
    Bishop v. Bishop.
    (Decided June 15, 1931.)
    
      Mr. Edward H. Ray and Mr. William E. Crist, for plaintiff in error.
    
      Messrs. Taber, Chittenden & Daniells, for defendant in error.
   Richards, J.

This is an action for divorce and alimony filed by the wife, Mary Magdalene Bishop, in the court of common pleas on June 20, 1930. The journal entry shows that, when the case came on to be heard on the petition and answer, the plaintiff was sworn, and offered to testify and submit evidence in her own behalf, which the court refused to hear, and thereupon the court adjudged that the case be dismissed without prejudice on the ground that the pleadings, on their face, show that the plaintiff had not resided more than thirty days in Lucas county before beginning the suit. In order to determine whether this adjudication is erroneous, it is necessary to look to the averments of the pleadings.

The plaintiff in her petition avers that she has resided in the state of Ohio continuously for more than one year, and in Lucas county continuously for more than thirty days immediately preceding the filing of her petition, and that she was married to the defendant at Bryan, Ohio, November 5, 1913; six children being born of the marriage. Admittedly the petition sufficiently charges that the defendant was guilty of extreme cruelty toward the plaintiff and of gross neglect of duty.

She avers that in May, 1929, defendant maliciously and with fraudulent intent brought an insanity charge against her, and caused her to be adjudged insane and sent away from her home and children. She further avers that about May 5,1930, the defendant made application to be appointed guardian of the plaintiff, and was appointed her guardian, for the sole purpose of disposing of the property that they jointly owned and converting the proceeds to his own use. She further avers that on discovering that the defendant was appointed as her guardian, and fearing that he would dispose of her property, she immediately started habeas corpus proceedings, and, upon hearing, was adjudged a sane person.

The answer of the defendant avers that about May 11, 1929, the plaintiff, who was then a resident of Williams county, was duly adjudged to be an insane person by the probate court of that county, and avers that the defendant is now and has at all times since the marriage been a resident of Williams county. He further avers that on June 20, 1930, the day the petition was filed, the plaintiff had not been a resident of Lucas county, Ohio, for thirty days immediately preceding the filing of her petition. In so far as the direct averments of the pleadings on the subject of the residence of the plaintiff in Lucas county are concerned, the petition and answer are in direct conflict, so that the decision of the court could not be based on those averments. It is, however, conceded by the pleadings that the plaintiff was adjudged insane in Williams county about May 11, 1929, and that the defendant was appointed guardian of her property about May 5, 1930, in that county, and that in the habeas corpus proceedings she was adjudged sane on June 17,1930. Apparently the trial court held that until she was formally adjudged sane, she was incapable of gaining a residence in Lucas county, and as thirty days had not elapsed after the adjudication of sanity, and prior to the filing of the petition, she could not have been a resident of Lucas county for the required thirty days.

The defendant was appointed guardian of her estate only, the law permitting one appointed guardian of an insane person to have charge of the estate only, the same as it permits in the appointment of a guardian for a minor. Section 10991, General Code; Heckman v. Adams, 50 Ohio St., 305, 34 N. E., 155. The guardian having control over her estate only would have no authority to dictate what her residence should be.

The case of Jordan, Gdn., v. Dickson, 19 W. L. B., 64,10 Dec. Rep., 147, is apparently one where the appointment was as guardian both of the person and estate of the imbecile. Where the guardian is appointed for the estate only, the right of the ward to determine her residence can in no sense be in derogation of the guardian’s authority.

There remains, however, the question as to the effect of the adjudication of insanity on May 11, 1929, in preventing her from thereafter establishing a residence in Lucas county. While the journal entry shows that no evidence was received on the trial of the instant case, a bill of exceptions was in fact taken, from which it appears that the parties conceded that, when she was adjudged insane, she was committed under the provisions of Section 1961, General Code, to the custody of her relatives, a brother and sister, and that the brother with whom she first lived after her commitment lived in Bryan or Defiance and that thereafter she came to Toledo with his consent, and apparently lived with a relative in Toledo. While the journal entry shows only that she offered to introduce evidence in her own behalf, the bill of exceptions shows that she offered to prove by the testimony of Dr. Kaiser, first assistant at the Toledo State Hospital, and by other witnesses, that she was actually sane for more than thirty days previous to the filing of her petition, and was capable of forming an intention of establishing her residence in Lucas county, and'was actually a resident thereof for more than a year prior to the filing of her petition. Manifestly this evidence was competent and should have been received unless the adjudication of insanity raised a conclusive presumption that she was insane and this presumption continued to be conclusive until she was formally adjudged sane.

In the absence of a statute to the contrary, the rule unquestionably is that an adjudication of insanity is admissible as evidence of insanity at a later time, although not conclusive. The adjudication raises a presumption of insanity, but this presumption is rebuttable. 32 Corpus Juris, 647, par. 228.

One of the clearest and best reasoned decisions which we have seen on this question is the old case of Lucas v. Parsons, 23 Ga., 267. Littleberry Lucas had been adjudged insane in Crawford county, Georgia, and thereafter moved to Monroe county in that state, where he executed a will and died, and the question for decision in the case was whether he was a resident of the county to which he had removed, or whether by reason of his insanity his residence must be held to continue in the county in which he was adjudged insane. The court held that the judgment of lunacy was conclusive evidence of that fact at the time the judgment was rendered, and of that time only, and that it was not conclusive evidence that he was still insane at the time of his removal. In the present case, as in the one just cited, the insane person was not committed to an asylum, but to the care of relatives, and was at liberty to go, with their consent, wherever she wished. An extensive note on this question may be found in 7 A. L. R., 588, and it establishes that the presumption of insanity which continues after an adjudication of insanity is a rebuttable one.

Whether present plaintiff had so recovered her sanity, and, if so, whether she had after snch recovery established a bona fide residence in Lucas county more than thirty days prior to the bringing of the action, were questions of fact which should have been determined by the trial court, and to exclude such evidence was prejudicial error.

For the reasons given the judgment will be' reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Lloyd and Williams, JJ., concur.  