184 N.E.2d 386 (Ohio 1962), 37197, In re Guardianship of Breece

Docket Nº:37197.
Citation:184 N.E.2d 386, 173 Ohio St. 542
Opinion Judge:BRYANT, J.
Party Name:In re GUARDIANSHIP OF BREECE.
Attorney:Rittenour & Rittenour and Bannon, Howland, McCurdy & Dever, Portsmouth, for appellant, Nellie B. Breece. Messrs. Rittenour & Rittenour and Messrs. Bannon, Howland, McCurdy & Dever, for appellant, Nellie B. Breece. Mr. J. F. Cutright, for appelle J. F. Cutright, guardian of the person of nellie B....
Judge Panel:WEYGANDT, C. J., and ZIMMERMAN, TAFT, MATTHIAS, BELL and O'NEILL, JJ., concur.
Case Date:July 11, 1962
Court:Supreme Court of Ohio
 
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Page 386

184 N.E.2d 386 (Ohio 1962)

173 Ohio St. 542

In re GUARDIANSHIP OF BREECE.

No. 37197.

Supreme Court of Ohio.

July 11, 1962

Page 387

Syllabus by the Court

1. A proceeding to terminate the guardianship of an incompetent is governed by the provisions of Section 2111.47, Revised Code, which place upon the ward the duty of producing 'satisfactory proof that the necessity for the guardianship no longer exists.'

2. The sole issue before the court in a proceeding to terminate the guardianship of an incompetent is whether the ward has [173 Ohio St. 543] presented 'satisfactory proof that the necessity for the guardianship no longer exists,' and, where such 'satisfactory proof' is presented, the court is under a mandatory duty to terminate the guardianship.

3. The presumption that a person adjudicated an incompetent continues to be incompetent is rebuttable, and will not prevail where, in a proceeding pursuant to Section 2111.47, Revised Code, to terminate the guardianship of an incompetent, there is substantial and overwhelming evidence that the necessity for the guardianship no longer exists.

An application for the appointment of guardians of the person and the estate of Mrs. Nellie B. Breece of Chillicothe, Ohio, an 83-year ole widow, was filed in the Probate Court of Ross county and, after service of notice, came on for hearing before the Probate Court on April 4, 1960. At this hearing, hereinafter called the appointment hearing, several witnesses testified, and the Probate Court, on April 6, 1960, entered an order finding that Mrs. Breece 'by reason of advanced age, mental and physical infirmity' was 'incompetent and incapable of taking proper care of herself and her property.' In the same order, the Probate Court appointed a guardian of the person and a corporate guardian of the estate of Mrs. Breece.

Mrs. Breece lived alone in the family residence dence in Chillicothe, suffered from malnutrition, weighed only 97 pounds and also suffered from arteriosclerosis. There was also testimony at the appointment hearing by Dr. Edwin H. Artman that Mrs. Breece at the time was suffering from senile dementia, and that she was then incompetent.

Mrs. Breece, in March 1960, fell and broke her right wrist, after which she was admitted to the Chillicothe Hospital for treatment. During the early part of April 1960, the guardian of the person of Mrs. Breece contracted with Mr. and Mrs. Marvin Stulley of Waverly, Ohio, to have Mrs. Breece taken to the Stulley home where for a consideration of $20 a day she [173 Ohio St. 544] was to receive room, board, supervision and attention to her needs.

Mrs. Breece was not informed by the Stulleys that she was under guardianship. She recovered from the broken wrist and regained the use of the right arm. After residing for approximately six months in the Stulley home, she weighed 125 or 126 pounds, a gain of 28 or 29 pounds.

Mrs. Breece displayed an interest in securities owned by her, valued in the guardian's inventory at $742,745.82, and on either two or three occasions at her request visited the office of the guardian of her estate in Columbus, Ohio, asking for and obtaining a list of such securities. She also made inquiry concerning her jewelry, particularly a ring containing a diamond.

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On october 19, 1960, Mrs. Breece, through counsel of her own selection, filed an application to terminate the two guardianships, the application alleging 'that the necessity for the guardianship no longer exists and that she has been and now is capable of taking proper care of herself and of her property.'

On October 31, 1960, the Probate Court conducted a hearing on the application to terminate the two guardianships. This hearing, hereinafter called the termination hearing, was attended by Mrs. Breece, her counsel, the guardian of the person as counsel for himself, and counsel for the guardian of the estate.

On behalf of Mrs. Breece, four witnesses were called and examined including three physicians engaged in the general practice of medicine and Marvin Stulley. On behalf of the guardians, one witness was called, being the trust officer of the corporate guardian of the estate of Mrs. Breece. Counsel for Mrs. Breece requested the court to make separte findings of fact and conclusions of law.

