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Jordan, Guardian, v. Dickson et al.

GUARDIANS.

[Superior Court of Cincinnati, Special Term, 1887.]

ISAAC M. JORDAN, GUARDIAN, v. CHARLES T. DICKSON ET AL.

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1. The due appointment, by the probate court, of a guardian for a person as an idiot, imbecile or lunatic, is conclusive evidence of such person's incapacity to make or to ratify contracts, or to do any act in derogation of his guardian's authority pending the guardianship.

2. As to the ward's capacity to marry, to make a will, or to commit a crime, the appointment is only prima facie evidence of incompetency.

TAFT, J.

The question is on the demurrer to the answer of H. R. Dickson. The petition avers the due appointment of plaintiff, by the probate court of this county, as guardian of Harry R. Dickson an imbecile, and then sets out a series of transactions between Harry Dickson and the defendant, his brother Chas. T. Dickson, resulting in the transfer from Harry Dickson, to defendant, of all his real and personal property. The petition alleges that at the time of the execution of the mortgages and quitclaim deeds, and the recovery of the judgments described in the petition by which the transfers were made, Harry Dickson was an imbecile, and unable to understand the effect of the conveyances signed by him; that his brother unduly influenced him, and was guilty of fraud in obtaining his assent to them, which were without consideration. The petition prays that Chas. T. Dickson may be declared a trustee for Harry R. Dickson, in his ownership of the real estate transferred, and may be compelled to account for rents and profits. Defendant admits the mortgages, judgments and quit-claim deeds; avers them to have been for valuable consideration, and denies all the other allegations of the petition, one of which is the due appointment of plaintiff as guardian. In an amended answer and cross-petition, defendant avers that Harry Dickson is of sound mind, and asks that he be made a party and that defendant's title to the real estate in controversy be quieted against plaintiff and Harry. Harry Dickson, by order of the court, was made a party.

First. It is claimed that this order was inadvertently made, and that Harry Dickson is not a proper party in this case. On the issues as made between petition and answer, it seems to me that while he is not a necessary party, he is a proper party. One issue made on the original pleading is, whether plaintiff is the duly appointed guardian of Harry Dickson. If plaintiff had chosen to abide by this issue alone, then Harry Dickson could not have been made a party. But defendant in his answer also makes issue on the merits of the case. Even if he succeeds

on both issues against the plaintiff, he is still liable on another suit on the same subject matter, by the proper person to sue. He therefore has the right to bring into court the person who would have the right to bring the suit if plaintiff cannot; namely, the real party in interest, Harry Dickson, on whose behalf the petition was filed, in order that the defendant may not be compelled to answer to the same cause of action twice. Thus, where the committee of a lunatic was authorized by statute to sue for personal property of his ward in his own name, but not for real property, and he brought suit to recover both rents and profits and the real property, it was held that the defendant might bring in his

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ward as a party, so that the result on the whole suit would be final and decisive, and the defendant might be saved from another action for the realty when the ward recovered his reason. See Gorham v. Gorham, 3 Barb. Ch., 35.

Second. It being determined that Harry Dickson is a proper party, I come now to the sufficiency of his answer-the question raised by demurrer. The answer denies that he was imbecile, or unduly influenced by his brother when he executed the mortgages or deeds set forth in the petition; avers that he is living in harmony with his brother, and is satisfied with their relations; that he is able to take care of his own estate and needs no guardian for that purpose; denies that he was imbecile when plaintiff was appointed his guardian, or that he is an imbecile now, and further avers that the suit was brought without his consent, and that he wishes it dismissed. The answer of Harry Dickson does not, like that of Chas. Dickson, deny the due appointment of plaintiff as his guardian, and therefore admits it. If Harry Dickson is not concluded by this admission from pleading and proving that at the time of the appointment and at the time of answering he was not imbecile, it seems to me clear that the allegations of the answer are a sufficient defense to the petition, and if they are proven, the petition must be dismissed and a decree entered for Chas. Dickson. For even if the denials of the allegations of the petition are not complete, as claimed by counsel for plaintiff, they clearly amount to a ratification of the deeds and mortgages under whatever circumstances they were executed. It has been held by this court, in general term, in the case of Mahoney v. Goepper, 8 Dec. Re., 154, that the mortgage of an insane person is voidable, not void. So too is one obtained by fraud. If, therefore, Harry Dickson being now of sound mind, is satisfied with the transactions set forth in the petition as he avers, and does not desire to avoid them, he thereby ratifies them, and plaintiff has no cause to complain of Chas. T. Dickson on account of the transaction so ratified, even if the answer does not deny the fraud, undue influence and incapacity set forth in the petition.

