Mulligan Estate

Shoyer, J., This matter involves a proceeding under the Act of 1955, enacted February 28,1956, P. L. (1955) 1154, as reenacted and amended by the Act of July 11, 1957, P. L. 794, 50 PS §§3101-3801, known as the Incompetents’ Estates Act of 1955. Before us is the motion of Harold B. Mulligan, the alleged incompetent, to dismiss the citation issued against him on petition of his daughter, Catherine M. Hagar, who has since died. Her death is the sole reason — 476 — assigned in support of the motion. Preliminary objections have been filed by the executor of the daughter’s estate in which he asserts that there is no legal basis to sustain the relief requested by the alleged incompetent, that this court lacks jurisdiction, and that the hearing judge, Hon. Robert V. Bolger, heard sufficient testimony to establish a prima facie case of incompetency on the part of Harold B. Mulligan which, therefore, created a legal responsibility on the part of this court to complete the trial and give the alleged incompetent the protection the laws prescribe if, in fact, he is incompetent. In her petition filed April 26, 1968, Catherine Mulligan Hagar averred that her father is a widower, 83 years of age, and a patient in Germantown Hospital to which he was admitted on April 18, 1968, for suspected cardiovascular difficulties. Because of the alleged mental infirmities of old age and physical illness, the petition averred that Harold B. Mulligan was unable to manage his property, estimated to be worth several million dollars, and that he was liable to dissipate the same or become the victim of designing persons. A corporate guardian was suggested. Respondent’s next of kin, since the death of Mrs. Hagar in September 1968, are two daughters, Mary Green and Sandra C. Stewart (adopted), and four grandchildren, being the children of Mrs. Hagar. When the incompetency proceeding was called for hearing on June 19,1968, Mary Green joined in the petition of her sister, Catherine. John L. Kelly, M.D., a diplómate of the American Board of Psychiatry and Neurology, in Psychiatry, was appointed impartial medical expert, and at two subsequent hearings before Judge Bolger he testified as to his physical and mental findings. Mr. Mulligan suffered from a left hemiplegia, generalized arteriosclerosis, diabetes mellitus and essential hypertension. — 477 — Because of advanced age, the prognosis was guarded to fair. This expert witness was of the definite opinion that Mr. Mulligan was competent to handle his own affairs and not liable to dissipate his property or become the victim of designing persons. In addition to Dr. Kelly, testimony was heard from 12 other witnesses. Among them were respondent, bis attending physician and Dr. Sail, a psychiatrist, who testified that in his opinion Mr. Mulligan was mentally incompetent. Dr. Wilcox, the attending physician, testified as to the improvement in Mr. Mulligan’s physical and mental condition since the occurrence of the stroke. He stated that the patient’s physical condition should continue to improve “up to six months or even up to a year”, and “ [h] opefully the mental phase of it would show some increasing improvement likewise”. On this last note the learned hearing judge continued the proceedings as lis pendens for a period of three to six months. Counsel for both petitioner and respondent expressed their satisfaction with this arrangement. It is a general rule of law that actions do not survive the death of a party in the absence of a statute providing for their survival: Johnson v. Peoples First National Bank and Trust Company, 394 Pa. 116, 123. Section 601 of the Fiduciaries Act of April 18, 1949, P. L. 512, reads as follows: “All causes of action or proceedings, real or personal, except actions for slander or libel, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants”. The question arises as to whether a proceeding to adjudicate a person so incompetent as to be unable to manage his property, thereby necessitating the appointment of a guardian, is such a “cause of action or — 478 — proceeding” as to come within the purview of the statute. In Ryman’s Case, 139 Pa. Superior Ct. 212, 216, 218, Keller, P. J., stated that an issue framed to determine incompetency under earlier, but similar, legislation “did not convert the proceeding into an ordinary cause of action at law. The point to be decided was the mental condition of George Ryman at the time of trial, with respect to his ability to take care of his property, and whether he is liable to dissipate or lose the same and become the victim of designing persons. “(4) This was not an action at law between two litigants. It was a proceeding to determine whether the respondent was so mentally defective that he was incapable of taking care of his property, etc. One’s mental capacity is best determined by his spoken words, his acts and conduct. They are always relevant evidence for that purpose. The court was of opinion that much of the evidence offered on the respondent’s behalf should be excluded because he was thereby making testimony for himself. He had a right to make all the testimony he could for himself. If he had been called as a witness in this proceeding he could have made testimony for himself, and those who came in contact with him at or near or after the time of his commitment to the hospital should have been permitted to tell of his conversation with them and his acts and conduct which tended to show that he was capable of taking care of his property and was not liable to dissipate or lose the same or to become the victim of designing persons; just as the petitioner, or plaintiff in the issue, had been permitted to bring witnesses who testified as to his conversation, acts and conduct which led them to think he was incapable of taking care of his property”. — 479 — In Myers Estate, 395 Pa. 459, 467, our Supreme Court endorsed the above quotation from the opinion of President Judge Keller- with this preface: “By far the most significant evidence of record is Dr. Myers’ own testimony”. To the same effect is Denner v. Beyer, 352 Pa. 386, 395. In Myers our Supreme Court reiterated what has