22 App. D.C. 341 | D.C. Cir. | 1903
delivered the opinion of the Court:
1. The first question raised is whether this suit can be maintained when instituted by a next friend and not by the committee of the lunatic.
Undoubtedly the general rule is that when a committee has
“The said court shall have full power and authority to superintend and direct the affairs of persons non compos mentis, and to appoint a committee or trustees for such persons after hearing the nearest relatives of such persons, or some of them, if residing within the jurisdiction of the court, and to make such orders and decrees for the care of their persons and the management and preservation of their estates, including the collection, sale, exchange, and reinvestment of their personal estate, as to the court may seem proper.”
As has been repeatedly said in such cases, the court acts as parens patrice, armed with the power of the State, and committees and trustees are only its instrumentalities to carry its orders into effect. Of course, the guardianship by the court should not be unduly interfered with by the unauthorized and unwarranted institution of suits for or against the lunatic by persons other than those appointed by the court for the purpose, or without making such persons parties to the proceedings.
But a suit to annul the marriage of a lunatic is a peculiar proceeding. Strictly speaking, perhaps we might assume that it is not one of the things committed to a committee or trustee, as it does not seem to concern his person or his property in the sense of the statute. Yet it could not be held that the committee of a lunatic could not very properly institute a suit to annul his marriage, if there was ground for such suit. But § 1286 of the Code specifically provides that any such suit may be instituted by next friend. This section provides as follows:
*347 “A proceeding to declare the nullity of a marriage may be instituted in the case of an infant under the age of consent by such infant, through a next friend, or by the parent or guardian of such infant; and, in the case of an idiot or lunatic, by next friend.”
Now, if any force or effect is to be given to this section, it must be held to authorize the institution of the present suit in the manner and by the person by whom it has been instituted. The Code had already provided, in § 115b, above cited, for the appointment of committees for insane persons; and it would have been easy enough for the framers of the Code to have said in § 1286 that suits for nullity of marriage of a lunatic should be instituted by his committee, if there was one, if such was their intention. They did not say so, and we are not to assume that they did not mean what they said. Whether they regarded a suit of this nature as one which in many cases a committee would be incapacitated from instituting, it is perhaps immaterial to inquire. But plainly there are many cases in which a committee would be directly interested in resisting the institution of such a suit. It is most natural, and it is of most frequent occurrence, that the husband or wife of an insane person is made the committee or trustee of such person. Assuredly it would be most absurd to assume that such husband or wife will institute a suit, or is a proper person to institute a suit, to establish his or her own unlawful act. Again, a trustee or committee might be appointed on the nomination of a husband or wife of the insane person; and there would be a manifest impropriety in devolving the institution of a suit of this nature upon a person so appointed.
The expression “next friend,” in connection with proceedings in equity, has a definite and well-established meaning. It does not mean the committee or trustee of a lunatic, or the guardian of a minor, or the husband of a married woman. Bouvier in his Law Dictionary says that a next friend is “one who, without being regularly appointed guardian, acts for the benefit of an infant, married woman, or other person not swi juris.” And Daniell in his work on Chancery Pleading and Practice, with special reference, it is true, to infants, says:
*348 “When, an infant claims a right or suffers an injury on account of which it is necessary to resort to the extraordinary jurisdiction of the court of chancery, his nearest relation is supposed to be the person who will take him under his protection, and institute a suit to assert his rights or to vindicate his. w:rongs; and it is for this reason that a person who institutes a. suit on behalf of an infant is termed his next friend. But, as. it frequently happens that the nearest relation of the infant himself withholds the right, or does the injury, or at least neglects to. give that protection to the infant which his consanguinity or affinity calls upon him to give, the court, in favor of infants, will permit any person to institute suits on their behalf, and whoever' thus acts the part which the nearest relative ought to take is also> styled the next friend of the infant, and is named as such in the-bill. And it is to be observed that, although an infant has a guardian assigned to him by the court, or appointed by will,, yet where he is plaintiff the course is not to call him by that, name, but to call him the next friend.”
While, therefore, a lunatic usually sues by his committee,, when there is one, and the committee may and often does act as; next friend, yet there is a well-recognized distinction in the law between the two terms and the two offices to which they refer;, and the framers of the Code must be supposed to have had this, distinction in view when they wrote the several sections which have been cited. And clearly they had good reason for providing that suits for nullity of marriage should be instituted by next friend, and not necessarily by the committee of a lunatic. At the same time it would seem to be proper, in accordance with reason and authority, that the committee of a lunatic, in view off the fact that it is his duty to protect the general interest of the-lunatic, should be made a party defendant to such a suit as the-present.
It may be added that, if the construction claimed by the appellant as proper to be given to §§ 1285 and 1286 of the Code-considered together is correct, then the conclusion here reached, is greatly strengthened.
Section 1285 provides that the marriage of an idiot and of at
We are of opinion that this suit was properly instituted by Hannah H. Parsell as the next friend of Eugene Peters, but that -the committee appointed for him should have been made defendants.
