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decided: April 16, 1968.


Appeal from decree of Orphans' Court of Chester County, No. 344 of 1964, in re estate of R. M. Urquhart, an adjudged incompetent.


Theodore O. Rogers, with him Isidor Ostroff, and Rogers & O'Neill, and Ostroff & Lawler, for appellant.

Robert S. Gawthrop, Jr., with him Gawthrop and Greenwood, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Dissenting Opinion by Mr. Justice Jones. Mr. Justice Cohen and Mr. Justice O'Brien join in this dissenting opinion.

Author: Musmanno

[ 431 Pa. Page 135]

On November 15, 1964, R. M. Urquhart was, on petition of his nephew G. Gordon Urquhart, II, adjudged incompetent, and the Provident Tradesmens Bank and Trust Company (now Provident National Bank) was appointed guardian of that part of his estate located in Pennsylvania.*fn* The petition was joined in by Mr. Urquhart's two brothers, one of whom, W. K. B. Urquhart, is now deceased.

Feeling himself recovered from the infirmity which had occasioned the appointment of a guardian, Mr. Urquhart, on April 7, 1966, petitioned for and obtained a citation against the Bank and his nephew G. Gordon Urquhart to show cause why the decree of incompetency should not be terminated and he restored to full charge of his affairs. A hearing followed the filing of an answer by the respondents, during which Urquhart presented evidence in support of his averred competency. The respondents countered with evidence that the mental condition of the petitioner, as adjudicated in 1964, had not changed and that, therefore, the guardianship should not terminate. In a contest of this kind, the petitioner has the burden of establishing competency by a fair preponderance of the evidence. (Nagle Estate, 418 Pa. 170.) The lower court held that the petitioner had not sustained that burden and dismissed the petition. Urquhart appealed.

We begin with the proposition, which is indeed elementary in the law, that no one should be deprived dominion over his own property except for monumental reasons which include harm to the owner or to the property itself or to society in general. We said in Bryden's Estate, 211 Pa. 633, 636: ". . . A man may do what he pleases with his personal estate during his

[ 431 Pa. Page 136]

    life. He may even beggar himself and his family if he chooses to commit such an act of folly. When he dies, and then only, do the rights of his heirs attach to his estate. The Act of June 19, 1901, P. L. 574, has not changed the law in this respect one iota. Before an estate can be taken from the owner and transferred to a guardian, it must be established that the respondent is so weak in mind that he is unable to take care of his property, and in consequence thereof is liable to dissipate or lose the same and to become the victim of designing persons."

There is not the slightest evidence in all this litigation to suggest that Urquhart's property may be dissipated or that he may be the victim of designing persons. Up until April, 1961, Mr. Urquhart was a man in full possession of his faculties, vigorous in the pursuit of his business affairs, and talented in the field of inventing and in dealing with real estate, all of which produced for him a small fortune on which he could live comfortably. In the month indicated, a tragic misfortune befell him in the death of his wife, his faithful and happy companion for 40 years. With her death, the cornerstone of his life seemed to be taken away, and the structure of his whole existence sagged, the doors of his communication with the outside world no longer opened easily, the windows of his spiritual world fogged, the whole dwelling of his daily routine began to show signs of deterioration, illness entered into his physical framework, and a cloud passed over the skylight of his reason. He became melancholy, wept frequently and became depressed. He was not the first one to turn to the bottle for relief from his anguish, and by no means the first one to suffer from imprudent companionship with John Barleycorn. As already indicated, his nephew and two brothers went to court to declare Urquhart incompetent to handle his

[ 431 Pa. Page 137]

    business affairs and for a guardian of his estate to be appointed.

The declared incompetency, however, was not of such gravity as to render him a pariah or unappealing to the opposite sex. Indeed, in December of 1964, he entered the holy bonds of matrimony with a widow, Mrs. Fish, who had herself had experience in caring for an ill husband. The new Mrs. Urquhart seemed to be what the doctor ordered. She became, one might say, the new cornerstone of his life. The structure of his life straightened, he began to look out at the world through transparent windows, the doors of communication opened again easily to the great outside world. His tears dried, although he manages to keep his spirit sufficiently lubricated with two brandies and three eggnogs a day. He no longer needs sleeping pills for repose which knits up the raveled sleeve of care. He is calm and happy. The contented couple live in Florida, visiting Pennsylvania in the summer season. Urquhart and his wife maintain a joint bank account. She prepares checks against the account, some of which are signed by him and most of ...

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