Third. There is, therefore, only one question to be answered in disposing of the issue of law caused by the demurrer. What is the evidential effect of the admission of the answer that plaintiff was duly appointed guardian of Harry R. Dickson, an imbecile, by the probate court of this county, just previous to the bringing of this action? Does it conclude Harry Dickson from pleading and proving he was not an imbecile when the appointment was made, and that he is not now an imbecile? Or is it only prima facie evidence of his imbecility which he can now rebut?

In the case of Shroyer, guardian v. Richmond, supra, the Supreme Court has decided that proceedings for the appointment of guardians are not inter partes, but are proceedings in rem, and that therefore the order of appointment, made in the exercise of jurisdiction, binds all the world; that the record of the appointment imparts absolute verity, and that if it shows nothing to the contrary, it will be conclusively presumed in all collateral proceedings that the order was made upon full proof of all the facts necessary to authorize it.

In the language of Scott, C. J., "All questions necessarily arising in the case become res adjudicata by the final order of appointment, which binds all the world until set aside or reversed by a direct proceed. ing for that purpose." Unquestionably, the effect of this decision is that a person for whom a guardian has been duly appointed by the probate

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court as an imbecile, and all other persons, are concluded from denying that at the time of the appointment such person was an imbecile, in any proceeding where the authority or power of the guardian duly appointed is involved. Now, that is just what Harry Dickson has done in his answer, and what he therefore can not be permitted to do in the face of his admission that plaintiff was duly appointed his guardian. If this were the only averment of the answer upon the subject, the discussion might end here.

Fourth. But there is a further averment that at the time of answering, he is not an imbecile. Is he concluded from pleading present soundness of mind while the guardianship subsists? Counsel for defendants contend that even if the appointment be held to be conclusive of his imbecility at the time of the appointment, it thereafter only has a presumptive force arising from the rule of evidence that insanity once established is presumed to continue and that this presumption is a rebuttable one.

By the statute, the guardian is given substantially the same powers and duties as the guardian of a minor. He becomes the custodian of all the property of his ward, collects what is due him, and pays his debts, providing for his support. He takes charge of his real estate, and can with permission of the probate court, lease it for five years. If the debts exceed the personal property, he may by petition in the probate court obtain a sale of enough real estate to satisfy the debts. He invests his ward's income, and with permission of the probate court, may change investments. By sec. 6305, Rev. Stat., a guardian of an imbecile, idiot or lunatic, may sue in his own name describing himself as guardian of the ward for whom he sues. By sec. 4998, the action of an insane person must be brought by his guardian. By sec. 5000 the defense of an insane person must be by his guardian.

By the appointment the court takes out of the custody and control of the ward his entire estate. The guardian becomes his representative before the law. It is on the ground that it is necessary for the preservation of his estate, that the guardian is appointed. We have seen that the appointment conclusively establishes the condition of mind justifying it at the time. But the effect of the appointment is not like an ordinary judgment a final adjustment of rights. It has a continuing purpose and effect. It would be defeating the very object of it to hold that the finding of the court lost its conclusive character the moment the entry was made upon the probate court minutes. It would be taking from the guardian the protection in the discharge of his duties which it must be the purpose of the law to secure. It would be inconsistent with that purpose to allow the ward, while such relation exists, to make contracts or deal in respect to his property in such a way as to bind that property, and thus compel the guardian in every case to try the question whether the relation ought to have been created or ought still to continue. The court which makes the appointment, may terminate the guardianship at any time. The remedy is always open to the ward. The order terminating the guardianship restores to the ward his rights of property as fully and completely as the order of appointment deprived him of them.

For the reasons given, it seems to me that the appointment of a guardian of an idoit, lunatic or imbecile, must be conclusive evidence of the incapacity of the ward to contract or do any binding act in regard to his property in conflict with the authority reposed by law in his

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guardian, so long as the guardianship continues. It, of course, follows that Harry Dickson's answer in this case, in which he seeks to ratify the transactions in regard to his property complained of in the petition, and to dismiss the action to recover it by his guardian, who is authorized by the statute to sue in his own name, is an act within the principle announced.

But the view I have taken as to the conclusive effect of the existing guardianship, is said by counsel to be opposed to all the authorities. I do not think so when the correct distinctions are made. It in no way conflicts with the authority of the guardian, for his ward to make a will, because it is inoperative until after the guardianship terminated. It probably does not conflict with the guardian's authority over the ward's estate, that the ward should marry, for it only indirectly affects his property rights. It in no way conflicts with the guardian's authority over his ward's property that he commits a crime. These are none of them acts in the doing of which the ward supplants the guardian, for the guardian could not do them for, or instead of, the ward. Where, therefore, the reason of the rule ceases, the rule ceases. Where the capacity of the ward to make a will, to marry or to commit a crime is in question, the guardianship is at the most only prima facie evidence of incapacity, and in some cases hardly this. Wheeler v. State, 34 Ohio St.