2. The second question raised arises under the demurrer, wherein it is claimed that the bill is defective, inasmuch as it •does not allege that at the time of the marriage or prior to the marriage Eugene Peters had been adjudged to be a lunatic. The contention is that sections 9G6 and 1285 of the Code are apparently inconsistent; that section 1285 must be regarded as a definition and restriction of section 966; and that this latter section restricts suits for the nullity of marriage of lunatics to cases where the lunatics have previously been adjudged as such by decree of court. We cannot accede to the correctness of this ■contention.
Section 966 is contained in the chapter 22 of the Code, which is devoted to the subject of divorce. It is in the following terms:
“A divorce from the bond of marriage may be granted only where one of the parties has committed adultery during the marriage: Provided, That in such case the innocent party only may remarry, but nothing herein contained shall prevent the remarriage of the divorced parties to each other: And provided, That legal separation from bed and board .may be granted for drunkenness, cruelty, or desertion: And provided, That marriage contracts may be declared void in the following cases:
*350 “First. Where such marriage was contracted while either of the parties thereto had a former wife or husband living, unless the former marriage had been lawfully dissolved.
“Second. Where such marriage was contracted during the lunacy of either party, unless there has been voluntary cohabitation after the lunacy, or was procured by fraud or coercion.
“Third. Where either party was matrimonially incapacitated at the time of marriage, and has continued so.
“Fourth. Where either of the parties had not arrived at the age of legal consent to the contract of marriage (unless there has been voluntary cohabitation after coming to legal age), but in such cases only at the suit of the party not capable of consenting.”
Section 1285, as well as § 1286, heretofore cited, is contained in chapter 43 of the Code, which is devoted to the subject of marriage. Section 1283, with which the chapter begins, provides in terms that certain marriages “shall be absolutely void ab initio without being so decreed, and their nullity may be shown in any collateral proceedings.” These were marriages between persons standing to each other in certain degrees of kindred, and persons either of whom had been previously married, when the marriage had not been .terminated by death or a decree of divorce. Section 1284 provided that any such marriages might also be declared by judicial decree to have been null and void. Then follows the section 1285, here invoked, which provides for the invalidation of certain other marriages from the time of decree only. It is in the following words:
“The following marriages in said district shall be illegal, and shall be void from the time when their nullity shall be declared by decree, namely:
“First. The marriage of an idiot or of a person adjudged to be a lunatic.
“Second. Any marriage the consent to which of either party has been procured by force or fraud.
“Third. Any marriage either of the parties to which shall be incapable, from physical causes, from entering into the married state.
*351 “Fourth". When either of the parties is under the age ol consent, which is hereby declared to be sixteen years of age for males and fourteen for females.”
This last provision was introduced by the amendatory act of June 30, 1902.
Following this section 1285 is section 1286, heretotore ched, which provides that, in the case of an idiot or lunatic, suit for the annulment of the marriage may be instituted by next friend.
It seems to us, upon consideration of these enactments, that, while there is apparent duplication, there is no real inconsistency between the several provisions. Both may well stand together. In treating of the subject of divorce the Code made a radical departure from previously existing law in limiting the grounds of divorce from the bond of matrimony to one cause, that of adultery. But, inasmuch as there were cases where the bond of matrimony existed in appearance and yet was without proper foundation in valid contract, it was deemed proper to reserve, under a proviso, the previously existing provisions of law, which really may be regarded rather as provisions of natural right, than mandates of the municipal law, under which marriages might be declared void when there was no proper foundation for them. The purpose was to preclude any implication that the restriction of the grounds of divorce to the one ground of adultery involved the repeal of the jurisdiction of courts of equity to decree the nullity of marriages for sufficient cause existing at the time of marriage.
When afterwards in t-hé same statute the framers of the Code came to deal with the subject of marriage, it was found necessary to some extent to go over the same ground again in enacting what marriages should be regarded as illegal. There a distinction was made between absolutely void and voidable marriages, and in the latter category were included all those which in the previous section 966 had been reserved as proper subjects for judicial decree. But in section 966, in this connection, the words used were “where such marriage was contracted during the lunacy of either party,” while in § 1285 the words were “the marriage of an idiot or of a person adjudged to be a lunatic.”
Under the Code, as it will be noticed, as well as under previous law, lunacy of itself does not render a marriage absolutely void db initio, as in the cases mentioned in § 1283, but only voidable by decree. The parties are entitled to treat void marriages as absolutely nonexisting, and to proceed as though they had never been entered into; but the invalidity of the voidable marriages mentioned in § 1285 must be established by decree before they can be safely disregarded. It is in this connection and for this purpose only that adjudication is required of insanity. The statute does not contemplate two distinct and independent proceedings.
The case of Groff v. Miller, 20 App. D. C. 353, cited by the appellant in support of her contention, in our opinion is not relevant to the present issue. There it was a question of two different provisions óf the Code which were palpably and hopelessly inconsistent with each other, and winch nullified each other, unless they could be applied to different classes of cases. We found by reference to other provisions of the Code that they could be made to apply to different classes of cases, and therefore sustained both provisions. Here we find not inconsistency, but at most some apparent qualification or restriction which
We are of opinion that the rulings of the court below in the premises were right and proper, and that they should be, and they are hereby, affirmed with costs.
The cause will be remanded to the Supreme Court of the District of Columbia for further proceedings therein according to law, and with leave to the complainant to amend the bill of complaint by making the committee of the lunatic parties thereto as defendants. And it is so ordered. Affirmed.