
    STATE ex rel. THOMPSON, Relator, v. DISTRICT COURT et al., Respondents.
    No. 8630
    Submitted October 11, 1945.
    Decided November 20, 1945.
    163 Pac. (2d) 640
    
      Mr. Lester H. Loble and Mr. Albert Anderson, both of Helena, for relator.
    Mr. Sherman W. Smith, of Helena, for respondents.
   MR. JUSTICE ANGSTMAN

delivered the opinion of the court.

Relator seeks the supervisory powers of this court to annul an order of. the respondent court dismissing his application for the appointment of a guardian of the person and estate of his mother, Lucile Y. Thompson.

The petition of relator in the respondent court was grounded upon allegations that because of the intemperate use of stimulants Lucile Y. Thompson is mentally incompetent to manage her property of which she is the owner of a substantial amount.

The evidence introduced at the hearing was substantially as follows:

Dr. John G. Thompson, of Helena, died in February, 1945, leaving surviving him his wife, Lucile, and his son, petitioner here, liis only child. Petitioner was living in California with his wife and family at the time of his father’s death. Upon learning of his father’s death he came to Helena and remained here for a short time thereafter.

While in Helena he tried to persuade his mother, Lucile, to go to California with him. She at first agreed to do so and later changed her mind. Before leaving Helena for California petitioner made a complete list of the property of his mother, she not being able at that time to do so herself, she having stated to petitioner according to his testimony: “You take care of it; I don’t know what it is all about.” At that time she was taking seconal tablets and alcohol. She' receives from insurance on an annuity basis the sum of $250 per month. She also owned between twelve and fifteen thousand dollars worth of bonds and there was considerable cash on deposit in the bank at the time of her husband’s death, two automobiles and the home in which they lived; Mrs. Thompson also owned a house and lot in Del Mar, California, which she inherited from her parents.

Petitioner after returning to California telephoned to his mother two or three times in an effort to persuade her to go to California but she said she wasn’t able to travel and couldn’t possibly make it. He finally received word that she was in the hospital at Helena with pneumonia and thereupon petitioner, his wife and Mr. John Young, a brother of Lucile Thompson, who lives in California, in the month of June following the death of Dr. Thompson came to Helena and found that Mrs. Thompson had returned to her home but that she was still very weak and quite ill. They again tried to persuade her to go to California to which she at first agreed and a day or two later changed her mind. When they first arrived in Helena she was glad to see them but by the time they left a few days later she didn’t want to talk to any of the three.

A Mrs. Nash was staying with her some of the nights. She was formerly employed by the Thompson Clinic as a nurse. Mrs. Nash was then making collections for her and paying her bills.

Mrs. Thompson and Mrs. Nash each had a separate deposit box in the First National Bank of Helena. When petitioner arrived in Helena in May or June he found that his mother’s jewelry worth about $15,000 was in the safety deposit box of Mrs. Nash. He obtained the jewelry from Mrs. Nash and returned it to his mother with the understanding that she would put it in her own box.

In September petitioner again returned to Helena. Mrs. Thompson was still very weak. She then seemed glad to see him. Petitioner then found that Mrs. Thompson had meanwhile cashed $5,000 of war bonds and made two withdrawals of $5,000 each from her bank account, one' of which was made on July 19th and the other on July 27th.

He asked his mother about these withdrawals and found that she had no recollection of it but that if she had made the withdrawals the money must be in Mrs. Nash’s safety deposit box. Later Mrs. Thompson told petitioner that she thought this money “was collections from the doctor’s accounts.” She said she cashed the war bonds because “She was angry at one of the bankers” and did it to “spite him”. Mrs. Thompson, according to the testimony of petitioner, called Mrs. Nash over the telephone and “told her she wanted to go down to the bank and get into the safety deposit box, Mrs. Nash”; that she informed Mrs. Nash that petitioner was there; that Mrs. Nash thereupon met Mrs. Thompson and petitioner at the bank and there was then removed from Mrs. Nash’s box and placed in Mrs. Thompson’s box $10,000 in cash, the proceeds of the withdrawals, consisting of $100 bills, all of the jewelry valued at $15,000 which had again found its way into Mrs. Nash’s safety deposit box, and all the stocks and bonds belonging to Mrs. Thompson. Petitioner testified that.Mrs. Thompson’s explanation to him of the reasons for the withdrawals was that “she seemed to be afraid somebody was going to take it away from her. She said they put it down there for tax reasons. Then she mentioned the fact that most of it came from past collections from my father’s past accounts.” Petitioner testified that he had arranged to have Mrs. Nash collect the accounts on a 10% commission and that from his personal acquaintance with the accounts the $10,-000 was in no way involved in those accounts.

