#### In re NEWSOME WORSLEY.

(Filed 3 November, 1937.)

Insane Persons § 4 — In proceedings under C. S., 2285, court should define standard of mental capacity constituting “want of understanding.”

In this proceeding for the appointment of a guardian for respondent on the ground that he was incompetent for “want of understanding to manage his own affairs,” C. S., 2285, respondent *held*entitled to a new trial for that the court, although giving the respective contentions of the parties upon the issue, failed to define the legal meaning of the term or instruct the jury as to the standard of mental capacity recognized by the law.

Appeal by respondent, Newsome Worsley, from *Granmer, J.,*at February Term, 1937, of Pitt. New trial.

This proceeding was begun on 23 December, 1936, by a petition filed by N. A. Worsley, a son of Newsome Worsley, before the clerk of tbe Superior Court of Pitt County, in accordance with, the provisions of C. S., 2285. The petition was verified by the petitioner, and was filed in his behalf by his attorney.

It was alleged in the petition that Newsome Worsley is a resident of Pitt County, North Carolina, and is the owner of property, real and personal, in said county; that the said Newsome Worsley is now incapable from want of understanding to manage, care for, and control his-property; and that because of such incapacity there is grave and immediate danger that the property of the said Newsome Worsley will be disposed of and squandered by him without profit to himself or to those who are interested in said property.

On these allegations, the petitioner prays that notice be issued by the court to the said Newsome Worsley advising him of the pendency of this proceeding, and requiring him to show cause, if any he has, why a guardian should not be appointed by the court, to manage, care for, and control his property, as provided by C. S., 2285.

■ Pursuant to the prayer of said petition, notice was duly served on the respondent Newsome Worsley, who thereafter duly filed an answer to the petition, in which he denied the allegation therein that he is incapable from want of understanding to manage, care for, and control his property. He alleged in said answer that his mind is clear and that he is capable and competent to manage his affairs. He prayed that the prayer of the petitioner be denied and that the proceeding be dismissed.

The issue raised by the petition and the answer thereto was submitted to a jury which was duly summoned, sworn, and impaneled as provided by statute.

*321Tbe jury having heard the evidence offered by both the petitioner and the respondent, answered the issue as follows:

“Is the said Newsome "Worsley incompetent from want of understanding to manage his own affairs? Answer: ‘No.’ ”

It was thereupon ordered and adjudged by the court that the prayer of the petition be and the same was denied, and that the proceeding be and the same was dismissed, and that the petitioner be taxed with the costs of the proceeding. The petitioner appealed from the order and judgment of the clerk to the Superior Court of Pitt County.

The proceeding was called for trial *de novo*at February Term, 1937, of the Superior Court of Pitt County. At said trial, the issue was submitted to a jury, which was duly sworn and impaneled. After hearing the evidence offered by both the petitioner and the respondent, and the charge of the court, the jury answered the issue “Yes.”

Judgment was accordingly rendered by the court that “the respondent Newsome Worsley is incompetent from want of understanding to manage his affairs.”

It was thereupon ordered by the court that the proceeding be remanded to the clerk of the Superior Court of Pitt County with direction that said clerk appoint a guardian for the respondent, Newsome Worsley, as provided by statute.

From this judgment and order the respondent appealed to the Supreme Court, assigning errors in the trial.

*Blount, James & Taft for petitioner, N. A. Worsley.*

*Julius Brown and J. B. James for respondent, Newsome Worsley.*

CoNNOR, J.

At the trial in the Superior Court of the issue raised by the pleadings in this proceeding, there was evidence offered by the petitioner and evidence offered by the respondent tending to support their respective contentions as to the answer to the issue, the petitioner contending that the jury should answer the issue “Yes,” and the respondent contending that the jury should answer the issue “No.”

Witnesses for the petitioner testified that they knew the respondent, Newsome Worsley; that they had known him for many years; and that in their opinion, based upon observation of him and upon conversations with him, he was not competent for want of understanding to manage, care for, and control his property. Each of these witnesses, on his cross-examination by counsel for the respondent, testified that in his opinion the respondent knew the property which he owned, and had an opinion as to its value, and that respondent knew his children, and his relations to them.

