dissenting.
This is an appeal from a decree of the district court holding that Leo M. Warner is incompetent to have the care and management of his property, and affirming and sustaining the findings of the county court to the same effect.
The petitioners, applying for the guardianship, are Robert and Hazel Richardson. Hereafter reference will be made to the petitioners as the plaintiffs, and to the alleged incompetent as the defendant.
The defendant is a man 43 years of age. The plaintiffs are his nephew and niece. The mother of the plaintiffs (sister of the defendant) is dead. As nearly as can be determined from the record, the plaintiff Robert Richardson is a resident either of York or of Polk county. The plaintiff Hazel Richardson is a resident of Holt county, and their father is a resident of either Holt or Boyd county, Nebraska.
The defendant was married in 1923. There are three children. In 1929 the wife sued the defendant for divorce. The decree in full is not in evidence, but it appears that she secured the divorce, and custody of the children was placed in the hands of third parties, at the expense of the defendant.
At the time the divorce proceeding was pending, the defendant, upon the advice of his brother and attorney, filed a personal application in the county court, alleging that he was incompetent, and asking to have a guardian appointed *42for him. As a result of that application, and apparently without notice to any one except the brother, Dr. Frank Warner was appointed his guardian. Further reference to that proceeding will be made hereafter.
It is in evidence, and not denied, that the purpose of that guardianship was to protect the defendant’s property from claims of the wife. The guardianship proceedings, which were admitted in evidence over the objection of the defendant, clearly sustain the contention of the defendant in that regard. They show that immediately following his appointment the guardian reported that he had in his possession certain personal property consisting of farm machinery, horses, feed, and household goods valued at $527; that between the time of the guardian’s appointment and March 7, 1930, the guardian received a total of $798.54 cash. Of this, $197 was from money turned over to the guardian by the defendant, reference to which will be made hereafter. The balance came from the sale of the property, machinery, and oats belonging to the defendant. There was paid out during the first year of the guardianship a total of $629. Of that amount, $590 was paid either to the clerk of the district court, or to others, as alimony and child support. The guardian shows a receipt of $3 on May 31, 1930, and no further receipts. The last payment was made on March 23', 1931, and thereafter no further action was had, no money received, or paid out, until June 23, 1936, when the guardian reported a balance of $45.47 which he had had on hand, and which was paid out in court, attorney, and guardian fees and expenses.
The defendant testified in this action that his wife was extravagant (and in that his testimony is supported by other witnesses) and that his wife was unfaithful to him. He denied the paternity of the three children.
The defendant inherited real and personal property from the estate of his parents. In the probate proceedings of his mother’s estate, there was over $800 payable to him, which was paid into court by the administrators of that estate, and held by the court. A partition action was brought by a *43sister, and his one-eighth interest in the real estate which he had inherited was sold. Over $4,000 is held by the clerk of the district court as defendant’s share of the proceeds of the partition sale.
It appears that, shortly after the divorce action, custody of two children passed as a matter of fact to the father of the plaintiffs. The third child appears to be with an aunt, apparently on the mother’s side.
In April, 1937, the father of the plaintiffs herein filed an action against the defendant in the district court for Polk county, asking for the recovery of a substantial sum for the care of the two children. Thereafter a conference was held in Holt county between the two plaintiffs and their father, and it was determined that a petition should be filed asking that the defendant be placed under guardianship. At that time, the defendant had a brother and a sister living in Polk county, and a brother and a sister living nearby in York county. They were not consulted, and were not present at the family meeting when the plaintiffs determined to file the petition in this action. The brothers and sisters did not ask that it be filed. The plaintiff Hazel Richardson did not testify. Neither did the father. Plaintiff Robert Richardson testified that his reasons for filing the petition were that he knew the defendant had money coming to him, that he wanted to see the children cared for, and that he believed the defendant to be incompetent. He was asked twice who prepared the petition in this case for him, and he answered, “An attorney.” He did not name the attorney until his attorney instructed him to do so. On cross-examination, he admitted that his father’s claim against the defendant, then pending in court, “might have had something to do with” his filing of the petition. However, he denied that his father, or any one else, asked him to file the petition, although he did talk with his father about it. Plaintiff further admitted that his action in this matter was “partly” guided and controlled by the hope that his father would prevail in that litigation. One of plaintiff’s attorneys was the county judge before whom the first guardianship *44proceedings were had. Plaintiff’s attorneys represented the father in his case against the defendant, and they now represent the plaintiffs in this action, who, the petition alleges, are the relatives and “friends” of the defendant.
