On Rehearing — Statement of the Case.
MONROE, O. J.Defendant is a widow, some 72 or 75 years of age, whose nearest relatives are five married daughters (one of them a widow) and a minor grandson, and whose estate, inventoried for the purposes of this proceeding, was valued by the appraisers at $343,100.79. Her household consisted, for a number of years, of Mr. and Mrs. Suarez (a son-in-law and daughter) and, perhaps, another member of the Suarez family, and her grandson, who, in 1913, was about IS years old; and, since 1909, her business affairs have been, in the main, under the management of Mr. P. L. Fourchy, one of the counsel who now represent her. On November 29, 1912, the four married daughters, other than Mrs. Suarez, brought this suit for their mother’s interdiction, alleging that her condition, mental and physical, was such that she was incapable of caring for her person or property, and that her estate was being maladministered and wasted; and there followed a protracted and bitterly contested litigation (with the four daughters, aided by the grandson on the one side, and the mother and grandmother, aided by the fifth daughter, upon the other), which resulted, in March, 1914, in a judgment rejecting the demands of the plaintiffs, at their cost. From November 29, 1912, when the suit was brought, until February 28, 1913, defendant remained in her own home, with her daughter Mrs. Suarez as her companion. On the date last mentioned she drove out, as usual, in her carriage, and, upon her return ,to her residence, was met by her grandson, who, with drawn pistol, prevented her from leaving the carriage, and compelled the driver to take her to the residence of an aunt (one of the plaintiffs herein), where she remained (save for a few hours in March) until April Sth, when, under an order of court, executed by the sheriff, with the aid of the police, she was wrested from the possession of those by whom she was held, carried, by the officers, physically, to a vehicle in front of the house, and thereby returned to her home, where she has since remained under the protection of a guard, and with competent attendants to administer to her wants. Plaintiffs, in opening the case upon its merits, called to the stand three physicians of high standing, two of whom are specialists in diseases of the mind and nerves, and the third, a general practitioner. One of the specialists had been called by defendant’s counsel to visit her on December 2, 1912- (a few days after she had been served with process in this suit), and was required to testify, over his objection. He was under the impression that he had paid more than the one visit, but was unable to fix more than the one date, and there was testimony on behalf of defendant that the visit of December 2d was the only one paid. The other two physicians were called to visit defendant for the first time on February 28, 1913, after her abduction, and while she was at the house to which she had been taken, and they continued to visit her until some time in May (after she had been returned to her home), each of them paying some 30 or 40 visits. The three witnesses concurred in the opinion that defendant, as they found her, was suffering from arteriosclerosis, with resulting senile dementia in an advanced degree, and, to some extent, spastic paralysis; that she was altogether incapacitated from taking care of her person or administering her estate; that such had been her condi*43tlon for several months or, perhaps a year, the arteriosclerosis, or hardening of the arteries, having, probably, begun several years before; that the disease is progressive and incurable, and must inevitably result in weakening and loss of the reasoning faculty and, sooner or later, in death.
The learned specialists, as we understand their testimony, were of the opinion, though conceding that it is not generally accepted, that senile dementia is not likely to be caused, developed, or precipitated by any mere mental impression, or shock, such as may result from fright or sudden grief, but that, though the disease may develop, or become apparent, after such shock, it does not do so as the result thereof. Thus, in the course of the cross-examination of one of the distinguished gentlemen, passages from a number of works on psychiatry, some of them admitted to be of high authority; were called to his attention, as expressing the idea that “very frequently the disease [senile dementia] develops immediately following an injury, particularly, head injury, emotional shocks, also acute febrile diseases, especially influenza and bronchitis,” and the examination discloses the following, among a vast number of questions and answers, to wit:
“Q. The question I asked you was whether the expressions used by this author, which I have read to you, that ‘very frequently, this disease develops as a result of emotional shocks,’ meets with your approbation, or do they not? A. It does not meet with my approbation. Q. Then, your answer to my question is that you do not agree with him? A. I do not agree with him. I agree with him that it may apparently develop, after emotional shocks, but I do not agree that it does actually develop, as the result of emotional shock.”
Still another physician was appointed by the judge to examine defendant and report whether she could safely be returned to her home, and she (being a lady physician), having thereafter attended defendant for the alleviation of her physical ailments, was called to the stand, in December, 1913, and testified:
That she began her attendance on April 8, 1913 (the day defendant was returned home), and had continued it up to the time that she was testifying; that she had found her “a feeble old woman with many senile changes,” such as come with arteriosclerosis, and very incoherent in her talk. “She had some terror; what this terror was, or the cause of it, I don’t know; that cleared away, subsequently.” Being asked, “What is her physical condition to-day; is it improved?” she replied: “She is quieter. She is easily excited, and, having nothing to excite her, and being under very good conditions, she is quieter, not nervous. Her appetite is good. Her digestion is good, and she sleeps better. She is quieter.”
