tbe character and situation of tbe parties, and all other circumstances of tbe case.”

Section 2938 is as follows: “Security and enforcement of maintenance and alimony. Whenever the judge shall make an order or decree requiring a. husband to provide for tbe care, maintenance and education of bis children, or for an allowance to bis wife, tbe judge may require him to give reasonable security for such maintenance and allowance ; and upon neglect or refusal to give such security, or upon default of Mm and Ms surety to provide such maintenance and allowance, the judge may sequester Ms personal estate, and the rents and profits of his real estate, and may appoint a receiver thereof, and cause such personal estate and the rents and profits of such real estate to be applied towards such maintenance and allowance, as to the judge shall from time to time seem just and reasonable.”

Under this section (2938) this court held that the court had no power upon granting a divorce to order a division of the husband’s real estate and to vest title to a part thereof in the wife. (Nobrega v. Nobrega, 13 Haw. 654.) But it is claimed by appellee that “the statute of Hawaii conferring jurisdiction to award support and maintenance in cases of separation (Sec. 2946 R. L. 1915) confers authority upon the circuit judge to award specific realty.” In other words, “in absolute divorce the order runs against the person of the husband. In separation, on the other hand, the court has two choices: the award of a sum to be paid by the husband, or a provision such as was made in this case of specific property ‘out of the property’ of the husband.” Section 2946 R. L. 1915, relied upon for this contention of the appellee, is as follows:

“Support of wife and children. Upon decreeing a separation, the judge may make such further decree for the support and maintenance of the wife and her children, by the husband, or out of his property, as may appear just and proper.”

While it is true that chapter 167 is divided into subsections, the first being “Annulment,” the second “Divorce,” the third “Separation,” the caption of the act is “Annulment, Divorce and Separation,” and this court has held that it should be construed as an entirety. In the case of Springer v. Thompson, 25 Haw. 638, the court says: “It may be here stated that the separation contemplated in the last section quoted (Sec. 2944) is in effect a divorce from bed and board. A decree rendered under that section is a divorce a mensa. * * * A separation as contemplated by section 2944 is a divorce in tbe sense tbe term is used in section 2930.” Tbis exceedingly reasonable, well supported construction coincides with tbe evident intention of tbe legislature in enacting tbis statute, for section 2937 (under subdivision 2) provides for tbe “Care, custody, education and maintenance of children” in tbe following-words: “Upon annulling a marriage, or decreeing a divorce, tbe judge may make sucb further decree as be shall deem expedient, concerning the care, custody, education and maintenance of tbe minor children of tbe parties, and determine with which of tbe parents tbe children or any of •them shall remain,” and it was under tbis section (2937) that tbe trial judge acted in tbis action of separation when be awarded tbe care and custody of certain of tbe children to tbe mother, the libellant-appellee herein, subdivision 3 of said chapter being entirely silent upon tbe subject.

A fair construction of tbis statute is that section 2938 must be regarded as a limitation upon tbe expression “or out of bis property” used in section 2946 and restricts and confines tbe judge awarding support and maintenance to a Avife in an action for separation to tbe manner and only to tbe extent therein provided, and under tbis section a judge' cannot award to tbe wife specific property as alimony. As expressed by tbis court in tbe case of Nobrega v. Nobrega, supra, “Tbis power is given to tbe court in many of tbe states by statute. We do not think that the language of our statute is broad enough to show a clear intention on tbe part of tbe legislature to confer tbis poAver on the circuit court nor do we feel authorized to extend the terms of tbe statute by interpretation so as to confer a power that tbe legislature may not have intended to give.”

Tbe appeal is sustained and tbe order requiring tbe li-bellee to execute to tbe libellant good and sufficient conveyances of tbe parcels of real property therein referred to is reversed.

W. B. Lymer and Marguerite K. Ashford (also on tbe brief) for libellant.

B. S. Ulrich (Thompson, Gathcart & Lewis on tbe brief) for libellee.  