As to the children, plaintiff Robert Richardson testified that two of them had been living with his father for seven years; that the defendant had never come to see them, written them, sent them gifts or cared about them; that his father was not physically able to continue to care for them and intended to return them to their father (the alleged incompetent.)
Robert Richardson also testified that in 1935 he bought a stock tank from the defendant and paid him $4 for it; that it was in good condition; that the value of a new tank at that time was $12.50, and that the defendant fixed the price on the tank. That is one of the acts of alleged incompetency of the defendant.
The other act of alleged incompetency, testified to by the plaintiff, was that at one time the defendant, who was then living with his sister, drove her car to the near-by town of Shelby, left it there on the street with the ignition locked, did not advise his sister where the car was, and did not return home until several days later. The sister, testifying for the defendant, explained that she was concerned only as to where the defendant and the car were.
Upon those two acts, plus his observations and associations with the defendant, the plaintiff was permitted to testify that the defendant is incompetent.
A brother of the defendant testified, for the plaintiffs, that, while living, the father took care of all defendant’s business, then the mother did so, then a brother, Glen, now deceased, and, finally, Dr. Warner helped the defendant with his business; and that he wanted the boys to have some of the money. The witness himself never had anything to do with defendant’s business and never was with him when he ■transacted it, but observed his actions. He testified that the defendant worked for him on a number of occasions, but was not good help because he would “quit for no good *45reason that I know.” He admitted that the defendant understood the value of a dollar and knows what is going on. He testified that he did not think the defendant knew the value of an automobile; that the defendant had traded cars and horses upon occasions; that he (the witness) did not know anything about these trades as to prices, values, and exchange conditions. When asked if he knew what his brother was going to do with his money if he got it, he replied that, in the summer of 1937, two men came to his place seeking the defendant, and that “they were out to sell a trailer house.” There is nothing further in the record to show that the men ever attempted to sell the defendant a trailer, or that he ever bought one. On those facts, plus his general observations of the defendant, Ray Warner testified that he thought the defendant was incompetent.
It appears from the defendant’s witnesses that at one time the defendant did quit working for his brother Ray. Two of the witnesses testified that the reason was that the brother Ray did not pay the defendant for the work which he had been doing.
Plaintiffs also called as a witness the brother, Dr. Frank Warner (a dentist), who testified by deposition. He also testified that the father, while living, transacted most of the defendant’s business, and that from 1929 to 1936 he (the witness) handled the business and the property of the defendant at the request of his mother, brothers, and sisters; and, during that time, he sold the defendant’s farm machinery and household property. Based upon the business which he transacted for him and observations of him, it was the opinion of Dr. Warner that his brother was incompetent to control and manage his property and that he was easily influenced. However, he admitted that he had not been associated with his brother enough to know if he had squandered his money, and that he did not know of any one who had ever influenced him to do anything that was not right. In his testimony, Dr. Warner did not refer to the first guardianship proceedings wherein he was appointed guardian. However, his testimony covered the *46period of his guardianship, and during the period of time 'Dr. Warner was acting as guardian, from April, 1931, to June, 1936, he transacted no business whatever for the defendant. He did not testify as to any business which he had transacted. His sworn statement before the county judge recites that in that statement he had accounted for all of the estate of defendant that had come into his “possession,” or to his “knowledge.”
The present county judge was permitted to testify that he had known the defendant since 1927; that he had casually met him in and about the bank, courthouse, and on the street, observed him, and had an opinion as to his competency, and that he entered an order in the county court in August, 1937, placing a guardian over the property and person of the defendant. He recited no facts whatever upon which either his opinion or the order is based.
. Plaintiffs offered the testimony of an attorney, who was counsel for the defendant in his divorce action. He also represented Mrs. Dickson in the partition suit. He saw the defendant and was present many times in conferences regarding the estate. In May, 1936, they had a series of conferences, one of which occurred on the street in Osceola. The sister was in a car; the witness standing beside the car talking to her. The defendant was sitting down, leaning over with an elbow on the curb and his limbs out in the street. He talked with them about the partition suit and his share in the property. Upon the basis of that testimony, plaintiffs contend in their brief “that on one occasion he (the defendant) was seen lying in the gutters of the streets in Osceola.” The attorney was asked the foundation question, but not permitted to testify as to his opinion of the competency of the defendant. On cross-examination, he testified that he recommended to the defendant’s two sisters (who testified for the defendant) that they have a guardian' appointed for the defendant. One of the sisters testified that they refused to bring the guardianship proceeding against the defendant.
