I concur in the opinion of Mr. Justice Barnard. Were it not for the fact that the investigation before the court in the proceeding from which this appeal was taken was obviously confined to the question of the mental sanity of the ward, the sufficiency of the evidence to support the judgment of restoration to capacity to manage her own affairs might be upheld.
The trial court found in favor of capacity, and there were general statements of the witnesses for petitioner as to her general competency. But, as pointed out in the opinion here, the testimony was all directed to the question of sanity, and the statements of the trial judge, as shown in the record, so clearly indicate that the findings were governed by the sole question as to whether the petitioner was sane or insane, that it must be conceded that the further conditions affecting her competency to take care of herself or her property, were not taken into account.
Insanity implies want of capacity, but the mere restoration to sanity, such as justifies a discharge from detention in an asylum, does not determine such a restoration as to terminate the necessity for guardianship.
This is indicated by section 2189 of the Political Code, which provides under the subhead "Certificate of Discharge," that such certificate of discharge, where no guardian has been appointed, "shall have the same legal force and effect as a judgment of restoration to capacity made under the provisions of section 1766 of the Code of Civil Procedure." (See, as bearing on this point,Aldrich v. Barton, 153 Cal. 488 [95 P. 900].)
Where such guardian has been appointed there is no method of restoration to capacity provided excepting by the procedure under section 1766 of the Code of Civil Procedure, and that section distinctly provides for the calling and examination of witnesses on the hearing, and if it is found that the person is of sound mind, "and capable of taking care of himself and his property, his restoring to capacity must be adjudged, and the guardianship of such person, if such is not a minor, must cease."
In a case like this, where the person under disability is shown to be seventy-six years of age and has been for fourteen years confined for insanity, the question not only *Page 600 of mental sanity, but that also of capacity to take care of herself and her property, should be made a definite issue, before the protection of a guardian is withdrawn.