Opinion of the Court, by
Frear, J.
(A. Brunson, Esq., dissenting.)
The question reserved by the Circuit Court for our opinion is that raised by the demurrer, namely, whether under our statutes a person non comp>os may, by his guardian, maintain a libel for divorce.
In the absence of statute, the general opinion in both England and America is that a suit for either nullity or separation may be maintained either by or against an insane person, but that in England a suit for divorce cannot be maintained either by or against an insane person, while in those of the United States in which the question has arisen a suit for divorce may be maintained against but not by an [476]*476insane person. 2 Bishop, M. & D., Secs. 30Ia-307, and cases there cited. But now in England, Massachusetts and Rhode Island, statutes have been passed which the courts have construed as authorizing suits for divorce either by or against insane persons. Id.
The cases contain lengthy discussions of the policy of or reasons for, the distinction between an insane plaintiff and an insane defendant. The argument of the American courts seems to be that in the case of an insane defendant, the two conditions said to be essential to a divorce may be present namely, the fault of one party and the consent of the other, while in the case of an insane plaintiff the consent of the injured party is necessarily wanting, for the reason that an insane person, having no mind, cannot consent. It is argued further that marriage is a personal status, the making or unmaking of which is a personal matter, “ depending on the choice of the heart, rather than of the head,” “more on feelings and convictions than on considerations appreciably by others,” and that therefore “it is in the option of the injured party ” alone to say “ whether he will forgive the offense or take a divorce for it.” This reasoning might at first thought seem to indicate that marriage is solely a personal matter, in which the parties alone are interested, and that there is something in the nature of things to prevent its dissolution without the active consent of the injured party. And yet it is perhaps universally conceded that the state may, either from considerations of public policy or from considerations of what is deemed to be for the best interest of the parties immediately concerned, alter the conditions upon which the marriage status may be created or dissolved; and in pursuance of such power, as we have seen, statutes have been passed authorizing divorce suits by insane persons.
The distinction taken by the American courts is good so far as it goes. There are reasons, it is true, that apply to the case of an insane plaintiff which do not apply to the case of an insane defendant, for the consent of the plaintiff should, if possible, be required, while the fault aloné of the defendant' [477]*477is sufficient; yet is not this position inconsistent, so far as the question of consent is concerned, with the view that suits for separation may be maintained on behalf of an insane person, for is ic not as much a matter of personal option in the one case as in the other for the injured party to say whether he will forgive, or take legal proceedings? It is true that in case of se2>aration the insane person might, upon a possible return of reason, forgive his spouse and take her back; and that in some instances the protection, maintenance or other need of the insane person might be provided for bv a decree of sernaration, without the necessity of going to the extent of granting a divorce. But, so far as the question of status or consent is concerned, there is no more reason in logic why the guardian, under the control of the court, may not exercise the option of forgiveness or suit in the case of divorce than in the case of se2>aration, and there may be cases in which se2)aration would not be sufficient to do justice to the injured 2>arty. The question for the legislature is one of policy entirely. It must be admitted that there are weighty reasons for and against either policy. The English courts in the early cases considered that on the whole the objections >outweighed the advantages, and so, as we have seen, did not allow such suits either by or against insane persons; but when the Divorce Act was passed, giving them an ojjportunity to_ reconsider the question, they came to the conclusion that, on the whole, it was better 23olicy to allow such suits either by or against such persons.
Mordaunt vs. Mordaunt, L. R. 2 P. and D., 103 ; Baker vs. Baker, L. R, 5 P. D., 142; 6 P. D., 12.
This conclusion commends itself to our reason. While to allow divorce proceedings by a guardian on behalf of his insane ward might possibly in some instances, result in the dissolution of a status, which the ward, if of sound- mind, might prefer to continue, yet to allow such proceedings under no circumstances would operate as a license for the other spouse to “ commit adultery, cruelty, desertion, and every other marital offense, with impunity.” Nor can it even be [478]*478said that to allow such proceedings, is in all instances to> take from the ward his right of choice, for if the offense of his spouse was committed without his knowledge prior to his insanity, or at any time during his insanity, the ward could not exercise a choice at all one way or the other, and therefore to say that no suit for divorce could be brought under any circumstances would practically amount to choosing for him one way — as much so as to say that such suit might be brought would amount to a choice the other way. The better policy, it seems to us, would be to allow such suits to be commenced, leaving it to the trial court to postpone the hearing in its discretion until such time as the ward may recover his reason if there is sufficient prospect of such recovery, and if not then to be vigilant in seeing that the ward is fully protected from fraud, collusion or other unfair advantage of any kind. The guardian is appointed for the benefit of the ward, and if it appears for the ward’s benefit to have a divorce, the guardian should be allowed to bring the proper proceedings, since the ward himself cannot do so. This is the business of the guardian, and, although mistakes majr be made in this l’espect as well as in other-matters, by doing what the ward would prefer, if, sound, to have left undone, yet on the whole it is better in this ease as in other cases for the law to provide for the care of those unable to take care of themselves.