Defendant was called as a witness for the plaintiffs and *47was cross-examined. He testified as to his age; the school which he had attended, the names of his teachers. He attended school for 14 years, and left school when he was in the seventh grade at the age of 19 to help his father on the farm. He left home at the age of 23. He had asked in 1936 about the money which he had coming from his mother’s estate, and had not asked about it since, although he clearly knew that he had it coming; that he had a one-eighth share in the real estate; that he had earned $75 in 1937; that he read books, daily newspapers (naming two of them), novels, and magazines. He told when he was married, of his married life, that he treated the family all right, provided for them, and claims that no one had assisted him in business matters; that he bought a car in 1930, paid for part of it in day labor, financed the balance of it, and that Dr. Warner had paid that balance. (This' testimony about the payment for the car out of defendant’s money is established by Dr. Warner’s report in the guardianship proceedings.) He frankly admitted that while he was farming for himself he was not able to secure the same farm for the second year. When asked what he intended to do with his money if he received it, he replied that he intended to pay his bills and put the rest of it in government bonds. When asked what interest government bonds paid, he said he did not know exactly. While on the stand subject to this examination, he was asked to figure 4% per cent, interest on $4,000 for a year. He was unable to reach the correct answer.
Plaintiffs offered no expert witnesses. Defendant called as a witness Dr. A. E. Bennett, of Omaha, a specialist in mental and nervous diseases. He had examined the defendant, who told him that it was his desire to remove guardianship proceedings pending against him, and that his relatives wanted to get his money. At this examination he was' accompanied by his sister. He told of his disagreement with his wife, and said that he had accepted thq guardianship on the advice of a brother and an attorney for the reasons herebefore set out; that for a year and a half he *48turned his wages over to his attorney, and that after that he had managed his own affairs; that his brother resigned as guardian in 1936; that in 1937, when he was to get this other money, the relatives were trying to prevent it.
Dr. Bennett testified that his statement with reference to why the guardianship proceedings were brought was a normal reaction; that the defendant had a poor grasp of general information; that he did not have the grasp of the “higher intellectual group;” that he had no delusions, no defective memory, no disturbances in mental retention; that he was poor in calculation and simple arithmetic; that his mental age was between 10 and 12; and that in his opinion, based upon the examination which he made and the information furnished by the defendant, the defendant was competent to have charge of and manage his property, and use ordinary intelligence and discretion with reference thereto; that he had a “moderate degree of intelligence retardation, which is well within the normal averages for a great many individuals who are self-supporting and able to adjust themselves at the level that he is called upon to adjust himself to;” that he was a “high-grade moron;” that he was more susceptible to influence than those of a higher mental rating, but that there were plenty of such individuals óf his mental capacity who handle their own affairs, and while he might at times require some guidance in the management of his property “most of us do;” and that it was nothing unusual for people in that class to handle larger sums of money than $5,000, and that-brilliant men often dissipate property more easily than the less brilliant.
Defendant also offered the testimony of Dr. J. S. Bell, of York, a general practitioner and surgeon. He testified that he had examined the defendant; that the defendant’s mental capacity is a little below the medium grade of intelligence, but more than a ten to twelve-year-old child; that he was able to handle his own affairs with ordinary discretion; that he would not be generally guided by persons of stronger minds, nor more likely to be influenced “than any of the rest of us.”
*49Seven of the defendant’s neighbors also testified for him. They had known him for an average of 20 years or more. They were not interested in the outcome of the litigation. Some of them had worked with him. He had worked for some of them. All testified that he was a good worker; that he knew about his wages and had no extravagant habits. Several testified that, with the defendant, they had attended horse sales and sales of other types of property, and that the defendant’s judgment was good; that he was as capable as the majority of people; that they knew of no reasons or facts upon which a charge that he was incompetent could be based. Testifying also for the defendant were his nephew and brother-in-law. They were with him on some of his car and horse trades; and, in their opinion, he received good value in these trades; and was fully competent.
His sister, with whom he is now living, testified for him that he had traded cows for her; had purchased property for her at sales; that he handled property in a very satisfactory way, and that he was as competent as any one of them to handle the property he would receive from the estate.
