Perry v. Perry

• Decision Date: 10 May 1940
• Docket Number: 16416.
• Citation: 27 N.E.2d 133,108 Ind.App. 93
• Parties: PERRY v. PERRY.
• Court: Indiana Appellate Court

27 N.E.2d 133

108 Ind.App. 93

PERRY v. PERRY.

No. 16416.

Appellate Court of Indiana, in Banc.

May 10, 1940

Charles Mendenhall, of Indianapolis, for appellant.

L Russell Newgent, of Indianapolis, for appellee.

DUDINE Judge.

This is an appeal from a judgment declaring appellant incapable of managing his estate because of old age and infirmity and decreeing that a guardian be appointed to take charge of his estate.

The issues were formed by a complaint which was filed by appellee, son of appellant, and an answer in general denial filed by appellant. The cause was submitted to a jury for trial and resulted in a verdict that appellant "* * * is old and infirm and is unable to manage his estate and business by reason thereof." Judgment was entered upon the verdict and in accordance therewith, as we have stated above.

The sole error assigned upon appeal is claimed error in overruling a motion for new trial which was duly filed by appellant.

Appellant contends that the verdict is not sustained by sufficient evidence and, in support of such contention, appellant asserts that the evidence "only showed the defendant to be of old age, therefore (the evidence was) insufficient to warrant the appointment of a guardian." Appellant cites Harvey v. Rodger, 1924, 84 Ind.App. 409, 143 N.E. 8 14.

This court said in that case "old age or infirmity alone is not sufficient to warrant such appointment [of a guardian under Sec. 3442 et seq., Burns' 1914, Sec. 8-301 et seq. Burns' 1933, Sec. 3472 et seq., Baldwin's 1934]. It must be such as renders the person 'incapable of managing his estate or business affairs."'

The evidence in the record as to appellant's ability to manage his estate or business affairs is conflicting. There is, however, evidence in the record which shows that appellant is eighty-five years old; that he owned two pieces of real estate in fee simple and a life estate in a third piece of real estate; that houses are situated upon each of said tracts and each of them had been rented almost continuously for several years before the trial of this cause; that during that period of time appellant had an average monthly rental income of about $65 from said properties; that he lived alone and it did not cost him more than $5 per week to live; that he did not have a bank account but kept his money in his pocket. The evidence further shows that appellant borrowed money with which to purchase one of the pieces of real estate in 1937, and that in February 1939, when the trial was had, he did not know how much he had borrowed or how much he had paid on the loan. Appellant testified that he had collected part of a $750 note due him. When he was asked how much he had collected on the note appellant answered, "Well, just what he (the debtor) gives me. I keep what he gives me." When asked further "well, when did he (the debtor) give you any money on it" appellant answered, "Oh, a couple of years ago."

Said evidence,...