Parker v. Parker, 231 Ark. 635, 331 S.W.2d 694 (1960)

Feb. 8, 1960 · Arkansas Supreme Court · 5-2018
231 Ark. 635, 331 S.W.2d 694

Parker v. Parker.

5-2018

331 S. W. 2d 694

Opinion delivered February 8, 1960.

*636 J. H. Evans and Robert J. White, for appellant.

Richard Mobley, for appellee.

Ed. F. McFaddin, Associate Justice.

The question here is what is best for the welfare of Mrs. Laura E. Parker, a lady past 83 years of age, and the widow of John M. Parker, a long-time lawyer of Arkansas. She has lived in Dardanelle many years and she has both real and personal property: her home, a number of rent houses, several farms, and both checking accounts and savings accounts.

On September 30, 1959 Mrs. Laura Parker accompanied her son, to the office of the Probate Judge; and her son was duly appointed1 guardian of her estate. The son, Parker Parker, made a surety bond, entered into the discharge of his duties as such guardian of the estate, and filed his inventory on December 5, 1957, showing fourteen items of realty valued at a total of $20,000.00 and nine items of personalty valued at a total of $9,-836.88. The only liability was a note to a bank for $2,586.70.

Mrs. Laura E. Parker has three children, being two daughters and a son: Mrs. Johnnie Parker Walrath, *637Mrs. Laura Parker Gray, and Mr. Parker Parker, an attorney. On March 25, 1958 Mrs. Parker, joined with her two daughters as next friends, filed a petition to dissolve the ■ guardianship of her estate on the basis that Mrs. Parker was thoroughly competent to handle her own affairs. Mr. Parker Parker resisted this and filed a counter-petition asking that his guardianship of the estate be extended also to the person of his mother. The Probate Court has been most patient in the entire proceedings. Testimony was taken -.on four different occasions in 1958: May 7th, October 15th, October 24th, and October 30th. Serious efforts were made to accomplish an agreement between the children so that some disinterested third person or bank could be appointed guardian of the estate; and Mr. Parker even offered to do all the “leg work” if such an arrangement could be accomplished. It was all to no avail. The insistence was that Mrs. Laura Parker should be released from all guardianship.

At the conclusion of the hearings the Probate Court took the case under advisement; and on February 12, 1959 rendered judgment. That judgment (1) refused to discharge Parker Parker as guardian of the estate of his mother; (2) refused to appoint Parker Parker as guardian of the person of his mother; and (3) taxed all costs against Mrs. Johnnie Walrath. From that judgment2 there is this appeal. The appellant in this *638Court is Mrs. Laura E. Parker, by her next friend (daughter), Mrs. Johnnie P. Walrath. The appellee is Parker Parker, Guardian. The appellant lists four points, being:

I. The court was without authority to make original appointment for physical disability, and without authority to continue guardianship so appointed.

II. The evidence of incompetency is not sufficient to warrant a guardianship.

III. If a guardianship is justified, then it is to the best interest of the incompetent that an independent, unbiased and unrelated guardian be appointed.

IV. That the costs of these proceedings should be borne by the guardianship estate.

The appellee cross-appeals from the refusal of the Court to extend the guardianship to the person of Mrs. Parker.

I and II

Points I and II of the direct appeal raise the question of the necessity of any guardianship and the sufficiency of the proof to support the order appointing a guardian. A careful study of the record convinces us that the Probate Court has been entirely correct at all times in appointing a guardian of the estate of Mrs. Laura Parker. It is very apparent that she is dominated by whichever of her children happens to be last with her; and there seems to be a tug-of-war between the children to see who can control Mrs. Parker’s property and its ultimate disposition. Serious friction developed between Mr. Parker Parker and his sister, Mrs. Walrath; and all sorts of charges and counter-charges are contained in the record. At the hearings it was shown that instruments had been executed by Mrs. Laura Parker in favor of one or the other of the. daughters, that checks for large amounts had been given; and all *639this was done by Mrs. Parker while Parker Parker was g'uardian of her estate.

Appellant says that Mrs. Lanra Parker’s trouble was physical and not mental, and that guardianship does not extend to cases of physical disability, citing the Committee comment following § 57-601 Ark. Stats, and also our case of Powers v. Chisman, 217 Ark. 508, 231 S. W. 2d 598. Physical incapacity (old age in the case at bar) has caused the lessening of mental facilities to such an extent that the lady is unable to understand the nature of her property and how to protect it. Our statute, § 57-601 Ark. Stats., says: “All incompetent is any person who is . . . incapable, by reason of . . . ■ senility ... of managing his property . . .” Senility is defined by Webster’s Dictionary as, “. . . old age or its.physical and mental infirmities”. The statement, “once a man and twice a child”, applies to many people who live past four score of years. Dr. Lewis A. Webb gave the statement to the Probate Court at the original hearing that Mrs. Parker was suffering from “hypertensive and arteriosclerotic cardio-vascular disease”. Mrs. Laura Parker testified before the Probate Court in the original hearing and also on two of the other hearings as previously mentioned; and the Court had ample opportunity to see that this splendid lady had returned to childhood. So the Probate Court was entirely correct in having a guardian of the estate of Mrs. Laura E. Parker.

in.

On direct appeal we are asked to have an independent, unbiased, and unrelated person appointed as guardian of the estate. This has given us most serious concern. The same argument was made to the Probate Court; and, as previously mentioned, serious efforts were made to settle the differences on such a basis. But the Probate Court, seeing the parties, reached the conclusion that the present guardianship should be continued just as it is; and wé are unable to say from this record that the Probate Court was in error. So we *640leave the Guardianship just as the Probate Court left it. The patience and care that the Probate Court gave to this matter convinces us that it would be quite unwise for us to substitute our own opinion for that of the Probate Court on the record before us. And what we are saying in this regard also disposes of the cross-appeal. The Court, in refusing to appoint Parker Parker guardian of the person of his mother, was evidently of the opinion that the two daughters can look after their mother far better than a daughter-in-law or a granddaughter ; and we are unwilling to substitute our opinion for that of the Probate Court on the record now before us. So the case is affirmed on cross-appeal.

IV.

The fourth point on the direct appeal relates to the matter of the costs of these proceedings. The question is whether the costs should be individually paid by the daughters, or whether the costs of the entire proceedings should be paid from the estate of Mrs. Laura Parker. We reach the conclusion that for the best interest of all parties concerned, the costs of this appeal3 should be paid from the estate of Mrs. Laura E. Parker. To this extent only do we modify the judgment of the Probate Court. In all other respects the judgment is affirmed.