On authority, we should be obliged to hold that, in the absence of statute, this suit could not be maintained, and the sole question is whether our statutes go to tbe extent of allowing such suit. The question of policy, of course, cannot alter tbe law as passed by tbe legislature, but has considerable bearing upon tbe construction to be placed upon the statute in so far as it is doubtful, and should be considered in order to understand tlie state of tbe law in tbe absence of statute.
In Massachusetts tbe statute merely provided that libels for divorce should be signed by the libellant if sane or of age, otherwise by bis guardian. The legislature in so doing [479]*479apparently considered that it was not altering the character of the marriage status, oi making any great innovation in the law, but rather merely providing for the method of procedure. Before the statute no case had arisen in that State in which the guardian of an insane person had attempted to sue for a divorce on behalf of his ward.
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Opinion of the Court, by
Frear, J.
(A. Brunson, Esq., dissenting.)
The question reserved by the Circuit Court for our opinion is that raised by the demurrer, namely, whether under our statutes a person non comp>os may, by his guardian, maintain a libel for divorce.
In the absence of statute, the general opinion in both England and America is that a suit for either nullity or separation may be maintained either by or against an insane person, but that in England a suit for divorce cannot be maintained either by or against an insane person, while in those of the United States in which the question has arisen a suit for divorce may be maintained against but not by an [476]*476insane person. 2 Bishop, M. & D., Secs. 30Ia-307, and cases there cited. But now in England, Massachusetts and Rhode Island, statutes have been passed which the courts have construed as authorizing suits for divorce either by or against insane persons. Id.
The cases contain lengthy discussions of the policy of or reasons for, the distinction between an insane plaintiff and an insane defendant. The argument of the American courts seems to be that in the case of an insane defendant, the two conditions said to be essential to a divorce may be present namely, the fault of one party and the consent of the other, while in the case of an insane plaintiff the consent of the injured party is necessarily wanting, for the reason that an insane person, having no mind, cannot consent. It is argued further that marriage is a personal status, the making or unmaking of which is a personal matter, “ depending on the choice of the heart, rather than of the head,” “more on feelings and convictions than on considerations appreciably by others,” and that therefore “it is in the option of the injured party ” alone to say “ whether he will forgive the offense or take a divorce for it.” This reasoning might at first thought seem to indicate that marriage is solely a personal matter, in which the parties alone are interested, and that there is something in the nature of things to prevent its dissolution without the active consent of the injured party. And yet it is perhaps universally conceded that the state may, either from considerations of public policy or from considerations of what is deemed to be for the best interest of the parties immediately concerned, alter the conditions upon which the marriage status may be created or dissolved; and in pursuance of such power, as we have seen, statutes have been passed authorizing divorce suits by insane persons.
The distinction taken by the American courts is good so far as it goes. There are reasons, it is true, that apply to the case of an insane plaintiff which do not apply to the case of an insane defendant, for the consent of the plaintiff should, if possible, be required, while the fault aloné of the defendant' [477]*477is sufficient; yet is not this position inconsistent, so far as the question of consent is concerned, with the view that suits for separation may be maintained on behalf of an insane person, for is ic not as much a matter of personal option in the one case as in the other for the injured party to say whether he will forgive, or take legal proceedings? It is true that in case of se2>aration the insane person might, upon a possible return of reason, forgive his spouse and take her back; and that in some instances the protection, maintenance or other need of the insane person might be provided for bv a decree of sernaration, without the necessity of going to the extent of granting a divorce. But, so far as the question of status or consent is concerned, there is no more reason in logic why the guardian, under the control of the court, may not exercise the option of forgiveness or suit in the case of divorce than in the case of se2>aration, and there may be cases in which se2)aration would not be sufficient to do justice to the injured 2>arty. The question for the legislature is one of policy entirely. It must be admitted that there are weighty reasons for and against either policy. The English courts in the early cases considered that on the whole the objections >outweighed the advantages, and so, as we have seen, did not allow such suits either by or against insane persons; but when the Divorce Act was passed, giving them an ojjportunity to_ reconsider the question, they came to the conclusion that, on the whole, it was better 23olicy to allow such suits either by or against such persons.
Mordaunt vs. Mordaunt, L. R. 2 P. and D., 103 ; Baker vs. Baker, L. R, 5 P. D., 142; 6 P. D., 12.
