been unable to govern herself or to manage her affairs, and remained without the prospect of any material improvement in her state of mind; that the lunatic was entitled, under one will, to the sum of 1167., and on the death of two other persons would become entitled to the further sum of 150%.; and that, under another will, the lunatic was entitled to 2007., and would become entitled to the further sum of 150%.; that the executors acting under such wills, although able to pay to the lunatic 2357. or thereabouts, (being part of the bequests so given to the said lunatic as aforesaid), yet declined to do so, alleging that her insane state of mind rendered her incompetent to give them a legal discharge for the same; that the lunatic had no property whatever to maintain herself and children, except what she might become entitled to under the said wills; and that the parish having refused to grant relief to the said lunatic and her children, she and her daughter were living at the house of the petitioner; that the petitioner was seriously inconvenienced by having to support the lunatic and her children, and was unable, of her own resources, to place the lunatic at any establishment for the reception of insane persons, or to afford proper medical advice; that no commission of lunacy had been applied for or issued against the said lunatic, on account of the value of her property being too small to bear the expense of such commission. The petition prayed the Lord Chancellor to direct that the several sums of money then due, and from time to time thereafter to become due to the lunatic under such wills, might be paid to the petitioner for the maintenance of the lunatic, and for the maintenance, education, and placing out in the world of her two children; and that it might be referred to one of the Masters in Chancery to tax the costs of the application, and that the amount of such costs might be paid out of the lunatic's property. The Lord Chancellor refused to make an order on the petition (i). And in another case it appeared, by the petition of the sister of another lunatic, that the latter, being of the age of fifty-six years, had, for the period of twenty-five years past, (i) In re Winton, 21st Dec. 1831. laboured under a considerable degree of mental derangement, and was quite incapable of managing herself or her affairs, and had for some time past been confined in a lunatic asylum under the management of a physician, who was of opinion that there was no probability whatever of her recovery; that the whole property of the lunatic consisted of the sum of 5147. 16s. Bank 3 per cent. Annuities, and the annual sum of 50l. 5s. arising from the rents of estates, and the interest of a mortgage debt, to two fourths of which the lunatic was absolutely entitled. The dividends of the Bank Annuities had been received under a power of attorney, until the death of the person to whom it had been granted by the lunatic during her mental capacity, and applied for her maintenance; that the petitioner had received the income arising from the whole of the property of the lady, (except such Bank Annuities), and applied the same towards her maintenance, but the amount being quite inadequate for that purpose, the petitioner had made good the defiicency out of her own estate. The petition stated that the expenses which would be unavoidably attendant on the proceedings under a commission to inquire of the lunacy, would amount to the sum of 1507. at the least, and would materially decrease the property of the lunatic, the income whereof, including the dividends of the stock, was insufficient for her support. The petition prayed that the Accountant-General or one of the Cashiers of the Bank of England might be ordered to receive the dividends then due on the stock, and to pay the same to the petitioner towards reimbursement of the monies already expended by her, on account of the lunatic, and that the Accountant-General or Cashier might also be ordered to receive the dividends thereafter to become due on the stock, and pay the same to the petitioner from time to time during the lifetime and insanity of the lunatic, in order to be applied towards her future maintenance and support. The Lord Chancellor refused to make an order according to the prayer of the petition, but directed the petition to stand for a commission of lunacy, to be issued on filing the necessary affidavits, in case the parties thought proper to apply (k). (k) In re Astley, 21st Dec. 1831. The three last petitions stood over the long vacation for Lord Chancellor Brougham's consideration, and, on giving judgment (1), he observed that he had no jurisdiction to make the orders prayed, as the lunatics were not parties to any suit in Chancery; and that the circumstances disclosed by the petitions rendered his interference, if possible, very desirable; but, after having anxiously considered the cases on the subject, the result of his examination was, that he had no jurisdiction to make such orders as were prayed, in cases where no commission of lunacy had issued, and where the lunatics were not before the Court as parties to a suit. He expressed his opinion that the jurisdiction was established, and had been well exercised in the cases of lunatics who were before the Court as parties to suits; but that it had already been carried far enough, and that he would not extend it; and if the jurisdiction was defective, it could be remedied only by the Legislature. (1) 21st Dec. 1831. 446 CHAPTER XI. OF PROCEEDINGS IN THE ECCLESIASTICAL AND OTHER COURTS RESPECTING THE MARRIAGE OF LUNATICS. It seems to have been formerly considered, that, by the common law, which differed in this respect from the civil, the marriage of an idiot was valid (a). But it is now settled that idiots cannot marry, for marriage is a civil contract, the basis of which is consent, which idiots are incapable of giving, and therefore of entering into that or any other contract (b). And, for the same reason, lunatics are disabled from marrying, except during lucid intervals; and their marriages, as well as those of idiots, are absolutely void (c). Want of reason must, of course, invalidate the most important contract of life, the very essence of which is consent. It is not material, whether the want of consent arises from idiocy or lunacy, or from both combined. If the incapacity be such, arising from either or both causes, that the party is incapable of understanding the nature of the contract itself, and incapable, from mental imbecility, to take care of his or her own person and property, such an individual cannot dispose of her person and property by the matrimonial contract, any more than by any other contract (d). But, it has and see 2 Phill. 19. (a) Roll's Abr. 357; Shepp. Abr. tit. Idiot; 1 Sid. 112; Harg. Co. Litt. 80. a., note (1); 1 Bl. Comm. 438. (b) Morrison's case, coram Delegates, 1745; Cloudesley v. Evans, Prerog. 1763; Parker v. Parker, 1757, cited 1 Hagg. Cons. R. 417; (c) Turner v. Mayers, 1 Hagg. Cons. R. 414; Browning v. Reane, 2 Phill. 69. (d) 2 Phill. 70. See 1 Stair's Inst. by Brodie, pp. 24, 28, n.; Erskine's Inst. by Ivory, pp. 117, 199; Blair's Dict. 6293. been held in the Ecclesiastical Court, that a person born deaf and dumb, if compos mentis, may contract matrimony by signs (e). It is provided by the statute of the 15 Geo. 2, c. 30, that the marriages of lunatics and persons under phrensies (if so found lunatics under a commission, or committed to the care of trustees by any act of Parliament), before they are declared of sound mind by the Lord Chancellor, or the majority of such trustees, shall be void (f). By the statute of the 51 Geo. 3, c. 57, the provisions of the above-mentioned act are extended to Ireland. These statutes render the marriages in question void, although they may have been contracted during lucid intervals (g). When a commission of lunacy has been taken out, the conclusion against the marriage will be founded on the statute (h); where there has been no such commission, the matter is to be established on evidence. The statute has made provisions against such marriages, even in lucid intervals, till the commission has been superseded. In other cases, the Court will require it to be shewn by strong evidence, that the marriage was clearly had in a lucid interval, if it is first found that the person was generally insane (i). The Spiritual Court has the sole and exclusive cognizance of questioning and deciding directly the legality of marriage, and of enforcing specifically the rights and obligations respecting persons depending upon it; but the temporal Courts have the sole cognizance of examining and deciding upon all temporal rights of property; and so far as such rights are concerned, they have the inherent power of deciding incidentally, either upon the fact or legality of marriage (j). It is a common practice, in the Court of Chancery, where no (e) Swinburne on Marr. sect. 15. (f) This act is stated to have been passed to meet the case of Mr. Newport, the natural son of the Earl of Bradford, who left him a very large fortune, with remainder to another person. Com. Dig. tit. Idiot, (D. 1.) |