been said judicially time after time that a statute to adjudicate incompetency and appoint a guardian for a man’s estate is “a dangerous statute easily capable of abuse”. And further, pp. 462-3: “Proof of mental incompetency must possess such strength and clarity as to lead incontestably to but one conclusion, to wit, that respondent is mentally incompetent. A finding of mental incompetency is not to be sustained simply if there is any evidence of such incompetency but only where the evidence is preponderating and points unerringly to mental incom-petency. If the finding of mental incompetency is not based on evidence of such quality then such finding amounts to an abuse of judicial discretion”. The very purpose of incompetency proceedings is “preventive and protective in nature”: Sigel Estate, 169 Pa. Superior Ct. 425, 429. The decree of the court should be “preventative and protective in the best interests of the petitioner”: Nagle Estate, 418 Pa. 170, 172; and when once entered, the court becomes “the real guardian of the incompetent”: Harris Estate, 351 Pa. 368, 383; Strecker Estate, 20 D. & C. 2d 652. The protective purpose of the Incompetents’ Estates Act of 1955, P. L. 794, was emphasized by the legislature in designating the widest range of permissible petitioners. Section 301 provides, inter alia, that: “. . . The petitioner may be the alleged incompetent’s spouse, a relative, a creditor, a debtor, or any person interested in the alleged incompetent’s welfare”. Only a deep and abiding concern for the welfare — 480 — of the alleged incompetent would warrant such a comprehensive list of authorized complainants. The very criterion of the statute — “interested in the alleged incompetent’s welfare” — wholly negates any personal interest or right of petitioner. Construing this section our court has ruled that it is proper for a lawyer acting in good conscience and when necessity dictates to file a petition against his long standing client: Riley Estate, 11 D. & C. 2d 399. And our Supreme Court has ruled that there is no conflict of interest when a lawyer, who has represented a respondent for years as his attorney-in-fact, and as his attorney, files a petition against his client on behalf of a relative, or testifies against the client in an incompetency proceeding; but he should not act in both capacities in the same proceeding: Coulter Estate, 406 Pa. 402, 409. While a proceeding under the Incompetents’ Estates Act in its inception involves a personal attack upon the respondent’s freedom to control his own property, it is axiomatic that there would be no proceeding in the absence of an estate. Once the court has made an adjudication of incompetency, respondent becomes the ward of the court and a guardian is appointed to take possession and control of his property. From then on the proceedings are. in rem, until such time as a petition to remove the incompetency is filed, when the matter will again assume the character of an action in personam. It is a general rule both at common law and in equity that a plaintiff may not discontinue an action without the sanction of the court, express or implied: Cross’ Estate, 309 Pa. 418, 422. In like vein we hold that respondent’s motion to dismiss the present lis pendens requires the exercise of this court’s discretion. In the instant matter the learned hearing judge refused a motion for dismissal of the petition by Mr. Mulligan’s counsel, stating (T. 175) : “There is no nonsuit in this court”. In Axe Estate, 34 D. & C. 2d 625, 629, — 481 — the writer of this opinion faced a similar situation after Burney Axe, the respondent, had finished his testimony. Counsel for petitioner quickly followed respondent’s motion to dismiss by request for leave of court to withdraw his petition and discontinue the proceeding. Brushing aside the technicality as to whether respondent had testified as a witness for either side, or should be considered by the court as in some other category, we said, page 630 of 34 D. & C. 2d: “In passing on the effect of counsel’s formal motions, the court must not lose sight of the fact that regardless of the subsurface contest being waged by respondent’s next of kin, the act under which this proceeding was brought is primarily a protective one and the welfare of the respondent is paramount”. In this spirit we proceeded to consider the whole record in Axe, make fact findings, draw conclusions of law, and thus dispose of the case on its merits. This, Mr. Axe was entitled to, and the court owes just as much to Mr. Mulligan, the respondent here. If he is to continue in charge of his large business, no cloud should hang over him. If, on the other hand, he needs the protection of this court, we are well able to supply it. With this concept of our responsibility to this elderly respondent we hold that the present motion of his counsel to dismiss should be denied. It does not follow that Mrs. Hagar’s executor has any right to pursue the incompetency proceeding, however. On the contrary, we expressly hold that her rights as petitioner (whatever they were) abated with her death and did not survive to her estate. The matter should be referred back to the learned hearing judge in order that he may give such deliberate and judicious consideration to the case as is required for its proper conclusion. The proceeding should be terminated at a further hearing, or hearings, at which a formal finding of competency or incompetency should be made. Since a — 482 — further hearing may also involve the imposition of costs, Mrs. Hagar’s executor is entitled to notice. March 20, 1969. In accordance with the long standing practice of this court, costs will abide the event: 2 Hunter, Orphans’ Court Commonplace Book (2d ed.) Costs, p. 10, §1. Accordingly, we enter the following Decree And now, this March 20, 1969, the preliminary objection of petitioner’s executor, that there is no legal basis to sustain respondent’s motion to dismiss is sustained, the other objections are overruled, and the matter is referred back to the learned hearing judge for further proceedings consistent with the views expressed in the forgoing opinion. Concurring Opinion