It appears, also, that at an early stage of the trial, or before it had actually begun, defendant’s counsel had employed, or had had appointed, three other prominent physicians to examine her, in her own behalf, and it was disclosed that they had furnished counsel with a report of the conclusions reached by them, which report counsel spoke of offering in evidence, at the proper time; but it was not thereafter produced, and we think it a fair inference that it was unfavorable to the position of the defense.
After plaintiffs had rested their case, defendant’s counsel began with the offer of testimony relating to her condition, physical and mental, prior to the institution of the suit, to which counsel for plaintiffs made the objection that it was immaterial, and thereupon the court made the following ruling, to wit:
“The Court: My opinion is that the only issue here is whether or not Mrs. Pons was, at the time of the institution of this suit, and is at the present time, incapable, by reason of her mental infirmity, of taking care of her person or of administering her estate.
“Mr. Eourchy (defendant’s counsel): Your honor will allow us, I suppose, to ask the question, What was her condition on the day before the proceedings were filed?
“The Court: Yes; for the purpose of formulating your bill, but the witness will not answer.”
And the ruling so made was adhered to throughout the trial. Subsequently a certain portion of the testimony which had been given by one of the plaintiffs, and which was thought to have transgressed the rule, was, *45by consent of plaintiffs’ counsel, ordered to be stricken out. But the testimony of plaintiffs’ main witnesses, the medical experts (to the effect that the condition in which defendant was found by them was likely to have existed before the institution of the suit), escaped observation and was allowed to remain in the record. Defendant then called to the stand a great many witnesses (perhaps 50, or more), a number of whom testified to intercourse, or conversations, with defendant, after the institution of the suit, in which she appeared to them to be sane and normal, but none of whom were permitted to give any testimony as to her condition prior to the institution of the suit. It, then, appearing that many more witnesses had been summoned, it was suggested that counsel make a statement of what they expected to prove by them, in order that a single ruling might be made and defendant’s rights with respect thereto reserved in a single bill of exception; and thereupon counsel presented a list of 30 names, many of them borne by well-known lawyers, notaries, and business men, with the statement:
“By these witnesses, and each of them, we propose to prove that they have known Mrs. Pons for a great many years, some as far back as 20 years; that they were thrown a great deal in contact with her, socially and in business ; that at all times, always, prior to the institution of these interdiction suits, they found Mrs. Pons perfectly normal and rational, in every manner, form, and shape, physically as well as mentally; that she was able to transact her own business, collect her own rent, in some cases making her own bargains, signing her own acts of sale and contracts, and having a general supervision of the property up to the time of the interdiction proceedings on November 29, 1912.”
And the proposed testimony having been objected to, and the court having excluded it, a bill was reserved.
Thereafter defendant’s counsel tendered her daughter Mrs. Suarez and her attorney Mr. Fourchy as witnesses to prove (the one or the other or both) that for years prior and up to the day of the institution of-this suit for interdiction, defendant had attended to her person and her business; that she had walked about her house and garden, driven about the city, every day, rain or shine, inspected her houses, at times collected her rents, made contracts for repairs, discussed prices, and made payments; that she was out driving on the day that this suit was instituted ; that when she received the papers, they were read to her (she being illiterate) by her daughter Mrs. Suarez, and that she was thereby thrown into a state of nervous collapse, which lasted for several days; that when, in February following, she was kidnapped, by her grandson, and taken forcibly to the house of her son-in-law, the husband of one of the plaintiffs, and there detained, the effect, when, in March, she was allowed to return to her home temporarily, was that she reached there in such a condition that she could neither talk, walk, stand, nor recognize any one, and that when she was finally returned to her home, in April, she was in a most enfeebled condition — unable to swallow even a spoonful of water or to hold a spoon in her hand — and was brought back to life and to a better condition only by the devoted attention of her physician. The offer so made was ruled out, and a bill of exception was reserved.
In his reasons for judgment, the trial judge states that plaintiffs abandoned their charges of conspiracy, maladministration, and waste, and the statement is sustained by the record. Counsel for plaintiffs say that evidence in support of those charges would have been irrelevant and inadmissible, and in one view of the case they are right, though, considering the ground upon which the judgment appealed from is based, it would appear to us to have been highly important. As we understand it, however, the trial judge was of a different opinion, while the trial was in progress, and did not then regard such- evidence as rele*47vant. The learned judge, proceeding with his reasons, says:
“It follows that, by this action of the plaintiffs, there is no issue of fact left in the case, except as to the mental and physical condition of defendant, at the date when this suit was brought, and since. Thus narrowed by the plaintiffs, the question presented is whether Mrs. Pons, the defendant, is, by reason of her physical and mental infirmity, unable to care for her person and her property; and this fact conceded, for, unquestionably, it is true, the only remaining issue of fact is whether there is an actual and unavoidable necessity for her interdiction.”
