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July 20, 1950



Edward M. Murphy, Joseph P. Kane, Scranton, for appellant.

Walter L. Hill, Jr. and O'Malley, Harris, Harris & Warren, all of Scranton, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.

Author: Hirt

[ 167 Pa. Super. Page 93]

HIRT, Judge.

This proceeding for the appointment of a guardian of the estate of Jennie Howell Dean, an alleged weak-minded person, was brought under the Act of May 28, 1907, P.L. 292, as amended, 50 P.S. § 941 et seq. Edwina Howell Wood, her granddaughter, was the petitioner. She and her six-year-old daughter are Mrs. Dean's only

[ 167 Pa. Super. Page 94]

    lineal descendants. The hearing judge concluded that the subject of this proceeding was able to take care of her property and was not liable to become the victim of designing persons within the intent of the Act, and accordingly dismissed the petition. On exceptions to the findings of the hearing judge the order was affirmed by the court en banc.

We are unable to agree with appellant's argument in limine that the order must be reversed because of the court's failure to observe the mandate of the statute as to procedure. It is argued that because § 3 of the 1907 Act provides that 'The court shall take the testimony' at the hearing, it was reversible error for a single judge of the court below to hear the parties and their witnesses. It undoubtedly is the general rule that whenever a statutory duty is imposed upon the court it can be discharged only by the assembled tribunal. In re Carter's Estate, 254 Pa. 518, 99 A. 58. But the principle has no application here. In accordance with the procedure generally observed, in which the appellant acquiesced without objection, the hearing was had before one judge to whom the matter had been assigned. To his adjudication dismissing the petition, 39 exceptions were filed. These were argued before the full court and were dismissed by final order of the court, after consideration of all of the testimony. Cf. Kensington Club Liquor License Case, 164 Pa. Super. 401, 65 A.2d 428. There were no procedural errors of law. But, mindful as we are that the 1907 Act must be administered with the utmost caution, Denner v. Beyer, 352 Pa. 386, 42 A. 747, yet, it is our settled conviction from a consideration of all of the testimony in this case that the lower court is chargeable with abuse of discretion in dismissing the petition. There is preponderating proof of her lack of mental capacity to manage her own business affairs.

Since we are reversing the order we will refer to the testimony in the light most favorable to the view of the

[ 167 Pa. Super. Page 95]

    lower court. About 14 years ago, on the death of her husband and of her only son in quick succession, Mrs. Dean suffered a critical mental illness. She then was returned to Scranton where she has been maintained in a house of her own. She is now more than 81 years old. Since coming to Scranton she has been under the care of Dr. E. L. Kiesel; his professional visits in the early years which were frequent, have become routine and he now sees her at intervals of about a month. Dr. Thomas G. Killeen, a Scranton Physician, who examined Mrs. Dean at the instance of petitioner shortly before the hearing, gave it as his opinion that she was not physically nor mentally capable of conducting her business affairs. Against this conclusion, Dr. Kiesel, testified that in his opinion she is not feebleminded, but that for her age she is well able to manage her business affairs and is not likely to dissipate or lose her property nor become the victim of designing persons. He is supported in this opinion by Dr. Martin T. O'Malley, who had known Mrs. Dean for years and who examined her shortly before the hearing. Both of these physicians noted evidence of residual nervous disorder but it was their opinion that it did not involve her mental processes. Two of Mrs. Dean's contemporaries and life-long friends, Helen P. Cruttenden who is also her cousin, and Edith Porter, visit her frequently. Both gave it as their opinion that though she has been ill for many years and is in bad physical condition, her mental faculties are not impaired. But it was conceded by them that she long has had the habit of talking to herself; that in conversing she wanders from the subject and that she suffers delusions of believing that living persons, especially those near to her, are dead.

Mrs. Dean had inherited a substantial sum from her father's estate and in 1923 joined with her husband, Edward B. Dean, in the purchase of an apartment house property in ...

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