Fish v. Deaver
| Decision Date | 19 November 1918 |
| Docket Number | 9472. |
| Citation | 176 P. 251,71 Okla. 177,1918 OK 646 |
| Parties | FISH v. DEAVER. In re FISH'S GUARDIANSHIP. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The descriptive words "mentally incompetent," "incompetent," and "incapable," as used in sections 6538 and 6539, Rev. Laws 1910, mean any person who, though not insane, is, by reason of old age, disease weakness of mind, or from any other cause, unable or incapable, unassisted, of properly taking care of himself or managing his property, and by reason thereof would be likely to be deceived or imposed upon by artful or designing persons.
[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Incapable; Incompetent; Mentally Incompetent.]
Mental incompetency or incapacity is established when there is found to exist an essential privation of the reasoning faculties or where a person is incapable of understanding and acting with discretion in the ordinary affairs of life.
[Ed. Note.-For other definitions, see Words and Phrases, Second Series, Mental Incapacity; First and Second Series, Mentally Incompetent.]
Where it is not shown that such mental incompetency or incapacity exists (as in the case at bar), it is reversible error for the county court to appoint a guardian of the estate of an adult person.
Error from District Court, Ottawa County; Preston S. Davis, Judge.
From an order of the district court affirming the judgment of the county court of Ottawa county declaring Joseph P. Fish an incompetent, and appointing Ira C. Deaver guardian of his person and estate, Joseph P. Fish brings error. Reversed and remanded, with directions.
J. W. Swarts and A. Scott Thompson, both of Miami, for plaintiff in error.
E. C. Fitzgerald, of Miami, for defendant in error.
The principal question presented for our consideration is the sufficiency of the evidence to sustain the judgment of the trial court declaring Joseph P. Fish to be an incompetent person, and in appointing a guardian of his person and estate. The record of the proceedings had in the trial court is voluminous, and it would serve no useful purpose to set out at length even the substance of the testimony of the many witnesses. Briefly, the proceedings to declare Fish an incompetent were had on the petition of Ira C. Deaver, superintendent of the Quapaw Indian agency at Wyandotte. At the trial Deaver, E. C. Fitzgerald, United States probate attorney, and J. P. McNaughton testified on behalf of the petitioner, while 11 witnesses gave testimony as to the competency of Fish to manage his property. It appears that Joseph's father, Leander J. Fish, though a Shawnee Indian by blood, because of his adoption as a Quapaw was enrolled as a Quapaw citizen and allotted land in the Quapaw Indian reservation. His son Joseph, though of Indian blood, was not enrolled by the government either as a Shawnee or a Quapaw Indian. Leander J. Fish died February 21, 1914, and his allotment, because of the discovery of lead and zinc ore thereon, has since his death become very valuable. During his lifetime Leander J. Fish executed to one W. M. Smith a mineral lease on allotment which provided for the payment of a 5 per cent. royalty. The validity of the lease, or at least of a portion thereof, being in controversy, Joseph P. Fish and wife on February 7, 1916, executed to Smith a new lease for a term of seven years, or for the unexpired period covered by the original lease, and which also provided for the payment of a 5 per cent. royalty. Subsequent to the making of the original lease Smith had subleased a part of the demised premises to the Church-Mabon Mining Company, who had expended in development work thereon a sum exceeding $50,000. The lands sublet to the mining company were the lands included in the lease made by Joseph after he had attained his majority. When the first lease was made the Fish allotment was, in mining vernacular, "wild-cat" territory. Due to subsequent development work, large deposits of rich lead and zinc ore were discovered on the lands included in the 40-acre tract covered by the new lease, and at the time of the trial in the district court the value of this lease (known as the Montreal Mines) was said to be not less than $1,000,000. Leander J. Fish, it appears, was an improvident person, and at the time of his death was heavily in debt and his estate more or less incumbered. Smith had on numerous occasions given Leander J. Fish financial aid, and after his death assisted Joseph in a financial way.
As a result of these benefactions, and the fact that Smith, through his sublessee, had caused large sums of money to be expended in the exploration and development of the lands for minerals, Joseph, to remove any existing doubt as to the validity of the lease executed by his father, gave the lease of February 7, 1916. In the situation of the property on the latter date, it commanded better than a 5 per cent. royalty; in fact, Joseph had refused to make the witness McNaughton a lease providing for a 10 per cent. royalty and a cash bonus of $1,000. It is due principally to the fact that Young Fish respected the lease made by his father under the circumstances detailed that it is claimed he is an incompetent person and mentally unfitted to manage his property.
We have examined the evidence in the record with care, and notwithstanding the judgment of the trial court, have reached the conclusion that Joseph P. Fish, instead of being mentally incompetent to manage his property, is a young man far above the average in intellect, travel, experience, and business acumen. It appears that Joseph received a common-school education at Wyandotte and Washington, D. C., where, with his father, he spent a large part of his boyhood days. While in school he sold papers after school hours, drove a delivery wagon, worked in a department store, ran a shooting gallery, and was employed in the shipping department of the Adams Express Company, and afterwards made first assistant shipping clerk. For about six months during the years 1916 and 1917 he was in the employ of the company operating the Montreal Mines at a salary of $75 a month. Two months thereafter his salary was increased to $85 per month. His position was that of stock and weigh clerk, and his duties were to receive all inbound freight and supplies of the company and check the tickets and invoices and distribute the supplies to the miners as called for. He also had charge of weighing all ore, coal, and other material used in the mines. All settlements for supplies and ore depended upon the correctness of the checks and weights turned in by him to the bookkeeper. His accounts, as testified to by accountant and bookkeeper Couch, were always found to be correct. C. F. Dyke, manager of the Montreal Mines, testified that during the six months Fish was in the company's employ he handled supplies worth between...
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