
    RIGGS v. AMERICAN TRACT SOCIETY.
    
      N. Y. Supreme Court, Fourth Department, Seventh District;
    
    
      General Term, February, 1880.
    Pleading.—Executors and Administrators.—Parties.—Release.
    An allegation that a person “ was of unsound mind, and for that cause legally incapable of making” the transaction which the pleader seeks to impeach, is, on demurrer, a sufficient allegation of the fact of mental incapacity.
    In an action to set aside a contract made by a person alleged to have been of unsound mind, and to recover back money paid under it, it is not essential to allege bad faith, or a knowledge, on defendant’s part, of the mental unsouudness, if, for aught that appears from the complaint, defendant may be put in statu quo.
    
    In an action by an administrator, to set aside, on the ground of the alleged insanity of the deceased, a contract made by the deceased pecuniarily beneficial to his widow, the widow is a necessary party, if, either by the terms of the contract, or by the option of herself or the obligor, she might be entitled to receive such pecuniary advantage directly, without the intervention of the administrator.
    An allegation that she consented to a surrender of the contract, without any allegation of release or assignment, is not sufficient to excuse omitting her as a party.
    Appeal, by defendant, from an order of the Wayne county special term overruling a demurrer to the complaint, and from the judgment entered thereupon.
    The action was brought by Miles B. Riggs, as administrator, &c., of Tra Riggs, against The American Tract Socieiy, to recover the sum of $4,000.
    The complaint alleged that the plaintiff’s intestate, Ira Riggs, was, for upwards of fifteen years next preceding his death, of unsound mind, and for that cause legally incapable of making the dispositions of his property to the defendant which are thereinafter set forth; that, shortly prior to his death, he in form, transferred to the defendant several sums of money, amounting in all to the sums of $4,000, which the defendant received and invested or used in and about its business and for its benefit; that said moneys were so transferred and received under an arrangement by which the intestate, being of unsound mind as aforesaid, agreed to give, and did give, to the defendant such sums of money, and the defendant agreed to give and did give certain assurances in writing, obligating the defendant to pay the interest on said money, every six or every three months, to the intestate, during his life, and thereafter, on the whole or a part of said money, to either the executor or administrator of the intestate, for the benefit of his wife, being his widow, or directly to his wife, and to his sister Marilla, for their benefit, daring their lives respectively. The complaint also alleged that the interest on said money was paid by the defendant to the intestate during his life ; that his sister, Marilla, died shortly after the intestate’s death, without having received any of such interest; and that none of said interest has been paid to the plaintiff. The complaint farther alleged that, soon after the plaintiff was appointed administrator, he found said written assurances among the papers of the intestate, and thereupon he obtained from the surviving wife of the intestate her written consent that the plaintiff might surrender said assurances to the defendant, and he afterwards and .before the commencement of this action offered to .surrender to the defendant the said consent of the widow, acknowledged by her, together with the said' .assurances and all claims of the plaintiff or of the widow based upon them, and demanded return of said ■sum of money, all of which the defendant refused.
    The relief demanded was a judgment for said $4,000, with interest from the time of said demand.
    The demurrer was upon the grounds: 1. That there was a defect of parties defendant, in the -omission of the widow of the intestate, and also in the omission of the personal representatives' or next of kin of his said sister, deceased ; and, 2. That the complaint did not state facts sufficient to constitute a cause of action.
    The judge at special term' having overruled the demurrer, the defendant appealed.
    
      Austin Abbott and Howard Payson Wilds {Edward H Avery, attorney), for defendant, appellant.
    1. The widow is a necessary party. She could maintain an action on the agreement (Nevins v. Dunlap, 33 N. Y. 676; Penman v. Slocum, 41 Id. 53; Genesee Mut. Ins. Co., v. Benson, 5 Duer, 168 ; Cucullu v. Walker, 16 La. Ann. 198 ; Quimbery v. Artis, 1 Duv. [Ky.] 30). The only ways in which defendants could be protected against further claim by her are either by an assignment of her claim to the plaintiff before suit brought, or by the adjudication of the court in an action in which she was a party (Cramer v. Benton, 4 Lans. 295 ; S. C., 60 Barb. 216; Shepard v. Shepard, 7 Johns. Ch. 57). There is no release of the widow, and if there were, being unaccepted, it is revocable, and does not bind her (Westerlo v. De Witt, 36 N. Y. 340, 343, 347).