At the time that the property was removed from the safety deposit box of Mrs. Nash and returned to the box .of Mrs. Thompson petitioner endeavored to persuade his mother to have the bank handle her affairs. She at first agreed to do so and an attorney was consulted 'to draw the necessary papers for her to sign the next day. During the course of the evening she changed her mind.

Petitioner testified that Mrs. Nash “seemed to have a great deal of influence on her.” Mrs. Nash was told by petitioner of the plan to go to California and to have the bank look after his mother’s property. Mrs. Nash planned to go to California with them. The next day Mrs. Thompson had changed her mind, saying that she “considered herself perfectly able to handle her own affairs; that she didn’t want to go to California; and that she wasn’t going to be forced into anything.”

Mrs. Thompson has not yet looked after her inheritance tax. The opinion of petitioner is that Mrs. Thompson is not competent to handle her affairs and that there is great immediate danger of her losing practically all of her personal property. On cross-examination he was asked whether he would, sell the house if he were appointed guardian and he replied “That is up to her.”

Petitioner was also asked: “Q. She was frightened ever since your father died that if she went to California you would attempt to commit her to an asylum. Didn’t she tell you that continuously? A. She didn’t tell me that but she seems to have told everybody else that. ’ ’ He testified that the stocks and bonds that were in Mrs. Nash’s box were not endorsed.

Regarding the house in California the record shows that Mrs. Thompson furnished it with new furniture at a cost of about $5,000 .and then sold the house completely furnished for $8,500 whereas according to petitioner the house alone was reasonably worth $12,000.

Mr. E. D. Patenaude, of Helena, engaged in the insurance and real estate business, testified that in 1942 he had examined the bills for the furnishing of the house in Del Mar, California; that in his estimation such furnishings were well worth $5,000; and that he insured them for that amount. He also testified that he had endeavored to sell the house for Mrs. Thompson, without the furnishings, for $12,000 but before any arrangement could be made she told him that she had arranged to sell the house through a California agent.

Mrs. Shidu testified that she had worked for the Thompson family off and on for thirty years. During the last few years she would come to clean the house three times a week. She testified that since February Mrs. Thompson spent much time in bed but lately she had been getting on her feet again. As to the pills she was taking, she described them as being in red capsules and that they had an “awful effect” on Mrs. Thompson. She told of a time when she came there that she thought Mrs. Thompson was dying; that Mrs. Thompson couldn’t talk. She also said that Mrs. Thompson’s eating habits were very irregular.

Mrs. Shidu was asked about money matters and she testified that upon an occasion Mrs. Thompson sold a car for $500 and had the money in her purse. Mrs. Thompson asked the witness to Change a $100 bill one night and the next night asked her to change another, having forgotten about the first request. The witness testified to the sale of other articles and to the question “What kind of condition was she in?” she answered,:/‘She was in no condition to sell cars.”

Dr. E. L. Gallivan, a witness for the alleged incompetent, testified that he had known the Thompson family for many years and during the latter part of Dr. Thompson’s life he was associated with him. He told of the physical condition of Mrs. Thompson, which required Ms periodic attendance. He testified that her activity has' been very much limited and that she hadn’t been able to be active around the house or able to do her ordinary, routine housework at times. He stated that there was no evidence of phychosis. In answer to the question, “Doctor, from your knowledge as an expert plus anything else you know, would you tell us whether or not she is competent to handle her own affairs and her own physical being,” he responded that “As far as my association with her is concerned, I can say she has never shown any evidence of being mentally disabled when I have seen her.”

On cross-examination Dr. Gallivan testified that he went to her house at one time and couldn’t get in except by breaking the glass door which he did, in company with the police, and found that Mrs. Thompson had fallen down the stairs and hurt herself so that she couldn’t get up. He also testified that he prescribed the use of seconal tablets for her but whether she used them to excess he could not state, he testified that the excessive use of seconal and alcohol made a person “rum dumb.” As to Mrs. Thompson’s competency Dr. Gallivan testified: “The only thing I can say is this, I have seen her when she was real sick, and seen her when she was in bed two or three times; I have seen her when she wasn’t sick and I never have seen her when she wasn’t clear and lucid and talked rationally to me.”

