#### In re Streiff.

*October 23*—

November *17, 1903.*

*Guardians: Appointment: Statute construed: Mental incompetency: Evidence.*

*1.*The power to appoint a guardian for an adult person depends 'upon the statute, and unless the requisites thereof are shown to exist the court cannot act favorably in the matter, though satisfied that the subject for whom the guardian is sought is not capable of caring for his property judiciously.

2. It is not essential to the appointment of a guardian in the ease above suggested, that the person be held to be either insane or an imbecile in the technical sense of those terms.

,3. In statutory requisites for the appointment of a guardian for an adult person, insanity is one cause and mental incompetency by reason of old age or other cause, to have the charge and management of property, another.

4. Mental incompetency to have the care and management of property, within the meaning of the statute, means mental incapability in that regard.

5. The mental incapability above mentioned should be substantially total. That is, it should be equivalent, substantially, to insanity or imbecility as regards ability to manage arid care for property, it being recognized, however, that such condition may exist and the sufferer be neither an idiot nor insane.

6. In an application for the appointment of a guardian for a very old person, proof that such person is so mentally and physically infirm as to have no effective physical and will power to care for himself; that he is dependent daily upon the attention of others who reside with him in his own home; that such others-not only do not render proper attention, but so conduct themselves as to intensify the sufferer’s condition; that such sufferer is not physically or mentally able to either protect himself where situated or emancipate himself therefrom; that his condition is such as to render him susceptible to undue influence in respect to parting with his property; and that such influence has been used by the persons having opportunity in that regard, resulting in his parting with his property to them without consideration — are all material evidentiary facts bearing on the ultimate issue to be solved.

[Syllabus by Makshaix, J.]

*567Ajppeai from a judgment of the circuit court for Milwaukee county: E. B. Beldejt, Judge.

*Affirmed.*

The appeal is from a judgment in proceedings for the appointment of a guardian. The cause was tried in the circuit court on appeal from the decision of the county court granting the prayer of the petitioner. The nature of the proceedings, the issues involved, and the evidentiary facts deemed by the court sufficient to warrant the appointment of a guardian for the alleged incompetent, are indicated by the findings, which axe in substance as follows:

(1) *Martha*Streiff, the alleged' incoinpetent, is about eighty-five years of age.

(2) She has property in the city of Milwaukee upon which she resides, of the value of about $9,000, which she has owned about thirty-eight years. *,*

(3) Her heirs at law are Henry Streiff, her son, and *Emma*and Albert Eink, her grandchildren.

(4) Her son is a man of weak mind. His family consists of a wife, Agnes Streiff, and two children. During the married life of Henry and Agnes, covering a period of about twenty years, they have resided with *Martha*upon her property and have been mostly supported by the income therefrom. They have done nothing whatever to contribute to the support of Martha> or paid her anything for the use of her property.

(5) The said grandchildren, for twenty years, have been accustomed to visit *Martha*and pay her loving attention. Eecently they have been prohibited by Henry’s wife from seeing her.

(6) Henry’s wife is a strong-minded woman of violent temper. She has been accustomed to use abusive language to *Martha*and to otherwise illtreat her, keeping her in a state of fear and subjection, and causing her, for a long period of time, much suffering. Such illtreatment has increased in *568severity since June 26, 1901, the time when Henry and his wife acquired, without consideration, all of *Martha’s*property as hereafter stated.

(7) *Martha*is weak in mind and physically infirm. Her physical infirmities render her incapable of leaving her home. She has been blind for a considerable period of time. She is now living in a state of fear, and under the subjection, of Henry’s wife.

(8) June 26, 1901, at the request of Henry’s wife, and without consideration except the nominal one of a dollar, she transferred all her property to the former and her husband, leaving herself wholly dependent upon their pleasure for support.

(9) She is mentally incompetent to have the charge and management of her property, and incapable of taking care of herself.

The conclusion of law from the foregoing was that the petition for the appointment of a guardian for *Martha*was properly granted by the county court, and that judgment to that effect should be rendered. A judgment of affirmance was accordingly entered, from which this appeal was taken.

