Sabin v. Commonwealth

Opinion of the Court by- Commissioner Stanley Affirming. Mrs. Anna D*. Sabin is a citizen of Hickman county, but for some time has been in an infirmary and living temporarily at a hotel in Paducah. After coming into possession in January, 1928, of a large estate, consisting' of securities and farm lands, Mrs. Sabin executed a general power of attorney to L. A. Washington, an old friend and business associate of her deceased husband, in which she authorized and empowered him to transact all her business. It is agreed by all parties that Mr. Washington is a man of ability, probity, and integrity, and qualified in every respect for the trust reposed in him, but it is said he is not situated so as to give proper attention to the farm. Proceedings were instituted in the Hickman circuit court in April, 1929, by a near relar tive, in the name of the commonwealth on his relation, to have Mrs. SaJbin declared incompetent to manage her estate by reason of imbecility or unsoundness of .mind due to advancing years and physical infirmity. A jury found.her to be thus incompetent, and a committee was duly aupointed for her. Mrs. Sabin brings this appeal from that judgment. *638 The evidence introduced in behalf of the petitioner was ample to sustain the verdict of the jury; although it may be said that the evidence heard in behalf of Mrs. Sabin would likewise have justified a verdict that, while physically incapacitated and inexperienced in business affairs, she was not mentally disabled. The grounds submitted as requiring the court to reverse the judgment .other than that the verdict is not sustained by the evidence will be stated as they are severally disposed of. 1. It is submitted that there is at present no statute covering inquisitorial proceedings respecting one who is charged to be incompetent by reason of unsoundness of mind resulting from physical infirmities, and therefore that any steps taken in such a proceeding must be in accordance with the common law, following ancient equity practice. The Act of 1893 (Acts 1891-92-93, c. 147) as compiled in subsequent statutes as sections 2149 to 2171 inclusive, was divided into two articles. Article 1 was composed of sections 2149 to 2155, and related to the care and custody of the person and estate of idiots, lunatics, and incompetents, and the oath to 'be administered in .all inquests concerning the last named. Article 2, composed of sections 2156 to 2171, related to jurisdiction and procedure. In 1918 the General Assembly (chapter 54, p. 156 et seq., Session Acts of that year), enacted a comprehensive law providing for the commitment, care, and treatment of epileptics, feeble-minded and insane persons, and explicitly repealed, among other laws, sections 2157 to 2171, inclusive, of the 1915 edition of the statutes. This constituted an express repeal of all of article 2 of the original act, except section 2156, which related to the jurisdiction of county and circuit courts to hold inquests upon all persons included within article 1. However, this section was probably repealed in its entirety by implication, a question which need not now be determined. The new law provided that exclusive jurisdiction should be in the circuit courts'for the trial of all cases coming within the terms and provisions of the act. There is no specific reference to incompetents or those who, by reason of advanced age or physical infirmity, have become of unsound mind and rendered incapable of managing their estates. Again in 1928 the Legislature revised the law respecting this subject, and provided an elaborate system for the care of the penal and eleemosynary institutions *639 of the state and their inmates (Acts 1928, c. 16, p. 81). Section 63 and 64 defined the terms used in the act, bnt there was no direct reference to the class of unfortunates with which we are now dealing. By section 68 of that act, the circuit courts were given exclusive jurisdiction of all inquests concerning the condition of the mind or mental faculty of persons. But. again the trial procedure established only related to feeble-minded persons, epileptics, idiots, and insane persons, including certain drug addicts. It is contended by the appellant that mental defectives who are generally classed as incompetents are not comprehended by this act. Section 2155, a part of the original Act of 1893, prescribing the form of oath to be administered in cases of this kind, has never been expressly repealed by either of the two subsequent revisions of the law relating to this subject. In section 79 of the Act of 1928, which provides for the form of oath to be administered to the jury on an inquest into the claimed unsoundness of mind of an idiot or'lunatic, this reference is made to it: “But this oath shall not be confused with or in any wise conflict with the oath to be given upon the inquest of an imbecile as prescribed in section 2155. ” It is apparent, therefore, that section 2155 has never been repealed. That section is as follows: “In all inquests held in respect to persons alleged to be imbecile or incompetent to manage their estates, the court shall cause an oath to be administered to the jury in such form as to ascertain by the verdict whether such person, by reason of bodily infirmity, disabling him from making his thoughts and desires known, or by reason of any infirmity or weight of age, is incompetent