#### *Polly Foster, administratrix of Henry Foster, jun'r. vs. James K. Means, Dorcas McDowell, Cynthia*Burrows, *and James Foster.*

1. The authorities all agree that persons *non compos mentis,*or in the language of Chancellor Kent, those who have not the regular use of the understanding sufficient to deal with discretion in the common affairs of life, are incapable of agreeing to any contract, and of course, to that of matrimony.

2. The terms *“non compos*mentis,” and *“of unsound mind"*mean the same thing, and have a determinate legal signification, importing not weakness of understanding, but a total deprivation of sense.

3. The fact of soundness or unsoundness of mind does not depend on, nor can it be collected from, particular actions, but upon the general frame and habit of the mind.

4. Where it is seen that the prevailing characteristic of the mind is the absence of the reasoning faculties, accompanied with only occasional manifestations of them, or where only in rare instances the reasoning powers can be detected at all, or where all the evidence *tends*to the conclusion that the individual is incapable of transacting the ordinary affairs of life, *held*that a marriage contract, under such circumstances, is null and void.

*Befare*Johnson, Ch. *at Spartanburg, June,*1843, from whose decree the case will be fully understood.

Johnson, Ch. The late Henry Foster, sen’r., departed this life in 1821. By his last will and testament he devises and bequeaths as follows: “I give, bequeath, and devise, to my son, Henry Foster,” (complainant’s intestate,) “during his natural life, *and at his death to the heirs of his body, lawfully begotten,*the following property, viz: the one half of my land, of the lower end of my tract, to be divided according to quantity and quality, to be divided by my executors, hereinafter named, and three other persons, to be by them chosen; to be so divided, however, as to include the improvements and dwelling house where I now live ; but not to have possession of the land or house, until the death of his mother, except she consents; also, one negro boy, Bob, one horse and saddle, and five head of cattle.”

By an *addenda*to the will, which bears the same date, and is subscribed by the same witnesses, and, I suppose,. *570was executed at the same time, he provides as follows, viz: “I do further will and direct, that all the property given, bequeathed, and devised, to my daughter *í*achel Foster, and to my two sons, Henry and James, do vest and remain under the sole and entire control of my executors above named, during the several lives of my said children, and the profits arising therefrom to be appropriated to the use and behoof of my said children.”

The executors both qualified, and assumed the execution of the will; and on the death of McDowell, the burthen of it devolved on the defendant, Means, and he is, of course, accountable for the personal estate bequeathed to the com' plainant’s intestate.

Within the last ten years, (but at what precise time is not ascertained, nor is it material,) the complainant was married to her intestate, Henry Foster, jun’r., by a magistrate ; she lived with him, as his wife, for several years, and then left him, without any cause that appeared at the hearing, unless indeed the circumstances hereinafter stated would have excused it. He died in 1841, without leaving issue, and administration of his estate was granted to the complainant. The defendant, James Means, retained possession of the estáte devised and bequeathed to him by his father, under the authority of the *addenda*to the will, and the bill prays that he may account for the rents, income, and profits, during the time he has had it in possession, and for a portion of the *corpus*of the estate, between the complainant and the defendants, Dorcas McDowell, Cynthia Burrows, and James Foster, his sisters and brothers.

It was conceded in the argument, that the limitations over of the legacy to complainant’s intestate, to the heirs of his body, was in the nature of a fee conditional at the common law, and that as he had died without issue, and had not alienated or changed the real estate, it reverted to the estate of the testator, and is distributable amongst his right heirs; but that the bequest as to the personalty was in legal effect absolute and unconditional, and is, of course, distributable amongst the heirs or next of kin of the intestate. The real and substantial ground of controversy is the fact charged in the answer of the defendant, Means, that Henry Foster, complainant’s intestate “was from his birth to his *571death of unsound mind, wholly incapable of managing his own affairs, and without sufficient capacity to form a matrimonial or other civil contract.”

Marriage being regarded by our laws as merely a civil contract, no one can enter into it who has not the legal capacity to contract. “ Consensus, *non concubitus^facit*nuptias,” says Judge Blackstone, and, therefore, without a sufficient share of reason, no matrimonial contract can be valid; 1 Black. Com. 434-8 ; and according to Chancellor Kent, “all persons who have not the regular use of the understanding sufficient to deal with discretion in the common affairs of life, are incapable of agreeing to any contract, and of course, to that of marriage.” 2d Kent Com. 656.

The extremes of mental imbecility and vigor are distinctly marked, but the point at which legal imbecility ends, and competent capacity begins, is ^Ifeay.'aSigvery lawyer must have experienced, a questic#^Jaa;U^h^(|í^pulty, in the solution of which no rules canjavail any tffi$g>and is addressed entirely to experience as&Jfee^p^gp^ iThe evidence in this cause brought down the m^mySóf the complainant’s intestate, literally hf his grave, to which he descended at ab^t forty-twó^yárs of age, and unlike ordinary cases involvingfi^^estion of legal capacity. Of the twenty-four witnesses sworn, (about equal numbers on both sides,) the facts testified were much of the same character, and their conclusions very generally the same, all tending to shew that if he possessed the power of ratiocination at all, it was but in a degree removed from idiocy.

