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E. NEWBOLD SMITH v. LEWIS DUPONT SMITH (07/21/87)

filed: July 21, 1987.

E. NEWBOLD SMITH, MARGARET DUPONT SMITH, STOCKTON N. SMITH, ELEUTHERA S. GRASSI AND HENRY B. DUPONT SMITH
v.
LEWIS DUPONT SMITH, APPELLANT



Appeal from the Order Entered on July 23, 1986, in the Court of Common Pleas of Chester County, Orphans' Court Division, No. 1985-0412.

COUNSEL

James B. Crummett, Philadelphia, for appellant.

Leonard Dubin, Philadelphia, for appellees.

Cirillo, President Judge,*fn* and Beck and Hester, JJ. Beck, J., filed a concurring opinion.

Author: Hester

[ 365 Pa. Super. Page 197]

This is an appeal by an adjudicated incompetent from a final order. The trial court found appellant to be incompetent due to mental illness, making him liable to dissipate his assets and become the victim of designing persons. The trial court appointed a financial institution as guardian of appellant's estate. We affirm.

On April 11, 1985, appellees, who are parents and siblings of appellant, filed an ex parte petition for a preliminary

[ 365 Pa. Super. Page 198]

    injunction in the Orphans' Court Division of the Chester County Court of Common Pleas, requesting that appellant be restrained from transferring any of his substantial assets to organizations affiliated with Lyndon LaRouche. At the same time, appellees filed a petition requesting an adjudication of incompetency and the appointment of a guardian of the estate of the incompetent.

On November 12, 1985, following several evidentiary hearings, the trial court found that appellant, by reason of mental illness, was unable to manage his property or was liable to dissipate it or become the victim of designing persons. The trial court issued an adjudication and decree nisi finding appellant incompetent which became a final order on July 23, 1986, after the denial of appellant's exceptions.

Appellant raises six issues in this appeal: 1) whether appellees met their burden of proving by clear and convincing evidence that appellant suffered from a mental illness; 2) whether the trial court erred by labeling a "personality disorder" as a mental illness; 3) whether appellees met their burden of proving by clear and convincing evidence that appellant was liable to dissipate his property or become the victim of designing persons; 4) whether the trial court erred by including the support of a political philosophy or organization within the ambit of the phrase "become the victim of designing persons"; 5) whether the competency statute is constitutional as applied to appellant; and 6) whether the competency statute is constitutional on its face.

Appellant's constitutional issues must be considered first. We decline to address these issues as appellant did not give notice to the Attorney General of Pennsylvania as required by Pa.R.A.P. 521.*fn1 Faust ...


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