On January 9, 1961, the Probate Court denied the application to terminate the guardianships, and that judgment, after being entered upon the journal of the court, was appealed from to the Court of Appeals for Ross County, where it was affirmed. A motion for an order requiring the Court of Appeals to certify the record was filed in this court and, after argument, was allowed. The appeal of Mrs. Breece is now before this court upon the errors assigned on her behalf, together with the record, transcript, original papers, briefs and arguments of counsel. [173 Ohio St. 545]

Rittenour & Rittenour and Bannon, Howland, McCurdy & Dever, Portsmouth, for appellant, Nellie B. Breece.

J. F. Cutright, Chillicothe, for appellee J. F. Cutright, guardian of the person of Nellie B. Breece.

John S. Phillips, Chillicothe, for appellee The Huntington National Bank, guardian of the estate of Nellie B. Breece.

BRYANT, Judge.

On behalf of Mrs. Breece, three errors are assigned, the third relating to the changes alleged to have been made in the final entry in the Probate Court to correct a clerical mistake. Counsel for Mrs. Breece make no reference to this error in the brief filed on her behalf, from which we are forced to conclude that this claimed error has been abandoned by her, and it will accordingly be overruled without further discussion herein.

The first error assigned is in substance that the Court of Appeals erred in affirming the judgment of the Probate Court of Ross County for the reason that such judgment allegedly is 'contrary to law, there being no evidence or insufficient evidence to sustain the judgment * * * the state of the evidence being such that reasonable minds could reach but one conclusion.' The second error assigned is in substance that the Court of Appeals erred in affirming the judgment of the Probate Court of Ross County for the reason that the court allegedly held 'that the presumption of continuing incompetency of appellant can be weighed as evidence as against substantial credible evidence introduced regarding the competency of appellant.'

We shall consider the two claimed errors together. It must be borne in mind that this court is under no duty to weigh the evidence, but that it will in a proper case examine the record to determine the presence or absence of any credible evidence on material questions.

The proceedings in the Probate Court with reference to Mrs. Breece were governed by Chapter 2111 of the Revised Code, relating to guardians. The first section in that chapter, Section 2111.01, in paragraph (D) and the paragraphs immediately following,

Page 389

provide separte and distinct difinitions of the words, 'incompetent,' 'habitual drunkard,' 'idiot,' 'imbecile,' 'insane,' 'lunatic,' and 'confined person.' It is clear in this case that all the proceedings involved solely the determination [173 Ohio St. 546] of the question whether Mrs. Breece is competent or incompetent. The definition of an incompetent, therefore, is pertinent. Section 2111.01 (D), as in effect at the time of these proceedings, read as follows:

'(D) 'Incompetent' means any person who by reason of advanced age, improvidence, or mental or physical disability or infirmity, is incapable of taking proper care of himself or his property or fails to provide for his family or for other persons for whom he is charged by law to provide.'

As above indicated, the Probate Court on April 6, 1960, following the appointment hearing, made a finding and determination that Mrs. Breece 'by reason of advanced age, mental and physical infirmity' was at that time 'incompetent and incapable of taking proper care of herself and her property.'

The proceedings to terminate the guardianships, restore Mrs. Breece to competency and return to her the control of her property were governed by the provisions of Section 2111.47, Revised Code, and placed upon the ward the duty of producing 'satisfactory proof that the necessity for the guardianship no longer exists.' When such proof is furnished, the court is under a mandatory duty to terminate the guardianships. Section 2111.47, as in effect at the time of these proceedings, provided, in part, as follows:

'Upon reasonable notice to the guardian and to the person on whose application the appointment was made, and upon satisfactory proof that the necessity for the guardianship no longer exists or that the letters of appointment were improperly issued, the probate court shall order that the guardianship of an incompetent, habitual drunkard, idiot, imbecile Lunatic, or confined person terminate and shall make an appropriate entry upon the journal. Thereupon the guardianship shall cease * * *.' (Emphasis added.)

Counsel for Mrs. Breece have specifically stated that they make no issue whatsoever concerning the propriety of the original appointments under the order dated April 6, 1960, and it is clear that the sole issue before the Probate Court by virtue of the application of October 19, 1960, to terminate the guardianships, considering the evidence offered at the termination hearing on October 31, 1960, was whether at such hearing there [173 Ohio St. 547] was presented to the court 'satisfactory proof that the necessity for the guardianship no longer exists.'

In view of the assertion on behalf of Mrs. Breece that the judgment of the Probate Court is contrary to law, and that allegedly there was 'no evidence' to support such judgment or, in any event, evidence which was so 'insufficient'...

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