    II. The administrator cannot maintain this action, even if the transfer were void, as claimed. The claim is not assets (2 R. S. 82, § 6). The proper remedy to avoid a conveyance by an insane person is to have an inquisition found, and to appoint a committee in the lifetime of the person (Jackson v. King, 4 Cow. 207, 217; Ordronaux Judicial Aspects of Insanity). The act of 1858, c. 314, allowing executors, &c., to sue to set aside fraudulent conveyances, cannot aid the action, for there is no suggestion of fraud, nor is there any allegation of insufficiency of assets.
    III. The transfer of the $4,000 was a gift to charitable uses ; and the exaction of interest by the decedent for himself, wife and sister, was a benefit to him and them, to continue for several lives, in return for which the gift was to and did vest absolutely, and cannot be revoked (Doty v. Wilson, 47 N. Y. 584).
    IY. The action is one for money had and received, and the plaintiff fails to satisfy the wrell-settled rule that he must show an equitable right in good conscience and natural justice. In such an action plaintiff cannot stand on a technical legal right, but must show that the defendants have money which in equity and good conscience they ought to pay over to the plaintiff (Buel v. Boughton, 2 Den. 91). Even in case of a contract, equity and good conscience do not require the repayment where the contract has been even in part performed, and the other party has derived some benefit, and by the recovery the parties cannot be placed in the exact situation in which they originally were when the contract was entered into (1 Chitt. Pl. 368, followed in Peters v. Gooch, 4 Blackf. [Ind.] 415). The transaction being not void, but voidable only, was binding on the defendants (Allen v. Berryhill, 27 Iowa, 534; S. C., 1 Am. R. 309; Allis v. Billings, 6 Metc. 415; Carrier v. Sears, 4 Allen, 336; Howe v. Howe, 99 Mass. 98). From the title of the defendants, “ The American Tract Society,” the court may take notice of its being a charity (Blanchard’s Gunstock Factory v. Warner, 1 Blatchf. 258, 271, 277; Dorsey Harvester Rake Co. v. Marsh, 6 Fish. Pat. Cas. 393; Ould v. Washington Hospital, 95 U. S. 303 ; and see 2 Perry on Trusts, §§ 701, 705). The complaint shows that the moneys received from the decedent, the defendants have used in carrying out the purposes of their creation as a tract society, as they were in duty bound to do.
    Y. It is the settled and just law of this State, that to avoid a transaction inter vivos, on the ground of insanity, the party impeaching it must show either idiocy or lunacy, or an inquisition interdicting the transaction on the ground that the person had been judicially found of unsound mind within the meaning of the statutes of lunacy (Jackson v. King, 4 Cow. 207 ; Person v. Warren, 14 Barb. 494; Osterhout v. Shoemaker, 3 Den. 37, n).
    VI. If the transaction is regarded as a contract the result is the same. Apart from the question of incapacity, and in the absence of undue influence or fraud, there can be no question of the validity of such a contract (Stanton v. Miller, 1 Sup'm Ct. [T. & C.] 23; 58 N. Y. 192; Re Cornwall, 9 Blatchf. 114; Spalding v. Hallenbeck, 30 Barb. 292; 35 N. Y. 204; 39 Barb. 79).
