Setzer v. Setzer
| Decision Date | 02 March 1887 |
| Citation | 1 S.E. 558,97 N.C. 252 |
| Parties | SETZER v. SETZER and another. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Catawba county.
In an action by a son on the bond of his father's administrator to recover his distributive share of the personal estate in the hands of the administrator, the validity of the marriage of plaintiff's father and mother and his own legitimacy cannot be inquired into.
No appearance for plaintiff.
M. L McCorkle, for defendants.
In the month of August, 1859, Reuben Setzer was married to Saphronia Morcus by a justice of the peace upon a due observance of all the formalities prescribed by law for entering into that relation. They lived together as husband and wife until the spring of 1862, when, having entered the military service of the Confederate States, the said Reuben lost his life at the battle of Newbern, in this state. The only offspring of the union was the plaintiff, who brings this action as relator upon the bond executed by the defendant, Daniel Setzer, who administered on the estate of the deceased, and the other defendant, one of his sureties, to recover his distributive share of the personal estate in the hands of the administrator. The action was begun by suing out a summons on the thirteenth day of August, 1883. The answer sets up as a defense (and this is the only matter necessary to be considered) that the intestate was of imbecile mind from youth up, and had not capacity to understand and enter into the marriage contract, and that, this being absolutely void the plaintiff, their only child, not born in lawful wedlock could not claim any part of the estate. The only issue passed on by the jury was as to the intestate's mental capacity to make an effectual marriage contract at the time of its solemnization, and the response was that he did not have such capacity.
We do not propose to examine the exceptions to the evidence offered, among which was an inquisition taken in 1855 finding the intestate to be a lunatic, and an order appointing a guardian, since the appeal must be disposed of upon the single finding of the intestate's mental incompetency, and its effect upon the relator's rights as a distributee.
In Johnson v. Kincade, 2 Ired. Eq. 470, a bill in equity was filed, upon facts very much like those before us to have declared a nullity a marriage entered into by the plaintiff on the ground of his idiocy, and it was suggested that, as the marriage was void ab initio, it was so to be considered whenever the question came up, and the present suit could not be maintained. RUFFIN, C.J., asserted the jurisdiction, not only because the courts of equity in this country had succeeded to the functions of the ecclesiastical courts of England, in which this jurisdiction was exercised, but because it was expressly conferred upon the superior courts of law and the courts of equity by law. Rev. St. c. 39. "The act," he remarks, "creates and confers a jurisdiction over all matrimonial causes, and includes necessarily, we think, the jurisdiction to pronounce the nullity of a marriage de facto for want of capacity." The court therefore, in this suit between the parties, proceeded to pronounce the marriage "in law null and void for the want, at the time of solemnizing the same, of mental capacity on the part of said Reese sufficient to understand the nature of and assent to such a contract, and that the said Reese ought to be and is set free and divorced from the said Ann." The same doctrine is reaffirmed in Crump v. Morgan, 3 Ired. Eq. 91,...
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