Mr. E. G. Toomey testified that he had known Mrs. Thompson since 1916 and that he had visited the home many times and recently and that he had always found her clear and lucid.

Mrs. John T. Ahern,‘Mrs. Thompson’s hairdresser, testified that in her relationship with Mrs. Thompson she seemed to be “perfectly all right.”

Mr. Sherman Smith, Mrs. Thompson’s attorney, testified that it was his opinion that ‘ ‘ she is perfectly able to handle her own affairs and take care of her own physical person.” With regard to the safety deposit box, Mr. Smith testified as follows:

1 ‘ The question came up as to her stocks and bonds in the First National Bank and Trust Company and she advised me she wanted Sally Nash to have the right to go into her box and asked me if I would ask the First National Bank and Trust Company to arrange it.
“I then suggested to Sally Nash that I didn’t think it w7as a good idea because of these rumors around Helena for her to go into the box alone and she agreed with me.
“We thereupon again talked to Mrs. Thompson again and she suggested if I would go into the box with Sally it would be all right. I didn’t particularly want to do this but agreed to do it and arranged for the bank to fix up an authorization for Sally and me to have the right to go into her box. However before we did do it T talked to Mr. Tenge and Mr. Brutsch about it and we discussed the rumors and everything. I suggested to them that I still didn’t want to go in there with Sally alone as no 'inventory had been taken as far as I knew.
“I believe they then called Mr. Weir and Mr. Weir suggested that Dr. Gallivan go because he knew her mental condition, being her doctor. I then called Dr. Gallivan and arranged to have him meet us one Tuesday afternoon and the three of us went down into the vault.
“There were two boxes in the First National Bank and Trust Company and we made a complete inventory of all of the stocks and bonds which I saw, which inventory I have here and you can see if you want.
“I don’t have any knowledge however of the transaction whenever it was whereby Mrs. Thompson cashed in her bonds or withdrew the $10,000.00 from the bank deposits. I don’t even know just when that took place; I wasn’t advised of that. ’ ’

Mrs. Sally Nash testified that for many years she had been employed as a nurse in the clinic of which Dr. Thompson was a member and many times during the lifetime of Dr. Thompson she had taken care of Mrs. Thompson and that after Dr. Thompson’s death she had the “biggest” part of Mrs. Thompson’s care. As to Mrs. Thompson’s habits, she testified that Mrs. Thompson took an occasional drink and that she took, under the doctor’s orders, a tablet of aminophylline every other day and “seconal when necessary.”

She testified that since February 1945 Mrs. Thompson had paid her $125. As to the jewelry being found in the safety deposit box, she testified that while Mrs. Thompson was in the hospital she asked Mrs. Nash to go to the house, which was unoccupied, and get the jewelry and put it in her (Mrs. Nash’s) box. There is no explanation as to how the jewelry got into Mrs. Nash’s box the second time.

As to the cashing of the war bonds, Mrs. Nash testified as follows:

“Q. How was this withdrawal or cashing in of $5,000.00 in war bonds made? A. "We went to the bank together one day and she drew out her bonds. Then she sent me to the bank and I went to Mr. West and gave them to him and he deposited the money to her account.

Begarding the first withdrawal of $5,000 Mrs. Nash testified:

“Q. How was the first withdrawal of $5,000.00 by check made? A. She was with me. We drew it out and put it in the box.
“Q. Why did you put it in your box? Why did you both put it in your box? A. We put it in my box because we were going to take this trip. I was doing something else and I wanted her to take care of her affairs but she wasn’t able to come down because her legs were swelling at the time and if she did go I would say they were swollen so she could hardly get her shoes on.”

