Superior Court of Cincinnati.

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action taken, but if it be strict construction, that is what is enjoined upon us by sec. 2327.

The ordinance to improve is to be presumed to have been passed with reference to the resolution, the passage of which is a jurisdictional step in such proceedings, Stephan v. Daniels, supra, and the ordinance is to be construed in connection with the resolution accompanied by the estimate and recommendation, all of which form part of the same proceeding, Cincinnati v. Seasongood, ante 46 O. S., 296; so that the language of the ordinance is likewise limited by the estimate of the amount to be assessed transmitted by the board of public affairs. This conclusion is strengthened by the fact that a copy of the same estimate is attached to the resolution to contract for the construction of the improvement—the last step taken prior to the actual performance of the work.

The judgment is for the plaintiffs, enjoining the collection of that portion of the assessment which includes the damages paid the owners of abutting property.

TAFT and MOORE, JJ., concur.

Wm. Worthington, F. C. Ampt and Oliver B. Jones, for plaintiffs.
Horstman, Hadden, Foraker & Jones, contra.

301

WILLS-IMBECILITY.

[Hamilton Probate Court, 1889.]

IN RE GUARDIAN FOR NANCY TEMPEST.

A guardian for a person will not be appointed on the ground of imbecility (R. S., sec. 6302) where a clear-headed person has by reason of age and infirmity become weak in mind, susceptible to influence, of impaired memory and less careful than formerly, if capacity to manage property still exists. There must be more than would constitute absence of testamentary capacity.

GOEBEL, J.

Hannah Donaldson and Mary Jane Stanley allege in their petition that they are the daughters of Nancy Tempest, a resident of this county, who is the owner of an estate consisting of real and personal property; that the said Nancy Tempest is an imbecile, and is totally incapable of properly taking care of and preserving her property, and is, in fact, disposing of the same without consideration, and is otherwise improvidentially and injudiciously administering and caring for her said estate, so that the same will be entirely lost, unless the court shall interpose. And they pray for the appointment of a guardian to take charge of the estate of the said Nancy Tempest.

To this petition Nancy Tempest files her answer, maintaining that she is not an imbecile, or that she is incapable of taking care of, or preserving her property, or that she is disposing of the same without consideration. That she is in good health physically, of sound mind, and entirely capable of managing her own affairs. Upon this issue the parties went to trial, and the testimony discloses the following facts:

Nancy Tempest is in the 65th year of her age. She came with her husband, Michael Tempest, from England to this country 40 years ago. without means. He established a little business of manufacturing earthen

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ware in which he was greatly assisted by her. As the business increased, it was enlarged and became very profitable, and he was thereby enabled to accumulate property. He died in 1886, leaving a last will, in which he made provisions for his wife, and devised the remainder of his estate to Hannah, Mary Jane, and James, his children, in equal shares, and constituted James a trustee to hold in trust, the shares of Hannah and Mary Jane during their lives, and to pay to them the income and profits; the fee to the children of Hannah and Mary Jane.

Nancy Tempest, in her early days, was a woman possessing great physical endurance, of robust constitution, of positive character, attentive and economical in the management of her household. Her husband would make her an allowance for household expenses, and out of this, during a period or many years, she was enabled to save quite a sum. With this amount, she purchased real estate, and made investments in gas stock, street railroad stocks and Little Miami R. R. stocks.

Hannah and Mary Jane were married, and after that did not make their home with their parents. James is unmarried, was for many years in the employ of his father, always devoted to his parents, exemplary in his habits and made his home with his parents.

Nancy Tempest, desiring to make a disposition of her property to some extent, during her lifetime, and considering the devotion and attention which James had given her, endorsed, transferred and assigned to him, certain stocks to the value of $5,000.00, and executed a paper writing in which she divides the balance of the stocks in three parts, between Hannah, Mary Jane and James. These stocks to be held by James in trust during her lifetime, and to pay her the income; after her death, to make an equal distribution between Hannah, Mary and James, after deducting therefrom, an amount that Hannah had received from her father, and an amount James had loaned her, from her share.

She also executed a paper writing in which she devised her real estate in three parts, giving to Samuel Hatheral the shares of Hannah and Mary, in trust, to pay them the income during their lives, devising the fee to their heirs; and gives to James his share absolutely.

Her reason for making such disposition in reference to Hannah and Mary Jane, was that her husband has made a similar disposition of his property. She had confidence in her daughters, but not in their husbands. And this was a subject much talked about between her husband and herself, and was the reason why he made such disposition.

