Ziegler v. Bark

Cassoday, O. J. 1. It is claimed by the respondents that the county court never obtained jurisdiction to appoint a guardian, for the reason that the petition therefor failed to state the names of the persons who would be affected by such appointment, and because it failed to show with whom the alleged incompetent resided, and who was in the possession of her property. The statute required the verified petition to be made by a relative or friend of the alleged incompetent, and to state the fact of such incompetency. Sec. 3976, Stats. 1898. Here it was made by a daughter of the alleged incompetent. The petition is quite general in its statement of facts, but seems to comply with the provisions of that section. Appeal of Royston, 53 Wis. 612, 617, 618, 11 N. W. [540] 36. In that case it was said to be the better practice for the petition to state the name of the person with whom, if any one, the supposed incompetent is living; who are his relatives, if any; what his estate consists of, and who has charge of it — so that the county court may act with full knowledge of those interested in the welfare of the incompetent and his estate, and may cause notice to be given to them of the application, if it shall deem such notice necessary or proper. But in that case the court refrained from holding “that a petition which fails to contain these matters is not sufficient, under the statute, to give the court jurisdiction to proceed in the matter.” Id. The only object of stating in the petition the facts said to have been omitted would be to inform the court of the names of such persons, so that by notification their presence could be secured at the hearing. Here it appears from the record that James J., the son of Eleanor, and the person with whom she resided at the time, and who claimed to be in the lawful possession of all the property belonging to Eleanor, appeared in the county court at such hearing, and moved to dismiss the proceeding for want of jurisdiction. A more complete petition could not have secured a more full hearing. It is also claimed by the respondents that no jurisdiction was obtained by the county court, because service was never made on the alleged incompetent as required by the order,' and because the order failed to require personal service upon the person having control of her person and property, and her children, and because no such service was ever made, and because the order did not require that the alleged incompetent, if able, attend before the court at the hearing. The statute cited required the county court to “cause a notice to be given to the supposed insane or incompetent person of the time and place of hearing the case, not less than twenty days before the time so appointed, and shall also cause such person, if able to attend, to be produced before him on the hearing.” Sec. 3976, Stats. 1898. Here it appears from the [541] record that, on tbe day the petition was so filed in the county court, that court did malee an order fixing the time and place of the hearing, as so required by the statute; and it was therein further ordered that notice thereof be given to Eleanor Bark by personal service upon her of a copy of that order at least twenty days before such hearing, and to all oilier persons interested by publishing a notice of the order for three successive weeks prior to the day of the hearing in a newspaper therein designated. The proof in the record is that such personal sendee of such copy was made on Eleanor November 7, 1901, and on the same day Eleanor, signed a written admission of such service. The affidavit of the printer of the newspaper so designated, in the record, shows that notice of such hearing was published in such newspaper for three weeks successively, commencing November 7, 1901. It moreover appears from the findings of the county court that Eleanor Bark was personally present in court during such hearing. The requirements of the statute seem to have been fully complied with, and we perceive no ground for holding that the county court was without jurisdiction. 2. Counsel for the appellant contends that the county court was without authority to appoint W. J. Brennan guardian ad litem for Eleanor December 3, 1901, and that the appeals from the order and judgment of the county court taken by bim and James J. were together insufficient to give the circuit court jurisdiction. A rule of the county court provides that “infants, insane persons and other persons under disability, shall appear and prosecute and defend by their guardians ad litem who shall be some such attorney, or by their general guardians.” County Court Rule III, sec. 1. If Eleanor was at the time under disability, as adjudged by the county court, then a guardian ad litem was properly appointed. As said by Mr. Justice Tatlob in the case cited: “We can see no reason why a man who is proceeded against as an insane or incompetent person, under the statute, is not the proper person to defend against the proceeding; and, [542] until be is finally adjudged to be insane or incompetent, be may appear by bis attorney, as any other person,” Appeal of Royston, 53 Wis. 612, 625, 11 N. W. 36, 41. Here tbe notice of appeal given by sneb guardian ad litem recites bis appointment, and “that said Eleanor Baric is aggrieved by tbe order and judgment made by tbe said county court in said matter, . . . and that sbe desires to appeal therefrom, and, being himself aggrieved at said order and judgment, hereby appeals therefrom to tbe circuit court for said county.” We are constrained to bold that tbe appeal so taken was effectual to give tbe circuit court jurisdiction. Besides, there can be no question but what James J. was aggrieved by such order and judgment, because it gave to tbe guardian so appointed tbe right to- contest tbe claim which James J. made to tbe property which be held by virtue of an assignment and transfer from bis mother. Such being tbe fact, there seems to te no doubt of tbe right of James J. to appeal from such order and judgment to tbe circuit court, as be did. Sec. 4031, Stats. 1898. 3. This brings us to tbe merits of tbe controversy. Tbe conclusions reached by tbe circuit court were manifestly based upon tbe findings that tbe agreement made by and between Eleanor and James J. April 10, 1901, was a valid and binding contract between tbe parties thereto; that by that instrument Eleanor bad transferred and conveyed all of her property, real and personal, to J ames J., who bad taken and held possession thereof ever since. If that agreement is a valid and binding contract between tbe parties thereto, and such transfer and conveyance is conclusive as against Eleanor, then it is very obvious that sbe would have nothing left, except an agreement for support, which might not necessitate the appointment of a guardian of her estate so long as sbe was kindly treated and properly supported. But bad tbe circuit court authority in this proceeding to prejudge tbe validity and binding effect of that contract, and tbe conclusiveness of such transfer and conveyance? We are forced [543] to the conclusion that that court had no such authority. On the contrary, some days before the petition was filed for the appointment of such guardian, Eleanor had commenced an action in her own name against J ames J. to hare that agreement set aside on the ground that the same had heen procured hy undue influence. Eor aught that appears, that action is still pending and undetermined. The mental condition of Eleanor did not prevent her from commencing that action in her own name. Menz v. Beebe, 95 Wis. 383, 70 N. W. 468. The day before commencing that action, Eleanor filed a large claim against the estate of her son John H. That claim involved the inquiry whether the agreement made October 19, 1896, between Eleanor and her eleven children, including John H., had heen performed. That agreement is referred to as the basis of the agreement of April 10, 1901. The question here is not whether such •claims or those agreements, or either of them, are valid and .binding upon the parties, hut whether Eleanor, “hy reason of extreme old age or other cause, is mentally incompetent to have the charge and management of her property” in the condition described, within the meaning of the statute. Sec. 3976, Stats. 1898. This section has recently heen construed hy this court, and repetition is unnecessary. In re Streiff, 119 Wis. 566, 97 N. W. 189; Schramek v. Shepeck, 120 Wis. 643, 98 N. W. 213. The claims and rights of action thus made hy Eleahor, or in her behalf, may be without foundation; hut we have no right to assume that they are unfounded, on this application for the appointment of a guardian. We must hold that the finding of the circuit court that Eleanor was mentally competent to have the management of her property is against the clear preponderance of the evidence. By the Court. — The order and judgment of the circuit court is reversed, and the cause is remanded with direction to affirm the order and judgment of the county court.