    VII. A person who is merely “of unsound mind,” is not necessarily, nor even presumptively, incapable of making such a disposition of his property. In the present state of the law of insanity, “ unsoundness of mind” is the most indefinite term known to the law for indicating mental deficiencies (Browne Med. Juris. of Insanity, § 57); the cases such as Blanchard v. Nestle (3 Den. 41), &c., that define “ unsound mind,” in its fixed legal signification, as meaning non compos, are only applicable under the statute providing for inquisitions. They are not authority on a question of pleading like this (Searle v. Galbraith, 73 Ill. 272; Kendall v. May, 10 Allen [Mass.] 59, 64). Alleging one to be an idiot or a lunatic, imports an entire deprivation of disposing power. The term “unsound mind,” is now commonly used in contradistinction to the total absence of reason, and imports the possession of mind with some legally recognizable defect; but it affords no indication of what is the character or the quality of the defect. Even should we concede (for the purposes of the argument under this point) that partial insanity, which is all that “ unsound ” necessarily imports, could render a transaction voidable, the character or quality of the unsoundness must be vleaded. All the authorities agree that a partial insanity or unsoundness cannot affect the validity of an act, unless shown to have such a character, and such a relation to the character of the act in question, as to render the person incapable of performing that kind of a transaction (Hall v. Unger, 2 Abb. U. S. 512; Dennett v. Dennett, 44 N. H. 531). There are eight chief classes of cases in which the law has to deal with questions of insanity, or mental unsoundness. 1. .Questions of personal custody. 2. Interdiction, or the appointment of a committee. 3. Wills. 4. Contracts in general. 5. Marriage. 6. Partnership. 7. Crimes. 8. Capacity to testify. For none of these purposes is it enough to show that the person is of unsound mind. To justify personal restraint it must be shown that the unsoundness is of such a character as to render personal restraint necessary to avoid danger to the subject himself or to others, or (according to the modern authorities) such as to render it necessary for purposes of cure. In either case the question is not merely, is he of unsound mind ? but is the unsoundness of such a character as to render restraint necessary (Oakes’ Case, 8 Law Rep. 122 ; Hinchman v. Richie, Brightly, 143 ; Article on Confinement of Insane, 3 Am. Law Rev. 193, Jan. 1869; Brush’s Case, 3 Abb. New Cas. 325; Ayers's Case, Id. 218). Hence, unsoundness of mind maybe of such a character as to justify restraint, though no defense to an indictment for crime and no disqualification to make an affldavi t or testify in court (Spittle v. Walton, L. R. 11 Eq. 420; Kendall v. May, 10 Allen [Mass.] 59; Brush’s Case, above); and no disqualification to make a will (Cartwright v. Cartwright, 1 Phill. 90). To establish a case for interdiction, or an inquisition and commission of lunacy, it must be shown that the unsoundness .is either entire, that is, idiocy or lunacy in the strict sense, or that it is of such a character as to render the person mentally incapable of managing his affairs (Matter of Barker, 2 Johns. Ch. 
      237). Hence unsoundness of mind may be of such a character as to justify the appointment of a committee and the interdiction of all interference with his property by the subject, but yet not disqualify from making a will (Breed v. Pratt, 18 Pick. 115, and cas. cit.; Lewis v. Jones, 50 Barb. 645, and cas. cit.). Nor from making, with the approval of the court, a gift, against the objection of the committee (Matter of Gilbert, 3 Abb. New Cas. 222). To establish want of testamentary capacity it is necessary to show either idiocy or lunacy, or unsoundness of such a character as to render the person incapable of comprehending perfectly the condition of his property, his relations to the persons who were or might have been the objects of his bounty, and the scope and bearings of the provisions of his will, and deprive him of sufficient active memory, and judgment for such an act (Delafield v. Parish, 25 N. Y. 9, 27, 29; overruling Stewart v. Lispenard, 26 Wend. 225 ; Van Guysling v. Van Kuren, 35 N. Y. 70 ; Banks v. Goodfellow, L. R. 5 Q. B. 549). Thus delusion or monomania not affecting testamentary action does not disqualify á testator (Van Guysling v. Van Kuren ; Banks v. Goodfellow, above). To establish the invalidity of a deed or other contract or transfer inter vivos, by a person for whom a committee has not been appointed, an entire loss of understanding must be shown—that is to say, idiocy or lunacy, as distinguished from that partial defect indicated by the term “of unsound mind” in the statute (Jackson v. King, 4 Cow. 207); or an inquisition interdicting all interference with property (Person