Palmer v. Wolf

• Decision Date: 16 December 1916
• Docket Number: 31092
• Parties: ISABELLE PALMER, Appellee, v. ROSINA WOLF, Appellant
• Court: Iowa Supreme Court

160 N.W. 285

178 Iowa 932

ISABELLE PALMER, Appellee, v. ROSINA WOLF, Appellant

No. 31092

Supreme Court of Iowa, Des Moines

December 16, 1916

Appeal from Linn District Court.--F. O. ELLISON, Judge.

THIS was an application by plaintiff for the appointment of a guardian of the property of defendant. There was a trial to a jury, and a finding by it that defendant was incompetent to care for her business, and a guardian was appointed. From such appointment, the defendant appealed. Since the appeal the ward has died, and the plaintiff has filed a motion to dismiss the appeal, on the ground that, under the circumstances shown, there is now only a moot question for determination. The motion to dismiss is sustained, but without prejudice.--Motion Sustained.

Motion to dismiss sustained, without prejudice.

L. M Kratz, for appellant.

Crosby & Fordyce, for appellee.

PRESTON J. EVANS, C. J., DEEMER and WEAVER, JJ., concur.

OPINION

PRESTON, J.--

1. The motion to dismiss was submitted with the case. Plaintiff is a daughter of the defendant's. There are other children. Appellant earnestly challenges the sufficiency of the evidence to sustain the finding of the jury that the defendant was incompetent. Ordinarily, this would be a question for the jury. For the reason to be stated later in the opinion, we may not determine this question. We may say, however, that we have examined the record. The evidence introduced by plaintiff is not at all strong or conclusive. The defendant was 94 years of age at the time of the trial. Her deceased husband had always looked after his business. Defendant had not come into her share of her husband's estate. It is undoubtedly true, from her evidence and that of other witnesses, that she was not accustomed to transact business, and her evidence shows that she was not acquainted with the details of her own affairs. Her testimony, however, in the main is remarkably clear, for a woman of her age. It occurs to us that the fact that the defendant was not accustomed to transacting business, and a series of questions propounded to defendant as a witness, were quite persuasive in the minds of the jury that a guardian ought to be appointed. We shall set out a few questions and the answers of defendant:

"Q. Now do you feel if some good, honest, straight forward man to look after the property and investments for you, and give you the proceeds of it--would that be all right? Some good, honest,--any good man? A. Well, I don't know yet. I won't do anything. I say Andy can look after it for me. Q. Mrs. Wolf, do you not feel now that you ought to have some good, honest man to look after your property and help you keep it intact, together, so it would not be wasted and lost? A. Yes, but I wouldn't be willing to do that yet. I don't feel able to manage it myself. Mr. Wolf always managed things himself. Q. Suppose Judge Ellison should pick some good man in Cedar Rapids, a nice man, some man you know of, a good business man, who could give bonds for more than the property is worth,--some man like that, so you would be safe and secure,--would you be satisfied to let such a man look after your affairs? A. I would think it over. I can think it over. Q. Suppose a man that Judge Ellison would select would put up a bond for double the amount of the property likely to come into his hands for you, to protect you and secure you against any loss, Mrs. Wolf, wouldn't you be satisfied to have such a man? A. I don't know; I can think it over, you know."

She finally answered that she would be willing that some good man be appointed, and that she would feel satisfied to allow Judge Ellison, the man who sits on the bench, to select a man for her.

Though it be conceded that defendant was not competent to personally look after her affairs, still, if she was mentally competent to appoint an agent, she could do that, and the agent could look after her property and help her keep it intact, so it would not be wasted and lost. But, as stated, we may not determine the merits of the case.

2. It is contended by appellee that the appeal should be dismissed, because the death of the ward has terminated the guardianship and the appeal must be ineffectual, citing Faucher v. Grass, 60 Iowa 505, 15 N.W. 302; Bethany Congregational Church v. Morse, 151 Iowa 521, 132 N.W. 14; Horrabin v. City of Iowa City, 160 Iowa 650, 130 N.W. 150; 4 C. J., page 578, Sec. 2386, and page 584, Sec. 2396.

It appears that defendant made a will after a guardian was appointed, and...