March 22, 1939, J. Frank Redfield filed a petition in the superior court of Skagit county alleging that Ethel Nelson was a mentally incompetent person and asked that he be appointed guardian of her estate. A hearing was had upon the petition, after which, April 13, 1939, the court entered an order to the effect that Ethel Nelson was mentally incompetent.
It is the settled law that every person is presumed to be sane and competent, but that, when one is adjudged to be of unsound mind and under guardianship, the presumption arises in favor of the continued existence *Page 399 of the incompetency, and if recovery is claimed to have occurred the burden of proving it is upon the person making the allegation. 32 C.J. 757; In re Brown, 39 Wash. 160,81 P. 552, 109 Am. St. 868, 1 L.R.A. (N.S.) 540; State ex rel.Thompson v. Snell, 46 Wash. 327, 89 P. 931, 9 L.R.A. (N.S.) 1191; Roberts v. Pacific Tel. Tel. Co., 93 Wash. 274,160 P. 965; Criez v. Sunset Motor Co., 123 Wash. 604, 213 P. 7, 32 A.L.R. 627; Fletcher v. Miller, 185 Wash. 299,52 P.2d 304; Dean v. Jordan, 194 Wash. 661, 79 P.2d 331; Kirsher v.Kirsher, 120 Iowa 337, 94 N.W. 846; and Fendler v. Roy,331 Mo. 1083, 58 S.W.2d 459.
At the hearing September 17, 1940, upon the application to have Mrs. Nelson adjudged competent, the burden was upon her to prove that she had recovered. In considering the evidence, it must be borne in mind that we are not warranted in disturbing the judgment unless the evidence preponderates against the findings of the trial court. In re Jones' Estate, 178 Wash. 433,34 P.2d 1111.
The testimony was in conflict. The experts testifying for Mrs. Nelson were of the opinion that, as stated by the majority, Mrs. Nelson was competent at the time of the trial. The trial court, however, must have been influenced by Mrs. Nelson's behavior on the witness stand, her attitude and conduct during the progress of the trial, and the testimony of Mrs. Allmond, J. Frank Redfield, Oren Redfield, and Dr. E.D. Hoedemaker.
Mrs. Allmond testified as follows, concerning an incident that occurred prior to the first hearing:
"She did have hallucinations; she would see people coming in at the window, she would find things under the chairs. It was quite a large party and we asked her to go into the kitchen and I gave her half a cupful of sugar, eventually, and she went in and sat by me and she was quiet the rest of the evening. I drove and took her home and took her into the house. The next *Page 400 day I went down feeling I had been rather sharp about it — feeling she could not understand why — I went with the idea of apologizing, and discovered that she hadn't any remembrance of having been there, and so I just passed it off and said nothing about it."
Frank and Oren Redfield, brothers of Mrs. Nelson, testified that she was mentally incompetent, and based their conclusions upon personal observations. Dr. Hoedemaker testified:
"A. The first time I saw her was April 27, 1939, at the request of Dr. Lester Palmer who was treating her at the Virginia Mason Hospital. . . . I spent about three-quarters of an hour with her in an attempt to determine her competency. Dr. Palmer had asked me to see her for that purpose only. She told me something of her earlier history, her life in Michigan; told me she had diabetes and had to be careful taking insulin; she said her memory was getting bad; she got nervous when she had too much insulin, and that at times it was difficult for her to concentrate. She told me she was living with a brother at Seward Park, who recently had had guardianship proceedings instituted. She said she learned about the guardianship when she returned on the Friday before. I saw her April 27, 1939, she said the purpose of the guardianship was to protect her from business worries. She told me something about some difficulties about some collections in Anacortes. She was quite vague about what she told me, and I haven't exact notes, but I remember distinctly that she wandered somewhat in describing these properties and collections, and if I talked rapidly, or asked her questions at a conversational rate she became easily confused and I had to ask each question carefully and slowly. I asked her about dates and so on, and she became confused and had to look at the newspaper to tell me what day it was. This was on the day, I think that she was to leave the hospital. She knew the hospital and remembered who her doctor was, and various happenings in the hospital during her stay, fairly well. She then went into the history of her school at Mt. Pleasant and her degree from the University of Chicago. *Page 401 She denied any delusions and hallucinations and questions of that sort. She said if she got nervous that she wanted to cry at times, and felt lonely and would prefer to be in Anacortes rather than Seattle. During the examination she had an involuntary laugh that seemed unrelated to what we were talking about. I concluded it might have been an habitual laugh, but it seemed out of place during the examination. I noted that during the conversation she became disconnected and confused when attempting to make complete sentences and when attempting to carry out one that business — this was noticeable in trying to explain her business dealings in Anacortes. When I took quite a lot of time and asked her one thing she was able to answer it very well. It was apparently difficult for her to think in a connected manner. On the basis of that examination I did remark that I would like to examine her Neurologically. I didn't do it at that time, but on the basis of my examination I was of the opinion that the guardianship should continue, especially inasmuch as she had diabetes and must pay attention to her dietary habits, and thought business