In Re Guardianship of Watt

COSHOW, J. All of the witnesses for the petitioners express the opinion that Miss Watt was not capable,' unassisted, of managing her own business affairs. These witnesses had known Miss Watt longer and more intimately than any of the witnesses who expressed, the opinion that she was capable of managing her own affairs. A larger number of witnesses testified that she was capable than those *498 who testified that she was incapable. It is true that she had an accurate knowledge of her property. She was penurious and carefully conservative, but the evidence is undisputed that she never did, without assistance, conduct her own business or manage her property. Since she has been living with Mrs. Watson and the McElroys she has been under the constant surveillance of one or the other. Mr. Watson testified that Miss Watt insisted upon being accompanied at all times by Mrs. Watson. Mr. T. H. Ford managed the business affairs for Miss Watt for a number of years. There is no evidence that tends to any degree to reflect upon his ability, integrity or management. Until Miss'Watt was associated with Mrs. Watson and Mr. McElroy she was contented to have Mr. Ford advise her and conduct her business. When Mr. Ford objected to Miss Watt leasing the four-acre tract, referred to above, to Mr. McElroy, she took her business out of his hands. There is evidence that Mr. McElroy made disparaging remarks about Mr. Ford. For nearly a year Mr. Condit attended to her business affairs. There is no evidence at all that he in any way mismanaged her affairs or was to any degree negligent of her business. There is evidence to the effect that Mr. McElroy referred to him as being worse than Mr. Ford. A large part of the testimony of both McElroy and Watson, as well as the brief of appellant, is devoted to impugning the motive of the petitioners. It is claimed that they are seeking to prevent Miss Watt from disposing of her property in order that they may obtain it. It is also claimed that ¡they never displayed any interest in Miss Watt until they learned that she had disposed of her property. There is no *499 evidence that any of the petitioners ever attempted in any way to obtain any of Miss Watt’s property, or ever attempted in any manner to control her affairs or her conduct. There was no occasion for them to interfere with her business as long as she entrusted the investment of her funds with such men as T. K. Ford and A. O. Condit. The conduct of the petitioners, as far as the record discloses, has been above reproach in their relation to Miss Watt. They are not her next of kin. She has one brother living. The record does not disclose whether or not her brother who deceased since this proceeding was started left lineal descendants. In any event the probability of them ever receiving any of her property is very remote. There is no evidence of any selfish motive actuating the petitioners in this proceeding. The transactions whereby Miss Watt transferred all of her property to Mr. McElroy and Mrs. Watson indicate very strongly that she was incapable of managing her own affairs. Both Mr. McElroy and Mrs. Watson testified that it was agreed and understood that the consideration for the transfers was the past attention and care they had given to Miss Watt, their promise to care for her in the future and the payment of an annuity of $200 during her life. But the transfers of Miss Watt ’s property were absolute and unconditional. She did not reserve any interest in the property. She did not exact any security for the faithful performance of their agreement by McElroy and Watson. Their agreements were not expressed in writing until after this proceeding was instituted. There is no provision for the care of Miss Watt in case of the death of either McElroy or Watson. There is no designation of where her home shall be, although they *500 both testified, that she desired to live the balance of her life on the said four-acre tract. There is no agreement that they should make their home there and nothing- to prevent them from going anywhere they pleased to make their home. In fact, there is no provision for securing to Miss Watt the care and protection they promise as a consideration for all of her property, real and personal, including all of the household effects. We do not have to depend, therefore, upon the preponderance of the opinions of the witnesses as to the mental capacity of Miss Watt. What she has done is before us. It is clear that she never has transacted her own business without assistance. That she accumulated property instead of spending- it is doubtless due in a large measure to the care of her brothers while they lived here, and to the fidelity of Mr. Ford and Mr. Condit. Measured by the rule adopted in In re Northcutt, 81 Or. 646 (148 Pac. 1133, 160 Pac. 801), Miss Watt is clearly incapable of managing her own affairs. In page 852 of 81 Or., this court, in a well-considered opinion by Mr. Justice Harris, adopted a definition of the word “incapable,” as used in our statute. “ ‘Incapable’ shall be construed to mean any person who, though not insane, is, by reason of old age, disease, weakness of mind, or from any other cause, unable, unassisted, to properly manage and take care of * * his property, and by reason thereof would be likely to be deceived or imposed upon by artful or designing- persons.” It clearly appears that Miss Watt was unable, without assistance, properly to manage and take care of her property and would be likely to be deceived by artful or designing persons. She is, therefore, in *501 capable of conducting ber own affairs within the meaning of Section 1319, Or. L. The decree of the Circuit Court is affirmed, with costs and disbursements in favor of the respondents. Affirmed. Rehearing Denied. McBride, C. J., and Burnett and Rand, JJ., concur.