(concurring specially) .
Although I concur in the result of the majority opinion, I must respectfully disagree with the reasoning assigned in that opinion to support the result.
The facts are briefly, while John D. Campbell, a resident of Seminole County, about ninety years of age and in poor health, was seriously -ill in an Oklahoma City Hospital, the County Court of Oklahoma County after notice and a hearing at which Campbell was unable to attend, found that Campbell was unable to take care of himself and manage his estate, which was estimated to be of the value of about one million dollars. Whereupon the Oklahoma County Court appointed one Dillow as guardian of the person and estate of Mr. Campbell. Thereafter the proceeding was transferred to Seminole County, and Campbell, acting through an attorney, filed in the proceeding in Seminole County an application praying that Dillow be removed as guardian and that he, Campbell, be allowed to nominate a guardian subject to the approval of the county court. This application was denied by the county court, but the court on its own motion appointed Watts, the plaintiff in error, as “co-guardian” with Dillow. From this action of the county court, Campbell appealed. Pending the appeal, Dillow resigned. While that part of the *209appeal concerning the failure to remove Dillow became moot upon his resignation, it was urged upon the Superior Court that the question of Campbell’s right to nominate a guardian or “co-guardian” still remained. After considering a great deal of evidence touching upon the mental competency or capacity of Campbell to nominate a co-guardian, the Superior Court found that such capacity existed, and further that a co-guardian was necessary and remanded the cause to the county court with directions to that court to further proceed. From the judgment of the superior court, Watts appealed to this court.
I agree with the opinion of the majority to this extent: that the issue dispositive of this cause is whether Campbell had any right to nominate a guardian or co-guardian, and, if he had such right, whether he exercised it in the form and method prescribed by law. The majority opinion says that he had no such right because at the time he was already under guardianship as an “incompetent” and that title 58 O.S.1961, § 896, which authorizes a person to nominate his guardian, was inapplicable. Let us consider said statute in its entirety :
“Every person eighteen (18) years of age or older who is of sound mind and not acting under duress, menace, fraud or undue influence, may, by writing executed and proved in the same manner as provided for the execution and proof of wills, nominate a guardian of his person and estate, or either, which nomination shall, in the event of the incompetency of said person, be binding on any court having jurisdiction of said guardianship.” (Emphasis supplied.)
No case is found construing this statute, but by its very terms the statute makes the law concerning the execution and proof of wills applicable to the execution and proof of a written nomination of guardian by any person eighteen years of age or older who is of sound mind and not acting under duress, menace, fraud or undue influence. We note that 84 O.S.1961, § 41, although not directly applicable to the execution of nominations of guardians, provides that :
“Every person over the age of eighteen years, of sound mind, may by last will, dispose of all his estate, real and personal, * * * ” (Emphasis supplied.)
In the case of Wah-kon-tah-he-um-pah’s Estate (Exendine v. Red Corn et al.), 108 Okl. 1, 232 P. 46, which involved the execution and proof of the will of an elderly Osage Indian woman who was at the time of the execution thereof under guardianship as being incompetent to manage her property, this court’s syllabus reads as follows:
“The mere fact that a testator has been adjudged incompetent to manage his property and business affairs, and that such incompetency has not been judicially removed at the time of making a will, is not sufficient of itself to show a mental incompetency to make a will, nor does the existence of a guardianship of itself render one legally incapacitated to make a will.
“The question of mental capacity to make a will is not one of law but of fact.
“The time of the making and execution of a will is the period of time from which the mental capacity of a testator must be determined.
“The existence of a guardianship does not constitute legal incapacity to make a will, but is no more than evidence of the fact of incompetency, and may be overcome by parol proof that testator was mentally competent at the time the will was executed.”
See also Peace v. Peace, 149 Okl. 123, 299 P. 451.
Logically, it seems to me, the same principles would be applicable in determining the mental capacity of a person eighteen years of age or over to make a written nomination of a guardian for himself in the manner provided in 58 O.S.1961, § 896, supra.
*210I am unable to agree with the majority’s interpretation of the words found in the statute “ * * * which nomination shall * * * be binding upon any court having jurisdiction of said guardianship.” As I understand the majority opinion, it says in effect that the execution of a nomination of a guardian by one already under guardianship would operate to remove the acting guardian ipso facto, because the statute says the nomination would be '“binding” on the court. I am unable to agree. The statute merely contemplates that one may nominate, not appoint, a guardian or a co-guardian, and that such •nomination will be binding upon the court in a proceeding in which it subsequently appears the appointment of a guardian or co-guardian becomes necessary, either because the acting guardian dies, resigns or is removed, or because in the opinion of the county court the appointment of a co-guardian would benefit the estate. I see no conflict with the interpretation here accorded the above statute and the provisions of 15 O.S.1961, § 24, which provides that “ * * * a person of unsound mind can make no conveyance,” etc. Section 896 clearly provides that a person must be of sound mind.
In summary, I believe the majority opinion is in error because it assumes that, as a question of law, all persons declared incompetent and over whom guardians are appointed by the county court are mentally unsound as a matter of law. The way I view it, the question of soundness of mind is a .question of fact which the county court is certainly qualified to pass upon. I fail to see where any conflict with existing statutes or case-law would result in chaos if the above interpretation of Sec. 896 had been adopted as the majority view,' especially in view of the fact that upon the return of this case to the county court Mr. Campbell could, in my opinion, make a written nomination in the form required by Sec. 896 and file an application with the county court for the appointment of such nominee as co-guardian. It would then be for the county court to determine within the exercise of its original jurisdiction the following questions: (1) Would it serve the best interest of Mr. Campbell for a co-guardian to be appointed at this time? (2) At the time of the execution of the nomination of a co-guardian was Mr. Campbell of sound mind and not acting under duress, menace, fraud or undue influence, and was the nomination executed as required by law? (3) Is the person nominated a suitable person and otherwise possessed of the qualifications prescribed by law to serve as a co-guardian of the person and estate of Mr. Campbell? I believe that if the county court answered all these questions affirmatively, then and only then would the nomination by Mr. Campbell of a person to serve as co-guardian be “binding” upon the court.
However, in the present instance, although Campbell’s application to the county court to be allowed to nominate a guardian for himself raised the question of law as to the authority of a county court to allow an adult incompetent, such as Campbell, to nominate a guardian for himself, such application was not accompanied by a written nomination of guardian purportedly executed by Campbell in the manner prescribed by 58 O.S.1961, § 896. Therefore, the question of fact as to Campbell’s mental capacity to nominate a guardian for himself, in the only manner authorized by law, was not presented to the county court. The county court quite properly and correctly denied such application by sustaining a demurrer thereto without passing upon the question of Campbell’s mental capacity to nominate a guardian for himself. For these reasons, the trial court committed reversible error in not sustaining the county court’s denial of Campbell’s application to nominate a guardian for himself.
For the above reasons, I therefore concur specially and only in the result of the majority opinion.