to manage his estate, and also what estate he owns in possession, „ reversion or remainder, and the value thereof. ’ ’ We also have section 2149 remaining in the law, untouched by these recent enactments (except as to jurisdiction of the county courts), and that relates, not only to the persons and estates of idiots and lunatics, but also to those in this classification. And section 2151, which has never been repealed, provides for the appointment of a committee for a person adjudged to be incompetent by a jury upon an inquest held under the statute. *640 Incompetency, other than that due to confirmed bodily infirmity rendering one unable to make his desires known, is a species of insanity for it is a weakness of mind or mental abnormality. “Unsoundness of' mind,” the term used in the statutes, has been judicially declared to be synonymous with “insanity.” 32 C. J. 621. Although this character or degree of mental disorder is not. included by name in the act of 1928, it is without doubt comprehended within the generic term of insane persons therein used, for it seems clear that, having retained the provisions of section 2149 and- section 2155 of the old statute, it was the intention of the Legislature that the same procedure in respect to such inquests should be followed and maintained. 2. By section 68 of the Act of 1928 (now section 216aa-68, of the Statutes), it is provided that, when no circuit court is in session in the county, inquests as to insane persons may be held by the judge of a circuit court or by the presiding judge of the county court. It is asserted by the appellant that in undertaking to confer this power on the county judge the statute makes of him a special circuit judge; that section 130 of the Constitution prescribes among the qualifications of a circuit judge that he shall be a lawyer, and that the county judge who presided at this inquest did not possess that qualification. TIence it is claimed the inquest is void. It is true that in Turpin’s Adm’r v. Stringer, 228 Ky. 32, 14 S. W. (2d) 189, the court referred to the county judge when he was presiding at an inquest in the circuit court as “a sort of special judge;” but the question in that ease was as to the jurisdiction of the county court in proceedings of this nature and not the qualification of the presiding judge. While these inquests are now exclusively placed in the circuit court, they are special proceedings in that tribunal, and the county judge is designated to act just as in the absence of a circuit judge he is authorized to issue restraining orders hnd attachments. Civil Code of Practice, secs. 251, 273. It has never been suggested through the many years that those provisions have been in effect that he was acting as a circuit judge or that it was necessary that he should possess the qualifications of that officer. There is no constitutional inhibition of the granting of the authority to a county judge, nor does the vesting of the power in him transform him into a circuit judge. This point must accordingly be disallowed. *641 3. It is next submitted that, since the jury was hot •clrawn from a regular panel or from the wheel for the purpose of trying the case but were summoned as bystanders, the appellant has been deprived of her right to have a jury impartially selected and impaneled according to law. There is no statutory provision for the summoning of jurors for these inquests when no term of the circuit court is in session. In its absence, the jury may be selected as at common law, which was by the executive officer of the court, who, under our jurisprudence, is the sheriff. 35 C. J. 257; Deaton v. Commonwealth, 157 Ky. 308, 163 S. W. 204. Mental defectives have always been recognized as the peculiar care of the courts of equity. Because of this relation and the necessity oftentimes for a speedy determination of these matters, we are quite sure it was never intended that the statutes providing for the manner of selecting jurors at regular or special terms of circuit court, regularly held, should apply, although it would appear that the qualification demanded of jurors should be recognized, 4. The complaint that irrelevant and incompetent evidence was admitted on the trial consists principally of objections to expressions of opinion by lay witnesses as to Mrs. Sabin’s mental condition, some of whom g'ave few, if any, facts upon which the opinion was based. It is the well established rule that nonexperts in matters of this kind may relate symptomatic actions on the part of the person whose mentality is the subject of inquiry, and then express their opinions. The fact that the witness does not relate in detail the specific, instances on which his opinion is based does not render his evidence inadmissible. Under the liberal rule obtaining in this state, all such evidence is considered competent, and is to be submitted to the jury for what it is worth. Murphy’s Ex’r v. Murphy, 146 Ky. 396; 142 S. W. 1019; Lee v. Kirby, 186 Ky. 603, 217 S. W. 895. The reading of the reports of examining physicians as to Mrs. Sabin’s condition, in addition to hearing their testimony, could have done no haim, even though immaterial. It does not appear there was any incompetent evidence admitted, which could have had any material bearing or effect, 5. For the first time in this jurisdiction, so far as we are aware, the question is raised as to