APPLICATION FOR REHEARING
BY THE COURT:This matter come before us upon a motion of C. B. Lee, guardian, that the court reconsider its decision of July 31, 1942, for the reason that the same is not supported by the evidence and it is contrary to the law as applied to the facts in the instant case.
This application is supported by an extensive memorandum and is resisted by a reply memorandum by defendant-appellant.
The decision in this case was rendered July 31, 1942, and shortly thereafter the application for a rehearing was made.
The court has purposely delayed deciding this application with the thought that passage of time may assist in the proper determination of facts in this case. It will be recalled that the action *447was based upon the petition of the guardian seeking to set aside deeds made by his ward on the .ground that at the time she made the deeds she was mentally incompetent, and this court then held that she had mental capacity not only to make the deeas, but to enter into the agreement to dismiss the several causes of action which were pending affecting the several pieces of real estate. The deeds were made on June 17, 1940. It will be recalled that one expert witness, Dr. Hooper, Superintendent of the Dayton State Hospital testified that she was suffering from what is known as dementia praecox paranoid type; that said mental trouble is slowly progressive and that judging from her condition when he examined her. she did not, on June 17, 1940, have sufficient mental capacity to transact ordinary business, and that such inability probably antedated considerably June 17th.
Dr. H. H. McClelland, the witness called by the appellant, who had made no personal examination of the patient but testified in answer to a hypothetical question and from the evidence disclosed by the bill of exceptions, stated in his opinion the patient was not suffering from dementia praecox and was capable of understanding any and all transactions that she might have entered into on June 17th, 1940.
This court considered the evidence of these two experts as well as the evidence of lay witnesses, and concluded that on the date in question she was not incapacitated.
Such a time has now elapsed that there should be no difficulty in coming to a definite conclusion as to her mental condition on the day in question, or at least her present mental condition, which would throw light upon the question of what was then her mental condition.
This is an equity case, being tried before us on evidence de novo. We may, therefore, open the case upon our own motion for such additional evidence as in our judgment would be of value. We reopen the case inasmuch as no finding or judgment entry has been journalized. This only to the extent of permitting certain and definite testimony as to her present mental condition as she same may relate to her mental condition on the day in question. We will limit the number of witnesses on each side to two and would suggest that it might be more convenient for all parties to hear these witnesses in Dayton, as that is the county in which the patient is confined to the State Hospital.
Modified application allowed, and cause set for further hearing upon the points indicated before this court while sitting in Dayton.
BARNES, P. J., HORNBECK and GEIGER, JJ., concur.