Laughlin, J.:
This is an action under sections 1743 and 1747 of the Code of Civil Procedure, commenced on the 11th day of July, 1910, to annul the marriage of the plaintiff’s sister to the defendant Kinsella, which was celebrated on the 8th day of September, 1890, on the ground that she was a lunatic. After the marriage they occupied rooms together at different boarding houses until the 17th day of January, 1891, when the wife was committed to the Bloomingdale Asylum on a summary ex parte adjudication that she was a. lunatic, made by a justice of the Supreme Court on the evidence of two examiners in. lunacy, and she has been there confined ever since. The incompetent was born in the year 1846. She contracted a former marriage on September 10, 1868, and after living with her husband about six weeks they separated, and she was divorced from him on the 22d day of August, 1871. There was no issue of either marriage. On the 15th day of June, 1891, a commission de lunático inquirendo was duly issued out of the Supreme Court to inquire into her sanity, and it was therein duly adjudged on the 6th day of August, 1891, that she was a lunatic, and one of her brothers was appointed committee of her person and estate, and he was succeeded by one of her sisters on the 22d day of September, 1898. Her father and mother are dead. The committee of the wife and her two brothers and three sisters, who are her next of kin, admit the material allegations of the complaint, and pray for the relief demanded by the plaintiff. The husband denied that his wife was a lunatic at the time of the marriage, and pleaded laches and hn equitable estoppel, upon the theory that he had always recognized the validity of the marriage to the knowledge of the plaintiff, who has acquiesced therein with full knowledge of the facts for a period of nearly twenty years.
The husband appears always to have recognized and performed the obligations which he incurred by the marriage, and the validity of the marriage was never brought in question until the commencement of this action. The fact that the [34]*34adjudication would exclude the husband from sharing in the estate of the incompetent in cas'e of her death and would enable her sisters and brothers to take it all, does not preclude a recovery; but in weighing the testimony of the interested witnesses, upon which the plaintiff’s demand for a decree of annulment largely depends, the court may properly consider the long acquiescence in the marriage by the sisters and brothers, for it tends to show that pecuniary interest in the estate, and not consideration for the incompetent, actuated the plaintiff in bringing the action; and especially should such testimony be most carefully scrutinized where, as here, it appears that the incompetent’s favorite sister and her brother-in-law attended the wedding ceremony and festivities and the annulment would be of no benefit to the incompetent and would serve no useful public purpose, for the incompetent is incurably insane, and there is no likelihood of issue.
The record contains the testimony of no physician or medical expert who' saw the incompetent prior to the marriage. The medical evidence consists of the testimony of the. examiners in lunacy, upon whose evidence she was committed, and who saw, her then for the first time, and the testimony of ■ the superintendent of the asylum, who never saw her before she was committed. The principal lay evidence with -respect to the state of mind of the incompetent at and prior to the marriage was given by interested parties. The contention on the part of the plaintiff is that at . the time of the'-marriage the incompetent was suffering from paranoia, which is a chronic form of insanity oí slow progression and results usually from hereditary predisposition. Her father was a prominent physician, and he lived until 1883. Her mother died when she was quite young and her father married again. He made her an allowance and she lived at boarding houses, and on his death she inherited property valued at $12,000. One of her brothers testified that his father regarded her as physically and mentally unfit for the married state, and so informed Kinsella, who applied for her hand in marriage; but this testimony is controverted by Kinsella, and by the fact that she was never restrained of her liberty and was always permitted to go about unattended and to make her own [35]*35arrangements with.respect to her home life and associates and to purchase- her wearing apparel. She had been acquainted with Einsella and they had been friends for a period of ten years and were about the same age. She was fairly well educated and was fond of reading. They became engaged the latter part of August, 1890. ' He was a Roman Catholic and she was a Protestant. At his suggestion, she made the necessary arrangements to have the marriage celebrated by a priest, and she selected a room which they were to occupy after their marriage. Only her favorite sister and the latter’s husband were invited to the wedding, which took place at the rectory of St. Anne’s Church in the evening. The priest who performed the ceremony has since died. After the marriage the bride and groom and her sister and brother-in-law went to a public restaurant and had a wedding supper, lasting some hours. The sister and brother-in-law who witnessed the marriage both testified. Neither of them discovered any act or conduct on the part of the incompetent during the evening that appeared to them to be irrational; and their evidence tends to show that she fully understood the occurrences of the evening and the consequences thereof. Testimony was given by interested witnesses to the effect that for a long time prior to the marriage she was somewhat eccentric and at times had delusions with respect to being persecuted and annoyed and had hallucinations. The testimony of the medical experts tends to show that in the early stages of paranoia and before it has so progressed that the mind has become completely absorbed in the delusions, the patient would be insane on any subject connected with the delusions but fully competent to contract and transact business not connected with the delusions and that they would' not expect, in view of her state of mind at the time they examined her, that she was competent, four months before to appreciate the effect of the marriage; but they in effect conceded that the facts disclosed by the testimony of her sister, brother-in-law and husband with respect to her state of mind on the evening of the wedding showed that' “ she knew what she was about.”
