In re the Guardianship of Coburn

In the month of February, 1908, a petition was filed by Azro A. Coburn, a resident of Massachusetts, to have Loren Coburn, his aged uncle, who resides in San Mateo county, adjudged incompetent, and to have a guardian appointed of his person and estate. The petition as amended alleges that the said Loren Coburn, by reason of old age, physical disability and weakness of mind, is unable to take care of himself and manage his property. This allegation was denied, and upon the issue so made the ease went to trial before the court without a jury.

At the conclusion of the trial the court made an order adjudging Loren Coburn incompetent and unable to take care of himself and manage his affairs, and appointing Carl J. Coburn, another nephew, guardian of his person and estate. This appeal is from the order so made and from an order denying appellant’s motion for a new trial.

It is contended that the evidence is insufficient to support the order; and in view of the conclusion we have reached that is th'e principal question that will be discussed.

It is provided in the code (Code Civ. Proc., sec. 1763) that when it is represented to the court upon a verified petition

It is evident from the provisions quoted that, in order to justify the appointment of a- guardian, the court must find the party for whom the guardian is appointed mentally incompetent to take care of himself and manage his property.

It is a fundamental principle, based upon the plainest dictates of justice, that before a person can be deprived of his liberty and his property on account of his mental incompetency, he must be brought clearly within the terms of the statute, and the evidence must show that his mind is so far 'gone and so weak and feeble that he does not realize and comprehend the value and prudent management of his property, and is not sufficiently normal to care for it in the usual acceptation of that term.

A man whose mental capacity has been such that he has outstripped the great majority of mankind in business affairs, and has accumulated much of this world’s goods, is not for light or trivial reasons, or even on account of hallucinations, to be deprived of his property and of his liberty. It must clearly appear to the court that he is mentally incompetent to manage his property; that his mind is affected to such a degree as to deprive him of sane and normal action.

It was the doctrine of the earlier cases in the English court of chancery not to deprive a person of his liberty or his property for mere imbecility of mind not amounting to idiocy or lunacy. It was not sufficient that he was weak, worn out with age and incapable of managing his estate. (Ex parte Baner-ley, 3 Atk. 168; 3 Eq. Cas. Abr. 580; Lord Donegal’s Case, 2 Yes. 407; Beaumont’s Case, 1 Whart. 52 , [ 29 Am. Dec. 33 ].) The doctrine is not now so strict as formerly, and the jurisdiction of the courts has been held to extend to some cases where the party is not an idiot or a lunatic. (In the Matter of Barker, 2 Johns. Ch. [N. Y.] 232.) It was there said by

In Woerner on American Law of Guardianship, section 113, many cases are cited, and the history of the law and the modern doctrine given. It is thus stated: “It is sufficient that hé be mentally incompetent to govern himself or te manage his own affairs, from whatever-cause th's incapacity may arise. Hence permanent mental weakness amounting te such incapacity, arising from advanced age, sickness, habitual drunkenness, or imbecility, constitutes in law ‘Unsoundness of mind’; and as such becomes tantamount in its effects te those produced by idiocy or lunacy, for such conditions all equally express mental incapacity for the government of one’s affairs. Such a person is in legal intendment non compos mentis. ... It is to be observed, however, that the unsoundness of mind which will justify the appointment of a guardian must be more than mere debility or impairment of memory -T it must be such as to deprive the person affected of ability to manage his estate. If the defendant is capable of transacting the ordinary business involved in taking care of his property, and if he understands the nature of his business and the effect of what he does, and can exercise his will with reference to such business with discretion, notwithstanding the influence of others, he is not of unsound mind within the meaning of the statute, and should not be deprived of the control of his property.”

And it has been held that the mental imbecility (in the language of the code) must be such as to make the incompetent incapable of taking care of himself and managing his property. (In re Lindsley, 44 N. J. Eq. 564 , [ 6 Am. St. Rep. 913 , 15 Atl. 1 ].)

In the Matter of Collins, 18 N.

