281 N.W. 597 | Mich. | 1938
This is an appeal by Charles Johnson from an order of the circuit court denying his petition to discharge a guardian previously appointed for him by the probate court on the ground that he was mentally incompetent to have the care, management, control and charge of his property and estate.
On June 14, 1934, by order of the probate court, petitioner was declared to be mentally incompetent and on August 21, 1934, his son, the defendant, was appointed his guardian. On November 6, 1936, petitioner filed in the probate court an application to discharge the guardian which was denied February 26, 1937. Petitioner thereafter appealed to the circuit court and after a hearing, the circuit court on October 4, 1937, denied the petition.
Petitioner, now 80 years old, throughout a lifetime of hard work became the owner of considerable property, including five houses in Grand Haven and a large island, which has been divided into plots and is leased to various individuals for garden purposes. Up to the time of the appointment of his guardian, he appears to have managed his various properties in a careful and prudent manner. However, at the time of the order of the appointment, he was indebted in the amount of approximately $1,100. A large portion of this debt apparently resulted from *216 expenses of repair and upkeep of his property. He had previously purchased an automobile for $1,745 and had employed various young girls to drive the car for him. He paid them for these services and in one case rewarded one of the girls by purchasing a coat for her. In spite of the emphasis on this point by counsel for the guardian, no impropriety growing out of such relationship with these young women is suggested.
A year and a half prior to the proceedings in probate court, petitioner stated to his son that he had $3,600. There was no proof however that petitioner had in fact lost or squandered this amount of money, and from the evidence it appears that his remarks in this regard were merely in the nature of boastful statements.
Prior to the hearing in circuit court, the guardian was allowing petitioner $4 a week. The income of petitioner's estate is approximately $90 per month.
On the hearing in circuit court, Dr. Teifer, a duly licensed and practicing physician, member of the State Board of Medical Examiners, and president of the Muskegon County Medical Association, testified on behalf of petitioner. The witness, although specializing in general and orthopedic surgery and general practice, has had occasion to have experience with mental cases. He examined petitioner and gave as his opinion that petitioner had a clear conception of his property, the rentals due on the property, was normal and could carry on the business that would be required of him in taking care of his business and rents; that he seemed to have a very good memory, was able to use the processes of reasoning and appeared to have an intelligent comprehension of his business affairs. He conversed rationally on various subjects and in the opinion of Dr. Teifer was competent to manage his own affairs. *217
Dr. Eckerman, also a duly licensed physician from Muskegon, with an experience of 36 years in the practice of medicine, testified on behalf of petitioner. Dr. Eckerman had held the office of county physician for approximately 10 years and as such official had experience with mental cases. As part of his work during 10 years for the county, he was required to be one of the examining physicians in all mental cases before the probate court and examined between 15 and 30 mental cases a year. Dr. Eckerman had examined petitioner and tested his mentality in general conversation. It was the belief of this witness that petitioner could use his powers of reasoning, had a comprehensive sense of his property holdings; that his conversation was rational and that he seemed to have a good mental grasp of everything. He found nothing wrong with petitioner, satisfied himself on petitioner's faculty of memory, and, to the best of his knowledge and belief, based on a physical and mental examination, he believed petitioner perfectly competent.
The evidence as to the mental competency of petitioner, who lived in Grand Haven, was, however, contradictory. Although these two prominent physicians from Muskegon testified that in their opinions, from an examination of petitioner, he was competent to handle his affairs, two other physicians testified that, in their opinions, he was incompetent. One of these latter was a specialist in mental diseases, but much of his testimony bearing upon his opinion was apparently rejected by the circuit judge, and, because of unwarranted assumptions of unproved facts in such testimony, it is easy to see why the court was not impressed. The other medical witness for the guardian, Dr. DeWitt, was a resident of the town in which petitioner resided. He testified that he had examined petitioner prior to two previous hearings *218 in probate court in 1934, and 1936, in proceedings involving petitioner's mental competency. He gave as his opinion that petitioner was less mentally competent in 1936, than in 1934, when he was first adjudicated incompetent. Dr. DeWitt further testified that, in his opinion, petitioner was not mentally competent to have the care and management of his property. Unfortunately for its probative value, Dr. DeWitt's opinion did not reveal any very extensive factual basis. In answer to a question on cross-examination regarding the basis for his opinion, he stated that he derived it partly from petitioner's age and the hardening of his arteries, but on further inquiry stated that this was not the whole basis for his opinion. He was not pressed for a further explanation, when he agreed that he knew of nothing that would indicate that petitioner did not transact his business with study, prudence, and care.
There was testimony by one of the medical witnesses for the guardian that on the occasion of a mental examination, petitioner did not know the name of the governor of the State or the president; that he appeared to think President Wilson was still in office and had not heard of any of the national executives since that time. While he was able to do problems in arithmetic without pencil and paper, he failed on equally simple problems.
Since his adjudication as mentally incompetent, he married a woman 47 years old, being driven to South Bend, Indiana, for that purpose. Shortly before that time, he asked a young woman 24 years old to marry him. In his mental examination before one of the medical witnesses, he either did not know or did not recall what his wife's name was before he married her; he also stated that he had married her because the probate judge had told him he would be *219 a free man if he were married. Although on the trial he remembered his wife's last name and stated that he married her because he liked her, he, however, stated to one of the medical witnesses that he was not going to live with his wife after he got rid of the guardian.
