I am unable for the following reasons to concur in the opinion of Mr. Justice Laughlin: The statute provides that “ An action to annul a marriage on the ground that one of the parties thereto was a lunatic may be maintained at any time during the continuance of the lunacy, or after the death of the lunatic in that condition, and during the life of the other party to the marriage, by any relative of the lunatic who has an interest to avoid the marriage.” (Code Civ. Proc. §*1747.)
The plaintiff is a sister of the incompetent; has an interest to avoid the marriage; and may, therefore, by express provision of the statute, maintain-the action.
After a careful consideration of the record I am thoroughly convinced that when the marriage ceremony was performed the incompetent was a lunatic, The marriage took place Sep*38tember 8, 1890, and the incompetent then was about forty-four years of age. About four months after the marriage she was committed to an insané asylum as suffering from paranoia, an incurable disease of slow evolution; has ever since remained there; and it is conceded, at least the fact is not disputed, that she is hopelessly insane. Immediately prior to and ever since the marriage she has been subject to hallucinations of various forms, but principally of being persecuted by various people, especially men, who were trying to do-her bodily harm.
■Even the husband, the respondent on this appeal, admitted at the trial that she was subject to hallucinations some three weeks after the marriage, and, on one occasion before the marriage took place, she'complained of being persecuted at the hotel where she was then living, though there was no foundation whatever for her statement. In an affidavit verified by him on June 8,. 1891, nine months after the marriage, in a proceeding to have a committee appointed of her person and property, he stated: “The language and action of said Mary A. Kinsella during the eight months, and in the light of the later development during the last number of years, have been those of an insane person, and that according to deponent’s best judgment and belief the said Mary A. Kinsella has been for the past six months of wholly unsound mind and understanding, and still is of unsound mind and understanding, and unfit for the government of herself or the management of her affairs.”
In the same affidavit he gave numerous instances of irrational acts upon her part, one of which occurred the morning following the marriage, when she insisted he had said he was sorry he married her, when he had said nothing of the kind; another, where she insisted that persons had bored holes in the walls and ceiling of the room where they were living and were looking at her, when there were no holes; that at night she would get up and light the. gas and go to deponent’s side of the bed and whisper in his ear that parties upstairs. wanted to shoot both of them; that she would decline to drink water at the table for-fear some one would poison her; she warned the husband not to eat anything with white spots upon it because her enemies might poison them both; that frequently she would sit up all night for fear some injury might happen to her; and on *39one occasion opened the window and insisted upon calling a policeman to come in and protect her.
Her brother and two of her sisters testified to numerous occasions when she had delusions of. persecution prior to the marriage and that this fact was known to the respondent when he married her.
The two alienists who examined her four months after the marriage for the purpose of having her committed to the asylum testified she was then unquestionably suffering from paranoia; that paranoia was an incurable disease and her hallucinations were then so deeply fixed in her mind that the disease itself must have existed for several years prior to the examination. Their testimony on this subject was in no way contradicted and was corroborated in many respects by the testimony of other witnesses.
It is undoubtedly true she knew she was being married when the ceremony took place, and appreciated, so far as her diseased intellect would permit, the nature, effect and consequences of the act, but that does not make the marriage valid or justify the court in refusing to set it aside. The testimony of the medical experts is undisputed to the effect that a paranoiac, when not under the control of the delusion, is capable of acting sanely upon matters not connected with it.
I think the judgment should be reversed and a new trial granted.
Judgment affirmed, with costs.