In Re Storick, 64 Mich. 685 , [ 31 N. W. 582 ], it was said by the supreme court of Michigan, in an opinion written by the chief justice: “The statute does not say merely ‘incompetent’ but ‘mentally incompetent. ’ It does not refer to persons who are sane, but not perhaps as wise or intelligent as some other persons. It applies to those whoce mind is so affected as to have lost control of itself to such a degree as to deprive the person affected of sane and normal action. Unless the petition either follows the words of the statute, or uses language and states facts fully equivalent, it cannot give jurisdiction. This is a class of cases in which the citizen is sought to be deprived of both liberty and property; and those who seek to accomplish such a result must do so upon statements that, if true, leave no doubt that the case falls within the statute. . . . One may be so weak or crippled as to be compelled to leave his affairs in the hands of servants or agents, and is no more incompetent for that reason than a very wealthy man is who cannot possibly look after all the details of his business. Neither is there any legal standard of business wisdom. Men may be unwisely speculative or unwisely penurious, but this is not insanity. A jury of merchants might very easily approve or disapprove where a jury of persons unaccustomed to commercial ventures and expenditures would think the reverse. Every man may spend or save as he chooses, as long as he does not come within the pro

In the case at bar the court found that appellant “is incapable of taking care of himself and managing his property. ’ ’ In our opinion the evidence fails to sustain the finding.

The appellant, at the time of the trial, was over eighty-two years of age, and was in the enjoyment of good health. The evidence shows without contradiction that he was active, attentive to business and had not been confined to his bed for years. He is the owner of some thirty-five thousand acres of grazing and farming lands situate in San Mateo county, Monterey, Merced and Fresno counties. He is also the owner of timber lands, cattle, horses and farming utensils. His property is- stated to be worth over a million dollars. His life has been devoted to the accumulation of property. While he has been penurious, a close man to deal with, yet he has always been frugal and free from dissipation of any kind. His wife died about thirteen years before the trial, and he has only one child living—a son about fifty-two years of age, who is helpless and who has been nursed and eared for by appellant and Miss- Upton, his sister in law, who has lived with him. There is no evidence of any physician or alienist as to any unsoundness of mind or mental ineompeteney. There is not a scintilla of evidence that the appellant has ever squandered any of his property or that he has been imposed upon by any designing person. He has never, so far as the evidence shows, lost a dollar, an acre of land or a cow through any mismanagement. The evidence relied upon to show mental incompetency is almost entirely that of two nephews, the most active of whom was appointed guardian of his person and estate. It may not be amiss to remark that it plainly appears that there was some fear in the minds of the nephews that the appellant might by will leave some portion of his estate to his wife’s sister, Miss Upton. In any event it appeared in evidence that the appellant had made no will, and of course, if the order should stand, he could never hereafter make a will unless restored to competency by a decree of court.

‘ ‘ Q. Has Carl Coburn ever said anything to you about the northern line of your property? A. He spoke to me about the northern boundary. I told him my northern boundary joined on what is called the Gonzales—I think that that is the name of the grant—the southern boundary of Gonzales was my northern boundary of the Punta del Ano Nuevo; that shows on the record; the west of my grant is the ocean.

“Q. Yes, sir. Now, without regard to the other boundaries, what did he tell you with regard to the northern boundary, where he thought that was? A. He said he had been looking the thing over, and it was north of Spanish Town about a mile. I said I didn’t know that; I wasn’t aware it ran so far north. Well, he said my grant called for so many thousand acres. He wanted to know how many acres there was, and I said I understood there were seven thousand seven hundred and some odd acres in the Spanish grant—not American grant but Spanish grant. Well, to come to reckon that, the American is four times that amount, and it comes close on to thirty thousand acres in the grant. The grant of course was a Spanish grant. I don’t know anything about the United States grants; I never had anything to do with the United States grants; my deed of the property came from Mexico.

“Well,' now, without regard to the history—I am not going into the history of the Mexican grant, but just what Carl Co-burn told you. I understand that Carl Coburn told you that the northern line was far to the north of Pescadero ? A. He said it was beyond Spanish Town. ‘Well,’ I said, ‘I wasn’t aware of that.’ ‘Well,’ he said, ‘It comes to the Gonzales southern boundary.’ ‘Well, I don’t know exactly where the Gonzales southern boundary was, because I had never had that surveyed, and the grant has never been surveyed, only little portions of it—that is, the grant Punta del Ano Nuevo.’ ”

With these facts as a basis let us examine and analyze the testimony as to incompetency.