the sufficiency of instructions submitting to the jury the issue of incompetency to manage an estate. Attention has already been directed to the language of section 2149 of the Statutes. *642 relating to the jurisdiction, of the court to inquire into the capacity of “those whose minds, on account of any infirmity or weight of age, have become so imbecile or unsound as to render them incompetent to manage their estates,” and to the form of oath to be given the jury in like language. The instruction given the jury was in these words: “The Court instructs the jury that if they believe from the evidence in this proceeding that the mind of the defendant, Anna D. Sabin,' has on account of any infirmity or weight of age, become so unsound as to render her incompetent to manage her estate, you will by your verdict so find, and also say what estate she owns in possession, reversion or remainder, giving the value thereof; and the place of her residence.” Numerous instructions were offered by the appellant establishing various standards by which the jury should be governed, but they were refused. It is contended that no criterion was given the jury for its guidance, and that the language of the statute which was followed is too abstract. We find little or no direct authority on this question, although there are many opinions in other jurisdictions stating the character and quantum of proof necessary to show that a person is incompetent to manage his estate by reason of unsoundness of mind arising from age or physical infirmity. An exhaustive annotation covering the subject of the character or degree of mental condition or capacity of a person that will justify the appointment of a guardian or a committee of his estate may be found in 17 A. L. R. 1066. Courts have generally defined the term “mental incompetency” and “incompetent” as used in statutes to be any one who, though not insane, is, by reason of old age, disease, weakness of mind or from any other cause, unable, unassisted, to properly manage or take care of his property or of himself, and by reason thereof would be likely to be deceived or imposed upon by artful or designing persons. See Words and Phrases, First Series, vol. 5, p. 4476, and Words and Phrases, Third Series, vol. 4, p. 184. In Howard v. Howard, 87 Ky. 616, 9 S. W. 411, 10 Ky. Law Rep. 478, 1 L. R. A. 610, this court indicated that such was the degree of unsoundness of mind authorizing an interference by the courts with the liberty to dispose of one’s self and his property. *643 Bnt our statute only declares that a jury on an inquest shall ascertain and 'by its verdict declare whether the subject of the inquiry by reason of any infirmity or age is competent to manage his estate which, as construed by the court, relates to mental competency or soundness of mind. Menifee v. Ends, 97 Ky. 388, 30 S. W. 881, 17 Ky. Law Rep. 280; Taylor v. Moore, 112 Ky. 330, 65 S. W. 612, 23 Ky. Law Rep. 1572; Upton’s Committee v. Bush, 135 Ky. 102, 121 S. W. 1005. In the opinion of Howard v. Howard, supra, may be found an intersting and illuminating history of the origin and development of this branch of jurisprudence. In relation ’to conditions presented by the instant case, as distinguished from one where the control of the body is. involved, it is the benevolent purpose of the statutes to conserve the property of one so unfortunate as to be deprived of his mental faculties and of his capacity by reason thereof to protect it himself. That duty devolves on a court sitting in equity. Yet it is wisely provided that before such control may be assumed by the court and its agents, the person has the right to demand that a jury first find the incapacity to exist. As such inquests or trials generally involve the element of personal liberty, they are regarded as quasi criminal proceedings. Taylor v. Barker, 47 S. W. 217, 20 Ky. Law Rep. 582. In Menifee v. Ends, supra, the verdict simply declared the defendant to be incompetent to manage her estate. It was declared that the question to be inquired into and ascertained was as provided in sections 2149 and 2155, and therefore the verdict was defective. In Commonwealth v. Redd, 196 Ky. 798, 245 S. W. 507, a proceeding in which restoration was sought to the position of one sui juris, the court considered an instruction which followed the language of the statute in submitting to the jury the question of mental capacity or incapacity as being in substance the same as that offered by the commonwealth on relation of the committee, who was opposing the effort of the incompetent, which it was contended should have been given. The sufficiency of that instruction, however, does not seem to have been questioned, and was not considered. The court is of the opinion that an instruction which follows the terms of the statute as it has been construed and the language prescribing the oath to be administered in inquests held in respect to persons of this class is suffi *644 ciently specific, and. gives to the jury the proper standard or criterion for its guidance. Hence the instruction given in this case was correct. It is not made to appear that the appellant is entitled to a reversal of the judgment, and it is therefore affirmed. Whole court sitting. Chief Justice Thomas dissents from so much of the opinion as holds that the instruction given was sufficiently specific as a test of incompetency.