Garnett v. Garnett
114 Mass. 379
Mass.
1874
Check Treatment
Gray, C. J.

By the law of this Commonwealth, a libel for divorce may be filed and prosecuted in behalf of an insane person, either by the guardian of the party, or by a next friend appointed by the court for the purpose. Rev. Sts. c. 76, § 12, and Commissioners’ note. Gen. Sts. c. 107, § 16. Denny v. Denny, 8 Allen, 311. And if, at any time during the pendency of the suit, the respondent is insane, whether such insanity began before or since the filing of the libel, the defence may be conducted by a guardian appointed by the Probate Court, or, if there is no such guardian, by one appointed by the court in which the libel is pending; and if upon a hearing sufficient cause is shown, a divorce may be decreed. Broadstreet v. Broadstreet, 7 Mass. 474. Mansfield v. Mansfield, 13 Mass. 412. Rev. Sts. c. 76, § 18, and Commissioners’ note. Little v. Little, 13 Gray, 264. Gen. Sts. c. 107, § 21. The fact, if satisfactorily established, that both parties .vere insane when the present petition was filed, therefore affords no conclusive reason for dismissing it.

A divorce nisi under the St. of 1870, c. 404, is substantially equivalent to a divorce from bed and board, and does not dissolve the marriage; and an application, by a party who has obtained such a divorce, for a divorce from the bonds of matrimony, is a new proceeding, requiring notice to the adverse party, and a hearing by the court. Graves v. Graves, 108 Mass. 314. Edgerly *381v. Edgerly, 112 Mass. 53. St. 1873, c. 371, § 3. The fact that, while both parties were of sound mind, a divorce nisi was obtained does not therefore require the court, as a matter of course, to enter an absolute decree of divorce from the bond of matrimony after either or both of the parties have become insane.

But the facts agreed in the case stated are not sufficient to enable the court to enter a final decree, either granting or refusing the divorce prayed for. Being under guardianship as an insane person is but primé facie evidence of actual insanity. Stone v Damon, 12 Mass. 488. Breed v. Pratt, 18 Pick. 115. Crowninshield v. Crowninshield, 2 Gray, 524. Little v. Little, 13 Gray, 264. Even a person who is incapable of managing property, or of transacting the ordinary affairs of life, or of contracting a valid marriage, may yet have feelings and interests entitled to serious consideration in determining whether the status and relation of marriage shall or shall not continue. Winslow v. Winslow, 7 Mass. 96. Middleborough v. Rochester, 12 Mass. 363. Holyoke v. Haskins, 5 Pick. 20, 26. Allis v. Morton, 4 Gray, 63. The nature and degree and probable duration of the insanity of either party may have an important bearing upon the questions whether the hearing of the case shall be postponed and how it shall be decided. The difficulty of ascertaining the real facts, when either party is incapable of testifying or of instructing counsel, requires the court to proceed with the utmost caution, especially when the object of the suit is to obtain a complete dissolution of the marriage without the intelligent consent of the libellant. The agreement of guardians or of counsel to submit the case to a final determination upon an imperfect statement of the facts cannot relieve the court from the responsibility of considering what course public policy and the best interests of the parties require to be pursued. The case must therefore stand for

Further hearing. *

See Mordaunt v. Moncreiffe, L. R. 2 H. L. Sc. 374.