In response to the letter from Carl, Azro arrived in San Francisco on January 26, 1908, and it appears, by appointment, met his cousin Carl at the Hotel Jefferson in San Francisco. While there appellant called to see his nephew— whether by request "or not does not appear. Azro describes the visit as follows: “We went upstairs into my room and visited there during the evening, and during the evening I had pleasant conversation with uncle, and talked some about his affairs, and I asked him about certain litigation he had got into, how he was coming out on it, and he told me he was coming out all right, and I told him I hoped he would. He made only a short call that evening.”

Carl describes this call of his uncle as follows: “He came to the Jefferson Hotel, where Mr. Azro Coburn and I were stopping, and he met us there. Azro Coburn took him up to his room, and they began to have a talk about the timber case. The timber case, I believe, was set for the 27th of this month. Mr. Azro Cobum and I had consulted Mr. Loren Cobum’s attorneys. We knew—at least I knew—the case was in a very precarious condition; that there was danger of the case being decided against us. Mr. Azro Coburn asked his uncle, he says, ‘How is everything?’ and asked him about his cases and how they were going along; asked him if he had not better try and do something to settle the case before it was decided.”

We will now review briefly what these two nephews did, according to their own testimony, in order to procure evidence as to the mental incompetency of appellant.

The first thing, according to their testimony, was to procure a deed from appellant to one Richards of the city hall in San Francisco, which deed made no reference to the city hall by name. Both Azro and Carl testified that they saw the old man sign this deed. It is dated January 28, 1908, evidently showing that diligence was being used after Azro arrived in San Francisco. It does not appear that any explanation was made to appellant as to why they wanted the deed signed. Azro testified: “I did not read the deed to Loren Coburn. Nobody read it to him. I don’t know that

Carl testified that the deed was signed by appellant without Etny representations being made to him; that “he came to sign that document by me asking him to in my office at Pescadero.”

There were two deeds offered in evidence procured in substantially the same way, and some four or five leases. The leases were obtained by stating, or leaving appellant to infer, that they were of property claimed by him to be within the calls of his grant. These instruments were procured in nearly every case at the instance of Carl, without any explanation to the old man as to the description.

We think it is sufficient to say that they were procured by one in whom appellant had confidence and who held his power of attorney. Azro testified that the papers, deeds and leases were all procured for the purpose of being used in these proceedings. In his own language he said: “It was contemplated, if we could get sufficient evidence that he had done something that was detrimental to his own property, or liable to, then there might be grounds for this proceeding. It seems to me the power of attorney was almost sufficient, but at the same time I wanted to have sufficient evidence. I wanted to be sure, not that Mr. Coburn could escape these proceedings, but I wanted to be sure and prove to the court that he was incompetent; that he might be likely to be influenced by some designing person”; and Carl testified to the same effect. He said: “All of these papers were prepared in contemplation of proceedings of this character, just as testified to by Mr. Azro Coburn, and also to please Mr. Coburn. Mr. Coburn was not satisfied unless somebody would agree to take a lease, and acknowledge his authority over that grant, and I saw no harm in doing so, that is, so far as this lease to Dr. Banks and Mr. Perry were concerned—simply to satisfy him. ’ ’

Not only was Carl Coburn the attorney in fact of the old man, but he admits that he was friendly with him, pretend

We do not attach any great importance to the testimony of Carl Coburn to the effect that appellant wanted him to raise quite a sum of money to be used in part in bribing certain judges. Appellant denies that he ever made such a request or even intimated it. It does not appear that such bribes were ever offered or attempted, and the fact, if true, would not of itself be sufficient to show mental unsoundness. Carl, according to his own evidence, agreed to take part in the contemplated bribing, and it does not appear that he ever protested or even suggested that it would be wrong.

