the plaintiff in error at the time of the marriage; as, if he was rational at the time of the marriage, it would be a valid marriage, even though a few days prior or subsequent thereto, and during the week of his marriage, he was affected with delirium tremens."

In Clement v. Mattison (1846) 37 S. C. L. (3 Rich.) 93, the court expressed itself as satisfied with the instructions given in the court below, to the effect that while a marriage would be void where one of the parties was insane, and that insanity from delirium tremens was indistinguishable from other insanity, such insanity was to be distinguished from mere intoxication.

On the other hand, if a party is, at the time of entering into a marriage, in such a state of intoxication as to be deprived of reason and rendered unable to understand or assent to the contract, he has not sufficient mental capacity to render the marriage valid. Prine v. Prine (Fla.) supra; Gillett v. Gillett (1889) 78 Mich. 184, 43 N. W. 1101. See also Johnston v. Brown, 2 Sc. Sess. Cas. (New ed.) 437.

So, in Dunphy v. Dunphy (1911) 161 Cal. 380, 38 L.R.A. (N.S.) 818, 119 Pac. 512, Arn. Cas. 1913B, 1230, a marriage was annulled, it appearing that not only was the man intoxicated at the time, of the ceremony, but his mind was seriously impaired by past inebriations.

In Montgomery v. U'Nertle (1923) — Md. —, 122 Atl. 357, the court was of the opinion that the plaintiff, a young man between twenty and twenty-one, in a suit to annul a marriage, had sufficiently discharged the burden of proof resting upon him to show a degree of intoxication which would annul the marriage, although the trial court was of a different opinion, and there was a conflict in the evidence. The appellate court said that the most rational conclusion was that the plaintiff was, to a large extent, stupefied by the liquor which he had drunk, and might well have been in such a condition at the time of the ceremony that he was not competent to know what was transpiring, or

to have a just appreciation and realization of what it meant.

VII. Temporary or periodical insanity.

The marriage of one subject to temporary or periodical insanity is, of course, invalid if the marriage is contracted while under the influence of such insanity. But the condition of mind at the time of the marriage itself must govern the question of the party's mental capacity to enter into a marriage contract. Henderson v. Ressor (1910) 141 Mo. App. 540, 126 S. W. 203; Nonnemacher v. Nonnemacher (1894) 159 Pa. 634, 28 Atl. 439.

And a marriage by a person subject to temporary or periodical insanity, contracted during a lucid interval, is valid. Rawdon v. Rawdon (1856) 28 Ala. 565; Hamaker v. Hamaker (1856) 18 Ill. 138, 65 Am. Dec. 705; Ward v. Dulaney (1852) 23 Miss. 410; Smith v. Smith (1872) 47 Miss. 211; M'Adam v. Walker (1813) 1 Dow, P. C. 148, 3 Eng. Reprint, 654; Ash's Case (1702) 2 Freem. Ch. 260, 22 Eng. Reprint, 1196. See also Gross v. Gross (1902) 96 Mo. App. 486, 70 S. W. 393.

If it appears that the person was generally insane it has been said that the court should require it to be shown by strong evidence that the marriage was contracted in a lucid interval. Rawdon v. Rawdon (Ala.) supra; Turner v. Meyers (1808) 1 Hagg. Consist. Rep. 414, 161 Eng. Reprint, 600,

VIII. Person adjudged incompetent or insane.

An adjudication, after a marriage, in inquisition proceedings, that a person was of unsound mind at the time of the adjudication and from a time prior to the marriage, is not conclusive as to the mental capacity of the person to contract the marriage. Thus, in Portsmouth v. Portsmouth (1828) 1 Hagg. Eccl. Rep. 355, 162 Eng. Reprint, 611, it was held that a finding in an inquisition that a party to a marriage had been of unsound mind from a time prior to the marriage, though to be considered, was not conclusive, in the ecclesiastical

