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District Court of Appeal, First District, Division 2, California.


Civ. 11086

Decided: June 12, 1939

Clarence E. Rust, of Oakland, for appellant. James E. Colston, of San Francisco (Richard C. O'Connor, of San Francisco, of counsel), for respondents.

On the application of Mrs. Waite's daughter, the trial court appointed a guardian of Mrs. Waite's estate and appointed the daughter the guardian of the person of Mrs. Waite. From that order Mrs. Waite has appealed.

On August 15, 1938, Pearl Stewart, respondent herein, filed in the office of the county clerk of the city and county of San Francisco, her verified petition alleging the incompetency of appellant herein, and praying for the issuance of letters of guardianship over the person and estate of appellant, who is the mother of Pearl Stewart. Service of the usual citation was duly made upon the appellant, after which she appeared in court, with counsel, at the time set for the hearing. The petition alleged: “That the said Fannie Rollins Waite, by reason of old age and illness, and weakness of mind, has become mentally incompetent, either to care for herself or to manage her property; and is unable, unassisted, properly to manage or take care of herself or her property, and by reason thereof is likely to be deceived and/or imposed upon by artful and designing persons.”

Pursuant to stipulation made in open court by counsel for the petitioner and counsel for the alleged incompetent, Doctors Stockton and Rethers were appointed by the court to examine the alleged appellant and report on her physical and mental condition. Each had completed his examination of appellant before the cause was heard, and both were called by the respondent to make their report; both were likewise subjected to cross-examination by appellant's counsel.

At the conclusion of the testimony of the experts, counsel for respondents announced that there were eight more witnesses ready to testify; the court asked if they were lay witnesses, and on being informed that they were, announced that it did not wish to hear any lay witnesses. Counsel for appellant then offered to put the appellant on the stand. The court declined to hear her on the ground that it was not competent to form any opinion as to her mental condition. The court at the same time announced it was willing to hear medical testimony on appellant's behalf, but none was offered by her counsel. Later evidence as to the status of appellant's bank account was introduced and the court made the order appointing the guardians.

Appellant's brief intimates that the eight lay witnesses were offered by appellant, and that the court refused to hear them. The record does not show appellant offered them. The eight lay witnesses were apparently offered by the petitioner, respondent herein; no witnesses whatever were called or offered by appellant except herself.

The appellant's first point is that the court erred in refusing to permit appellant's witnesses to be sworn and testify, for the reason that such conduct deprived appellant of her property and liberty without due process of law. The materiality of that contention turns on the issues on trial. The jurisdiction of the court is defined by section 1460 of the Probate Code. That section provides that the superior court may appoint a guardian of the person or of the estate, or both, of an incompetent person and that an incompetent person means or refers “* to any person whether insane or not, who by reason of old age, disease, weakness of mind, or other cause, is unable, unassisted, properly to manage and take care of himself or his property, and by reason thereof is likely to be deceived or imposed upon by artful or designing persons”. The scope of that jurisdiction shows at once that it includes (1) cases to be proved solely by testimony of medical experts; (2) cases to be proved by the testimony of lay witnesses; and (3) cases to be proved by both classes of testimony. The petition in the instant case pleaded a case within the third class. However, in presenting her petition, the petitioner commenced by calling the two experts theretofore appointed by the court. After they had testified the court remarked that it was satisfied. In making that remark in effect it limited the petitioner to the testimony of the two experts that had been examined. It had the statutory right to make that ruling. Code Civ.Proc. sec. 2044. The court's ruling in like manner limited the petitioner to the testimony of experts and excluded testimony of lay witnesses. By a parity of reasoning the court acted within its powers in so holding. As shown above, the court offered to hear any testimony by medical experts offered by the incompetent but she did not offer any such testimony. As the petitioner had not offered the testimony of any lay witnesses there was no occasion for the incompetent to do so. In short, the incompetent may complain of the evidence as being insufficient but she makes no showing that any of her fundamental rights were ignored.

The appellant's second point is that the trial court erred in refusing to permit her to be sworn and testify. She asserts the law specifically contemplates such procedure. She cites and relies on Matter of Coburn, 165 Cal. 202, 131 P. 352. That case is not helpful. It was based on a section of the Code of Civil Procedure that has been materially amended. Appellant also cites and relies on section 1461 of the Probate Code. But an examination of that section does not disclose anything supporting the contention which the appellant now makes.

The last point made by the appellant is that the evidence was insufficient to justify the order. We have examined the briefs and we have read the reporter's transcript of the testimony taken before the trial court. After having done so we are unable to hold that the last contention of the appellant is well founded. Both Dr. Stockton and Dr. Rethers, the two experts above mentioned, were called as witnesses by the petitioner. The direct examination and the cross-examination proceeded as though the history of the appellant's business transactions, marital ventures, the condition of her health during the preceding four years, and her comings and goings during said period, were known by each expert. Whether they got such information from the appellant, from the petitioner, or how, does not appear. Among others the following facts were taken into consideration by the two experts in giving their testimony. The hearing was had September 2, 1938. At that time the appellant was seventy-eight years of age. Her second husband died in 1935, leaving her $31,000. In 1936, she married for the third time but was soon after divorced. The latter venture cost her $4,000. Later she purchased a ranch in Alameda county, paying $8,000 therefor and $850 for cattle. She then gave to her chauffeur a one-half interest in the ranch and stock. At the time of the hearing she had left cash deposited in the bank amounting to about $16,000. At the time she purchased the ranch and at the time of the hearing the appellant was crippled with arthritis and was compelled to use a cane to walk. She had become dissatisfied with the purchase of the ranch and was anxious to get rid of it.

Basing their testimony on the foregoing facts and a personal examination of the appellant, the experts gave the following testimony. Dr. Stockton testified he found the appellant was over credulous—a serious defect in judgment. He also found she was of such an age and of such a mental condition that she is likely to be deceived or imposed upon by artful and designing persons. Dr. Rethers, after having testified that the appellant at the age of seventy-six married a man of the age of forty-five, further testified that the facts showed mental subnormality. After some of the business transactions had been recited to him he testified that the appellant was over-credulous and showed a lack of judgment. Therefore we think it may not be said that the evidence is insufficient to support the allegations contained in the petition. Matter of Coburn, 165 Cal. 202, 216, 131 P. 352.

The order appealed from is affirmed.


We concur: NOURSE, P.J.; SPENCE, J.

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