#### J. G. Guthrie, Guardian, Appellee, v. Mary E. Guthrie, Appellant.

1. Insanity: proceedings to determine: verification of petition. The failure to verify a petition, filed in proceedings under section 2272 of the Code to determine the sanity of the defendant, will not - vitiate the action of the court thereunder, where notice of the petition was personally served upon the defendant, and he was repre- ■ sented in court hy a guardian *acl litem,*and no exception was taken to the petition because of the want of verification.

2. -: -: pleading. An allegation in such a petition that the defendant is "a person of unsound mind to such an extent as to he incapacitated for conducting his business safely, and for taking care of his estate,” is sufficient to support an adjudication of mental unsoundness.

3. -: -: judgment. Where the record in such case shows the appointment of a guardian *ad litem*pending the proceeding, and a final order appointing one as guardian of the person alleged to he of unsound mind, it will he presumed that the fact of mental unsoundness was established, though the record he silent upon that question.

*Appeal from Jasper District Court.*— Hon. D. Byan, Judge.

Thursday, January 28, 1892.

Action in equity to restrain tbe defendant from selling or otherwise disposing of certain personal property owned by tbe ward of the plaintiff. A decree was rendered in favor of the plaintiff, from which tbe defendant *appeals.*

Affirmed.

*373
      *H. S. Winslow,*for appellant. '

*Alanson dark,*for appellee.

Robinson, 0. J.

The plan tiff claims to be guardian of the estate of Amos G. Guthrie, a person alleged to be of unsound mind, by virtue of an appointment made by the circuit court of Jasper county; that his ward owns certain personal property described in the petition; that the defendant has wrongfully disposed of a portion of that property, and, unless restrained, will dispose of the remainder without authority of law. The defendant denies that the plaintiff is guardian as claimed. It is conceded that the plaintiff is entitled to the relief demanded, if the defendant has failed to establish her defense. ■ On the final hearing a decree was rendered for the plaintiff as prayed.

The material facts upon'whichthe determination of this case rests are as follows:

The defendant is now, and has been for many years, the wife of Amos G. Guthrie. In March,- 1881, she filed in the circuit court of Jasper county an unverified petition, in words as follows: “Your petitioner respectfully represents that she is the wife of Amos G. Guthrie; that she is living in the bonds of matrimony with said Amos G. Guthrie; that they have two children, of the ages of two and four years, respectively; that said Amos G. Guthrie is seized of certain valuable real estate, situated in Newton township, Jasper county, Iowa, on which your petitioner and her husband and children dwell; that said Amos G. Guthrie is also possessed of valuable personal property; that the whole value of his estate is about four thousand dollars. Your petitioner further represents that her said husband is a person of unsound mind, to such an extent as to be incapacitated for conducting his business safely and for taking care of his estate; that he received said prop*374erty, for the most part, by will from bis mother; that, by said will, his brother, George Guthrie, was made his guardian for three years, which three years has expired. Your petitioner, therefore, respectfully requests that she be appointed guardian of her said husband.’7

An original notice was personally served on the husband. Subsequently a record was made in the proceeding as follows: “Mary E. Guthrie v. Amos G. Guthrie, of unsound mind. S. G. Smith appointed guardian *ad litem*for defendant. Mary E. Guthrie, wife of defendant, appointed guardian, to give bond in the sum of $500.77 The wife failed to give bond, and in November, 1883, John G. Guthrie made application for the appointment of himself or some other person as guardian, and one Green Bridge was appointed. He qualified and entered upon the discharge of the duties of the office; but in April, 1885, he resigned, and the plaintiff was appointed to succeed him, gave bond and commenced to act as guardian. In January, 1887, the defendant applied to the circuit court of Jasper county for the removal of the plaintiff on the ground that there was litigation pending between the plaintiff and his brother, G. W. Guthrie, in which the ward was interested. After a hearing on the application, the removal was refused in March, 1887. It appears that, for some reason not disclosed by the record, the plaintiff was again appointed guardian and filed a new bond. At the October term, 1888, of the district court of Jasper county, the defendant again applied for the removal of the plaintiff. The application was based on the alleged wrongful management of the estate, and fraud on the part of the plaintiff, and hostile feeling between him and the defendant, and on hearing was denied. No adjudication as to the mental condition of Amos G. Guthrie was had after the order of 1881, which appointed the defendant as guardian. In all subsequent proceedings it was assumed that the ward had *375been duly adjudged to be of unsound mind. It is insisted by tbe appellant tbat tbe record fails to show tbe necessary adjudication; tbat tbe failure to verify ber original application for' guardianship was a fatal defect; tbat tbe averments of ber petition were not sufficient to authorize tbe court to adjudge ber husband to be of unsound mind; and that tbe court did not so adjudge. Tbe reply of tbe plaintiff contains a plea of estoppel, based on tbe connection tbe defendant has bad with tbe proceedings specified.

