Opinion
106 Cal. 1 at 5.
Original Opinion of January 28, 1895, Reported at 106 Cal. 1.
JUDGES: Beatty, C. J.
OPINION
BEATTY, Judge
On the twenty-eighth day of February, 1895, Beatty, C. J., filed the following opinion on the application for a rehearing:
As I did not participate in the decision of this cause I take occasion, in passing upon the petition for a rehearing, to state briefly the grounds upon which I concur in the judgment, and in the order denying a rehearing.
As stated in the opinion of the court, this is not a case in which the donor herself seeks to invalidate a gift. The action is prosecuted in her name by a guardian ad litem and against her wishes. If she had commenced the action herself, or had consented to it, or had in any way manifested a desire to set aside her conveyance, her prayer, I think, must have been granted upon the ground that the gift was of her whole estate without any reservation or power of revocation; that it was made upon the understanding that she should be supported and cared for by her donee, and that no provision or condition for her support was contained in the grant, or in any written agreement; and for the further reason that her donee occupied towards her a relation of special trust and confidence; and that she had no independent advice.
But it appears very clearly that since she has had independent advice, and, with a clear understanding of the situation in which she is placed, she desires the gift to stand. This being so, she cannot, if she is now capable of acting for herself, be compelled against her will to take it back.
The question then is, whether she is at present, or was at the time of the trial, capable of acting for herself.
It seems to be contended by counsel that the order of the lower court appointing a guardian ad litem, as long as it stands unrevoked, is conclusive of her want of capacity. But I do not so regard it. If the proceeding and order had been for the appointment of a general guardian on the ground of her incapacity it might have had such effect. But here the guardian was merely appointed as a step in this action, and the findings of the court made at the close of the trial, and after a full hearing -- if they amount to a finding that she had the capacity to dispose of her property -- completely do away with the effect of the findings, express or implied, upon which the order appointing the guardian ad litem was based.
As I construe the findings of the court (and so construed there is, in my opinion, sufficient evidence to sustain them), they declare, in effect, that the plaintiff was, at the date of her conveyance, and at all times thereafter, of sufficient capacity to make the gift. They are as follows:
" On, and long prior to May 24, 1890, ever since, and now, said plaintiff was, and still is, old, uneducated, and illiterate. She has never at any time been able or competent to attend to, understand, or transact the ordinary business of life, except such as related to housewifery and the management and control of the domestic affairs of her own family and household. In this last-named respect she is, and ever has been since her intermarriage with her husband, the head of her domestic household, and has always discharged the duties of such position with full competency, wisdom, and prudence.
" She has never at any time been intrusted with, nor did she ever undertake to do or transact, any affair relating to business other than such as was exclusively incident to the ordering and government of her domestic household; and in this latter connection she never transacted any business with respect to buying or selling, or disbursing or receiving money.
" At the time of the execution and delivery of said conveyance of land and transfer of cattle, and long prior thereto, plaintiff was not insane, nor were her mental faculties impaired to an extent greater than what is usually expected and normally found in persons of advanced age. She was not, and is not, by reason of age, disease, weakness of mind or body, or any undue influence or control exercised over her by any one, mentally incompetent and incapable of conveying her property by deed. Nor was she then, nor at any time, unable to comprehend or understand the nature, character, and effect of the transactions named in the thirteenth finding. Nor was she then, nor at any time, deceived, imposed upon, or misled by the artful designs and representations of the defendant or any person.
" But plaintiff was then, and is now, by reason of her ignorance, illiteracy, and want of knowledge of business affairs and methods, and her lack of experience in all kinds of business (except such as relate to inner household duties), unable, unassisted, to properly manage or take care of her property, and by reason thereof she was and is liable to be deceived and imposed upon by designing persons in the transaction of business respecting her property interests and rights."
The plaintiff has never been able to transact or understand the ordinary business of people engaged in business pursuits. She knows nothing about trading or carrying on a ranch, but with respect to that which is and has always been to her the ordinary business of life, viz., the management and control of the domestic affairs of her family and household, she has displayed full competency, wisdom, and prudence. She is, in other words, not deficient in intellect or natural capacity; at least not in that degree that requires the appointment of a general guardian, but is merely incapable, by reason of ignorance and lack of experience, of managing a ranch, or of conducting any business in which special knowledge and experience are essential.
It is suggested by counsel for appellant that upon this view of the case the proper judgment for the superior court to have made was a mere judgment of dismissal of the action instead of a judgment on the merits, and they ask us to direct a modification of the judgment accordingly. But on this appeal from the order denying a new trial we cannot order a modification of the judgment.