Plaintiff, as guardian of the property of Lambert P. Bower, an insane person, by this bill of complaint, filed June 28, 1938, *Page 532 seeks cancellation of two quitclaim deeds by which Bower purported to convey to the defendant, his wife, all his property, being four separate parcels of land. Each of these two deeds purported to convey two parcels; one covering properties in Wayne county and the other properties in Oakland county. The deeds were executed and delivered August 4, 1934. Plaintiff was appointed guardian May 12, 1938. Cancellation of these deeds is sought on the ground that they were given without consideration and at the time of their execution and delivery Lambert P. Bower was mentally incompetent. After full hearing the circuit judge entered a decree dismissing the bill of complaint. Plaintiff has appealed.
The properties in general terms may be described and the character indicated as follows:
Parcel #1. The homestead property of these parties located at 1093 West Lantz avenue, in the city of Detroit, Wayne county. The assessed value of this parcel is $2,100, though its actual value is in excess of this figure. It is mortgaged for approximately $1,500. Defendant has tenants occupying the place with her and when rented the monthly income is $45 to $50.
Parcel #2. This is located in Hamtramck township, Wayne county. It was sold on a contract in 1936, and by his deed Bower conveyed to defendant the interest of a vendor in a land contract of a value of $1,800 or thereabouts.
Parcel #3. This consists of parts of two lots, unimproved, in Royal Oak township, Oakland county. The testimony is convincing that the taxes in arrears on this property equal its full value.
Parcel #4. This consists of a house and lot in Southfield township, Oakland county. Before plaintiff instituted suit defendant had conveyed this property for value to innocent purchasers. The property *Page 533 was badly incumbered and it appears the net proceeds derived from its sale were used in paying an obligation of defendant and her husband and in repairing the other properties or reducing liens thereon. For these reasons appellant is not asking any relief incident to parcel #4.
Lambert P. Bower and defendant were married in 1925. At that time she was 52 and he 53 years of age. There are no children of the marriage. They lived together until 1934 and by that time the husband developed rather marked traits of insanity. On July 7, 1934, defendant filed a petition in the probate court of Wayne county seeking the commitment of her husband as an insane person. In her petition it was set forth that Bower was subject to sudden fits of rage, that he believed people were trying to steal from him and that he threatened to do harm to neighborhood children. Upon filing the petition the probate court appointed Dr. J. Clark Moloney and Dr. Harry E. Schmidt to examine the alleged insane person. These doctors made examinations and each filed with the probate court a certificate containing recital of detailed facts and circumstances and concluding in each instance in substance as follows:
"We believe that this patient is actually psychotic and in need of institutional care. We believe that his type of psychosis is capable of permitting him to visit violence upon some innocent person."
The matter was brought on for hearing in the probate court July 18, 1934. Commitment was not then ordered, but instead the proceedings seem to have remained in abeyance.
About July 17 or 18, 1934, at the instance of Mrs. Bower, her husband was taken to a private institution in this State where treatment is provided for *Page 534 mental and nervous cases. This was done under the supervision of Dr. Moloney, who testified:
"I placed him on a rest regime; reassurances, same sedative medication, and much to my surprise, in about a week or 10 days time the patient's symptoms disappeared completely. His delusional psychosis disappeared; he was able to talk rationally about his delusions and stated it was merely a figment of his own mental sickness at the time that they had occurred. His mental instability had disappeared. His reactions of wanting to do violence had disappeared. That was somewhere within about the latter part of July; I would say about a week or 10 days after we had him in the hospital. When I speak of reassurances, I mean therapy. That is known as psychotherapy; psychiatric treatment relieving the man of his feelings of insecurity, * * * attempting to get him to take a more rational attitude towards these various delusions that he had. * * * I saw him at least once a week and at other times twice a week. * * *
"I advised the patient, as a continuance of treatment, I directed in this case that he be freed of all responsibility, financial, domestic and otherwise, and also advised that the property, over which there was some case at that time, that he be not diverted with it, and that the property be turned over to the wife as a matter of treatment, and also advised the patient not to go home immediately, but that he go out to some farm for a period of 5 or 6 weeks and continue his treatment, not knowing, probably if he would come back in the old environment his psychosis or mental disease might return again."
While Mr. Bower was still an inmate of this institution, defendant caused the deeds in suit to be prepared by an attorney who was present at the time the deeds were executed by Mr. Bower. This attorney had "a slight acquaintance" with Mr. Bower. *Page 535 He had served him on two or three occasions as a lawyer. When testifying in this case he said:
"He (Bower) was handed the paper, he looked at it, indicated to be reading it, of course, attention was challenged at the proper place to affix his signature. That he did. His attention was further challenged to the nature of the instrument he was signing and its effect. His conversation in answer thereto in substance indicated that he knew he was signing a deed. * * * I saw nothing to mark that would indicate that there was any unusual condition that I could say he was not competent. * * * I observed nothing — as far as I can state, I observed nothing.
"Q. Nothing that would indicate insanity, is that what you mean?
"A. Well, I can't qualify as a person judging insanity, but I saw nothing that would make me suspicious. I would have interfered if there would have been anything unusual or that would have challenged the attention or demand interference."
All the testimony of this witness was objected to by plaintiff on the ground that he was the agent of defendant who was the opposite party in interest to plaintiff's insane ward. See 3 Comp. Laws 1929, § 14219 (Stat. Ann. § 27.914). In his opinion the circuit judge stated that because of this objection he had disregarded the testimony of this witness in reaching his decision.