I. Section 2272 of tbe Code contains tbe following: “ When a petition is presented to tbe circuit 1. Insanity: proceedings to determine: verification of petition. [now district] court, verified by affidavit, that any inhabitant of the county is an idiot, lunatic or person of unsound mind, * * * and tbe allegations of tbe petition have been satisfactorily proved upon tbe trial provided for in tbe following section, such court may appoint a guardian of tbe property of any such person.” Section 2273 contains tbe following: *“*Such petition shall set forth, as particularly as may be, tbe facts upon which tbe application is based, and shall be answered as in other ordinary actions, all tbe rules of which shall govern, so far as applicable, and not otherwise provided in this chapter.” Tbe chapter contains no provision in regard to tbe verification of tbe petition excepting tbat quoted, and we must have recourse to tbe rules which govern ordinary actions to ascertain tbe effect of a failure to verify tbe petition. Section 2677 of tbe Code provides tbat: “If a pleading be not duly verified, it may be struck out on'.motion; but such defect will be deemed waived if tbe other party respond thereto, or proceed to trial without such motion.” This section was construed in *Rush v. Rush,*46 Iowa, 648, where it was held tbat it carried a clear implication tbat an unverified petition was not to be treated as a nullity. It was also held tbat tbe verification was not jurisdictional.

*376The appellant refers us to *Guise v. Early,*72 Iowa, 283, as supporting her claim. But the provisions of law under consideration in that case were sections 2662-2665 of the Code, which relate to acquiring jurisdiction in all actions where it is necessary to make an unknown person defendant, and to the necessary steps preliminary to a service of notice by publication. The sections construed were designed to provide for constructive service in an exceptional case, and are not of general application. In the case under consideration the person against whom the proceedings were instituted was served personally with the original notice, and was represented in court by a guardian *ad litem;*and the court had jurisdiction of his person, and authority to act on the question presented to it.

II. The petition filed by the plaintiff in 1881 for the appointment of a guardian alleges that her husband 2. -: -: pleading. was “a person of unsound mind to such an extent ag to incapacitated for conducting his business safely, and for taking care of his estate:” It was said in *Emerick v. Emerick,*83 Iowa, 411, that the protection of property was one of the main objects of the statute under consideration, and that the test of unsoundness is largely the incompetency of the person affected to manage property in a rational manner. The averments of the petition in question are certainly brief, but are sufficient, especially as no objection to them was made to support an adjudication of mental unspundness. The allegation that the person affected was ‘ ‘incapacitated * * * for taking care of his estate” was a statement of the mental unsoundness charged, which brought it within the rule of the case cited.

III. It is said that no adjudication has ever been liad declaring Amos G. Guthrie to be a person of 3. -: -: judgment. unsound mind, and that it is essential to the validity of a judgment that it appear on the record book. The record in question shows *377"the ¿ppointment of a guardian *ad*litem, and that the defendant was appointed guardian. It is undoubtedly “the better practice to have the record show explicitly that the person for whom a guardian is appointed was adjudicated to be of unbound mind, but it will be observed that the statute does not in terms require it. It provides that, if the allegations of the petition are satisfactorily proved upon the trial, a guardian shall be appointed. The finding that the allegations are proven is a condition precedent to the appointment of a guardian; and, where the latter is shown, the former, in -the absence of proof to the contrary, will be presumed. *Ochendon v.*Barnes, 43 Iowa, 615.

Some question is raised as to the character of the xecord of judgment we have been considering. It ■appears to have been designed as the record of an adjudication, and not, as claimed, a mere memoranda for the preparation of such a record.

The conclusion we have announced makes a consideration of the plea of an estoppel unnecessary. The judgment of the district court is affirmed.