worries and the necessity of making decisions might be enough to confuse her. That is the nature of my examination of April 27, 1939. On August 9, 1939, I was asked to call on her at the nursing home in Rainier Valley, where she is staying now. I was prevented from examining her by the nurse who was there. . . . Q. Have you seen her about the court room today? A. Yes. Q. Did you see her last year when she was here in the court room when we had another hearing here? A. Yes, I did. Q. Have you heard these other witnesses express an opinion and testify as to what her condition is and heard her testify this morning, and been able with what you have gleaned from your examination to give us an opinion as to whether or not she is a proper subject to manager her own affairs physically and financially? A. I think I have formed an opinion about that. Q. Will you tell us what your opinion is, and why? A. I think there are two reasons why she, in my opinion, is not entirely competent. In the first place, the diabetes, if not perfectly cared for, will produce periods when she is semi-conscious or unconscious, and so on. *Page 402 Secondly, I saw her when she was perfectly controlled from insulin, and at that time there was an emotional disturbance, and an inability to think in a connected way if you hurried her at all. I believe there are many times when one could talk slowly and carefully with Mrs. Nelson, much of the time, probably, when she would answer correctly and be perfectly clear, but my impression was that she might be led rather easily, that she would rely on peoples' opinions too much, perhaps. However, that was entirely a guess on my part. I did notice that if you talked to her rapidly she would lose the point. If you talked as rapidly as I am talking she had difficulty following you and giving full responses. I think she should have someone watching over her affairs to some degree, and I think in that way she is incompetent. I think it would be to her best interests to have that done."
The trial court, in a comprehensive memorandum opinion, stated:
"Mrs. Nelson is a chronic diabetic. For sixteen years she has been known to have been suffering from this incurable ailment, and at this time her only chance for existence depends upon the daily accurate measurement of her food and insulin. While testifying her voice was weak, she mumbled her words, and at times was inaudible. To the court Mrs. Nelson presented the appearance of one who has almost reached a condition of total physical collapse. Mrs. Nelson's answers to questions propounded to her were responsive and logical. This also appears from her letters, Petitioner's Exhibits 1 and 2. But this fact does not necessarily establish her competency to manage her business affairs. (Re: Bayers Estate 101 Wn. page 698)
"Most, if not all of the questions asked Mrs. Nelson by her counsel on direct examination were from a prepared typewritten list. After each question was asked a long period of time would elapse before Mrs. Nelson was able to make reply; there appearing to be great difficulty in Mrs. Nelson being able to remember, and to collect her thoughts sufficiently before being able to reply.. . . *Page 403
"On cross examination this difficulty seemed harder for Mrs. Nelson to overcome, hence more time was required for her to make reply to questions asked her. An answer made by Mrs. Nelson on cross examination as to the sale of one of her automobiles fairly well illustrates her manner: `Question: How much did you sell that for?' `Answer: I sold that for — I can't just recall, but never mind, I can recall if I think about it for a while.'
"It is the court's opinion that if Mrs. Nelson had been asked questions at the ordinary rate, or even at a conversational rate, she would have been incapable of answering correctly, or at all. During the examination she was given her own time in which to reply to questions propounded to her. . . .
"Dr. Hoedemaker, an expert witness called on behalf of the guardian, in commenting on her condition stated that he thought Mrs. Nelson had some cerebro arterio sclerosis as a complication of her diabetes and her insulin treatment. Dr. Hoedemaker also expressed the opinion that Mrs. Nelson was not entirely mentally competent, and that she should have someone over her affairs.
"The witnesses called by the petitioner, other than her expert physicians, expressed their opinions as to Mrs. Nelson's mental competency upon their acquaintanceship and contacts with Mrs. Nelson. While, on the other hand, Mrs. Allmond, a very near friend of Mrs. Nelson, stated that by reason of Mrs. Nelson's physical exhaustion she noticed a like slowing of her mental processes. Mrs. Allmond also related occasions when she had seen Mrs. Nelson in an unconscious, or a semi-conscious condition. The guardian, J. Frank Redfield, and his brother Oren Redfield, were of the opinion that their sister, Mrs. Nelson, was not mentally competent.
"Mrs. Mowry and Mrs. Schultz completely dominate and control Mrs. Nelson physically and mentally. They tell Mrs. Nelson whom to see and whom not to see. They refuse the physician specialist in attendance. They have created in Mrs. Nelson's mind a distrust and a dislike for the guardian, on which we will comment later.
"After due consideration the court finds that the petitioner, *Page 404 Ethel Nelson, should not be adjudged competent to manage her estate, but that Ethel Nelson at the time of the apointment of her brother, J. Frank Redfield, as guardian of her estate was mentally incompetent and at all times since has been and now remains mentally incompetent."
The evidence did not preponderate over the findings of the trial court and its judgment should be affirmed.
ROBINSON, C.J., concurs with SIMPSON, J.