About five years ago, Mrs. Tempest went to Florida, and, while there, was seized with a violent attack of dysentery. She returned home, and was quite ill. Dr. Trush was called and attended her until about the middle of February. He was succeeded by Dr. Bradford, who said that she had recovered from her attack of dysentery, when he found that her mind was affected. She could not carry on a connected conversation, would forget what she had said, and seemed to have no memory. He advised that Dr. Everts be consulted.

Thereupon Mrs. Tempest, together with her husband, did see Dr. Everts. He examined and questioned her, and found that she was suffering from premature senile dementia, that it was organic. He does not remember whether he prescribed for her, and did not see her again until four years thereafter. He then had occasion to see her again, and this examination confirmed him as to his first diagnosis.

Mrs. Tempest made her home for a considerable part, with Mrs. Donaldson, her daughter. She noticed that her mother was restless and

flighty at night, would talk incoherently, and attempted to jump out of the window. She was irritable, and, at times, melancholy. After the first attack, Mrs. Tempest made a trip to England, attended to the duties of her household, nursed her husband and one daughter through their last illness, and there is no further evidence which would call forth any criticisms upon her conduct, until in the fall of 1888, when she was again attacked with dysentery and rheumatism.

Dr. Owens was then called to attend her, and he observed nothing which would disclose any mental trouble. She seemed to have recovered, and then went to her daughter, Mrs. Stanley. Mrs. Stanley says that she was restless and despondent, was feeling badly and Dr. Countryman was called to attend her. He came to see her three times, prescribed for a stomach derangement, and did not observe any mental unsoundness. Fearing that her mental troubles would return, she again consulted Dr. Everts; and this is the occasion already referred to, in Dr. Everts' testimony.

She returned home, and Dr. Geohegan was frequently called to attend her for rheumatism and other ailments. He observed nothing unusual in her conduct, nothing that attracted his attention as to any mental trouble.

Dr. Lyle, a friend of the family, frequently visited her, observed nothing wrong with her mind. During the progress of this case, Dr. Comegys was called to make an examination with reference to her mental condition. After a careful examination, he was of the opinion that she is not suffering from senile dementia, or that she is a person of unsound mind.

The petitioner called one — Nettleton, who has been employed as a nurse, and had remained four or five weeks in attendance upon Mrs. Tempest. Her testimony does not throw any light upon the question whether Mrs. Tempest is of unsound mind; it is directed exclusively, to the conduct of James, with reference to his mother, and the influence which he seemed to exercise over her. Nor does the testimony of Mrs. Craig, who was an old friend of Mrs. Tempest, throw any light upon this subject.

About that time, she had lost her husband and daughter, she had been seriously ill, and was then suffering from some stomach trouble. Dr. Priest, a very intelligent gentleman, pastor of Westminster Church on Price Hill, a neighbor and a friend of the family, a frequent caller before and after the death of Mr. Tempest, having opportunity of observing her conduct, found her to be an intelligent, rational, and a person of more than average firmness of character.

Mr. Oldham, member of the Bar, who had made his home with Mrs. Tempest, from the middle of July to the middle of August, 1888, had spent a number of evenings during that period with her, and found her exceedingly quaint and interesting. He was struck with the shrewdness of her observations, and by the force and clearness of expression of ideas. They conversed upon current topics, discussed religion, values of property, investments, etc.

Samuel Hatheral, Mrs. Hatheral and Mrs. Lyle, all have known her for many years, and have found her to be a woman of positive character and more than average firmness and intelligence.

Prior to 1872, no authority existed for the appointment of guardians for imbeciles. By section 6302 of the Revised Statutes, the authority is extended. Under the prior statute (sec. 41, S. & C., 387), three things

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were requisite to the jurisdiction of the court. 1st. That the person is an idiot or a lunatic. 2d. That he is a resident of the county, having legal settlement in some township thereof. 3d. That such appointment is necessary for the preservation of his property. Under the present statute, the necessity for the appointment of a guardian to preserve property is omitted, leaving but two things requisite, namely, is he an idiot, lunatic or imbecile, and is he a resident of the county.

Our first inquiry, therefore, would be, is Nancy Tempest an imbecile? If she is, it must follow that her property and the management thereof, goes in the custody of a guardian. Until permanent disorder is proved to exist, no presumption of insanity can arise. Sanity, being the normal condition of the human mind, is favored by the general presumption, and the burden of proof is upon those asserting the contrary.

Mere weakness of mind is not a ground for interference. If there be a capacity to manage as the result of sanitive reasoning, although the management might not be such as an intelligent, vigorous and skillful mind may approve, a jury will not be justified in finding him insane. Re. Schneider, 59 Penu. St., 328.