For the appellant there was a brief by *Nath. Teretes & Sons,*and oral argument by *G. D. Goff.*

To the point that mere mental weakness will not justify the appointment of a guardian, they cited *Armstrong v. Short,*1 Hawks (FT. C.) 11; *Ex parte Granmer,*12 Yes. Jr. 445; *In re Holmes,*4 Russ. 182; *Oomm. v. Reeves,*140 Pa. St. .258; *In re Collins,*18 FT. J. Eq. 253; *Schiele v. Stulw*(Iowa) 94 N W. 915.

For the respondent there was a brief by *Kronshage & Mc-Govem,*attorneys, and *W. S. Frazier,*of counsel, and oral argument by *F. E. McGovern*and *W. S. Frazier.*

Maeshall, J.

The main contentions of appellant’s counsel are, that the evidence introduced, of which there was much, as to undue influence by Henry Streiff and his wife *569to obtain from appellant tbe deed of ber property, and tbe ■evidence showing illtreatment of appellant, was incompetent; tbat such evidence bad no bearing on tbe real subject for investigation, — tbe mental competency of Martha to bave tbe charge and management of ber property; tbat tbe findings of fact based specifically thereon are immaterial to the real subject of inquiry and should not and would not bave been made but for tbe admission of such incompetent evidence; and tbat such findings were tbe real basis for tbe ultimate conclusion of fact tbat *Martha Streijf*was mentally incompetent as alleged in tbe petition.

We are unable to agree with counsel. Tbat *Martha*Streijf, by reason of mental weakness produced by old age and ber infirmities, required tender care from others at all times; tbat those with whom she resided, because of ber broken-down condition, were able to keep ber in a state of subjection to their will; tbat they exercised their power in tbat regard; that they kept ber relatives from ber and illtreated ber in many ways; tbat she was too weak and infirm to protect herself therefrom; tbat they obtained from ber all of ber property without consideration and then increased tbe severity of their treatment; and tbat she was mentally and physically powerless to resist such treatment or to escape from it, — bore very strongly upon tbe ultimate issue of fact to be solved,— whether she was, by reason of extreme old age or other cause, mentally incompetent to bave tbe charge and management of her property. Sec. 3976, Stats. 1898. Certainly, evidence showing tbat she was incapable of protecting herself in any way from tbe abuse of others in ber own home, and that she was controlled by tbe will of others in giving them all ber property, leaving ber without any means of support in ber old age, there being nothing in tbe conduct of such others tbat would influence one so circumstanced, capable of acting with ■any degree of prudence, to rely upon mere moral obligations to secure in return for tbe property some reasonable equiva*570lent in care and attention, may well be viewed, as tbe trial' court evidently deemed tbe same, as strongly indicating mental incompetence to bave tbe charge and management of' ber property.

True, as suggested by appellant’s counsel, tbe power to-appoint a guardian in tbe circumstances of this case depends upon tbe statute. Nnless tbe statutory conditions requisite-to tbe exercise of sucb power are shown to exist by tbe evidence tbe court is powerless to act, however clear it may appear by proof that tbe subject for whom a guardian is sought is not capable of caring for bis property judiciously. But sucb conditions do not call for imbecility or insanity in a technical sense. It is sufficient if tbe subject is as incapable-of managing bis affairs as if be were insane. That is plain. Our statute should not be confused with those which are-worded differently, and tbe decisions under tbe same. Tbe term “mentally incompetent to bave tbe charge and management of bis property” means mental incapability to do so. *In re Leonard’s*Estate, 95 Mich. 295, 54 N. W. 1082. True,, tbe incapability must be, as before indicated, substantially total, as in case of imbecility or insanity: not that partial incapability often seen in persons so intellectually weak that they are capable of managing their affairs with very little-judgment. Nevertheless, tbe subject need not be necessarily classed as either insane or an idiot in the ordinary meaning of those terms. Counsel cite *In re Storick,*64 Mich. 685, 31 N. W. 582, construing tbe Michigan statute, which is like-our own, as bolding that it calls for insanity or imbecility. Tbe language of tbe court in that case is, “insanity or mental infirmity that is equivalent in destroying mental competency.” By that it is seen that tbe court viewed mental in-competeney from any cause rendering a person as incapable of managing bis property as if be were insane, covered by the statute. In short, that mental incapability of one to manage bis property, as distinguished from insanity in tbe ordi--*571nary sense, gives tbe court jurisdiction to appoint a guardian, as beld in tbe later case. *In re Leonard’s Estate, supra.*

