¶1Upon the testimony which has been submitted in this cause, we feel constrained to adopt the conclusion, that Owen M. Thayer, when he married the respondent, was laboring under such a malady of the mind as disabled him from contracting a valid marriage. And this state of mind, which had existed for two or three years before the marriage, appears to have continued without material change subsequently, until after the petition was preferred. On the case as it now stands, we think the petition should be granted.
¶2The respondent asks us to defer our decision until Owen M. Thayer, now absent in the state of Maine, shall have been produced before us to be personally examined. If we were assured that he had now recovered, we should not wish to proceed to a decree without some communication with him in regard to the subject of the petition. But the respondent does not base her request upon an alleged recovery, but upon her belief that he has never been otherwise than of sound mind. It is possible, if the respondent failed to detect his insanity during her intercourse with him, that we might not, in an interview with him, discover it. But, even if this were so, we could not venture to follow our own unskilled impressions, so obtained, against the opinions of the accomplished experts produced by the petitioner, corroborated as they are by the opinion of the family physician, and by the testimony showing a change in Owen M. Thayer's character, occurring some years before his marriage, and followed by a course of strange, moody and wayward conduct on his part up to the time of his marriage and afterwards. The petitioner, through his counsel, admits that Owen M. Thayer has recently improved in mind, but says that he is not yet restored. We have no sufficient reason to suspect that the petitioner is *387 practicing to deceive the court, or that he is abusing the powers confided to him by the statute under which the petition is preferred. The affidavit of Dr. Ray expresses his opinion, (given October 10, 1868,) that the boy could not be produced in court without undergoing a dangerous degree of excitement. In this state of the case, while we should be glad to have Owen M. Thayer produced, if it can be done without serious risk, we yet are not prepared to refuse to grant the petition unless he is produced.
¶3The respondent suggests that we ought not to proceed to a decree without notice to Owen M. Thayer, and without first ascertaining the fact of his lunacy by some more formal proceeding with that view, after such notice. The statute authorizing the petition in this form does not direct that such notice shall be given, but simply provides that "the fact of lunacy shall be set forth in said petition, and shall, on the trial thereof, be proved to the satisfaction of the court as any other material allegation is required to be." We do not think the notice proposed is indispensable, unless this statute is unconstitutional, and the counsel for the respondent, although he questions our power to proceed in this suit without notice to Owen M. Thayer, does not refer to any provision or principle of the constitution which will be infringed thereby, and we think of none. Doubtless there may be cases in which we should consider such a notice expedient, but in this case, where the person in whose behalf the petition is preferred is a minor, without means, and under the control of the father, who is himself the petitioner for him, we think it would be a barren ceremony to have him personally served with notice, unless we should go further and secure him the means of contesting the right of his father to prosecute the petition in his behalf. This we are not prepared to do. Indeed, we think, in the absence of any proof of fraud or unfairness, that the lunatic, or non compos, is to be regarded duly represented in the suit by the person who, being authorized by the statute, petitions in his behalf.
¶4We shall, therefore, grant the prayer of the petition. We deem it proper to say, in doing so, that we think the respondent *388 has conducted the defence as becomes her claim to be the true and lawful wife of Owen M. Thayer, and that, if there be any error in our decision, it will not have occurred by reason of any want of proper efforts on her part to maintain the validity of her marriage with him.
¶5Petition granted.