The defendant in error applied for a twelve months’ support out of the estate of Jesse M. Bennett, deceased, as the widow of the deceased.
*785To this application the representative of Bennett’s estate objected.
(1.) Because the applicant was never the wife of deceased. That at the time, before and after the pretended marriage of applicant with Jesse Bennett, and until the death of said Jesse, the said Jesse was insane and incapable of contracting marriage, and that said pretended marriage was null and void.
(2.) That, for the short time she lived with said Jesse, she lived in a state of open and notorious adultery, and made his home a bawdy house, and wasted and destroyed his property to the value of three hundred dollars.
(3.) That shortly after said pretended marriage, she ran away with one Dover, and lived with him in adultery for twelve years, up to the time of the death of said Jesse, during which time she gave birth io six bastard children.
Upon demurrer, the court struck said objections, holding that the same constituted no valid objection to the granting of a twelve months’ support to said applicant; and this decision is. excepted to, and forms the first error assigned.
The plaintiff in error then offered testimony to prove the same facts embraced in the above objections filed to the application of defendants in error. The court rejected this testimony, and this is the second ground of error relied on by the plaintiff in error.
It is essential to a valid marriage in this state that a person must be of sound mind. Code, §1699. Marriages of persons unable to contract are void. Code, §1702. These propositions are embraced in our statute, and yet it is insisted that the only way that it can be determined whether the person was of unsound mind is by the judgment of a court; and while it must be admitted that there are authorities which sustain the view taken by defendant in error, we think that the weight and reason is with the authorities on the other side. In the case of Rawdon vs. Rawdon, 28 Ala. R,, 565, it was held, “ That a valid marriage can*786not be contracted by an insane personand again, “ If a marriage be void by reason of the insanity of either one of the contracting parties, no decree of divorce is necessary to restore the parties to their original rights.”
The Supreme Court of Kentucky, in the case of Jenkins vs. Jenkins, 2 Dana, 103, decided that, “A person of unsound mind cannot be married. The performance of a marriage ceremony and continued cohabitation with one in that condition till death, will not constitute a legal marriage, nor give claim to dower or courtesy in his or her estate.” “ Where a claim or defence depends upon the question whether a person was of sound or unsound mind at the time of the marriage, it is not necessary that there should have been a decree of nullification in his lifetime; the question may be made and decided in a suit for dower, distribution and the like.” The opinion of the court in this last case was delivered by Chief Justice Robertson, and appears to be not only one of ability, but exhaustive of the questions decided.
To the like effect is the decision of the Supreme Court of Kansas, in the case of Powell vs. Powell, 18 Kansas, 371. These decisions refer to numerous authorities which fully sustain them. In the case of Dillon vs. Dillon, 60 Ga., 204, this court held, “That in a suit by the reputed wife for alimony, that the husband Avas estopped from denying her competency to contract marriage by reason of race or color, if he has in fact married her, lived with her many years as his wife, and reared a family of children by her. Especially will this estoppel operafo, if he has procured an act of the legislature reciting that satisfactory proofs had been furnished to establish her rights of citizenship, and enacting that she and her children are entitled to such right and privilege.” It will be seen that this case was -put upon the ground that the husband was estopped from denying the legality of the marriage by reason of his own acts and conduct, whereas in the case at bar, there is no estoppel. The marriage is void by reason *787of the insanity of one of the parties thereto at tbe time of its pretended consummation ; and the insanity having continued until the death of the party, consequently he could do no act to ratify the same. So we are of tbe opinion that the marriage in this case was void in its inception, and remained void till the death of Bennett •; and being void, it did not require tbe sentence, decree or judgment of'any court to restore tbe parties to their original rights or to make the marriage void. It was a mere nullity from the beginning, and so continued to the end. It was as if no marriage had ever taken place. If these views be correct, it must follow that the defendant in error has no rights or interest in the estate of Jesse Bennett, deceased, and the court below erred in so holding. Let the judgment of the court below be reversed.
Judgment reversed.