From his very infancy, he exhibited great imbecility of mind, and without entering into a detail of all the circumstances stated by the witnesses, a mere outline will be sufficient to demonstrate that it was incapable of cultivation or improvement. '

When a boy, he was put to school by his father, but was incapable of learning any thing beyond the alphabet, and that imperfectly ; nor did he then or elsewhere participate in any of the amusements of children of his age; rarely or never spoke, unless spoken to, and then answered in mon-osylables. At the age of thirty-two he was again put to school by his mother, his father being then dead, and all *572that he attained in nine or ten months constant attention was still an imperfect knowledge of the alphabet, and an attempt at spelling words of two syllables. His teacher, Mr. Joseph Foster, a stranger to his family, endeavored to instruct him to read the New Testament, but was unable to teach him to read, intelligibly, the most commonplace sentences understandingly. He often miscalled the words and appeared ignorant of the letters which composed them; and his teacher was under the necessity of pointing his finger to keep him in the iine which he was attempting to read. He seemed to know that there was value in money, and was tenacious of it, and could distinguish between a dollar and a six and a quarter cent piece, but had no knowledge of the relative value of the intermediate small coins, nor had he any knowledge of the relative value of larger sums. A neighbor, in jest, offered him $75 for his horse, which he refused to take; he then offered him $95, which he also declined, and then $25, which, although he refused to accept, lie supposed more than either of the preceding offers ; nor did he have a more just estimate of the relative value of property. Another neighbor offered to exchange with him a horse worth about $60, for the negro, Bob, bequeathed to him by his father, worth then, in the opinion of the witness, about $700, provided defendant, Means, would give him a bill of sale of Bob. This was mere matter of amusement, but the intestate took it in earnest and importuned Means to make the bill of sale. He was accustomed to purchase small articles of necessity in the stores in the neighborhood, and some of the witnesses thought that he had judgment enough to form some estimate of their value, but I do not know how that can be reconciled to his ignorance of the value of even small coins. All the witnesses concur, however, in saying that he was incapable of forming a just estimate of the value of a horse or a negro. His habit of cheapening goods at the stores, and complaining of high prices, was accounted as evidence of his power of reason and comparison, but that might have been a mere imitation of what he had heard others say, and I incline to think so, as it was a general habit. He had, however, occasionally, some glimmerings of reason, as for example, he appeared much distressed when the complainant left him, *573but not long after, he was perfectly reconciled to it, and remarked that, if he had known the troubles incident to a married life, he never .would have got married. On one occasion a merchant refused to let him have a pair of shoes on credit, and he requested a friend to purchase them for him. He did so, and the intestate afterwards paid him the money. Before his marriage he had lived with his mother ; afterwards, a house was built, and a .farm of some three or four acres was cleared for him. He wanted sufficient judgment to make the fence or lay off the ground and plant his corn, the principal crop; but when that was done, he could plough it well enough. He kept some live stock, to which he was attentive, particularly his horse, to which he was partial. Numerous other examples of his want of understanding and of his possessing half reasoning powers, were given in the evidence, but the foregoing are fair specimens, and it is utterly impossible that he could have formed any just conception of the moral duties and obligations incident to the married state. He was, probably, prompted to it by animal instinct alone, as his physical powers were considerable; and although no practices on him are disclosed in the evidence, the circumstances leave but too much reason to suppose that the complainant ai’ailed herself of his mental incapacity to involve him in a marriage with her. The small fortune bequeathed to him by his father, which was considerably increased on the subsequent death of his mother, might have been a motive with a woman in very humble circumstances. They both lived in the same neighborhood, and he was well known to her and her father and friends, and the suspicion of unfair dealing has in support of it the additional fact that the marriage was solemnized without the knowledge of any of the family or friends of the intestate.

The prayer of the bill is that defendant, Means, may account for the rents, issues and profits of the trust estate, and that a sale or partition be made of the *corpus*of the estates, both real and personal. The complainant is, of course, entitled to an account, but as she has no personal interest in the corpus, and as it is not pretended that it will be necessary for the payment of debts, I shall make no or*574der for the sale or partition, until the report on the account is made.

I have had some difficulty about the costs. I have, however, concluded that the complainant ought to pay the costs of the contest in relation to the validity of her marriage with her intestate. From the view I have taken of it, her claims are utterly without foundation, and the difficulty in which it has involved her, in all probability, arose out of her own indiscretion. She ought to pay the costs of the answer of Dorcas McDowell and Cynthia Burrows, whom it was unnecessary to make parties to a bill against defendant, Means, for an account.

It is therefore ordered and decreed, that the complainant do pay the costs of the attendance and summoning the witnesses to give evidence as to the fact and validity of her marriage with her intestate, and of the trial thereof, and of the answer of Dorcas McDowell and Cynthia Burrows ; and that defendant, Means, do pay out of the trust estate in his hands all the other costs ; and it is further ordered, that defendant, Means, do account for the rents, issues, income, and profits of the estate, real and personal, devised and bequeathed to him by the testator, Henry Foster, sen. in trust for the use of the intestate, Henry Foster, jun., during the time he has had the possession and management of it.