court in a proceeding to annul the marriage, that the party was of unsound mind at the time of the marriage. In Browning v. Reane (1812) 2 Phillim. Eccl. Rep. 69, 161 Eng. Reprint, 1080, it appeared that, after the death of the alleged incompetent woman, her husband applied for letters of administration, which were denied him on the ground that the deceased was mentally incompetent to contract marriage. The court, after referring to the evidence showing her mental condition, said: "In addition to all this, a writ de lunatico inquirendo was taken out and executed six months after her marriage; the verdict was found by a most respectable jury, consisting of twenty-one persons; the deceased was produced in person; Reane's counsel and solicitor attended; and, after examining her in person, they found her incapable from two years antecedent. No attempt has been made to impeach this verdict in chancery; nor have the counsel, or the solicitor, been examined in this cause. If this inquisiIf this inquisition had been taken before the marriage, it would, by the statute 15 Geo. II. c. 30, have been conclusive against it; though not conclusive certainly against a will. But taken after the marriage, and under the circumstances stated, the deceased having been produced in person before the jury, it is a strong confirmation, if confirmation were wanting, of the other evidence."

In Kern v. Kern (1893) 51 N. J. Eq. 574, 26 Atl. 837 the court said: "It is insisted on the part of the complainant that this finding is not only prima facie evidence of the unsoundness of mind therein found, but that, under the Statute 15 Geo. II. c. 30, passed in 1742, it renders the marriage absolutely void. But this marriage took place previous to the inquisition, and the statute only makes null and void the marriage of a person who has previously been found a lunatic by an inquisition. Sir John Nicholl, in Portsmouth v. Portsmouth (Eng.) supra, where the commission had been executed in 1823 and the marriage attacked had been

dict would not, of itself, affect the validity of the marriage de facto solemnized, though solemnized within the time of the finding by the jury. The finding is a circumstance and a part of the evidence in support of the unsoundness of mind at the time of the marriage, but no more, for this court must be satisfied, by evidence of its own, that grounds of nullity existed.' But, again, it was of too recent enactment to be called part of the common law, and there is nothing to show that the statute was in operation in the colony before July 2, 1776, to bring it within the clause of the first Constitution. Besides, its phraseology indicates that it could only have been intended to be enforced in Great Britain. The inquisition is competent evidence as prima facie proof of the finding therein contained, but is not conclusive."

In Banker v. Banker (1875) 63 N. Y. 409, it was held that the adjudication was not conclusive though the proceedings were pending at the time of the marriage and the other party to the marriage had notice of the pendency of the proceedings. In that case it was said: "I cannot see how the circumstance that the defendant had notice of the proceedings can affect the question. She had notice that an effort would be made to have Mr. Banker declared a lunatic, but until so declared it was an open question. She took the hazard of a finding which would render the marriage presumptively void, nothing more."

Where a man has been adjudged of unsound mind, and afterwards while under guardianship contracts a marriage, it does not seem, independently of statute, that this is conclusive proof of a want of mental capacity to contract the marriage. Payne v. Burdette (1900) 84 Mo. App. 332. See also Johnson v. Kincade (1843) 37 N. C. (2 Ired. Eq.) 470; Keys v. Norris (1853) 27 S. C. Eq. (6 Rich.) 388. But see Sims v. Sims (1897) 121 N. C. 297. 40 L.R.A. 737, 61 Am. St. Rep. 665, 28 S. E. 407.

In Castor v. Davis (1889) 120 Ind. 231, 22 N. E. 110, wherein it appeared

that a man had been adjudged of unsound mind, and about three years thereafter, before his guardian was discharged, married a woman with whom he lived for more than thirty years and until his death, it was held that the presumption of the continuance of insanity would not prevail over the presumption of the validity of the marriage, and the marriage. was upheld. The court in that case said: "The question upon which the case, in a measure, depends, is this: Was the marriage of John Blackburn void? If it were conceded that Esther Blackburn and John Blackburn were husband and wife, then the conveyance executed by Elliott to them vested in them an estate by entireties, and as she survived him it follows that the appellant cannot recover in this action. In the case of Redden v. Baker (1882) 86 Ind. 191, it was held that where a person had once been adjudged insane by a proper tribunal, the presumption of insanity continued until such person had been declared sane under the proceeding provided for by our statute, and that while the record of insanity stood, such person was incompetent to enter into any contract. Such is, undoubtedly, the rule where there are no counter presumptions, and where the question involved relates to ordinary business transactions in which the public has no interest. But in cases like this, involving the legality of a marriage, every presumption is in favor of the legality of such marriage. The question, therefore, is, Which is the stronger presumption? that of continued insanity for the period of thirty-three years, and consequent adultery, or that of restoration to sanity and legitimate cohabitation?

purchasing and selling real estate, we do not think we are authorized to indulge such a presumption. Whatever the presumption arising from the record made in 1840 may be when applied to ordinary contracts, we do not think it should be permitted to overcome the presumption in favor of the legality of a marriage where the parties lived together as husband and wife for more than a quarter of a century. Marriage is something more than an ordinary contract affecting the property rights of the parties; it is an institution in which the public have an interest, and it may well be doubted as to whether the heirs of John Blackburn could be heard to question the legality of his marriage." See also Moss v. State (1885) 101 Ind. 321.