In tbe earlier decisions of courts, particularly tbe English decisions, tbe mooted question was whether a court of chancery possessed jurisdiction to appoint a guardian of a person in tbe absence of a finding that such person was insane or an idiot. A good review of such cases is contained in tbe opinion in *In re Barker,*2 Johns. Ch. 232. The position finally taken by tbe English courts and tbe one which tbe New York court adopted is indicated in tbe following, quoted from tbe chancellor’s opinion:

> “Lord Eldon, in *Ridgeway v. Darwin,*8 Ves. Jr. 65, observed that in Lord Hakdwicice’s time commissions of lunacy were not granted to tbe extent in which they have been since granted. That when he came into the court, he found a course of cases establishing its authority where the party was not absolutely insane, but was unable to act with any proper and provident management, and was liable to be robbed by any one, under that imbecility of mind, calling for as much protection as absolute insanity. When the mind was worn out by years, or epilepsy, or habitual intoxication, etc., the party required that care should be thrown around him.”

That view is embodied in many, we may say most, of the modern statutes. The words “lunacy” and “unsound mind” have been bent out of their technical sense in some instances, a legislative construction being given thereto in harmony with the broad views of courts to which we have alluded, that they include every phase of unsound mind rendering one incapable of caring for. himself or his property (1 Birdseye’s Rev. Stats. N. Y. 1889, p. 512); that it includes mental unsoundness rendering the sufferer incapable of managing his property (Rev. Stats. Mo. 1899, sec. 3702). In many statutes, of which that of Michigan and our own are instances, the term “insanity,” considered in its technical sense, is separated from its equivalent as regards the ability of the sufferer to care for himself or his property, leaving no ground *572to claim tbat mental unsoundness, meaning insanity strictly so called, is essential to tbe appointment of a guardian. Tbe statute provides for tbe guardianship of insane persons and any others who, “by reason of extreme old age or other cause, .are mentally incompetent [tbat is, incapable] to have tbe ■charge and management of their property.”

True, tbe evidence in this case does not show tbat *Martha Streiff*was insane or an imbecile in tbe technical sense of those terms; but it pretty clearly shows tbat she might as well be either the one or the other as regards capability to have the charge and management of her property. That satisfies, clearly, the very letter of the statute. The evidentiary facts found, which are well supported by the proof, show, as before indicated, that appellant was so weak of mind as to submit to the will of others to the extent of parting with all she possessed without making any provision whatever for her future support, notwithstanding her utterly helpless condition. It shows that she had neither will power to assert her rights in her own home, nor to disassociate herself from her surroundings and obtain the assistance and care of others. It shows that she was in her second childhood, and in nearly the last and most helpless stage thereof. It shows that she was as much in need of care and protection as an infant, and that those under whose control she was living neither extended that care to her nor permitted others to do so or to comfort her in any way, but took advantage of her weakness and their relations to her to practically rob her. That is what the evidence strongly tends to prove. It is what the court found in effect. If the court has not power under our statute to rescue an old person from such a situation, it is a severe criticism upon the wisdom of the lawmaking power; but there has been no legislative neglect in that regard, as we have seen, in that the statute expressly provides for just such cases as *this,*— for persons who-, from *extreme*old age or other cause, are mentally incompetent to manage their property. Thus *573bas become written law the reasoning of courts of which that found in *Ridgeway v.*Darwin, 8 Ves. Jr. 65, is a fair type, where the chancellor said, in effect: The question is not necessarily whether the person is absolutely insane; it is sufficient if he is unable to act with any proper and provident management, and is liable to be robbed by any one, calling for as much protection as absolute insanity. And that in *Ex parte*Cranmer, 12 Ves. Jr. 445, where Lord Erskine. said, that it is unseemly that a person whose faculties have become so decayed by old age that he is unfit to govern himself or his affairs, cannot have the protection of a guardian except that he be put upon the footing of a lunatic. Why should not a man be entitled to protection in his second state of infancy as well as the first ?

*By the Court.*— The judgment is affirmed.