v. Warren, 14 Barb. 495). Partial insanity is of course enough where unconscionable advantage is shown to have been taken of the infirmity. To establish incapacity for marriage, it is necessary to show idiocy, or lunacy, or unsoundness of a character to render the person incapable of comprehending the nature and status of marriage, or the nature and obligations of contracts generally (Bishop on Mar. & Div. § 129 ; Brown’s Med. Juris. of Insan. § 155, last paragraph). To establish insanity as ground for dissolving a partnership, it is not enough even to show total insanity, for it may be temporary. It is necessary to show unsoundness of such a character as to render the person substantially and continuously unable to fulfill his duties under the articles of partnership (Anon. Z. v. X., 2 Kay & J. 441, and cas. cit;) Story on Partn. §§ 292-297). To establish insanity as a defense in criminal cases it is necessary to show unsoundness of such a character, that the person had not power to distinguish between right and wrong in respect to the act charged (People v. Montgomery, 13 Abb. Pr. N. S. 207, and cas. cit. ; People v. Flanagan, 52 N. Y. 467). To establish insanity as a disqualification to testify, it is necessary to show unsoundness of such a character as to take away the capacity to comprehend the facts, to communicate testimony, or to understand the nature of an oath (People ex rel. Norton v. New York Hospital, 3 Abb. New Cas. 229, note ; Holcomb v. Holcomb, 28 Conn. 177 ; Regina v. Hill, 5 Eng. L. & Eq. 547 ; S. C., 5 Cox Cr. Cas. 259 ; 2 Den. C. C. 254). When unsound mind is used, even in returns and verdicts, it is coupled with the characterizing phrase, “and mentally incapable of managing his affairs ” (or its equivalent) (Matter of Barker, 2 Johns. Ch. 237; 3 Barb. Ch. Pr. 659 ; 3 Tiffany & S. 420 ; Nix. Forms, 192). The averment “of unsound mind” is not helped by the legal conclusion added by the pleader, “ and for that cause legally incapable of making the dispositions of his property to the defendant, which are hereinafter set forth.” This a mere legal conclusion ; is not issuable, and does not avail (People ex rel. Purdy v. Highway Commissioners, 54 N. Y. 276 ; City of Buffalo v. Holloway, 7 N. Y. 493; Butler v. Viele, 44 Barb. 166; Simmons v. Fairchild, 42 Barb. 404 ; Commercial Bank of Rochester v. City of Rochester, 41 Barb. 341). The omission to allege a necessary fact cannot be supplied by presumption, even where the legal conclusion is alleged. The rule the court of appeals apply in- construing a pleading is, that if any presumption arises, it is against the existence of the fact not alleged, because we may infer that the party stated his case as-favorably as possible for himself (Hofheimer v. Campbell, 59 N. Y. 274). As has been aptly said in ruling on the examination of witnesses, the questions whether one was of unsound mind, or was so affected in mind, as to be unfit for transacting his business, “embrace the whole law, as well as the facts of the case” (Deshon v. Merchants’ Bank, 8 Bosw. 461).
    VIII. Even if the transaction were simply a contract, and the decedent had been wholly insane, and there were in the complaint issuable and sufficient allegations thereof, still the complaint would show no cause of action. It is well settled, in this country as in England, that the contracts of an insane person (in the absence of fraud, &c.), are not void, but at most only voidable (Ingraham v. Baldwin, 9 N. Y. 45 ; 12 Barb. 9 ; Loomis v. Spencer, 2 Paige, 158 ; Matter of Exp. Beckwith, 3 Hun, 443 ; Fitzhugh v. Wilcox, 12 Barb. 237; Person v. Warren, 14 Id. 488 ; Canfield v. Fairbanks, 63 Id. 461 ; Beavan v. McDonnell, 9 Exch. 309; Beals v. See, 10 Barr, 60; Allis v. Billings, 6 Metc. 415 ; Carrier v. Sears, 4 Allen, 336 ; Howe v. Howe, 99 Mass. 98 ; Allen v. Berryhill, 27 Iowa, 534 ; S. C., 1 Am. Rep. 309 ; Hunt v. Weir, 4 Dana, 348 ; Eaton v. Eaton, 8 Vroom N. J. 108 ; S. C., 18 Am. R.; Carr v. Holiday, 5 Ired. Eq. 167 ; 1 Story Contr. § 82, 5 ed.; § 42, 4 ed.; Addison on Contr. 140 Banks’ ed. § 192; 1 Id. p. 192, Morgan’s ed.). And equity will not interfere to avoid an executed contract,, where it was made in good faith, without knowledge of the incapability, and the lunatic has had the benefit of it (Loomis v. Spencer, 2 Paige, 158 ; Price v. Berrington, 7 Eng. L. & Eq. 254 ; S. C., 15 Jur. 999 ; 3 Mac. & G. 486 ; Sprague v. Duel, Clarke Ch. 90 ; 11 Paige, 480). It is not a matter of course for a court of equity to set aside and declare void the act of a lunatic executed during his lunacy (Canfield v. Fairbanks, above ; Neil v. Morley, 9 Ves. 478, followed in Loomis v. Spencer, 3 Paige, 153; Person v. Warren, 14 Barb. 488). Contracts with an insane person, wholly executed, or so far executed that the parties cannot be placed in statu, quo, cannot be avoided, either at law or in equity, upon the mere ground of insanity. Fraud or