CHURCH, Ch. J.

The court found, as a fact, that John Banker was of sound mind when the marriage took place between him and the defendant on the 8th day of March, 1869; and it is not disputed that the evidence, although conflicting, warranted such finding. This finding has been expressly affirmed by the General Term, and is conclusive upon this court. The other findings, in respect to lucid intervals and unsoundness at the death of Mr. Banker, are not material, because if he was rational when the marriage took place, subsequent unsoundness would not invalidate it. It was proved that Mr. Banker was declared to be of unsound mind on the 10th of March, 1869, two days after the marriage, and that he had been so for six months previous, upon inquisition in proceedings instituted in February preceding, under the statute in relation to lunatics, of the pendency of which the defendant had notice at the time of the marriage; and it is insisted that these proceedings and finding are conclusive upon the question. The question of the effect of a finding of lunacy, under proceedings instituted for that purpose, has been often before the courts in England and in this country. It would not be profitable to review these authorities. Some of the principles involved must be regarded as established in this State, having been repeatedly adjudicated, and are well stated by the chancellor in L'Amoreux v. Crosby (2 Paige, 422). He says: "As to acts done by a lunatic or drunkard before the issuing of the commission, and which are overreached by the retrospective finding of the jury, the inquisition is only presumptive, but not conclusive, evidence of incapacity. But all gifts of the goods and chattels of the idiot, lunatic or drunkard, and all bonds or other contracts made by him after the actual finding of the inquisition declaring his incompetency, and until he is permitted to assume the control of his property by the court, are utterly void."

The principle that the inquisition is only presumptive evidence of incapacity at any time prior to the finding, although retrospectively included in it, was expressly adjudicated by the Commission of Appeals in Van Deusen v. Sweet ( 51 N.Y., 378), and I am not aware of a contrary decision in this State. (8 id., 388.) I cannot see how the circumstance that the defendant had notice of the proceedings can affect the question. She had notice that an effort would be made to have Mr. Banker declared a lunatic, but until so declared it was an open question. She took the hazard of a finding which would render the marriage presumptively void, nothing more. These proceedings have been likened to proceedings in rem, which are conclusive on all the world, and all are bound to take notice of them. (Id.) Actual notice is not necessary, and whether given or not, is not material. The inquisition is conclusive against subsequent acts and dealings, and presumptive against prior ones. This is the rule, and is applicable irrespective of notice. It has been held that the inquisition is only presumptive evidence of incapacity as to some acts done subsequently. This has been held as to making a will. (50 Barb., 615, per FOSTER, J.) There is no authority as to the act of marriage. It requires the assent of the parties, but it does not affect property directly, and is an act which the committee cannot do for the ward. The question, however, does not arise in this case, and need not be considered.

The exception to the charge that the plaintiff must show undoubted unsoundness at the time of the marriage, continuing beyond question down to the death, without lucid intervals, is not available. The plaintiff held the affirmative upon the issue throughout the trial, although if unsoundness was established at the time of the marriage, a presumption of continuance might arise which would require evidence to overcome. But the objection is obviated by the separate finding of sanity at the time of the marriage, which renders the latter part of the charge immaterial.

Nor was the refusal to charge that the jury should start with the presumption that Mr. Banker was of unsound mind erroneous. The presumption of sanity always exists — that being the normal condition of man.

The inquisition changed the necessity of proof from one side to the other, but the burden of maintaining the affirmative of the issue remained with the plaintiff.

The extra allowance was discretionary with the court below. It is not a case of a want of power.

The judgment must be affirmed.

All concur.

Judgment affirmed.