Said sections 1743 and 1747 of the Code of Civil Procedure authorize an action to annul a marriage on the ground that [36]*36one of the parties was “ an idiot or a lunatic ” at the time .of the marriage, where the incapacity continues and. is incurable. Counsel for the appellants contends that it is significant that the word incompetency was not used in the section, and that it shows a legislative intent to authorize the annulment in any case of mental disorder constituting lunacy in the sense in which that word is used in the Code of Civil Procedure with respect to the appointment of a. committee of the person and property and as defined by section 28 of the General Construction Law (Consol. Laws, chap. 22; Laws of 1909, chap. 27), even though it may not show incompetency to contract generally. We are of opinion that this contention is not tenable. Section 7 of the Domestic Eelations Law (Consol. Laws, chap. 14; Laws of 1909, chap.
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Laughlin, J.:
This is an action under sections 1743 and 1747 of the Code of Civil Procedure, commenced on the 11th day of July, 1910, to annul the marriage of the plaintiff’s sister to the defendant Kinsella, which was celebrated on the 8th day of September, 1890, on the ground that she was a lunatic. After the marriage they occupied rooms together at different boarding houses until the 17th day of January, 1891, when the wife was committed to the Bloomingdale Asylum on a summary ex parte adjudication that she was a. lunatic, made by a justice of the Supreme Court on the evidence of two examiners in. lunacy, and she has been there confined ever since. The incompetent was born in the year 1846. She contracted a former marriage on September 10, 1868, and after living with her husband about six weeks they separated, and she was divorced from him on the 22d day of August, 1871. There was no issue of either marriage. On the 15th day of June, 1891, a commission de lunático inquirendo was duly issued out of the Supreme Court to inquire into her sanity, and it was therein duly adjudged on the 6th day of August, 1891, that she was a lunatic, and one of her brothers was appointed committee of her person and estate, and he was succeeded by one of her sisters on the 22d day of September, 1898. Her father and mother are dead. The committee of the wife and her two brothers and three sisters, who are her next of kin, admit the material allegations of the complaint, and pray for the relief demanded by the plaintiff. The husband denied that his wife was a lunatic at the time of the marriage, and pleaded laches and hn equitable estoppel, upon the theory that he had always recognized the validity of the marriage to the knowledge of the plaintiff, who has acquiesced therein with full knowledge of the facts for a period of nearly twenty years.
The husband appears always to have recognized and performed the obligations which he incurred by the marriage, and the validity of the marriage was never brought in question until the commencement of this action. The fact that the [34]*34adjudication would exclude the husband from sharing in the estate of the incompetent in cas'e of her death and would enable her sisters and brothers to take it all, does not preclude a recovery; but in weighing the testimony of the interested witnesses, upon which the plaintiff’s demand for a decree of annulment largely depends, the court may properly consider the long acquiescence in the marriage by the sisters and brothers, for it tends to show that pecuniary interest in the estate, and not consideration for the incompetent, actuated the plaintiff in bringing the action; and especially should such testimony be most carefully scrutinized where, as here, it appears that the incompetent’s favorite sister and her brother-in-law attended the wedding ceremony and festivities and the annulment would be of no benefit to the incompetent and would serve no useful public purpose, for the incompetent is incurably insane, and there is no likelihood of issue.
The record contains the testimony of no physician or medical expert who' saw the incompetent prior to the marriage. The medical evidence consists of the testimony of the. examiners in lunacy, upon whose evidence she was committed, and who saw, her then for the first time, and the testimony of ■ the superintendent of the asylum, who never saw her before she was committed. The principal lay evidence with -respect to the state of mind of the incompetent at and prior to the marriage was given by interested parties. The contention on the part of the plaintiff is that at . the time of the'-marriage the incompetent was suffering from paranoia, which is a chronic form of insanity oí slow progression and results usually from hereditary predisposition. Her father was a prominent physician, and he lived until 1883. Her mother died when she was quite young and her father married again. He made her an allowance and she lived at boarding houses, and on his death she inherited property valued at $12,000. One of her brothers testified that his father regarded her as physically and mentally unfit for the married state, and so informed Kinsella, who applied for her hand in marriage; but this testimony is controverted by Kinsella, and by the fact that she was never restrained of her liberty and was always permitted to go about unattended and to make her own [35]*35arrangements with.respect to her home life and associates and to purchase- her wearing apparel. She had been acquainted with Einsella and they had been friends for a period of ten years and were about the same age. She was fairly well educated and was fond of reading. They became engaged the latter part of August, 1890. ' He was a Roman Catholic and she was a Protestant. At his suggestion, she made the necessary arrangements to have the marriage celebrated by a priest, and she selected a room which they were to occupy after their marriage. Only her favorite sister and the latter’s husband were invited to the wedding, which took place at the rectory of St. Anne’s Church in the evening. The priest who performed the ceremony has since died. After the marriage the bride and groom and her sister and brother-in-law went to a public restaurant and had a wedding supper, lasting some hours. The sister and brother-in-law who witnessed the marriage both testified. Neither of them discovered any act or conduct on the part of the incompetent during the evening that appeared to them to be irrational; and their evidence tends to show that she fully understood the occurrences of the evening and the consequences thereof. Testimony was given by interested witnesses to the effect that for a long time prior to the marriage she was somewhat eccentric and at times had delusions with respect to being persecuted and annoyed and had hallucinations. The testimony of the medical experts tends to show that in the early stages of paranoia and before it has so progressed that the mind has become completely absorbed in the delusions, the patient would be insane on any subject connected with the delusions but fully competent to contract and transact business not connected with the delusions and that they would' not expect, in view of her state of mind at the time they examined her, that she was competent, four months before to appreciate the effect of the marriage; but they in effect conceded that the facts disclosed by the testimony of her sister, brother-in-law and husband with respect to her state of mind on the evening of the wedding showed that' “ she knew what she was about.”