unconscionable advantage, or, at least, knowledge of the insanity, must be shown (1 Story Eq. Jur. § 227; Cruise v. Christopher, 5 Dana, 182, n. 2 ; Molton v. Camroux, 2 Exch. 487 ; 4 Id. 17; S. C., 18 Law Journ. Exch. 356 ; Elliot v. Ince, De G. M. & G. 475-487; State Bank v. McCoy, 19 Smith [Penn.] 204; Nace v. Boyer, 6 Casey, 99; 1 Wharton & Stillé Med. Juris. § 8, ed. 1873 ; Browne Med. Juris. of Insan. § 27, ed. 1875; Behrens v. McKenzie, 23 Iowa, 343; Beals v. See, 10 Barr, 56; Lancaster County National Bank v. Moore, 78 Penn. St. 412 ; 2 Kent Com. 451, 12 ed. ; Matter of Beckwith, 3 Hun, 445; Lincoln v. Buckmaster, 32 Vt. 652 ; Hicks v. Marshall, 8 Hun, 327 ; 48 N. H. 133 ; Musselman v. Cravens, 47 Ind. 1). The transaction would still be within the rule, if the allegations showing a contract were omitted and the act were a pure gift to the Tract Society. It is in the ordinary course of the duty of such a society to receive gifts ; this is the object of its incorporation. And there is nothing in the complaint to show that the gift was not a reasonable and proper one. “ Support,” it is said, includes the means of “reasonable physical, mental and spiritual enjoyment ” (Forman v. Whitney, 3 Abb. Ct. App. Dec. 163). Even in the case of an insane person under guardianship, where sanction of court is absolutely necessary, it is enough that the expenditure is a not unreasonable one for a man of like fortune and circumstance to indulge in, if not under guardianship (Matter of Gilbert, 3 Abb. New Cas. 222. S. P., May v. May, 109 Mass. 254). It is incumbent on the party who seeks to avoid a transaction by an insane person to allege and prove that the other party had knowledge of the insanity (Young v. Stevens, 48 N H. 133; Harrison v. Richardson, 1 Moody & Rob. 504; Ingraham v. Baldwin, 9 N. Y. 45; affi’g 12 Barb. 9; Behrens v. McKenzie, 23 Iowa, 343; 2 Jones on Mort. § 1510). The precedents of answers alleging lunacy as a defense to an action on the lunatic’s contract, and alleged knowledge on plaintiff’s part (2 Chitty’s Pl. 436, ed. of 1876 ; Bullen & Leake’s Forms, 354; 2 Abbott’s Forms, 41). There is a line of cases in some other States (not the law here) to the effect that the civil acts of a “lunatic ” are utterly void. These cases turned on the fact the term “lunatic,” in its common, and always in its technical legal usage, means a person wholly deprived of reason; not a person having, in the eye of the law, a mind unsound, but one having no mind at all ; and the cases in which ■ the courts have held that the acts of a lunatic are void, are cases where it has been put upon the ground that he was totally devoid of reason. Before the time of Coke, either idiocy or frenzy was the characteristic of all persons legáll y regarded as non compos. ‘ ‘ Furiosus ’ ’ was the synonym. Beverley’s Case, 4 Coke, 124 (2). Swinburne, who wrote about 1590, made the test to be the contrast between “furor” and “quietness” (Swinb. on Wills, pt. 2, § 3). The ancient common law insanity, therefore, carried in its very definition the assurance that those dealing with the person had notice of his infirmity. To be deemed insane, one must be a man that is totally deprived of his understanding and doth not know what he is doing no more than an infant, a brute, or a wild beast (1723, Arnold’s Case, 16 How. St. Tr. 764). In 1802, Lord Eldon protected by order of court those whom the jury had refused to find insane. The contrast between the lunatic and idiot of the old common law, and the unsoundness of mind which the modern law has recognized, and, in fact, chiefly has to deal with, is admirably exhibited in Mr. Justice Bigelow’s delineation of the characteristics of the insane, in Dean v. Am. Mut. Life Ins. Co., 4 Allen, 100. “The soundness of this rule” (the rule in Beals v. See), says Paxon, J., in 78 Pa. St. 414, “is too apparent to need "any extended vindication.” The cases in other States which have treated the civil acts of a lunatic as absolutely void, were never intended to apply except to acts of those who were technically “lunatics” or “idiots,” as appears from the reasoning on which they proceed. As above shown, they are no longer law in respect to executed transactions affecting only personality, and certainly, since Ingraham v. Baldwin, have not been the law in this State for any purpose. Van Deusen v. Sweet, 51 N. Y. 378, only held that the deed of a lunatic was void in such sense that it could be declared so at law without first bringing a suit in equity to set it aside. The distinction between this use of the word “void” and its use as indicating that a contract is not binding, even before disaffirmance, is well understood. In conclusion, the law of this.State on the point in question is well summed up in the most recent and highest authority we have, the treatise of the State Commissioner on Lunacy, Hon. John Ordronattx, on the Judicial Aspects of Insanity, p. 300.