Towards the close of the opinion, our learned brother, after a passing reference to some matters which he did not consider germane to the issue under consideration, mentions his ruling upon the admission of evidence as follows:
“I have indulged these remarks as to matters not in the case because I am convinced that I committed error, to defendant’s prejudice, in excluding the evidence that was offered in her behalf. So convinced of this was I that I had serious thought of reopening the case to correct my error, and it was in considering my duty as to this that the line of thought just expressed, as to matters not in the case, occurred to me, and induced me to render judgment on the case as plaintiffs had elected to submit it. It was on plaintiffs’ objection that the case was narrowed down to the mere issue of defendant’s personal condition when suit was filed, and since. As they had chosen thus to restrict their case, and as, in my judgment, they had failed to show any necessity for the interdiction, it seemed to me that my error, in excluding defendant’s testimony, had done her no harm, and I decided the case as it was made up.”
Opinion.
[2] The evidence in the record is conclusive, we think, to the effect that, whatever may have been defendant’s condition at the moment of the institution of the suit, she was (or became) at a later period, and prior to the rendition of the judgment, afflicted with senile dementia in such degree as to render her incapable of taking care of her own person and administering her estate; and the learned judge a quo, conceding that to be “unquestionably * * * true,” and in view of the exclusion of defendant’s testimony, rested his judgment, denying her interdiction, solely upon the ground that no “actual and unavoidable necessity” therefor was shown. The necessity arises, however, from the obligation, imposed upon the courts, to obey the mandates of the law which declares that:
“No person above the age of majority, who is subject to an habitual state of imbecility, insanity or madness, shall be allowed to take care of his own person and administer his estate, although such person shall, at times, appear to have the possession of his reason.” O. C. 389. * * *
“Every relation has a right to petition for'the interdiction of a relation. * * * ” O. O. 390.
“If the person who should be interdicted has no relations and is not married, or if his relations or consort do not act, the interdiction may be solicited by any stranger, or pronounced ex officio, by the judge, after having heard the counsel of the person whose interdiction is prayed for, whom it shall be the duty of the judge to name, if one be not already named by the party.” G. C. 391.
“Not only lunatics and idiots are liable to be interdicted, but -likewise, all persons who, owing to any infirmity, are incapable of taking care of their persons and administering their estates. Such persons shall be placed under the care of a curator, who shall be appointed and shall administer in conformity to the rules contained in the present chapter.” G. G. 422. (Italics by the court.)
[5] The words “of imbecility, insanity or madness,” in article 389, are translations of “d’imbécilité, de demence ou de fureur,” found in French text of the Godes of 1808 and 1S2J5, and are the identical words of article 489 of the Code Napoleon, which are held by the BTench commentators to be declaratory of what is, in reality,'the one ground of interdiction, to wit, mental alienation, consisting of absence of, or change in, the faculty of reasoning and discerning, and which renders the person incapable of taking care of himself and administering his affairs (“l’aliénation mentale, qui consiste dans l’absence ou 1’altSration de la raison et du discernment, et qui rend l’homme incapable de se gouverner lui-mgme et de gouverner ses affairs,” Dalloz, Code Ann. vol. 1, pp. 791, 792); and, as furnishing *49a complete table and precise nomenclature intended to include all forms of mental alienation (La pensée de notre législateur est trSs certainement que l’aliénation mentale sous toutes ses formes peút étre une cause d’interdiction. II a cru donner un tableau complet et une nomenclature exacte des divers cas d’aliénation mentale en employant les expressions imbécilité, demence, fureur; et il importe peu que les aliénistes moderne aient adopté une classification différente, non seulement quant au .nombre des cas d’aliénation mentale, mais aussi quant a leur denomination; cela ne peut évidement rien changer au Code Civil.” Baudry-Lacantinerie, Précis de Droit Civil [9th Ed.] vol. 1, p. 635).
