Payne v. Burdette, 84 Mo. App. 332

Payne v. Burdette

84 Mo. App. 332 | Mo. Ct. App. | 1900

ELLISON, J.

This is a proceeding instituted by plaintiff as guardian to obtain a decree annulling the marriage of his ward with defendant. The circuit court refused the decree.

The facts are that plaintiff’s ward was regularly declared to be a person of unsound mind and plaintiff was appointed his guardian by the probate court of Callaway county. About four years afterwards and while the judgment of the probate court was in force, and while plaintiff was still acting as his guardian,-the ward, then about 26 years of age, married defendant, a female about 21 years of age. The trial court refused to regard the judgment of the probate court as conclusive evidence of insanity at the date of the marriage and upon a hearing in that behalf found that at the time of the marriage the ward had capacity to legally contract the marriage relation.

It is not disputed that the marriage of an insane person is void, and while in some jurisdictions it is thought not to be absolutely necessary to have a decree avoiding it, yet that it is generally prudent to do so. Therefore, the sole question here is, is the judgment of the probate court adjudging plaintiff’s ward to be insane and appointing a guardian conclusive as to his incapacity at the date of the marriage? As to matters of ordinary contracts, it is held, in this and many other states, to be conclusive and to make such contracts absolutely void. Rannells v. Gerner, 80 Mo. 474; Coleman v. Farrar, 112 Mo. 54; Kiehne v. Wessell, 53 Mo. App. 667.

It is contended that our statute (R. S. 1889, sec. 6840) mates marriage a civil contract and places it on the same f oot*338ing with other contracts; and that therefore judgment of insanity should be held to be conclusive as in other contracts. It reads as follows: “Marriage is considered in law as a civil contract, to which the consent of the parties capable in law of contracting is essetial.” The statute (sec. 5542), declares : “No contract of any person found to be of unsound mind, as hereinbefore specified, which shall be made without the consent of his guardian, shall be valid ox binding, and such guardian may sue for and- recover any money or property which may have been sold or disposed of by his ward without his consent.”

While the language of each of these sections is general and broad, we do not believe they should be interpreted literally. The latter declares that no contract of such person shall be valid. And the former declares that marriage is a civil contract to which the consent of the parties capable in law of contracting is essential. The latter section should be restricted to such contracts as a representative, in the nature of things, could make. The section reads that those contracts made without the consent of the guardian shall be invalid, which is to say that those made by and with the consent of the guardian would be valid. But in the nature of things this could not apply to marriage, since that is a contract so peculiarly individual and personal as not to permit of any one acting for the party concerned. Therefore, we conclude that that section did not intend to include a marriage contract.

The former section declares that the consent of the parties capable in law of contracting is essential. These words do not mean that the parties shall be capable in law to make contracts generally, for wo know that a minor may contract a legal marriage. They mean that the parties must be capable in law of consummating a valid marriage contract.

Marriage is a status in which the general public, as well as the immediate individual is concerned. We therefore feel the more inclined to construe our statute as herein stated. *339Counsel for appellant have cited us to some opposing authorities, to be found in their brief, but we are not without support for the judgment of the trial court. 2 Bishop M. & D., sec. 1243; Johnson v. Kincaid, 2 Ired. Eq. 470; Keyes v. Norris, 6 Rich. Eq. 388; Lucas v. Parsons, 23 Gra. 267; Stone v. Damon, 12 Mass. 488. The latter case holds that judgment of lunacy was not conclusive of noncapacity afterwards to make a will. While the courts in Massachusetts, like those in Missouri, hold to the conclusiveness of judgment of 'insanity as regards ordinary transactions and contracts, they do not, as shown by the last case cited, hold them conclusive in all cases. This is further shown by the case of Leonard v. Leonard, 14 Pick. 280, where it was held that payment to a ward of a promissory note payable to him and in his possession was of no effect, and that the judgment of lunacy was conclusive, but the court said:

“We are of the opinion, that as to most subjects, the decree of the probate court, so long as the guardianship continues, is conclusive evidence of the disability of the ward; but that it is not conclusive in regard to all. Eor example, the ward, if in fact of sufficient capacity, may make a will, for this is an act which the guardian can not do for him.”

In all those matters which a guardian may transact and perform for his Avard, the judgment of lunacy should, during the guardianship, be held to be conclusive. But in those matters Avhich can not be performed by a guardian, such judgment ought not to be conclusive.

The result of these views is that the judgment of the circuit court should be affirmed.

Smith, P. J., concurs; Gill, J., absent.