    IX. To sustain plaintiff’s case will convert the modern doctrine of lunacy from a shield, as it is, into a sword, which it is not (Allen v. Berryhill, 27 Iowa). If his transactions be deemed void, as claimed by plaintiff, execution goes against the person of all who dealt with the decedent (Person v. Civen, 29 How. Pr. 432, rev’g 28 Id. 139). If they be voidable only, then the cause of action does not arise until the representative exercises his election ; consequently there is no statute of limitations available, if only the representative sues within six years after his appointment and demand (Bucklin v. Ford, 5 Barb. 393; Roberts v. Bedell, 52 N. Y. 644; S. C., 15 Abb. Pr. N. S. 177).
    
      II. L. Comstoelc (Comstoek & Bennett, attorneys), for plaintiff, respondent.
    I. The gifts or transfers of money, made by the plaintiff’s intestate to the defendant, as stated in the complaint, were void, and not merely voidable (Van Dusen v. Sweet, 51 N. Y. 378 ; Farley v. Parker, 6 Oreg. 105 ; S. C., 25 Am. R. 504; Dexter v. Hall, 15 Wall. 9 ; Thompson v. Leach, 3 Salk. 300 ; Estate of De Silver, 5 Rawll, 111; Yates v. Bowen, 1 Dow & Clark, 380 ; 1 Sugden on Powers, 179). It must be admitted that, until quite recently the contracts of a lunatic were held by the courts of this State, and generally in this country, to stand upon the same footing, substantially, as the contracts of an infant; and, therefore, they were held to be voidable, merely, and not void. This was probably the result, in the first place, of a misunderstanding of the English authorities. In Beverly’s case (4 Rep. 123), it, was held that deeds executed by lunatics were voidable only, but not actually void. But in a later case (Thompson v. Leach, Comb. 468 ; S. C., 3 Salk. 300) a distinction was established between a feoffment with livery of seizin by a lunatic, and a bargain and sale, or surrender. The former, on account of the solemnity of the livery, was held voidable only ; but the latter was held to be actually void. But though this decision was made before Blackstone wrote his Commentaries, he seems to have overlooked it; for he stated the rule as resolved in Beverly’s case. This doctrine has been very generally adopted in this country. It was, however, repudiated in Pennsylvania at an early day (Estate of De Silver, 5 Rawle, 111). There has been, for some time past, a growing dissatisfaction with this doctrine ; and it has been overruled in this State (Dexter v. Hall, supra; Van Dusen v. Sweet, supra, followed in Farley v. Parker, 6 Oreg. 105). It has often been held, that where a contract for the sale of real or personal estate is executed by a person who has been, upon inquisition, found to be a lunatic, and of whose person and estate a committee had been appointed, is absolutely void, that no action could be maintained thereon, even by such committee ; that the committee had no power to ratify it (Fitshugh v. Wilcox, 12 Barb. 235 ; Pearl v. McDowell, 3 J. J. Marsh. 658 ; White v. Maxwell, 5 Pick. 217). But what possible difference can it make with the insane person’s capacity to make a contract, whether an inquisition has been found or not ? He is just as incapable before inquisition, as afterwards. It should be his incapacity that protects him and his estate, and not the fact that he has been legally pronounced insane.