*322Witnesses for tbe respondent testified tbat they knew tbe respondent, Newsome Worsley; tbat tbey bad known bim for many years, and tbat in tbeir opinion, based upon observation of bim, and conversations witb bim, be was competent to manage, care for, and control bis property. Eacb of these witnesses, on bis direct examination, testified tbat in bis opinion tbe respondent knew tbe property wbicb be owned, and bad an opinion as to its value, and tbat respondent knew bis children and bis relations to them.

All tbe evidence showed tbat respondent is about 89 years of age; tbat be owns a farm in Pitt County, located about 2 miles from tbe town of Bethel, and a bouse and lot in tbe town of Bethel; tbat respondent purchased both tbe farm and tbe bouse and lot, and tbat both tbe farm and tbe bouse and lot are free and clear of encumbrances; tbat when be purchased tbe bouse and lot in Bethel, be bad it conveyed to bis wife, and tbat be now owns an estate for bis life in said bouse and lot, with remainder to bis children, as tbe heirs at law of bis wife; and tbat be owns tbe farm in fee simple.

There was no evidence tending to show tbat respondent bad sold or disposed of bis property, real or personal, or any part thereof, except some chickens wbicb be sold at tbe market price. He has rented bis farm to one of bis sons for an annual rent of $600.00. There was evidence tending to show tbat be bad executed bis last will and testament and bad thereby devised bis farm to tbe son to whom it is now rented, and tbat respondent bad said to one of bis children tbat be bad “cut” her and bis other children out of bis property by bis said last will and testament.

An examination of tbe charge of tbe court to tbe jury shows tbat tbe court stated tbe contentions of tbe petitioner and of tbe respondent, respectively, to tbe jury witb respect to tbeir answer to tbe issue, but failed “to state in a plain and correct manner tbe evidence given in tbe case, and to declare and explain tbe law arising thereon,” as required by C. S., 564.

Tbe court charged tbe jury as follows:

> “Tbe petitioner contends, gentlemen of tbe jury, tbat Mr. Newsome Worsley is incompetent to manage bis own affairs. He contends tbat be is a man of advanced years and is failing physically, and is not competent to manage bis own affairs; tbat bis mind is not what it has been, and tbat you should so find from tbe evidence, and should answer tbe issue ‘Yesd He contends tbat be. is incapable of directing bis affairs; tbat be has some property and is incapable of managing and saving it, and tbat therefore you should find tbat be is incompetent to manage bis own affairs, and answer tbe issue ‘Yes.’

> *323“Tbe respondent, Mr. Newsome Worsley, contends that he is competent to manage his own affairs. He contends that he has produced a number of witnesses, who are his neighbors and are intimate with him, and that they have testified that his mind is clear, and that he himself has so testified. He contends that it is your duty to take into consideration his demeanor on the stand, how he answered the questions put to him. He contends that it is true that he is not as active as he once was, that he has reached old age, but that he is competent to manage his own affairs; that what he has is his, and that he has a right tó do with it as he pleases; that it is his property and the law gives him the right to do with it as he pleases; that he accumulated it, and made it, and he contends that he is competent to use his property and to do with it as he pleases, and that you should so find.

> “So, gentlemen of the jury, these are the contentions of the parties.

> “It is a question of fact for you, gentlemen, as you find the facts to be from the evidence, the burden being upon the petitioner to satisfy you by the greater weight of the evidence. If he has so satisfied you, it will be your duty to answer the issue Wes’; if he has not so satisfied you, it will be your duty to answer the issue ‘Nod But if, on the other hand, you find the evidence equally balanced, it will be your duty to answer the issue No.’”

Nowhere in the charge does the court define the words “incompetent for want of understanding to manage his own affairs,” as used in the statute, C. S., 2285, and in the issue in this proceeding, or instruct the jury as to the legal significance of these words. The jurors were left to set up, each, his own standard of mental capacity, without any instructions from the court as to the standard recognized and enforced by the law. See *In re*Anderson, 132 N. C., 244, 43 S. E., 649, where it is said: “The fourth class of persons mentioned in section 1670 of The Code (now C. S., 2285) must really be embraced under the head of lunatics, that is, their want of understanding in order to render them incompetent to manage their own affairs must be complete. As in lunacy, there must be a total privation of understanding; mere weakness of mind will not be sufficient to place a person in the list of those described in the fourth class mentioned in the statute.”

For error in the charge, as indicated in this opinion, the respondent is entitled to a new trial. It is so ordered.

New trial.