Inhabitants of Unity v. Inhabitants of Belgrade
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Virgin, J.
As no person can contract a valid marriage when incapable of giving an intelligent consent thereto, the marriage of an insane person, though formally solemnized, is a nullity. Middleboro’ v. Rochester, 12 Mass. 363 ; Atkinson v. Medford, 46 Maine, 510; 1 Bish. Mar. & Div. (5th ed.) § § 105 and 125 ; Sch. Dom. Rel. 25, 29. Moreover the statute expressly provides, not only that, "no insane person is capable of contracting marriage,” (E. S., c. 59, § 2) but also that such a marriage, "if solemnized in this state, is absolutely void.” E. S., c. 60, § 1. And as the law, in the absence of any statutory requirement, does not require so useless a ceremony as that of annulling, by a special proceeding, a marriage which has no existence, but is absolutely void ab initio, its invalidity may be shown in any proceeding, in any court whenever the question arises collaterally. Sch. Dom. Rel. 24; 1 Bish. Mar. & Div. supra; Gathings v. Williams, 5 Ired, 487 ; S. C. 44 Am. Dec. 49 , and note, p. 54.
Such has been the invariable practice in this court ever since-the separation. Thus in an action for the recovery of pauper-supplies, the plaintiffs were permitted to impeach the validity of' an alleged marriage of the female pauper, by showing that the marriage was solemnized by a minister at his own house, neither of the parties residing in that town as required by st. 1786, c„. *422 3; Ligonia v. Buxton, 2 Maine, 102. So, in a similaf action, proof was allowed that a former husband of a married woman was still living when she married another man. Pittston v. Wiscasset, 4 Maine, 293 ; Harrison v. Lincoln, 48 Maine, 205 ; Howland v. Burlington, 53 Maine, 55 ; Augusta v. Kingfield, 36 Maine, 235. So, in the trial of a writ of entry, the defendant was permitted to impeach the marriage of the demandants’ father (under whom' they claimed as heirs) by showing that their father was a mulatto and their mother one-eighth Indian. Bailey v. Fiske, 34 Maine, 77. So, in the trial of a complaint under the statute brought to compel the respondent to contribute towards the support of his alleged grandchild, the defendant was allowed to show a former marriage of the child’s mother to impeach the latter marriage of which the pauper was the offspring. Hiram v. Pierce, 45 Maine, 367. So, in Atkinson v. Medford, 46 Maine, supra, the marriage was collaterally impeached by .showing the insanity of one of the parties thereto.
The same practice prevailed in Massachusetts, until the enactment of Mass. st. 1845, c. 222, which provided that the validity of a marriage shall not be questioned in the trial of a collateral issue on account of the insanity or idiocy of either party. Goshen v. Richmond, 4 Allen, 458 .
But while we have no such statute, and while in cases of void ^marriages no special judicial pipceedings are necessary to declare them void, we do have a statute founded on grounds of prudence .and propriety, providing in substance that, when the validity of a marriage is in doubt, either party may file a libel as for divorce, .and the court shall decree it annulled or affirmed according to the proof. R. S., c. 60, § 18. And when a marriage is annulled on account of insanity, the issue is the legitimate issue of the •parent capable of contracting marriage. R. S., c. 60, § 19.
The practice of collaterally impeaching marriages declared by the statute to be absolutely void, has been too long established to 'be changed in the absence of any statute to that effect.
Bxceptions overruled.
Peters, C. J., Danforth, Emery, Foster and Haskell, ■JJ., concurred.
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