    II. If it should be assumed that the several transfers of money by the intestate to the defendant, as stated in the complaint, were voidable, and not void, still the plaintiff, to avoid the said several transfers, and to recover back the money for the benefit of the next of kin and creditors of the intestate (Gibson v. Soper, 6 Gray, 279 ; Nichol v. Thomas, 53 Ind. 42; Hovey v. Hobson, 53 Me. 451; Seaver v. Phelps, 11 Pick. 304; Rice v. Peet, 15 Johns. 503; Henry v. Fine, 23 Ark. 417; Van Dusen v. Sweet, supra). If it be considered voidable, the bringing of an action at law to recover the property, or the consideration for the agreement, avoids it. This seems to be the doctrine in this State as well as in Massachusetts, Maine and Arkansas. Such also seems to be the rule in New Jersey, as was conceded in Matthieson & W. R. Co. x. McMahon (38 N. J. L. 537). It has sometimes been held that where a person, apparently of sound mind, and not known to be otherwise, enters into a contract, in the usual course of business, which is fair and bona fide, which is executed and completed, and the property—the subject matter of the contract—cannot be restored so as to put the parties in statu quo, such contract cannot afterwards be set aside by the alleged lunatic or those who represent him (Molton v. Camroux, 2 Exch. 487; S. C., on error, 4 Id. 17 ; Bevan v. McDonnell, 24 Eng. L. &. Eq. 487; Elliot v. Ince, 7 De G. M. & G. 475 ; Wilbur v. Weakley, 34 Md. 131; Matthieson & W. R. Co. v. McMahon, 38 N. J. L. 537 ; Yauger v. Skinner, 1 McCarter, 389 ; Eaton v. Eaton, 8 Vroom, 108). In these cases the court seem to have assumed, in some degree, the powers of a court of equity, and to deny to the plaintiff all remedy, where it was not in his power to put the defendant in statu quo (Canfield v. Fairbanks, 63 Barb. 461). But no court in this State has assumed to impose any such terms or conditions of relief, in an action at law. In some States it is denied (Gibson v. Soper, 6 Gray, 279 ; Nichol v. Thomas, 23 Ind. 42 ; Henry v. Fine, 23 Ark. 417). The transactions were substantially gifts, and the agreement to pay interest does not change their character (Doty v. Willson, 47 N. Y. 580; Hills v. Hills, 8 M. & W. 404; Blount v. Barrow, 4 Bro. C. C. 72). If the transfers were void the plaintiff has a right to recover whether the defendant can be placed in statu quo or not (Rogers v. Walker, 6 Barr, 371).
    III. The allegations in the complaint are sufficient to show that the intestate was insane at the time of the alleged transfers of the several sums of money mentioned in the complaint by him to the defendant, and that his insanity was of such a character as to render him legally incapable of making those transfers. There is no doubt of the meaning of the words “of unsound mind” (Exp. Bransley, 3 Ark. 167; 1 R. S. 719, § 10 ; 3 Id. 541, § 1 ; Id. 55, 57, § 1 ; Id. 60, § 21; Stewart’s Executor v. Lispinard, 26 Wend. 297; Blanchard v. Nestle, 3 Den. 41; 2 Abb. Forms, 41.)
   Smith, J.

[After stating the facts.)—Obviously, the cause of action intended to be stated by the pleader is for money had and received by the defendant from the intestate under circumstances detailed in the complaint, which, it is claimed, equitably entitle the plaintiff, as the legal representative of the intestate, to recover it back. The basis of the claim is the alleged mental unsoundness of the intestate. It is strenuously contended by the counsel for the appellant that the complaint is fatally defective in not alleging the character of the unsoundness, and the connection between the alleged unsoundness and the transaction sought to be avoided. The argument addressed to us is, that in the present state of the law of insanity, the term of “ unsound mind ” is no longer a synonym for non compos mentis ; that it fails to define any particular kind or degree of mental deficiency, and that it does not necessarily or presumptively indicate a want of capacity to enter into such a transaction as is set out in the complaint. A concession of the argument does not lead necessarily to the conclusion that the complaint is defective. The averment is, in substance, that the alleged unsoundness of mind of the intestate was of such a character as to render him incapable of making the alleged transfer of money to the defendant. This statement of the quality of the alleged mental unsoundness, and of its bearing upon the transaction sought to be avoided, is explicit and concise, and no fault can be found with it as a matter of pleading, unless it is to be regarded as the mere statement of a conclusion of law. It is true, as a general rule, that mere legal conclusions are not to be pleaded. But it is often difficult to discriminate between what arefacts, which are required to be pleaded, and what are legal conclusions which cannot be pleaded, or rather, to state the pure facts, without any admixture of elements of law. Indeed, as was said by Mr. J ustice Seldeh, in Dows v. Hotchkiss (10 Leg. Obs. 281), “ no declaration or complaint was ever so drawn. If a plaintiff states his title to, or ownership of property in the usual form, is this the statement of a pure fact ? Clearly not. It comes much nearer being the statement of a mere matter of law: that is, of a legal right depending upon facts not stated. Again, the common averment that the defendant executed or entered into a contract, is liable to the same criticism; or even that he signed, sealed and delivered it. The delivery may have been actual, or it may have been constructive merely. What amounts to a delivery, is a question of law. It is obvious, therefore, that some latitude of interpretation is to be given to the term facts, when used in a rule of pleading. It must of necessity embrace a class of mixed facts into which more or less of legal inference is admitted. A contrary construction would tend to intolerable prolixity.” These remarks of the learned judge seem applicable to the present case. If the plaintiff’s intestate was in fact so far unsound in mind as to be incapable of making the transfer set forth, although not wholly devoid of understanding, it is difficult to see how the fact could have been stated differently, except by detailing all the circumstances relied upon to prove the alleged partial insanity. But that mode of pleading would be unendurable by reason of its prolixity, and it would violate another cardinal rule, to wit: that the issuable facts, and not the evidence of them, must be pleaded.