His other sister, Mrs. Dickson, also testified. Corroborating the other witnesses, she testified that in her opinion he was perfectly competent to manage and control his property. She was the plaintiff in the partition suit that was started in February, 1935. On cross-examination, it was pointed out that, in that petition which she signed, her brother was designated as an incompetent. She testified that that was done by the attorney, who told her that it was necessary to so designate him because of the guardianship proceedings and its effect upon the title of the property; that the guardian originally was appointed for him because of the divorce action, and that as long as it was pending it was necessary that he so be designated. She was alsq one of the administrators of her mother’s estate. She testified she paid the money into court because the attorney and the county judge advised her that should be done. That also was not denied. She testified that she was appearing for her brother because she wanted him to get “a fair deal.”
*50Called in rebuttal, the witness, Ray Warner, was asked further about the horse trades and testified that upon one occasion the brother had gotten a horse in a trade that was a “kicker.”
It will thus be seen from an examination of this testimony that the factual basis of defendant’s alleged incompetency is distinctly meager. With the exception of those incidents, the only supporting evidence upon which a finding of incompetency is based is the testimony of the plaintiffs’ witnesses based upon general observations of the defendant, and the allegedly void guardianship proceedings.
There is no evidence in this record that the defendant was ever extravagant, wasteful, or careless with his money. There is no evidence that he was ever overreached or improperly influenced or deceived or imposed upon, unless it should be when he accepted the advice of his brother and attorney and personally asked that a guardian be appointed for himself.
The plaintiffs argue in their brief in this court that he has done little, if anything, in the last several years; that in 1937 he earned but $75. It may be pointed out that as a result of the guardianship proceeding in 1929, and the sale of his farm equipment, he was left without money or property to enable him to operate a farm. Subsequent to that time, it appears that he has, through labor for neighbors and relatives, earned his own way and cared for himself.
The extent to which his doctor brother thought defendant was incompetent to handle his business affairs is demonstrated by the guardianship proceeding. The guardian brother in that report shows that during the period from April 13, 1929, to September 20, 1929, the defendant paid to the guardian a total of $197, an average of almost $40 a month. Evidently the guardian allowed the alleged incompetent to collect his own wages. During the period from April 15, 1929, to April 9, 1930, a total of $23.40 was paid out of those funds for clothing for the defendant. Subsequent to that time, although the defendant continued to *51work, accumulate property, make automobile and horse trades, etc., the guardian did not exert any control over his wages or over his property. After April 9, 1930, the guardian reports the receipt of but $3, and after April 23, 1931, the guardian neither received nor paid out anything until he made his final report in June, 1936. The partition suit, involving the brothers and sisters, was started in 1935. At that time, the first guardianship in Polk county had not been closed and the guardianship was in force. The mother’s estate was then being probated, out of which a substantial amount of money became due the defendant. In the face of those facts, the defendant’s brother, Dr. Frank Warner, made his final report, petitioned for his discharge as guardian, and did not ask that any one else be appointed guardian in his stead, and no one else was appointed in his stead.
It was not until after plaintiffs’ father attempted to secure a judgment against the defendant that the plaintiffs, without consultation with the brothers and sisters of the defendant, initiated this guardianship proceeding. It is obvious that the conclusion of the defendant that some of his relatives wanted to get his money was a rational conclusion.
All persons are presumed to be sane and competent. An individual is entitled to the control of his own property unless good cause is shown for denying that control to him. Keiser v. Keiser, 113 Neb. 645, 204 N. W. 394. The burden of proof was upon the plaintiffs to establish that the defendant was “mentally incompetent to have the charge and management of his property.” Comp. St. 1929, sec. 38-201. Woerner, American Law of Guardianship, 408, sec. 124. In re Phillips, 158 Mich. 155, 122 N. W. 554.
The Nebraska statute and the Michigan statute are in almost identical language. This court has often cited and followed the Michigan court in interpreting our guardianship act. Mental incompetency must be established. “The statute does not say merely ‘incompetent,’ but ‘mentally incompetent.’ It does not refer to persons who are sane, but *52not, perhaps, as wise or intelligent as some other persons. It applies to those whose mind is so affected as to have lost control of itself to such a degree as to deprive the person afflicted of sane and normal action.” In re Guardianship of Storick, 64 Mich. 685, 31 N. W. 582. Here it is noted that the plaintiffs’ witnesses were not limited by their questions to the mental incompetency or incompetency of the defendant, but were asked merely as to their opinion of defendant’s competency.