As stated in the opinion heretofore handed down, the ease of Erancke, cited by defendant’s counsel, is to be distinguished from this case in that the defendant, Mrs. Francke, had no property, and was being cared for by a devoted mother, who resisted the interdiction. But beyond that it will be seen that, in the opinion refusing the rehearing, Mr. Justice De Blanc, as the organ of the court said:
“It was not, however, on that charge of adultery, or on that tacit admission of its truth, that we have based our decision; but on the fact that on the trial of this case it was not proven that Mrs. Francke was insane or that she is an imbecile, and it was proven that her condition had remarkably improved, and that she can, at present, take care of her person ; that she is not a burden to her husband, or a danger to her children; that she has, in no way, exposed their rights or troubled their welfare; and that her interdiction cannot be claimed or allowed either as a matter of right or of necessity, either in her own or the interests of others.” Francke v. His Wife, 29 La. Ann. 314.
In the Watson Case, the presumptive heirs of the defendant resisted the interdiction, and the majority of the court was, no doubt, influenced by that consideration; but, as may be gathered from the syllabus, the judgment was placed upon the ground that the evidence failed to make out a case of insanity, calling for interdiction, and that aspect of the matter was reviewed by Mr. Justice White, with whom Mr. Justice Spencer concurred, in ,a dissenting opinion, in which,, asking the question, “What is the law,” and, answering it by quoting article 389 of the-Civil Code, the. learned writer of the opinion propounds the further question:
“If the defendant be insane, how can the mandatory provisions of the law be avoided without substituting the volition of the judge for the-will of the lawmaker?”
[3, 4] And so we say here: If the defendant now before the court be insane, and was-insane during the trial in the district court, how can the court escape the discharge of the-duty, imposed by the lawmaker in mandatory terms, of so declaring, in order that she may obtain the benefit, with respect to her person and property, of the protection which the law contemplates, and will then secure her. As matters stand at present, she herself is under the protection of sheriffs, or police officers, acting under the authority of' the court, and her property is being eared for by an administrator pro tempore; but the law confers upon the courts no authority to perpetuate indefinitely such an arrangement ; and the question suggests itself, What is to happen should they take off their hands and leave their ward and her estate with no one legally authorized to care for the one or to administer the other? We know of no satisfactory answer to that question,- and we conclude that the decree of interdiction must be pronounced, but not by this court, at this moment, or by the district court. We are •satisfied, as we have stated, that the defendant is, now, a proper subject for interdiction, but we are not satisfied that she was so at-the time that this suit was instituted, since the testimony of a large number of witnesses, was tendered, as capable of showing that, up to the moment of the institution of this-suit, she was not in her present condition, but was able, to take care -of her person *51■and manage her affairs, and that testimony was excluded, thereby, as we think, leaving at large the question of the time at which she became incapacitated, and, perhaps, of the immediate cause thereof. Senile dementia is shown to follow, as a consequence, the hardening of the arteries, but it does not begin with the beginning of such hardening, and we are not informed as to the exact stage in that process when it does begin. It is shown that ordinarily both diseases progress slowly; but at times more rapidly, and that the dementia may exist and yet be non-apparent even to those who are nearest to the sufferer, but it is not shown at what particular stage in the progress of the diseases the mind of the sufferer becomes so far alienated that he or she can be called insane; and out of that condition arises the question, If the dementia of the defendant, at the date of the institution of this suit, and prior thereto, was apparent to no one, how is it to be shown to have existed? If the answer , be that it will be shown by the deductions of the specialists, we reply that the deductions of those who did not see or examine the defendant during the period in question will have to be weighed, in such case, with the testimony of those who did see, associate, and transact business with her; and in that connection the court may be called on to consider whether an undeveloped or nonapparent dementia is within the meaning of the statute, and whether such ■dementia, theretofore undeveloped or nonapparent, may be developed or made apparent by a shock to the mind or nerves, when otherwise and without such shock it would remain, for whatever period, undeveloped and nonapparent.- The questions thus suggested are of importance in this case because of the heavy expense which has been incurred, and for which it may be (though we do not decide that question) that plaintiffs, and not the estate of the defendant, should be held liable, in the event it should be found that defendant became demented, within the meaning of the statute, only after and as the result of the interdiction suit or the proceedings connected therewith. And as defendant and her estate appear to be well cared for under the present temporary arrangement, we see no good reason why they (the questions) should not be disposed of in such time and manner as to enable the trial judge then to determine whether the interdiction of the defendant should be pronounced in this suit, at the instance of the plaintiffs, or by himself, acting ex officio, under the obligation imposed by O. O. 391, or in some other proceeding.
It is therefore ordered that the decree heretofore handed down be amended in so far as to direct that the further proceedings in the district court be conducted in accordance with the views expressed in the foregoing opinion, and, as thus amended, that said decree be reinstated as the final judgment herein.
O’NIELL, J., being of the opinion that the plaintiffs’ suit was properly dismissed, because of their refusal to show any necessity for the interdiction, respectfully dissents from this decree.