But the counsel for the appellant contends that, to establish the invalidity of a deed or other contract, inter vivos, made by a person for whom a committee has not been appointed, an entire loss of understanding must be shown, or an inquisition interdicting all inters ference with property. Such was formerly the rule at law (Jackson v. King, 4 Conn. 207; Blanchard v. Nestle, 3 Den. 37, and authorities cited in note a). But courts of equity have long recognized the principle that the contract of a person not having sufficient mental capacity to enter into such contract, although not wholly non compos, may be avoided under certain circumstances, provided it can be done without injustice to the opposite contracting party. But where the party contracting with the 1 ulna tic acted in good faith, without knowledge of, or reason to suspect his mental incapacity, and the party cannot be put in statu quo, a court of equity will not interfere to set aside the contract. Under our present system, in which the rules of law and of equity are administered in the same forum, a complaint, presenting a case for either legal or equitable relief, is not subject to the objection that it does not state facts sufficient to constitute a cause of action. o It is true the complaint in this case does not impute to the defendant bad faith, or a knowledge of the mental unsoundness of the intestate, but for aught that appears, the defendant may be put in statu quo, if the .agreement is avoided. In other words, so far as this ¡complaint shows, the defendant, on refunding the money received from the intestate, will be in as good a condition as it was in when the agreement was made. If, by reason of any fact not appearing in the complaint, the defendant cannot be restored to its former condition, such fact is matter of defense, to be set up by .answer. It these views are correct, the question whether the plaintiff can recover, in an ordinary action at law, for money had and received, is not very mate-. rial. Upon the facts stated in the complaint, the court may exercise .its equitable jurisdiction by avoiding the contract, and directing the defendant to refund the money received from the intestate, or so much thereof as remains unrefunded after crediting the defendant with all it has paid under the agreement. Under our present system of pleading, relief is to be given consistent with the facts stated, although it be not the relief specifically demanded.

But whether the action be regarded as one for equitable or legal relief, it seems to us that the widow of the intestate is a necessary party. Upon the facts pleaded, we regard the agreement not as absolutely void, but voidable upon proper terms, and at the suit of the proper parties. By the terms of the agreement, as set forth in the complaint, the defendant, after the death of the intestate, was to pay the interest money to his administrator, for the benefit of his widow, or, directly to his widow and sister, for their benefit, during their respective lives. Had the money been made payable to the administrator exclusively, for the benefit of the widow, the administrator alone might have maintained the action, without joining the beneficiary (Code of Civ. Pro. § 449). But it is payable in the alternative to the administrator, for the benefit of the widow, or to the widow directly, for her use during life. The object or this provision is not entirely clear, but obviously it gives an option either to the widow to demand and receive the money without the intervention of the administrator, or to the society to pay directly to her, if it .chooses. In either case, the widow has a direct interest in the money due under the agreement, and it is difficult to see how the agreement can be avoided or the principal money ordered to be restored in an action to which she is not a party. She might properly join with the present plaintiff in prosecuting the action, but if she should refuse to do so, she should then be made a defendant. The fact that she consented that the written assurances of the defendant, and her claim based thereon,^might be surrendered, is no answer to the demurrer. The offer of surrender not having been accepted, her interest is the same as if the offer had not been made. Her consent to a surrender was not a release, or an assignment of her right. We think she is a necessary party. The point that the representatives or next of kin of the sister should have been made parties has not been argued by the appellant’s counsel. It is enough to say that she died “ shortly after” the death of the intestate ; and it does not appear that any interest money accruing after his death had matured before she died. As her right to the money ceased upon her death, her representatives or next of kin have no interest in the subject-matter of the action.

. Upon the ground above stated, the judgment and order appealed from should be reversed, and judgment ordered for the defendant on the demurrer, with leave to the plaintiff to amend the complaintin twenty days, on payment of the costs of the demurrer and appeal.

Talcott, P. J., and Hardin, J., concurred. ’

So ordered.  