108 Wis. 387 | Wis. | 1900
1. The general merits of this appeal present no difficulty. The conclusion of the circuit court that Alfred H. Welch was competent to manage his own affairs is not only not opposed to the great preponderance of the evidence, but overwhelmingly supported thereby. Had an opposite decision been reached, we think it could not have been sustained unless, perhaps, on the assumption that the appearance of Welch himself, not possible to present before us, negatived belief in his competency, We do not need to review the evidence, but perhaps should suggest that only with great hesitation should courts interfere with the discretion of elderly people, owing no legal duty of support to any one, in devoting the property accumulated by them to their own comfort according to their own taste.
The respondent here was applying the rents of his sixty-acre farm to secure to him thereon a home suited to his tastes, with people' -whose society he enjoyed, in whom he placed confidence, and toward whom he felt affection; a
2. It is contended by appellant here that the circuit court erred in refusing to dismiss the appeal to it on the ground of noncompliance with the statute requiring notice of appeal to be served on the adverse party. Sec. 4033, Stats. 1898. Welch gave to the county court notice of appeal, whereupon that court, in pursuance of its statutory duty, made order for service by delivery of copies of notice and order to Mr. Yan Yalkenburgh, as the attorney for petitioners, naming them, which order was complied with. Was the statute thus satisfied ? Clearly, it is the policy that one adjudged incompetent have right of appeal. That right
3. Error is assigned for that the circuit court rendered judgment for costs against the respondent there, the appellant here; and sec. 2932, Stats. 1898, is invoked as requiring costs to be payable out of the estate involved, unless bad faith or mismanagement be expressly found. That position is supported by Wiesmann v. Brighton, 83 Wis. 550, and cases there cited, if the guardianship proceeding in circuit court is controlled by that section,— a question not yet decided by this court. Costs are the creature of statute, cannot be allowed in the absence of express statute, and, when such statute exists, must be allowed according to its terms. Ch. 129, Stats. 1898, controls the general question of costs in circuit courts. Therein we find sec. 2918, subd. 7, providing that “ in all equitable actions and special proceedings costs may be allowed or not to any party, in whole or in part, in the discretion of the court.” In the samé chapter is sec. 2932, with the provision as to payment of costs out of the estate “in an action prosecuted or defended by an executor,” etc. “ Eemedies in courts of justice are divided into: (1) Actions; (2)special proceedings.”* Sec. 2594, Stats. 1898. “ An action is an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong or the punishment of a public offense.” “Every other remedy is a special preceeding.” Secs. 2595, 2596. The application for appointment of a guardian is clearly a special proceeding. The distinction between actions and special proceedings has, with few exceptions, been preserved in the framing of our statutes; and when the legislature, in enacting our present revision, ex industria made
4. Errors are also assigned upon the exclusion of the opinions of certain nonexpert witnesses as to Welch's competency. In all but one of such excepted rulings the only foundation laid was proof of acquaintance and familiarity. In one instance, however, a witness (Robbins), having related a lengthy conversation, was asked: “ Q. Did you, from y0ur conversation with him, based upon that, form an opinion as to whether he was competent, and had been, to do business ?" Under the rule that on questions of mental competency a witness, though nonexpert, who has related specific transactions with or conduct of the alleged incompetent may state, by way of opinion, the impression as to competency or incompetency conveyed to him by such conduct (Crawford v. Christian, 102 Wis. 51; note to Ryder v. State [Ga.], 38 L. R. A. 721), the question to Bobbins might well have been allowed; but its exclusion was not such error as to necessitate reversal. The admission of such opinions is largely discretionary with the trial court. Boorman v. N. W. M. R. Asso. 90 Wis. 144, 150. The conversation related by Bobbins could have been of little aid informing an opinion as to Welch's present competency or business capacity. It consisted of a narrative or history of his removal to Viscon-sin when a young man, and of circumstances attending the
The admission of opinions from two witnesses offered by Welch, upon somewhat doubtful foundation, must be held innocuous for the reasons above stated, as well as because, even if excluded, the whole evidence would still have been overwhelmingly in favor of the finding of competency.
Certain other rulings on evidence complained of by appellant may be passed without discussion, for, whether right, or wrong, they are of but trifling materiality and could not. have affected the decision.
Errors assigned upon certain instructions givefi to the jury and upon the form of the question submitted to them are-immaterial, since the verdict of the jury -was advisory merely, and the finding made by the court is fully sustained by the evidence regardless of that verdict. Barbo v. Rider, 67 Wis. 598, 607.
On the whole record, we are convinced that the decision appealed from was right.
By the Court.— Judgment affirmed.