We therefore may eliminate from the case the acts as to the Cazos Creek litigation, in which the appellant had the best judgment of them all; the signing of the deeds and leases without explanation to him by his attorney in fact, who had been a witness against him nine years ago in a similar proceeding, and who deceived him by pretending to be his friend;

E. B. Gayety, a witness for petitioner, when asked whether he regarded appellant as a man who is competent to manage his own affairs, replied, “Sometimes I do, sometimes I do not. ’ ’ In cross-examination he said, in speaking of appellant: “He gives his own personal attention to that, and makes his own leases with his tenants, and collects his own rents. . . . The conditions were very binding upon the tenants. I should judge they were what I used to term when I made leases an iron-clad lease. Mr. Coburn in those leases has safeguarded his interests in every imaginable way. ... In one sense of the word he is a very careful business man in his dealings there with his tenants and in other business transactions.”

N. J. Perry testified that he had known appellant off and on for twelve years. He did not pretend to be an intimate acquaintance, or testify as to his mental sanity. In cross-examination he said that he could not state that appellant is in such a condition physically that he is not able to take care of himself; that appellant “has a great deal of property over there, a great many tenants, makes a great many leases, has a great deal of rent to collect at different times. He drives around, sometimes the old man Upton with him, and at other times I think Miss Upton goes out with him. ... I have said before, in the way that Mr. Coburn has expressed himself to me, I believe that he is lacking in vitality; that is all.”

Gehiel Coburn, a brother ten years younger than appellant, testified that in his opinion appellant was not competent to manage his business. It appeared, however, in cross-examination that the witness had sawed wood for appellant, but evidently the alleged incompetent was the one who could pay the unsuccessful witness for sawing wood. This witness admitted that he took part in trying to hav'e a guardian appointed for appellant some nine years ago. He further testified: “I then testified that Mr. Coburn was incompetent. The result was that he was proven not incompetent. ... So far as Mr. Loren Coburn’s ability to get about is concerned he is about as active and spry now as he was eight or nine years ago. He appears to be around. I only see him occasionally, you know. I notice no material difference so far as his being able to get about is concerned, only he goes a little lame more than he used to, bent over. ... As to his habits of living, Mr. Coburn, I don’t know that he dissipates. I don’t think that he uses intoxicating liquors. . . . He does not use tobacco in any form. I think he leads a regular life so far as that is concerned. He has no bad habits of any kind that he needs the appointment of a guardian for.”

This presents the substance of all the evidence offered by petitioner as to mental incompetency. There is nothing to show that appellant is incapable of taking care of himself. There is but the mere opinion of a few witnesses as to appellant being incompetent to take care of his property, and these opinions are worthless because not based upon any facts or reasons.

On the other hand, appellant presented the evidence of many of his neighbors as to his mental and physical compe

Dr. Robertson, a physician of standing and an alienist of experience, carefully examined appellant, and testified as to his health, both mental and physical, as follows: “Mr. Coburn, so far as I could judge, is an absolutely healthy man. ... I could hardly believe that a man eighty-two years old could have the apparent physical vigor that this man does. For instance, upon handing him a paper to read I found he didn’t use glasses at all. I am barely turned fifty, and yet I find glasses an absolute necessity. I find his hearing in good condition ; I found his heart in normal position and condition; I found no evidence of any change of circulation in the brain such as we expect to find in a man over fifty. As a matter of fact, in nothing that I examined, in no statement that he made to me, did I find anything other than a normal individual, either mentally or physically. . . . Mr. Coburn’s whole life has been one of money, the acquisition of money, the handling of money and distribution of money; all in the world that he thinks of apparently—his one ambition in life is to acquire money, to hold property and to fight for what he believes is right. He has a keen sense of justice apparently—at least justice so far as it relates to him and other people. He told

The appellant took the stand in his own behalf, and there is nothing in his long examination that even tends to show mental incompetency. No one could read the testimony without being impressed with his keen grasp of business details. Part of his testimony is as follows: “I pay my bills—I deal altogether in cash—no long tails about it. If I go to a man in Pescadero and get anything from the grocery, $2.50, ‘Here is your change, give me a receipt for it. ’ And if I have men working for me, I propose to pay them off every month, so as not to have any back arrangements, and if there is any entanglement or anything, we have to refer back only one month. I haven’t got no partners; I ain’t in any stock because I have got all the stock in my corporation myself. . . . Well, I go to bed from 8 to 9 o’clock; I have no chance—no use for this off to theaters and gambling places and taking a drink and having a great time. I never do anything of that kind. When I get through my work at night I go into my house. I have a fireplace, and build a fire, sit down, warm my feet, rest myself np, and about 8 or 9 o’clock I go to bed; sometimes it over-runs that, when I have something quite particular to attend to, and I don’t get to bed until 10 or 8 or 9, but as a general rule I go to bed about half-past 8 or 9, and get up in the morning from 6 to 7, and when I am up around I have something to attend to, and the folks that know me they know that I am out around attending to btisiness.”