Lay witnesses differed in their opinions as to petitioner's competency. Petitioner himself was a witness. On some matters he revealed good memory and ability to follow processes of reasoning. At other times, he was vague, contradictory, unresponsive and meaningless in his answers, digressive, and garrulous.
There is nothing in the above facts, taken singly or in the aggregate, that can be said to be conclusive either as to the mental competency or incompetency of petitioner. Incongruities in his testimony and statements could result from ignorance, failure of memory or attention, difficulties of hearing, understanding and speaking English. His actions might be the result of mental incapacity or folly and lack of judgment. A mere showing, however, that an aged person is unwise, lacks judgment, indulges in folly, or squanders his property is not sufficient for the appointment of a guardian.
In re Storick,
"Persons who can be safely trusted with taking care of themselves are seldom, if ever, liable to guardianship. * * * Neither is there any legal standard of business wisdom. Men may be unwisely speculative or unwisely penurious, but this is not insanity. * * * As long as he possesses a mind normally sound, he is entitled to free agency. It is as cruel and unlawful to interfere with the liberty of the old as of any one else; and the law cannot favor or permit this liberty to be diminished." *220
In Partello v. Holton,
"In re Brown's Estate,
"The language of the Court in that case is applicable to this. There is no mental infirmity shown in the petition here, nor is it necessarily inferred from the allegations therein that the mental capacity of Holton is such that he is unable to manage his estate. It is rather to be inferred from the petition, taken as a whole, that from idleness or shiftlessness Holton is unable to support his family as he ought to, and that what he does earn he dissipates in foolish bargains or expenditures.
"The power of appointment of a guardian by the probate court is derived from the statute, and, in order to obtain jurisdiction in such cases, the statute must be strictly pursued. North v. Joslin,
A mentally incompetent person is one who is so affected mentally as to be deprived of sane and normal action. A person may be incapable of conducting his business successfully and still not be mentally *221
incompetent. Henderson v. Henderson,
"Not every impairment of mind disqualifies one from the management of his property; unfitness to manage his estate judiciously is not sufficient. There must be such mental impairment as to render the subject incapable of understanding and acting with discretion in the ordinary affairs of life." 32 C. J. p. 630.
But petitioner, himself, was, in a sense, as has been remarked in a similar case, an exhibit in evidence, and the circuit judge in his opinion after taking the various facts into consideration, said:
"However, Mr. Charles Johnson was himself present in court and testified at length. Giving due consideration to his broken language; his faulty hearing, and the length of time consumed in his examination; still it appears that the extent of his property, its condition and its requirements are quite apparently a burden beyond what his mind appears to be able to carry."
Review in the Supreme Court of orders of the circuit court in guardianship matters, is by appeal in the nature of a writ of certiorari.
In Goss v. Stone,
"The ordinary proceeding to appoint a guardian is one for that sole purpose, and for the reasons pointed out inTaff v. Hosmer,
In the case of In re Kellogg,
"This is an inquisition. It is for the probate judge, and if, on appeal, a jury is demanded, then it is for a jury to determine the fact of competency or incompetency. The probate judge found that Mr. Kellogg was mentally incompetent to take care of himself and manage his property, and in the circuit court a jury answered in the affirmative these two questions:
"Was Lafayette Kellogg on April 3, 1915, mentally incapable of taking care of himself and managing his property?
"Is Lafayette Kellogg now mentally incapable of taking care of himself and managing his property?
"If there was any testimony tending to support these findings of the jury, this court has nothing to do but remand the case.
" 'We can no more weigh the evidence in a case when a jury has determined the question than in a ease where the court has determined it. We must not be understood as holding that, if there is no testimony showing mental incapacity, that question might not be reviewed in this court by writ of error from the circuit court; but in such case the court must have before it the entire testimony, from which it must conclusively appear that there was no evidence showing incapacity.' In rePhillips,
"There was some testimony tending to prove mental incapacity of Mr. Kellogg — some besides that *223 which is referred to in the opinion of Mr. Justice Bird. It is an undisputed fact that the property which Kellogg sold for $3,000 was worth from $3,800 to $4,000. Dr. DeHaan testified, also, that Kellogg had the typical apathetic face of senility.
"I think we are bound to say that there was some testimony to support the conclusion reached in the court below."
Because of the conflict of medical opinion and testimony in this case, and in view of the fact that petitioner himself was examined at great length, his manner, appearance and bearing, his quality of memory and attention, as well as his answers to questions propounded, raising inferences which could reasonably cause the court to conclude that he was mentally incompetent to have the burden, control and charge of his property, we cannot say that the finding and order of the circuit judge was not supported by evidence.
The fact that petitioner was adjudicated mentally incompetent to have the care, control and custody of his property because of his age, does not necessarily imply that he is not mentally competent in other matters. He might be sufficiently competent to make a will. Rice v. Rice,
Upon a careful review of the entire record, the order of the circuit court is affirmed, with costs to defendant.
WIEST, C.J., and BUSHNELL, SHARPE, POTTER, CHANDLER, and NORTH, JJ., concurred. BUTZEL, J., took no part in this decision.