"Marriage is a civil contract and may be avoided, like any other contract, for want of sufficient mental capacity in the parties. If the mind is unsound at the time, it is incapable of consent, and that is an essential element in all contracts.

"In early times, when there was thought to be something sacred and mysterious in the matrimonial relation, and its civil was almost obliterated by its spiritual character, the marriage of persons of unsound mind was held valid. Blackstone, in 2nd volume of his Commentaries, 438, 439, says this was 'a strange determination, since the consent is absolutely requisite to matrimony, and neither idiots nor lunatics are capable of consenting to anything.' The test question in all such cases is whether the party is capable of making any binding contract. The identity of the doctrine that unsoundness of mind vitiates this as well as all other contracts is well established. But 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. The consequences, in many cases, would be most deplorable. The rights of property would be unsettled, and the peace of families destroyed, to say nothing about the effects upon the innocent offspring. The annullment of other contracts would only affect property; but this would do that and more; it would tell upon the happiness, character and peace of the parties. The appalling character of these consequences is well calculated to impress the courts with the solemn duty of requiring a clear case for the application of the general principle to this delicate and important contract. It is, however, only a civil contract, and must stand or fall by the usual tests applicable to contracts.

5 Koonce vs. Wallace, 7 Jones Law (N. C), 194; Fisher vs. Bernard, 65 Vt., 664.

"It is not every unsoundness that will avoid a contract. The degree necessary to produce this effect is fixed by the law and must be made out by proof. All persons of lawful age are presumed to be capable of contracting, until the contrary is made to appear. So sanity is presumed, and if the contrary is alleged, it must be proved by the party imputing it. If a state of permanent insanity is once shown, the burden of proof shifts, and a lucid interval must be proved by the other side. But the rule is different in a case of temporary insanity, depending on some exciting cause not in perpetual action.

'The general rule is 'that those who have not the regular use of their understanding, sufficient to deal with discretion in the common affairs of life, or the weakness being so considerable as to amount to derangement, are incapable of contracting a valid marriage, or making any other binding contract.'6

"Sir John Nicholl, in Browning vs. Reane,7 says: 'If the incapacity be such that the party is incapable of understanding the nature of the contract itself, and incapable from mental imbecility, to take charge of his or her own person and property, by the matrimonial contract any more than by any other contract.'"

It is difficult to describe any exact, palpable line between legal capacity and incapacity. Perhaps this is impracticable, as an abstract thing, in reference to the ability to make a valid contract, as insanity subsists in various degrees, and the line of separation between it and mere imbecility is often faint and imperceptible. The general test is the fitness of the person to be trusted with the management of himself and his own concerns. Such a person has a disposing, contracting mind, although it may be in a degree impaired.8

In the case of Pyott vs. Pyott,9 it was held that a marriage is void ab initio where the mental faculties of the husband were so impaired that he was unable to understand the nature and effect of the act of marriage, and where he was subjected to improper influences exerted to the end that the conspirators might profit thereby.

6 Bishop on Marriage and Divorce,

Sec. 177. 7 2 Phillin, 69.

8 Cole vs. Cole, 5 Sneed (Tenn.), 57.

9 191 111., 280, 61 (N. E.), 88.

"Defendant who was 73 years old, married plaintiff in 1898 - about one year and one-half after the death of his first wife, with whom he had lived happily. He had acquired property of the value of $200,000. In 1894 he began to neglect his business, and finally lost all interest therein. During former years he had been a member of the church, advocated religious and moral principles, read only the best literature, abstained from vulgar or profane language, and was modest in deportment and dress. He now refused to attend church services, abandoned the books he had formerly read, and began reading French novels, indulged in profane and vulgar language, and neglected his clothing until he appeared dirty and indecent. During the illness of his wife he became disregardful of her, and while she was lying at the point of death left her presence to make social calls. While her corpse was still in the house, he insisted that a relative play dance music on the violin. After her death, in 1897 his mental faculties weakened rapidly. He developed a morbid propensity for matrimony, and courted a servant girl in the family, begging her to marry him. On one occasion he was found standing in her bedroom entirely without clothing, except an undershirt. He asked one W, who knew his financial and mental condition, to recommend a housekeeper, and the latter recommended plaintiff, his niece. It appeared that plaintiff was the mother of an illegitimate child and that her character for chastity was not good. W. knew that she had given birth to such a child, but did not make this known to defendant. W. schemed to bring about the marriage and participated in concealing from defendant's sons and daughters that such marriage was contemplated. Held, that the mental faculties of defendant were so impaired that he was incompetent to enter into the contract of marriage, that he was subjected to improper influences by W., and that the marriage between him and the plaintiff was therefore void."