His description of meeting Azro Coburn at the Jefferson Hotel in San Francisco is as follows: “He wanted me to go up and see him. I went up there and saw him a few minutes, and he commenced to talk about my property, and I thought that was queer about his talking about my property; I thought he had better take care of his own property at home, and I was competent to take care of my own property—to come about three thousand miles to take care of my property. I said, ‘What is the matter with you?’ ‘Well,’ he said, ‘I will tell you, you are in litigation over some timber land here.’ ‘Well,’ I said, ‘what of it?’ ‘Well,’ he said, ‘don’t you think

We are fully aware that an appellate court will not reverse a finding if there is a substantial conflict in the evidence; but the evidence, in order to raise a conflict, must be such as to present a fair and reasonable ground for a difference of opinion. The finding or verdict must have meritorious support in the evidence. A few general statements without substantial reasons is not sufficient to raise a conflict. (Smith v. Belshaw, 89 Cal. 427 , [ 26 Pac. 834 ]; Field v. Shorb, 99 Cal. 662 , [ 34 Pac. 504 ].) In the latter case it was sought to have a gift of personal property set aside at the suit of an administrator, on the ground that the decedent, at the time of making the transfer, was of unsound mind, and the jury found that the mind of the decedent was sound up to within three days of the making of the transfer, and from that time on was unsound. The court held that the finding of the jury as to unsoundness of mind at the date of the transfer was without sufficient support in the evidence, and therefore set the verdict aside.

The court erred in allowing several witnesses to testify, under the objections and exceptions of appellant, as to their opinions as to “the ability of appellant to manage his property,” and “as to whether or not in their opinions he was likely to be imposed upon by designing parties.” The opinions of the witnesses upon these questions and as to these matters were clearly inadmissible. The code provides (Code Civ. Proc., see. 1870, subd. 10) that evidence may be given upon the trial of the following facts: ‘ ‘ The opinion of a subscribing witness to a writing, the validity of which is in dispute, respecting the mental sanity of the signer, and the opinion of an intimate acquaintance respecting the mental sanity of a person, the reason for the opinion being given”; and in such case the reasons upon which the opinion is based must be given, and the opinion itself can have no weight other than that which the reason brings to its support. (Estate of Dolbeer, 149 Cal. 227 , [ 86 Pac. 695 ].)

The opinion as to the mental sanity of a person is one thing. His opinion as to whether or not he is competent to properly

In the Estate of Taylor, 92 Cal. 564 , [ 28 Pac. 603 ], it was held that the opinion of a witness' as to the capacity of a testator to make a will was not admissible, the court holding that such opinion was quite different from an opinion as to mental sanity.

The orders are reversed.

I concur in the judgment, but am unable to agree with what is said in the opinion of the presiding justice as to the insufficiency of the evidence to support the finding that appellant “is incapable of taking care of himself and managing his property.” The evidence upon this point is not as satisfactory as it might be, and if the members of this court were sitting as trial judges, it is quite possible, or even probable, that we would not have come to the same conclusion as to the ultimate facts as that arrived at by the trial court. But this is not the test applied in this court upon an appeal. If the findings attacked are supported by any substantial evidence, the findings of the trial court are conclusive upon this court.

I agree with what the presiding justice has said in regard to the action of the trial court in allowing witnesses to give their opinions as to whether or not appellant had the ability to manage his property. By this testimony witnesses were

KERRIGAN, J.—I concur in what is said by Justice Hall.

A petition for a rehearing of this cause was denied by the district court of appeal on November 26, 1909, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 27, 1909.