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NAGY. (NAGY APPEAL.) (07/19/51)

July 19, 1951

IN RE NAGY. (NAGY APPEAL.)


COUNSEL

Daniel L. McCarthy, Bethlehem, Calvin F. Smith, Easton, for appellant.

William C. Fulmer, Robert Ungerleider, Bethlehem, for appellees.

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

Author: Dithrich

[ 169 Pa. Super. Page 389]

DITHRICH, Judge.

William Nagy, one of three sons of Barbara Nagy, a widow, filed a petition to have her adjudged so mentally defective that she is unable to take care of her property and to have a guardian appointed for her. The petition was brought under the Act of May 28, 1907, P.L. 292, as amended, 50 P.S. ยง 941 et seq.

Respondent filed an answer denying the essential averments of the petition and demanded a trial by jury. The court then framed the following issue for submission to the jury: 'Is Barbara Nagy so mentally defective that she is unable to take care of her property and in consequence thereof is liable to dissipate or lose the same and to become the victim of designing persons?' and ordered 'that in such issue the petitioner be the plaintiff and the respondent be the defendant.'

The real defendants, however, are Alexander and Kalman Nagy, the other sons of the respondent, who are fighting their brother, William Nagy, petitioner, for control of their mother's property. Their father died January 7, 1937. One of the sons, 'Alex', never married and continued to reside with his mother after the death of his father. As stated by Chief Justice Maxey in Denner v. Beyer, 352 Pa. 386, 388, 42 A.2d 747, 748: 'The record gives the impression that the motive for the petition was not so much to conserve the respondent's property as to channel its inheritance to the next of kin.'

[ 169 Pa. Super. Page 390]

'It must be borne in mind also, that the framing of the issue was only to fix the question to be tried, and who had the burden of proof and the duty of going forward with evidence. It did not convert the proceeding into an ordinary cause of action at law. The point to be decided was the mental condition of [Barbara Nagy] at the time of trial, with respect to [her] ability to take care of [her] property, and whether [she] is liable to dissipate or lose the same and become the victim of designing persons'. Ryman's Case, 139 Pa. Super. 212, 216, 11 A.2d 677, 679. In the same case it was stated by President Judge Keller, 139 Pa. Super. at pages 223, 224, 11 A.2d at page 683: 'The statute of 1907 is a dangerous one, to be administered with great caution, because it is capable of abuse and may be used by one's relatives to take the custody and control of his property improperly away from him: [In re] Hoffman's Estate, 209 Pa. 357, 359, 58 A. 665; [In re] Bryden's Estate, 211 Pa. 633, 636, 61 A. 250; In re Anna C. Brinton, 86 Pa. Super. 194, 198.' Quoted with approval in Denner v. Beyer, supra, 352 Pa. at page 396, 42 A.2d 747.

In Denner v. Beyer, supra, the Court also said, at page 397 of 352 Pa., at page 752 of 42 A.2d: 'It is a serious thing to deprive any person of the control of their own property or of their right to dispose of it by will. This right will be judicially taken away from a person only after preponderating proof of their lack of mental capacity to manager their own business affairs.' See also Owens' Appeal, 167 Pa. Super. 10, 74 A.2d 705; Wood's Appeal, 167 Pa. Super. 92, 74 A.2d 538.

The jury found for the plaintiff and against the defendant. Since the case must be retried, we will not go into a detailed recital of the testimony at this time; suffice it that there was sufficient proof to support the finding of the jury and the decree of the court based thereon. The decree would be ...


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