In McCleary v. Barcalow (1891) 3 Ohio C. D. 547, 6 Ohio C. C. 481, the court said: "The fact that in 1889 the probate court of Butler county, Ohio, had under the provisions of § 6317 adjudged and found that said Andrew was incapable of taking proper care of himself or of his property by reason of intemperance or habitual drunkenness, and had appointed Mr. Egbert as guardian of his person and property, which order or judg ment or said guardianship was never vacated or set aside by the court, but continued in force up to the death of McCleary, in May, 1891, is only prima facie and not conclusive evidence that he was not competent, for want of mental capacity, to enter into and consummate a legal marriage. While such judgment may be conclusive as to the want of such capacity on the part of the ward to make contracts in respect to his property, which the guardian, while such relation continues, has the legal right to control, such is not the case under the authorities, as we think, as to the executed contract of marriage. And the court having found, as a matter of fact, that these parties were fully competent to enter into the marriage relation, and that they did so, and lived together as husband and wife for more than a year, and until his death, without objection from anyone, or any proceed

ing taken to annul the same, we hold that it was a legal and valid marriage, and that the plaintiff is entitled to a decree as prayed for."

In the reported case (ROETHER V. ROETHER, ante, 631), wherein it appears that the defendant had been adjudged incompetent, and a guardian for his person and estate appointed, which guardianship was in existence at the time of his marriage, it is declared that he was not incapacitated from marrying on that account. It is held that a statute which declares to be void contracts entered into during such a time has no application to a contract of marriage.

In Winslow v. Troy (1902) 97 Me. 130, 53 Atl. 1008, it was held that where the adjudication that a man was of unsound mind was void because the notice of the proceedings required by statute was not given him, it had no effect on his capacity to contract a valid marriage.

It has been held that the fact that a person had, prior to his marriage, been adjudged insane, and was at the time of the marriage under guardianship, was prima facie evidence of unsoundness of mind at the time of the marriage. Goodheart v. Ransley (1892) 11 Ohio Dec. Reprint, 655, 28 Ohio L. J. 227.

IX. Presumption and sufficiency of
evidence.

a. In general.

The general presumption is that a person who has contracted a marriage was mentally capable of legally contracting it, and the burden is on the party alleging mental incapacity to prove it.

Rawdon V. Rawdon

Alabama. (1856) 28 Ala. 565.

Indiana.-Castor v. Davis (1889) 120 Ind. 231, 22 N. E. 110.

Kansas.-Baughman v. Baughman (1884) 32 Kan. 538, 4 Pac. 1003. Maine.-Winslow v. Troy (1902) 97 Me. 130, 53 Atl. 1008.

Mississippi. Ward v. Dulaney (1852) 23 Miss. 410; Powell v. Powell (1854) 27 Miss. 783; Smith v. Smith (1872) 47 Miss. 211.

Texas. Schneider v. Rabb (1906) - Tex. Civ. App., 100 S. W. 163. Washington.-Waughop v. Waughop (1914) 82 Wash. 69, 143 Pac. 444.

England. Browning V. Reane (1812) 2 Phillim. Eccl. Rep. 69, 161 Eng. Reprint, 1080; Durham v. Durham (1885) L. R. 10 Prob. Div. 88.

