majority">Russell, J.

The plaintiff seeks to recover in a common law action for twelve years’ board of the defendant, who is alleged in the complaint to be “ an incompetent person unable to manage her affairs, and has been since her birth.” The evidence upon the hearing shows that she is an idiot. The claim would be a just one were the defendent capable of making "the contract. Her brother, Hermon Spear, maintained her for the period of twelve years prior to the commencement of this action and assigned his claim to the plaintiff, which assignment, however, was made more than four years prior to the completion of the maintenance.

The summons and complaint were personally served) upon the defendant, and, by order of the county judge, they were also delivered to W. A. Daniels, attorney, who admitted due personal service and interposed an answer as attorney for the defendant that she was of unsound mind and “ stranger to all and each of the matters and things set forth in the complaint herein,” and submitted her rights to the protection of the court. On the 1st day of July, 1902, two days before the hearing, the attorney for the defendant waived notice of application for judgment, and consented that judgment might be taken for the amount set forth in the complaint. It appeared upon the hearing that the only property which the defendant owns is fourteen acres of land, which is not of sufficient value to pay the plaintiff’s claim, and, therefore, a forced sale under any judgment herein would leave her destitute.

Insane persons require support and their contracts, expressed or implied, for the necessaries of life may be enforced. Story Eq. Juris., § 228; Barnes v. Hathaway, 66 Barb. 452.

*391But the force of the claim comes not so much from the obligations of the contract as from the justice of its terms and performance, aided by the presumption that some intelligence exists in the brain of lunatics to guide their action in things essential to daily existence. A serious distinction has always been recognized between lunatics and idiots. The one had lucid intervals, the other no power of mind whatever. The term “ lunatic ” has broadened to include all insane persons except idiots, as no other distinction seems to be essential. Laws of 1874, chap. 446, tit. 3, § 37, as amd. by Laws of 1892, chap. 677, § 7.

To allow a personal judgment against this idiot, upon which execution might issue and her real estate be sold, would recognize the validity of an obligation at law, never created by any intelligent volition of the obligor, in an action the record' of which would show an utter want of capacity to receive process, understand its force, retain an attorney to defend her interests, or offer the slightest resistance to the claim. The whole proceeding creating the cause of action and seeking to enforce it is an absolute nullity so far as the defendant is concerned, except as her brother and mother supplied her physical wants.

Such a situation, however, has not been left by the law without remedy. At any time during the maintenance, by the provisions of statutory law, the brother and mother could have obtained the appointment of a committee who, by proper proceedings, might have devoted the little property owned by the defendant to her support. That procedure can yet be taken. It is unnecessary for this court to give expression to mv opinion as to the power of the committee through lunacy proceedings to pay for past maintenance. That question is left to the proper forum. If there be any doubt about it, such doubt arises from neglect on the part of those interested years ago to take the proper steps.

Application for judgment denied.

Application denied.

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