Complainant appealed, on the ground that the decree is contrary to law and the evidence.

*Henry,*for complainant. Leitner, contra; Whitner, same side.

*Curia, per*Johnson, Ch.

I have been deeply impressed with the delicacy and importance of the question involved in this case, and after the best consideration I have been able to bestow upon it, my conclusion is, that the decree of the circuit court ought to be affirmed.

The authorities all agree that persons *non compos men-*tis, or in the language of Chancellor Kent, those who have not the regular use of the understanding sufficient to deal with discretion in the common affairs of life, are incapable *575of agreeing to any contract, and of course, to that of matrimony; and in *Ex parte*Barnsby, 3 Atk. 167, Lord Hard-wick says that “the terms *non compos mentis ”*and “of unsound mind,” mean the same thing, and have a determinate legal signification, importing not weakness of understanding, but a total deprivation of sense.” These definitions are as precise and clear as could well be given on the subject, and are alike applicable to idiots and lunatics. The great difficulty is in their application to particular cases, for such is the diversity and inconsistency of actions which mark and distinguish the characteristics of the minds of different men, sane and insane, that no rule could be framed to meet them all. Collinson, in his treatise on Idiots, yol. 1, page 43, (note) relates, on the authority of Bry-dal, who had, written on the same subject, several amusing anecdotes, exhibiting particular instances of astonishing acuteness and profoundness of judgment manifested on these occasions by natural fools and idiots, one of whom he describes as the most notorious idiot in all Paris, from vvhence he deduces the conclusion, that sanity or insanity cannot depend upon, or be collected from, particular actions, unless every part of a person’s behavior constituted unequivocal evidence of his habit of mind.

My much valued friend, the late Dr. James Davis, was, for many years, the physician of the Lunatic Asylum in this place, and I have often heard him speak of the astuteness and cunning manifested by the most desperate and hopeless patients of the institution, and such has been the result of my own limited observations in regard to unfortunate persons in this condition.

The case of the *Countess of Portsmouth*vs. *the Earl of*Portsmouth, 1 Haggard Eccle. Rep. 355, found in 3 Eng. Ecc. Rep. 155, will, in some degree, illustrate this. That, like this, involved the validity of the marriage between the parties, brought into question on the ground of the incapacity of the defendant to enter into the contract of marriage, and the exercise of undue and improper influence over him to obtain the marriage. And Sir John Nichols remarks that in relation to the incapacity or unsoundness of mind of the Earl, the case set up was of a mixed nature, not absolute idiocy, but weakness of understanding; not *576continued insanity, but delusions and irrationality on particular subjects, a mixture of both by no means uncommon. The evidence shews that the incapacity of the Earl was natural and not accidental. In his youth he was capable of receiving instruction and improvement, and could learn arithmetic and the languages. Tn 1790, he joined his father in suffering a common recovery, and in making a new family settlement to provide for younger children. The marriage took place in 1799. In 1802, he was examined as a witness in court, and it was a matter of surprize and common talk that he did so well. He behaved with ordinary propriety at parties, and in the company of persons who commanded his respect. Was capable of making a few observations on the state of the weather, or on horses and gaming; attended the public meetings, races and country balls; but on being left to himself and unrestrained, he indulged in practices so irrational and unnatural, as to be, in some instances, bordering on idiocy, and in others to be attended with actual delusion— a perversion of mind, a deranged imagination, a fancy and belief of the existence of things, which no rational being endowed with the powers of reasoning could believe to exist. He was carried to the house of one Hanson, who was the confidential solicitor of the family, and one. of the trustees, who, within a week, obtained from him a settlement, and married him to one of his 'daughters, without the knowledge of his family or friends, and the whole court pronounced that the marriage was null and void, he being at the time not of sound mind sufficient to enter into such a contract; and also, that the marriage was effected by fraud and circumvention. That case illustrates very fully the rule laid down by Collinson, that the fact of soundness of mind does not depend on, nor can it be collected from, particular actions, but upon the general frame and habit of the mind.

On looking, through the whole evidence in the case under consideration, which will be found attached to the decree of the circuit court, it will be seen that the prevailing characteristic of the intestate’s mind was the absence of the reasoning faculties, and although it occasionally manifested itself in particular circumstances, as in the instance *577of his wife’s separating from him, and the philosophic manner in which he reconciled himself to it, it may be, that it was the result of correct reasoning, but it is not improbable that it had its origin in the consolations offered to him by his friends, the memory of which he retained, rather than in his own reflections. However that may be, it is only in rare instances that we can detect any reasoning powers at all, and all the evidence tends to the conclusion that he was incapable of transacting the ordinary affairs of life; and as remarked in the circuit court decree, I have no doubt but that the complainant availed herself of this imbecility of mind, and the natural instincts which might prompt him to marry, either to induce him to propose marriage, or to propose it herself, with the expectation of securing his property to herself; there could have been no other motive on her part, to enter into such a contract with such a man.

I am, therefore, of opinion, that the appeal should be dismissed, and the decree of the circuit court affirmed, and that is the opinion of this court. Appeal dismissed.

Dunkin, Chancellor, concurred.