Appeal, No. 139, January T., 1959, from decree of Orphans' Court of Lancaster County, No. 828 of 1958, in re estate of Don M. Myers. Decree affirmed as modified.
Harris C. Arnold, with him James P. Coho, John W. Beyer, and Arnold, Bricker, Beyer & Barnes, for appellant.
Alfred C. Alspach, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
The Orphans' Court of Lancaster County, under the authority of the Incompetents' Estates' Act of 1955,*fn1 declared Dr. Don M. Myers Legally incompetent and appointed as his guardian the Fulton National Bank of Lancaster, Pa. From that decree Dr. Myers filed this appeal.
Dr. Myers, aged 83 years, is a resident of Lancaster. The incident which sparked the institution of this incompetency proceeding was a robbery which occurred on May 17, 1958. Around midnight on that date three men waylaid Dr. Myers on his porch, tied him up and took from his home certificates of stock of the American Petrofina Company having a value of approximately $250,000.*fn2 Although Dr. Myers never reported this robbery to the police, several days thereafter he did relate the story to one L. P. Mauger who, on Dr. Myers' behalf, sent "stop orders" on the stock to the corporation and its transfer agent. The robbery did not come to the attention of the police until several months later when a "fence" was apprehended in Cleveland, Ohio while attempting to negotiate a block of stock representing about one-third of the stolen stock. Thereafter both the FBI and Lancaster police on various occasions questioned Dr. Myers.
On July 30, 1958 Dr. Myers gave a power of attorney to one M. H. Baer, a stock broker, to enable the latter to handle certain of Dr. Myers' affairs. On September 22, 1958 Mr. Baer, acting in the capacity of a "person interested in [Dr. Myers'] welfare", presented a petition to the Orphans' Court of Lancaster County for the appointment of a guardian for Dr. Myers. Notice of the presentation of this petition was given to three nephews and two nieces, children of a half-brother of Dr. Myers, and to a niece, the child of another half-brother of Dr. Myers.*fn3
After two hearings the court below on December 18, 1958 found Dr. Myers to be mentally incompetent as of October 17, 1958, the date of the first hearing.
In reviewing the propriety of the action of the court below, we must bear in mind that this statute - as every other statute of like nature - which empowers a court to declare an individual mentally incompetent and to place such individual's business affairs in the hands of another for management and care is "a dangerous statute easily capable of abuse ...": Hoffman's Estate, 209 Pa. 357, 359, 58 A. 665; Bryden's Estate, 211 Pa. 633, 636, 61 A. 250; Denner v. Beyer, 352 Pa. 386, 388, 42 A.2d 747; Ryman's Case, 139 Pa. Superior Ct. 212, 223, 11 A.2d 677; Owens Appeal, 167 Pa. Superior Ct. 10, 12, 74 A.2d 705; Nagy Appeal, 169 Pa. Superior Ct. 388, 390, 82 A.2d 591. Mental capacity and competency are to be presumed and before any person shall be deprived of the right to handle his or her own property and manage his or her affairs there must be clear and convincing proof of mental ...