Weakness and infirmity coupled with old age, and when easily susceptible of influence which would authorize the setting aside of a will, would not amount to unsoundness, to warrant the appointment of a guardian. Re. Collins, 18 N. J. Eq., 253.

It must appear that the mind is so unsound, that it can not apply its faculties to the management of its affairs or the government of himself. Re. Linsey, 15 A. T. Report, 1. Supreme Court of Errors and Appeals, N. J.

Nor would the fact that memory is greatly impaired, warrant the appointment of a guardian. 4 N. H., 60; Fairfield v. Gulliver, 49 Me., 360.

Nor would the fact that a person, less careful of his property than formerly, or subject to the influence of extravagant children, and wasting his property, justify the appointment of a guardian. Darling v. Bennett, 8 Mass., 129.

Chief Justice Campbell, in the case of Re Storick, 31 North Western Reporter, 584, in charging the jury, said: "The infirmity must be such as to render her incompetent to have charge of any affairs, or do any business. If it does not extend that far, then she should not be found by you incompetent. If Mrs. Storick is possessed of ordinary sagacity, and insight into affairs, so that she knows how to care for her house and table, and clothing; to deliver and transact ordinary affairs, and is not so insane, nor so foolish or imbecile, as to have no mind or intelligence regarding ordinary matters and affairs which she is accustomed to know of, then you are not to find her incompetent." Whether the court can find Nancy Tempest to be an imbecile, depends upon the testimony as presented. The recognized ability of Dr. Everts as an expert on insanity, has made us waiver somewhat in our conclusions. Whatever may be the state of her mind, the testimony does not warrant us in finding that Nancy Tempest is suffering from senile dementia, and to this extent, we think Dr. Everts was mistaken in his diagnosis. That Nancy Tempest was suffering from some mental trouble four yeare ago, is apparent, but we are not prepared to say, from the evidence before us, that she is an imbecile.

We have had opportunity to examine and observe her for many days, during the progress of this case. Our conclusion is, that, while she is

not an educated woman, she has exercised in her relations to her affairs, judgment, economy and prudence, and we ought not to interfere.

It is not within our province in this case, to determine whether she has testamentary capacity, nor are we called upon to say whether the paper writing, in reference to the disposition of her personal property, was a just or unjust disposition, or whether the gift to James, was unworthily bestowed. The acts done do not call for an expression as to her mental condition.

The application is denied and the petition will be dismissed.
Bateman & Harper, for Nancy Tempest.

Judge Worthington and F. M. Coppock, for the petitioners.

313

PLEDGE OF SHARES OF STOCK-PLEADING.

[Superior Court of Cincinnati, General Term, 1889.] FREDERIKA KREBS V. ARTHUR FORBRIGER ET AL.

1. An answer by a judgment debtor to a creditor's bill that the choses in action sought to be subjected to the judgment are not the property of the debtor, raises no issue, and it is error upon such answer and evidence adduced in support thereof, for the court to find that the choses in action are not the property of the debtor, and to dismiss the bill.

2. Where a pledgor delivers to his pledgee, as the pledge, a certificate for shares of stock in a corporation, and endorses the same with words of assignment in blank and with an irrevocable power of attorney to transfer the same on the books of the corporation, also in blank, the pledgor is estopped to assert any title to said stock against an innocent purchaser for value from the pledges, although the pledgee in making such sale has violated the contract of pledge as to terms of sale.

3. The doctrine of lis pendens does not apply to certificates of shares of stock transferable by such blank endorsement and power of attorney.

TAFT, J.

This was an action in the court below in the nature of a bill in equity by the plaintiff, Frederika Krebs, a judgment creditor of Arthur Forbriger to subject to the payment of such judgment, shares of stock in the Krebs Lithographing Company of the par value of $10,000.00. company made no answer and was in default. Arthur Forbriger answered, alleging that he had before this action pledged all his stock to his sister to secure a debt owing by him to her. Subsequently he was given leave to amend his answer to conform to the proof as to just what had been done with the stock. The judgment debtor and the corporation were the only parties to the suit. On the hearing the plaintiff proved that, on the transfer book of the corporation, the shares were still in the name of Forbriger, the judgment debtor, proved his judgment and rested. Then, over the objection of plaintiff, Arthur Forbriger was permitted to show what in fact had been done with the stock. The court below made a finding that on the evidence adduced, George Forbriger had no interest in the shares of stock sought to be subjected, and that the petition should be dismissed. Plaintiff made a motion for a new trial which is reserved to this court for decision.

In the first place, we are of opinion that the answer of George Forbriger, either in its original form, or as amended to conform to the