Said sections 1743 and 1747 of the Code of Civil Procedure authorize an action to annul a marriage on the ground that [36]*36one of the parties was “ an idiot or a lunatic ” at the time .of the marriage, where the incapacity continues and. is incurable. Counsel for the appellants contends that it is significant that the word incompetency was not used in the section, and that it shows a legislative intent to authorize the annulment in any case of mental disorder constituting lunacy in the sense in which that word is used in the Code of Civil Procedure with respect to the appointment of a. committee of the person and property and as defined by section 28 of the General Construction Law (Consol. Laws, chap. 22; Laws of 1909, chap. 27), even though it may not show incompetency to contract generally. We are of opinion that this contention is not tenable. Section 7 of the Domestic Eelations Law (Consol. Laws, chap. 14; Laws of 1909, chap. 19) declares that where either party “ is incapable of consenting to a marriage for want of understanding,” it is void from the time its nullity is declared by a court , of competent jurisdiction. We are of opinion that the Legislature . did not intend to authorize the annulment of a marriage on proof merely that one of the -parties at times had insane delusions or hallucinations on' other subjects, and the word lunacy was here used in a broad sense, for at the time of the enactment of these sections of the Code of Civil Procedure, section 4 of title 1 of chapter 8 of part 2 of the Eevised Statutes contained a provision on the subject from which section 4 of the former Domestic Eelations Law (Gen. Laws, chap. 48; Laws of 1896, chap. 272), as re-enacted by section 7 of the present Domestic Eelations Law (supra) was taken, which was in effect the same as the provision quoted from the Domestic Eelations Law. Marriage is a civil contract, and before it cañ be canceled on the ground of lunacy or for want of understanding on the part of one of the parties, it must be satisfactorily shown that the party in whose interest or right the action is brought was mentally incapable of understanding the nature, effect and consequences of the marriage. (Doe v. Roe, 1 Edm. Sel. Cas. 344; Forman v. Forman, 24 N. Y. Supp. 917; Kern v. Kern, 51 N. J. Eq. 574; Lewis v. Lewis, 44 Minn. 124; St. George v. Biddeford, 76 Maine, 593; Cannon v. Smalley, L. R. 10 Prob. Div.96; Banks v. Goodfellow, L. R. 5 Q. B. 549. See, also, Seamen’s Friend Society v. Hopper, 33 N. Y. [37]*37619; Delafield v. Parish, 25 id. 9; Riggs v. American Tract Society, 95 id. 503; Matter of White, 121 id. 406.)
There is a presumption not only of sanity, but in favor of the validity of a marriage celebrated in due form which, in the interests of society, should prevail, and particularly'in the circumstances of this case, unless it is overcome by proof, clear and satisfactory, which stands the test of the most careful scrutiny. (See Delafield v. Parish, supra; 1 Bish. Marr. Div. & Sep. §§ 588, 589, 592, 599, 600, 601; Banker v. Banker, 63 N. Y. 409; Ward v. Dulaney, 23 Miss. 410; Slais v. Slais, 9 Mo. App. 96; Kern v. Kern, supra; Anon., 4 Pick. 32.)
We are of opinion that the evidence adduced in behalf of the plaintiff was insufficient to overeóme the presumptions of sanity and validity of the marriage, and that the evidence, to which no objection was taken, satisfactorily shows that the plaintiff’s sister was competent to marry, and, therefore, it is not necessary to consider the rulings on the evidence received, to which objections were interposed and exceptions taken. (See Prime v. City of Yonkers, 131 App. Div. 110; McSorley v. Hughes, 58 Hun, 360; affd., 129 N. Y. 659.)
It follows that the judgment should be affirmed, with costs.
Ingraham, P. J., Clarice and Scott, JJ., concurred; McLaughlin, J., dissented.