The power, vested in the courts, to place a guardian over a person or his property should not be exercised except in cases that clearly require that action. 32 C. J. 632; In re Guardianship of Wilson, 23 Ohio App. 390, 155 N. E. 654; McCammon v. Cunningham, 108 Ind. 545, 9 N. E. 455; In re Bryden’s Estate, 211 Pa. St. 633, 61 Atl. 250.
It was early held in Michigan: “The fact that a man is unable to provide a comfortable and suitable maintenance for his family, even when coupled with the fact that he makes foolish bargains and squanders all he earns, is not made by either statute a reason why he should have a guardian appointed over him. If it were, a goodly number of people would be under guardianship. * * * The power of appointment of a guardian by the probate court is derived from the statute, and, in order to obtain jurisdiction in such cases, the statute must be strictly pursued.” Partello v. Holton, 79 Mich. 372, 44 N. W. 619. See North v. Joslin, 59 Mich. 624, 26 N. W. 810; In re Guardianship of Bassett, 68 Mich. 348, 36 N. W. 97; In re Guardianship of Storick, 64 Mich. 685, 31 N. W. 582.
“An improvident business transaction may be competent evidence in support of an application for guardianship; most of the acts of a respondent in such a case are competent as going to show the mental condition. But such an improvident act becomes cogent proof of mental incompetency only as it is reinforced and explained by other facts and circumstances.” (Italics mine.) In re Chappell’s Estate, 189 Mich. 526, 155 N. W. 569.
*53In Keiser v. Keiser, supra, this court said :
“It is not sufficient that incompetency■ alone is established, for it may well be, even where incompetency exists, that the situation and surroundings of the incompetent are such that no necessity exists for the appointment of a guardian, and that no good purpose would be served thereby. * * * But the present proceeding is under a statute, one of whose purposes is, indeed its chief purpose is, to prevent the necessity of such actions; and, while each individual is entitled to control his own property, the legislative intent was to prevent its dissipation in litigation over contracts secured by improper persons through improper means and to save to the owners of such property that which age and disease have made them unable and incapable to save for and to themselves. (Italics mine.) * * *
“Mental incompetency or incapacity is established when there is found to exist an essential privation of reasoning faculties, or when a person is incapable of understanding and acting with discretion in the ordinary affairs of life.”
The real cause for the bringing of this proceeding is the desire of plaintiffs to aid their father in the collection of an alleged claim against the defendant. Guardianship proceedings are not intended to be a substitute for attachment or proceedings in aid of execution. Courts have repeatedly condemned the bringing of. proceedings of this character by expectant heirs, for the purpose of conserving an estate for their inheritance. This proceeding presents a situation far more subject to condemnation. The plaintiffs herein are dominated by the selfish interest of aiding their father in the collection of a claim, rather than the unselfish interest of friends having the welfare of the defendant uppermost in their minds. Nowhere in this record is there any evidence indicating that these plaintiffs have ever been concerned about the defendant or his welfare.
It may here be pointed out that section 38-201, Comp. St. 1929, authorizes the “relatives or friends” of the alleged “mentally incompetent” person to apply for the appointment of a guardian. The brothers and sisters of the *54defendant, living in the jurisdiction of the county court of Polk county, did not apply for this guardianship. While the plaintiffs are legal “relatives,” their friendship for the defendant may well be questioned on this record. That the statute contemplates that this action shall be brought by persons friendly to the alleged incompetent is not open to serious question.
“The court will guard with peculiar care the alleged lunatic from interference springing from a hostile motive, and will weigh with more precision the evidence, if the person by whom it is tendered appears to be actuated by a sinister intent.” Woerner, American Law of Guardianship, 408, sec. 124.
“Each case involving the guardianship of an (alleged) incompetent person must, of necessity, stand or fall upon the circumstances and evidence shown and the conditions surrounding the transaction.” In re Guardianship of Blochowitz, 135 Neb. 163, 280 N. W. 438.
After a careful reading of this entire record in the light of the circumstances and conditions therein disclosed, I am convinced that the appointment of a guardian for the person and property of the defendant is not justified and is not authorized by the statute under which this proceeding was had.
In my opinion the judgment of the district court should be reversed and the case dismissed.