Coming now to the authorities, there being none in Ohio on this point, I am met by the statements of every text-book on evidence, that inquisitions in lunacy, to which such proceedings in the probate court are claimed to be analogous, are only prima facie evidence of the lunacy of the subject of the inquest.

Let us see what the analogy is between inquisitions and probate court orders of appointment. In England, the king was guardian of idiots and lunatics. He was the custodian of their property. He deputed his authority to the lord chancellor by sign manual. In the exercise of this royal prerogative, whenever it came to the knowledge of the chancellor that a person was an idiot or a lunatic, he issued a commission to have the sheriff summon a jury to determine the question of the person's soundness of mind. If the person was an idiot from his birth, the king was entitled to the profits of his estate after his necessities were provided for. If he had lost his reason after birth, the king had no such perquisite. It, therefore, became important in aiding the conscience of the chancellor, that the jury should report how long the subject of inquiry had been a lunatic or idiot, if at all. On the finding, the chancellor in his discretion appointed a committee to take charge of the body and estate of the lunatic or idiot for the king. The inquisition was said to overreach those years before the time of the inquisition, during which the jury found that the subject of inquiry had been insane. The inquisition frequently reported that a lunatic had lucid intervals. The proceeding was only for the information of the chancellor. It came however to be used as evidence of insanity in suits between the subject of it, and third persons, being likened in effect to a judgment in rem.

It is evident that as far as the evidential effect of an inquisition upon acts done during the period overreached is concerned, it can have no bearing upon the present discussion. For the hearing of the probate court has a present and future and not a retrospective effect. Every English case cited in the books showing the prima facie effect of the finding of the inquisition, is a case where the point of time in issue was in the period overreached, or was the case of a will, a marriage, or a

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crime, as to which, as has been said, a different rule applies. Sargeson v. Sealy, 2 Atkyns, 412; Faulder v. Silk, 3 Camp., 126; Frank v. Frank, 2 Moody and Robinson, 315; Snooks v. Watts, 11 Beav., 105; Frank v. Manaring, 2 Beav., 115; Hall v. Warren, 9 Vesey, 609; and Jacobs v. Richards, 18 Beav., 300, include all the cases which I can find in which inquisitions were introduced to defeat suits on contracts or to set them aside, and the time of making the contract in each one was in the overreached period.

It is true that in the first case cited Lord Hardwick says that the finding of the inquisition would not only be not conclusive as to the period overreached, which was the case before him, but not even as to the time of the inquisition, because there had been many instances of subsequent inquiry. But Coke says in his comments on Beverly's case, 4 Coke, 126a, 1276, that the deed of an idiot or lunatic before office found is voidable, but after office found is void. So in 3 Bucons Abridgment, 539, it is said, "yet it seems that even at law the contracts of idiots and lunatics after office found and the party legally committed, are void, and it must be at the peril of him who deals with such a one." In Shelford on Lunatics, the great English authority, it is said, page 296, "It would be inconsistent with the nature and object of a commission of lunacy to allow the party subject to it to alien his estate by deed, even during lucid interval; but as a will does not take effect until his death, it may be doubted whether the same objection would apply to a disposition by will, made during a lucid interval by a person subject to such a commission." Again page 264, "Lunatics, after they have been so found by inquisition, can not alien their estates until the commission has been superseded and they have been restored to their property." It would seem therefore, that there is as much in the English books to uphold the conclusive character of the appointment of a committee after inquisition in respect to the disability of the ward in regard to his estate, as to disprove it. Coming now to this country, we find that in those states where the jurisdiction of the insane is still in a court of chancery, the inquisition retains its retrospective feature, and as to that is only prima facie evidence. New York is one of those states, and in the reports of New York there is an unbroken line of authorities holding that an inquisition as to the period overreached is only prima facie evidence of incapacity of the subject of inquiry, but that as to subsequent acts inter vivos, affecting his estate, the inquisition and commission issued is conclusive against all the world. L'Amourieux v. Crosby, 2 Paige, 426; Wadsworth v. Sharpsteen, 4 Seld., 388; Fitzhugh v. Wilcox, 12 Barb., 285; Lewis v. Jones, 50 Barb., 645; Banker v. Banker, 63 New York, 410.

In Massachusetts which was the first state to give jurisdiction over the persons and estates of the insane to the probate courts, the inquisition of lunacy was abolished, and with it the overreached period. The powers of a guardian of the insane in Massachusetts are much like those in our own state. In Leonard v. Leonard, 14 Pickering, 283, where a person under guardianship as non compos mentis had in his possession a promissory note payable to himself, and received payment of it from the promisor, who had knowledge of the guardianship, it was held that such payment was of no effect, and the letter of guardianship was held to be conclusive evidence that at the time of the payment, the ward was not of sound mind.

The court say: "In the case of White v. Palmer, 4 Mass. R., 147, it was held that the letter of guardianship was competent evidence of the