In Anonymous (1826) 4 Pick. (Mass.) 32, it was stated that the fact that a person was able to go through the marriage ceremony with propriety was prima facie evidence of sufficient understanding to make the contract. But in Smith v. Smith (Miss.) supra, the court, referring to the foregoing remark, said: "We would not be disposed to attach such grave consequences to that circumstance. We prefer the estimate put upon it by Lord Stowell, in Browning v. Reane (Eng.) supra. Much stress was not to be laid on that circumstance, 'as persons in that condition will nevertheless often pursue a purpose with the composure and regularity of apparently sound minds."" In Kern v. Kern (1893) 51 N. J. Eq. 574, 26 Atl. 837, the court said: "It has been held, in Anonymous (Mass.) supra, that the fact of a party being able to go through the marriage ceremony with propriety was prima facie evidence of sufficient understanding to make the contract. While, as Mr. Bishop suggests, this is laying down too strong a rule, there can, I think, be no doubt that it is a matter of signal importance in considering such a question as the one involved in this case, that the party conducted himself, in a preliminary conversation with the clergyman, in such a way as to impress him with his sanity, and intelligently bore himself through the ceremony of marriage."

Where the validity of the marriage is attacked sometime after it is contracted, the proof of insanity should be clear. Van Haaften v. Van Haaften (1905) 139 Mich. 479, 102 N. W. 989; Powell v. Powell (1854) 27 Miss. 783; Henderson v. Henderson (1910) 141 Mo. App. 540, 126 S. W. 203; Cole v. Cole (Tenn.) supra.

In Ward v. Dulaney (Miss.) supra, the court said: "This contract is so important in its consequences, the rights, duties, obligations and responsibilities which it creates and imposes are of so delicate and important a character, involving not only the happiness, well-being, and respectability of the parties themselves, but also the honor and peace of families, that the policy of the law requires courts of justice to sustain and uphold it, unless the proof be entirely clear and satisfactory, leaving no reasonable doubt upon the mind of the incapacity of the party and the consequent invalidity of the marriage."

In Cole v. Cole (1857) 5 Sneed (Tenn.) 59, 70 Am. Dec. 275, it was said: "Every consideration of policy and humanity admonishes us that a contract so essentially connected with the peace and happiness of individuals and families, and the well-being of society, should not be annulled on this or any other ground, not clearly made out."

In Kern v. Kern (1893) 51 N. J. Eq. 582, 26 Atl. 837, the court said: "A result so important should not be reached except on the most convincing proofs."

Hayden, J., in Slais v. Slais (1880) 9 Mo. App. 97, expressed the sentiment thus: "A contract of marriage is not lightly to be pronounced void on the ground that one of the parties was insane and incapable of contracting. The testimony by which such cases are often supported is open to suspicion, and nowhere ought the discernment of the chancellor to be more employed than in weighing witnesses who testify as to insanity."

But in Kutch v. Kutch (1910) 88 Neb. 114, 129 N. W. 169, wherein it appeared that the marriage was never consummated, the court said: "We

are advised by the evidence that the marriage between the litigants has not been consummated, so that the weighty considerations of public policy, which, except for the gravest reasons, forbid the annulment of consummated marriages, do not influence our judgment in the instant case."

b. Particular cases.

1. Want of mental capacity found. In each of the following cases it was held that there was a want of mental capacity to contract the marriage:

Orchardson v. Cofield (1897) 171 Ill. 14, 40 L.R.A. 256, 63 Am. St. Rep. 211, 49 N. E. 197 (woman of extreme age and wealth and highest character and believer in Spiritualism married to professed medium).

Pyott v. Pyott (1901) 191 III. 280, 61 N. E. 88, affirming (1900) 90 Ill. App. 210 (man seventy-two years of age, with considerable means, married in his dotage clandestinely to woman of ill repute).

Wiley v. Wiley (1919) 75 Ind. App. 456, 123 N. E. 252 (man of seventy-one years who had been confined as a lunatic for several months some four years before the marriage, and who at the time when the license was issued was the subject of a pending proceeding in which he was sought to be adjudged of unsound mind, such judgment being passed a short time thereafter, whereon he was recommitted to the asylum within a month after his marriage).

Chapline v. Stone (1898) 77 Mo. App. 523 (evidence to prove that woman was idiot; proceeding to annul marriage not brought until about twenty years after marriage, during which time parties lived together ostensibly as husband and wife).

Buffum v. Buffum (1916) 86 N. J. Eq. 119, 97 Atl. 256 (man released from sanitarium some eight months before his virtual abduction of the woman with whom he later went through a marriage ceremony, being recommitted to an asylum shortly thereafter).

Johnson v. Kincade (1843) 37 N. C. (2 Ired. Eq.) 470 (man who both be