Keiser v. Keiser

• Decision Date: 12 June 1925
• Docket Number: 24072
• Parties: HARRY KEISER, APPELLEE, v. LEVI KEISER, APPELLANT
• Court: Nebraska Supreme Court

204 N.W. 394

113 Neb. 645

HARRY KEISER, APPELLEE, v. LEVI KEISER, APPELLANT

No. 24072

Supreme Court of Nebraska

June 12, 1925

APPEAL from the district court for Saunders county: FREDERICK E SHEPHERD, JUDGE. Modified and remanded.

MODIFIED AND REMANDED.

Morgan & Strehlow, Slama & Donato and Thomas, Vail & Stoner, for appellant.

J. C Bryant, J. H. Barry and H. A. Bryant, contra.

Heard before MORRISSEY, C. J., ROSE, GOOD and EVANS, JJ., and REDICK, District Judge.

OPINION

EVANS, J.

Harry Keiser, son of Levi Keiser, filed in the county court of Saunders county a petition, alleging that Levi Keiser, his father, was 79 years of age, and the owner of notes and securities in the sum of $ 40,000; that the parent, Levi Keiser, had fallen into the hands of a designing woman; that by reason of extreme old age and other causes Levi Keiser was mentally incompetent to have charge of his estate or manage his property, and that he was wasting his estate, and if permitted to so continue would be reduced to want and will become a county charge; and the petitioner prayed that a guardian be appointed over his estate. Notice of the time and place of the hearing on the petition was served upon Levi Keiser and hearing had on February 15, 1925. A general demurrer was filed to paragraphs No. 4 and No. 5 of the petition, which was overruled. On February 19, 1925, after a hearing, Levi Keiser was found by the county judge to be mentally incompetent, and Eli Keiser, his brother, was appointed guardian of the person and estate of Levi Keiser. From this order and judgment of the county court, Levi Keiser appealed to the district court, and said cause was tried in the district court, the petition filed therein alleging substantially the same facts as that filed in the court below. The appellant demurred to the fourth, fifth and sixth paragraphs of the petition. The demurrer was overruled and the case was tried to the court without the intervention of a jury. The court found:

"That by reason of extreme age, or other causes, the said Levi Keiser is incompetent and unable to care for his person or to have charge or control of his property and estate, and that it is for the best interests of all concerned that a guardian be appointed for the purpose of caring for the person and property and estate of said Levi Keiser.

"The court further finds that the guardian, heretofore appointed by the county court, was properly appointed, and that the decision of said county court and the appointment of said guardian ought to be approved by this court.

"It is therefore ordered, adjudged and decreed that the decision and appointment of the said county court of Saunders county, Nebraska, be, and the same hereby is, approved, and the said Eli Keiser is appointed guardian of the person and property and estate of the said Levi Keiser.

"It is further ordered and decreed that said guardian be, and he hereby is, ordered and directed not to remove the said Levi Keiser from the county of Saunders, nor from his home therein, nor to restrain him of his personal liberty, until the further order of the court."

From this judgment Levi Keiser has appealed to this court.

The first question presented for consideration is the overruling of appellant's demurrer to the petition, which ruling is assigned as error. The assignment seems to be based upon two propositions: (a) That the petition should be presented by the peace officer of the county; (b) that facts sufficient to give the court jurisdiction are not alleged in the petition. The petition is presented by Harry Keiser, and alleges that he is a son of Levi Keiser, the alleged incompetent, and, within the terms of the statute, a relative; that the family of Levi Keiser consists of the petitioner and a sister. The court is thus advised as to the family and relatives of the alleged incompetent. It is not necessary that all of the relatives join in the petition, as the case, Prante v. Lompe, 77 Neb. 377, 109 N.W. 496, clearly recognizes the right of the next of kin to resist in such an action; and to hold that all must join in the petition would result in closing the court in many meritorious cases to a proper petition setting forth a well-founded case.

The appellant also claims that, because of the allegation that Levi Keiser is wasting his estate, an officer in charge of the poor should have filed the petition. This contention as made is unsupported by either authorities or reason. The son filed the petition and in it set forth the persons constituting the family of the alleged incompetent. The provision of the statute as to a spendthrift is that the proper officer "of a county of which such spendthrift is an inhabitant may present a complaint." The petition is not vulnerable, therefore, to a demurrer because of the person by whom the petition is presented.

Our statute is almost identical with the Michigan statute, and the construction of the supreme court of that state may be examined as touching the allegations necessary thereunder, and hence under the statute of this state.

In In re Bassett, 68 Mich. 348, 36 N.W. 97, while other questions are presented and decided, the precise question raised by this demurrer is considered and decided. It is there held that a petition praying for appointment of a guardian for one not of sound mind, alleging that he was mentally incompetent to have the care and management of his property, was sufficient. The allegation of the petition in this case is "that Levi Keiser, by reason of extreme old age or other cause or causes, is mentally incompetent to have charge and management of his property." This allegation is sufficient and is aided by other allegations equivalent thereto. The petition is sufficient and there was no error in overruling the demurrers.

It is urged by the appellant that the fact that Levi Keiser is 79 years old is no evidence that he is mentally incompetent to transact his ordinary business affairs. He also insists that the fact that Levi Keiser loaned money to Mrs. Buell under the circumstances and conditions present in this case is not evidence of incompetency. It may be conceded that, were there no other evidence of incompetency than the age of Mr. Keiser and the loan to Mrs. Buell, it would not support a finding of mental incapacity, but the record is not so lacking or circumscribed.

Old age and failure of memory do not, of themselves, establish incompetency to care for ordinary business affairs. Speer v. Speer, 146 Iowa 6, 123 N.W. 176. The fact that a man is 79 years old, and, by reason of his feeble condition, has not sufficient strength of mind to manage his business with ordinary care and prudence, does not warrant the appointment of a guardian under the provisions of section 1590, Comp St. 1922, which provides for the appointment of a guardian of the property for a person of unsound mind.

No set rule can be enunciated which will be a safe criterion in all cases. It is not sufficient that incompetency alone is established, for it may well be, even where incompetency...