Opinion
December 2, 1941 —
January 13, 1942.
APPEAL from an order of the county court of La Crosse county: H. M. PERRY, Judge, Presiding. Modified and, as modified, affirmed.
Albert C. Wolfe of La Crosse, for the appellant.
George T. Doherty and Lawrence J. Brody, both of La Crosse, for the respondent.
Petition by Edward F. O'Niel on March 11, 1941, for the appointment of a guardian for Mark P. O'Connor, alleged incompetent. Mark P. O'Connor appeals from an order appointing the La Crosse Trust Company as his guardian.
The alleged incompetent is a retired Catholic priest, sixty-eight years of age. He retired to La Crosse to live in the family home in June, 1940. His parents, his sister, and four brothers were all deceased. The only heir is a cousin. The alleged incompetent owns: (1) The homestead and a dwelling back of it; (2) a vacant lot; and (3) seventy-seven shares of preferred stock of the American Telephone Telegraph Company. The house near the family residence had been rented, the rent having been collected by one Lucille Scherdin from 1937 until 1940. The rent was then in arrears and has not been collected since that time. Dividends on the stock yielded $263.25 quarterly. Other income was $40 a month from a fund for retired priests.
Because an affidavit of prejudice was filed against the La Crosse county judge, the Jackson county judge conducted the hearing. There was evidence that the alleged incompetent did not know the extent of his property or who his tenants were. His bank account was overdrawn and the taxes on part of his real estate were unpaid. There is evidence of his having executed a deed concerning which he had no recollection. The findings of fact are that he is physically infirm; that he is the owner of considerable real estate occupied by tenants who are paying no rent; that he was unable to give a clear account or description of his personal property or income; and that he is physically and mentally incapable' of managing and protecting property. The conclusion of law was that a guardian be appointed of the person and property of the alleged incompetent.
While the evidence accepted as controlling by the county court sustains the finding that appellant is mentally incapable of managing and protecting his own property, it does not sufficiently show physical infirmities to warrant a conclusion that a guardian of his person is required.
Appellant has devoted his life to service in a high calling. For many years as a priest of the Roman Catholic church he has followed a manner of life that has built up strongly formed habits and placed him in favorable surroundings. All these facts, considered in connection with his present capacity of taking physical care of himself, do not present a case for placing his person in the custody of a guardian. It appears, rather, that the assistance available and which is provided by him together with the income from his property when properly managed by the guardian of his estate will enable him to pursue his usual method of life and enjoy the reasonable comforts and independence he has been used to. Although not capable of handling his business affairs, he appears to be sufficiently in possession of faculties so that no urgent reasons exist for restricting his right of liberty. His tastes and daily practices ought not to be encroached upon by placing his person in the custody of a guardian. Guardianship of Welch, 108 Wis. 387, 84 N.W. 550; Guardianship of Warner, 232 Wis. 467, 287 N.W. 803.
It is considered that the findings that he is so physically infirm as to be unable to take care of himself is against the great weight and clear preponderance of the evidence and the order, so far as it is based on that finding, is not sustained.
By the Court. — Order modified so as to limit the appointment of the guardian to the estate and revoke that portion thereof which places the appellant's person under guardianship, and as so modified is affirmed.
FRITZ and MARTIN, JJ., dissent from that part of the mandate which affirms the order as modified thereby.