Chancellor Kent: "The object is to protect the helpless; and the imbecility of extreme old age, when the powers of memory and judgment have become extinct, seems, as much as the helplessness of infancy, to be within the reason and necessity of the trust. I am aware, however, that the inquiry must in many instances be peculiarly delicate, because it concerns the character of the party, and his natural rights, and because of the difficulty there is in ascertaining the extent of the decay of the mind necessary to form a proper case for the interference of the court."

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 he be mentally incompetent to govern himself or to manage his own affairs, from whatever cause th's incapacity may arise. Hence permanent mental weakness amounting to 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 to 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; 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. J. Eq. 253, it appeared that the alleged incompetent was in the hundredth year of her

Her sight was very much impaired and her hearing somewhat, but the court held that a commission de lunatico inquirendo should not issue. The court said: "Her sight is very much impaired and her hearing somewhat. At her age the presumption of law is not against her soundness of mind, however great the probability in fact may be that she is not sound. . . . The facts proved, while they show that her senses and physical powers are much impaired, and that her mental faculties are somewhat weakened, fail to show anything that would amount to unsoundness so as to make her incapable of managing her affairs. She may be so weak and infirm as to be easily influenced and imposed upon, which would be a reason for setting aside any instruments or transactions executed under the effect of such influence, but this does not amount to unsoundness, such as to take from her the control of herself and her property.'

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 whose 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

hibitions of the law. As long as he possesses a mind normally sound, he is entitled to free agency. It is as cruel and unlawful to interfere with the liberty of the old as of anyone else; and the law cannot favor or permit this liberty to be diminished." (See further In re Bassett, 68 Mich. 348, [36 N. W. 97].)

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 becn 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 cared 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 incompetency. 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.

11 Cal. App.-39

The main acts which it is claimed show mental incompetency are certain deeds, alleged to be signed by appellant, to different pieces of property which he did not and never did own. There is some evidence tending to show that appellant believed that he owned more land in San Mateo county than he really did own; and this belief was founded upon the fact that the title to his ranch, the Punta del Ano Nuevo, which was a Mexican grant, was bounded on the north by the Gonzales ranch, and appellant claimed-whether founded upon sufficient reasons or not-that the northern boundary of the grant extended some three or more miles farther north than the line up to which he had occupied. The claim of appellant is stated by Dr. Robertson, the experienced alienist, who examined him as to the matter, as follows: "I examined him and others in regard to that, and he went into the details with me, explained the long Spanish grant story, and the final answer he made to my last question was that the Pacific Ocean bounded him on the west and he could not go into the ocean; that his southern boundary was absolutely fixed and he could not go beyond a certain point; that his eastern boundary was the mountain-he could not be certain of that because it had not been surveyed, but on the north he was bounded by the Gonzales ranch; wherever that line ran his property stopped. He insisted he owned around the town of Pescadero, and he is a little bit garrulous-there is another evidence of old age, I forgot to mention when I got him on the subject of his property it was hard to divert his mind from it, but at the same time he said when that survey was run, he would only claim what was his in this survey, and what the law said was his he would take; if the land happened to be two or three miles beyond his present property, that he was paying taxes on, he would accept that as the boundary, and certainly force his neighbors out of what belonged to him; but if it came back a half a mile or mile within the property he now claims, that he would at once vacate; that he did not want an acre of land belonging to anybody else, and whatever that survey showed to be the truth he would be absolutely willing to stand by it. That he wanted nothing but his own, but what was his own he absolutely wanted, irrespective of present possession. In other words, he realized that the property he now owns and now occupies and now

pays taxes on belongs to him and will belong to him until that survey is made. He hopes when the survey is made it will include two or three miles that belong to his neighbors. And the appellant says that Carl Coburn told him that he owned more land north of his grant, and he thus states the matter in his testimony:

"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 Coburn 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.