This conclusion commends itself to our reason. While to allow divorce proceedings by a guardian on behalf of his insane ward might possibly in some instances, result in the dissolution of a status, which the ward, if of sound- mind, might prefer to continue, yet to allow such proceedings under no circumstances would operate as a license for the other spouse to “ commit adultery, cruelty, desertion, and every other marital offense, with impunity.” Nor can it even be [478]*478said that to allow such proceedings, is in all instances to> take from the ward his right of choice, for if the offense of his spouse was committed without his knowledge prior to his insanity, or at any time during his insanity, the ward could not exercise a choice at all one way or the other, and therefore to say that no suit for divorce could be brought under any circumstances would practically amount to choosing for him one way — as much so as to say that such suit might be brought would amount to a choice the other way. The better policy, it seems to us, would be to allow such suits to be commenced, leaving it to the trial court to postpone the hearing in its discretion until such time as the ward may recover his reason if there is sufficient prospect of such recovery, and if not then to be vigilant in seeing that the ward is fully protected from fraud, collusion or other unfair advantage of any kind. The guardian is appointed for the benefit of the ward, and if it appears for the ward’s benefit to have a divorce, the guardian should be allowed to bring the proper proceedings, since the ward himself cannot do so. This is the business of the guardian, and, although mistakes majr be made in this l’espect as well as in other-matters, by doing what the ward would prefer, if, sound, to have left undone, yet on the whole it is better in this ease as in other cases for the law to provide for the care of those unable to take care of themselves.
On authority, we should be obliged to hold that, in the absence of statute, this suit could not be maintained, and the sole question is whether our statutes go to tbe extent of allowing such suit. The question of policy, of course, cannot alter tbe law as passed by tbe legislature, but has considerable bearing upon tbe construction to be placed upon the statute in so far as it is doubtful, and should be considered in order to understand tlie state of tbe law in tbe absence of statute.
In Massachusetts tbe statute merely provided that libels for divorce should be signed by the libellant if sane or of age, otherwise by bis guardian. The legislature in so doing [479]*479apparently considered that it was not altering the character of the marriage status, oi making any great innovation in the law, but rather merely providing for the method of procedure. Before the statute no case had arisen in that State in which the guardian of an insane person had attempted to sue for a divorce on behalf of his ward. In England the statute did not in any way refer to insane persons, but the court held that a divorce might be obtained even by a guardian of the estate (not of the person) on behalf of such person, merely because the divorce statute made no exception as to such persons.
Our statute of divorce is much like the English statute so far as the purposes of this case are concerned. It does not refer to insane persons, but by the reasoning of English courts would undoubtedly authorize a suit for divorce by a guardian on behalf of an insane ward. It is true that our statute provides that the libel shall “be signed by the libellant,” and that an insane person cannot do this. But the English statute went further and provided that the petitioner should verify his petition by affidavit, and yet it was held that this might be done by his committee, “ who would in fact be the petitioner on the lunatic’s behalf.” But, if there should be any question on this point in our divorce act, it is solved by the provision of the law relating to guardians (Civil Code, Sec. 1858), that the guardian of an insane person “ shall appear for and represent his ward in all legal suits and proceedings, unless where another person is appointed for that purpose.” And we hold that this provision of the Code, taken' in connection with the divorce act, authorizes suits for divorce by a guardian of the person and property on behalf of his insane ward.. As remarked by the English couft in Baker vs. Baker, supra: “If an insane respondent must defend herself as best she may by means of a guardian ad litem, I do not see where the act has indicated that an insane, petitioner may not institute a suit for divorce through his committee, as he might sue for the breach of an ordinary contract; ” and “ as proceedings for divorce are civil, though [480]*480no provision for the ease of lunatics is contained in the act, recourse must be had in such case to the ordinary forms of civil courts where lunatics are litigants.”
A. S. Hartwell and Carter & Carter, for libellant.
C. W. Ashford, for libellee.
It may be argued that because our statute relating to nullity expressly provides for the bringing of such suits by the guardian of a person insane or under legal age, and because there is no similar provision in the divorce act, it must be inferred that the legislature meant to exclude divorce suits by guardians, on the principle that expressio unius est exclusio alterius. But this is purely a question of intention. The divorce act ivas passed some years after the provisions of the code which relate to nullity; and there was nothing-special to call the attention of the legislature to the case of persons insane or under age in the divorce law as there was in the nullity law, for insanity and non-age are made grounds of nullity but not of divorce. It would hardly be contended that the provisions for suits by guardian in the nullity act ■would exclude suits by guardian under Sections 1100, 1116 and 1118, of the Civil Code which relate to actions on contract and other matters or under Sections 1336 — 1341 of the Civil Code which relate to suits for separation, but which do not refer to guardians in any way.
The demurrer should be overruled.