As to the second $5,000 in cash, Mrs. Nash testified as follows:

‘‘Q. Now about the second $5,000.00 withdrawal; Tell us about that. A. She made check I think it was about a week or ten days later than the first one. I went to the bank, drew out that money, $5,000.00 in $100.00-bills, and put it in my box.
“Q. She wasn’t with you at all? A. She wasn’t able to come.
“Q. Were you able to get into her box alone? A. No. That was the reason she had me put it in my box.
‘‘Q. You couldn’t have deposited it in her box if you had wanted to? A. I tried and the bank said they weren’t able to let me in anyway.
“Q. Was there any time Lucile Y. Thompson didn’t know this $10,000.00 cash and the jewelry were in your box? A. No. She knew all of the time.
“Q. She knew all of the time didn’t she? A. Yes.
“Q. What was the occasion for withdrawing the second $5,000.00? Why did she want to withdraw it? A. She wanted $10,000.00 to take in traveller’s checks to pay for that trip.
“Q. Did you say anything about that, about $10,000.00 being too much? A. Yes I did.
“Q. What was the conversation? A. I said: ‘That is too much to take. Why don’t you leave it in the bank and when you get wherever we are going transfer it to a checking account there? I think that is too much to take and besides I have had trouble cashing traveller’s checks even where I was known.”
“Q. She overruled you? A. She did.”
On cross-examination Mrs. Nash explained as follows:
“Q. I am talking about the first $5,000.00 you and she took and put in there. A. Yes but she didn’t want to.
“Q. In other words when you got down there with the first $5,000.00 in cash that was withdrawn it was just a question of whether you asked the girl down there to open her safety deposit box or yours and that is all. A. No, it wasn’t. She didn’t know whether she would be able to get down again if her legs swelled. That is why I put it in mine ’stead of hers, so I could get it.
“Q. You could just as well have put the $5,000.00 in her safety deposit box as yoúrs ? A. I imagine, yes.
“Q. You were in the same bank and had your safety deposit box in the same bank? A. That is true. But one time she went down there and before she could get into her own box they came down and looked to see if she was competent. That is what irritated her. There was so much talk about her being incompetent they came down and looked her over before they would let her in her own box.”

The question before us is, Did the court err in refusing to appoint a guardian of the person and estate of Lucile Y. Thompson?

Our statute empowers the court “after a full hearing” to appoint a guardian of the person and estate if it appears to the court or judge that the person in question is “incapable of taking care of himself and managing his xoroperty.” Sec. 10413, Revised Codes. In order to warrant the appointment of a guardian for an adult it is not essential that it be shown that such adult is insane in the technical sense; the test to be applied is whether there is such mental impairment as renders the subject incapable of understanding and acting in the ordinary affairs of life. 25 Am. Jur., Guardians & Wards, pp. 18, 19.

“On the other hand, it has been held in a number of cases that a guardian cannot be appointed merely because a person does not or cannot manage his property judiciously, or, in other words, because he is not capable of managing his estate as well as such estates are commonly managed. Nor does susceptibility to influence justify the appointment of a guardian, if the alleged incompetent possesses capacity to manage his property as a result of sanative reasoning, although a contrary rule prevails if, in the disposition of his proxoerty he is guided by the will of others, rather than by his own. The unsoundness of mind which will justify an appointment must be more than mere debility or impairment of memory, or a mere possibility that the subject will become insane in the future.” 25 Am. Jur., p. 19, sec. 18. To the same effect is 44 C. J. S., Insane Persons, sec. 11.

Subjecting the evidence in the record to this test, what do we find? There is evidence that when Mrs. Thompson was first approached regarding the two withdrawals she had no recollection regarding them. The evidence raises considerable doubt whether Mrs. Nash was imposing her will upon Mrs. Thompson in regard to her property. The explanation of Mrs. Nash that the money was to be used to purchase traveler’s checks was unsatisfactory to say the least. We recognize the rule that a person may do as he pleases with his own property and that right should not be taken away or withheld except for cogent reasons. However, the evidence, both direct and circumstantial, raises sufficient doubt in our minds as to whether Mrs. Thompson is capable of looking after and managing her property so as to require ah examination of the alleged incompetent. Mrs. Thompson was in the courtroom during at least a part of the hearing but did not testify. The statute requiring her production in court would seem to contemplate her examination. Matter of Coburn, 165 Cal. 202, 131 Pac. 352. In re Waite’s Guardianship, 14 Cal. (2d) 727, 97 Pac. (2d) 238. We think justice requires and we order the case remanded to the trial court with directions to rehear the matter and, at the new hearing, an examination of Mrs. Thompson shall be had along with such other evidence as either party desires to submit.

Mr. Chief Justice Johnson and Associate Justices Morris, Adair and Cheadle concur.

Rehearing denied January 31, 1946.  