Within a few days after Mr. Bower signed these deeds (August 4, 1934), he was discharged from the institution where he was then staying. But on October 2, 1934, the probate court issued a commitment under which Mr. Bower was placed in the Ypsilanti State hospital for insane, and he was still there under the commitment when this case was tried in October, 1938.
The decisive issue is whether Mr. Bower was competent to make a valid conveyance the day he *Page 536 signed the deeds. Plaintiff contends he was not, but defendant asserts that he was then competent. As sustaining her contention of competency the defendant on this hearing produced the testimony of Dr. Moloney hereinbefore quoted and the testimony of the attorney who drafted the deeds. As noted, the testimony of the latter was rejected by the trial court. In addition to his testimony hereinbefore quoted, Dr. Moloney testified in detail as to Mr. Bower's mental condition throughout the period here in controversy. He testified that just prior to the execution of the deeds he had gone over "this matter with Mr. Bower," that Mr. Bower's mental confusion had disappeared at that time, his delusionary system was not in evidence, and he was emotionally stable, and that in the doctor's opinion Mr. Bower was mentally competent to execute the deeds at the time he did so; the witness saying: "I had discussed it with him myself and gone into how much property he owned." It would be of no service to further detail the rather lengthy testimony of Dr. Moloney which definitely came to this:
"Based on my experience with this man and my treatment of him prior to August 4th, my opinion as to his mental condition on August 4, 1934, is that he was mentally competent to negotiate that instrument."
Dr. Harry E. Schmidt, who examined Mr. Bower incident to the probate petition, as hereinbefore mentioned, was also called as a witness by defendant. He testified he had seen Mr. Bower once prior to his examination of him July 16th, fixing the date as a week or possibly two weeks prior to July 16, 1934, that at that time the patient was very disturbed and "showed some evidence of arteriosclerosis, material elevation of blood pressure," and was depressed. But notwithstanding his contacts with Mr. Bower *Page 537 in July, the doctor, not having had any care of the patient after July 16th, testified he was not able to pass on Mr. Bower's condition as of August 4th from personal examination.
Defendant was a witness in her own behalf, but on plaintiff's objection her testimony directly bearing upon the controlling issue was excluded under the statute. See 3 Comp. Laws 1929, § 14219 (Stat. Ann. § 27.914).
Plaintiff, in support of his contention of incompetency, produced in evidence the records of the probate court proceedings hereinbefore detailed and also the testimony of Dr. Orus R. Yoder, who was then the assistant superintendent of the Ypsilanti State hospital. Dr. Yoder first examined Mr. Bower sometime after he was committed to the Ypsilanti State hospital, October 8, 1934. The doctor was rather indefinite as to how long after the commitment this examination occurred. He first said two or three weeks, and later said possibly a month or more after the commitment. The doctor testified quite in detail concerning his observations of Mr. Bower and his mental condition while in the Ypsilanti State hospital, and stated that the patient was suffering from insanity due to cerebral arteriosclerosis, that his condition was characterized by ideas of persecution and irritability and emotional instability, and that Mr. Bower's condition in the summer of 1934 had affected the organic structure of his brain. The doctor was of the opinion that Mr. Bower's condition was a matter of some years' development. When asked his opinion as to Mr. Bower's possessing sufficient mentality in August, 1934, to understand transactions of the character here in suit, the doctor replied: "I don't think that he had sufficient mentality at that time." On cross examination he testified: *Page 538
"Mr. Bower can converse intelligently at the present time (four years after his commitment). He recognizes his friends and exhibits normal affection toward them. * * * I can't give you any specific date when his insanity began. It started three or four years before his admission to the Ypsilanti State hospital, in my judgment. It was slow in its onset."
The circuit judge who saw the respective witnesses and heard their testimony filed an opinion in which he reviewed the record quite in detail. He noted the fact that of all the witnesses Dr. Moloney had the best opportunity to make observations and to form a reliable opinion as to Mr. Bower's mental condition on the date these deeds were executed. And in reviewing the testimony of plaintiff's witness, Dr. Yoder, the judge in the opinion filed by him made the following pertinent observation:
"On cross examination, Dr. Yoder admitted that Mr. Bower, on the 4th of August, 1934, approximately three months previous to Dr. Yoder's first observance, might have been sane."
But the doctor added: "It is not probable." The trial judge concluded that the record failed to establish Mr. Bower's mental incompetency on the day the deeds were executed by him and that therefore the conveyances were valid. Accordingly he entered a decree dismissing plaintiff's bill of complaint.
Plaintiff also charges that the deeds in suit were procured by defendant through fraud, deceit and undue influence. As the circuit judge held, the record does not entitle plaintiff to relief on any of such grounds.
It is pointed out by appellant the trial judge reached his conclusion upon the theory that the burden of establishing Mr. Bower's incompetency was on plaintiff. It is claimed this was error, appellant *Page 539 asserting that under the facts in this case the defendant wife sustained a fiduciary relation to the husband, and the burden rested on her, not on plaintiff. Regardless of the correctness of this contention, the record before us does not warrant reversal. We hear the case de novo on appeal in chancery. Our review satisfies us that the circuit judge reached the right result. The decree entered in the circuit court should be affirmed, with costs to appellee.
WIEST, J., concurred with NORTH, J.