The opinion
Argued October 9, affirmed November 14, 1916.
On the Merits.
( 160 Pac. 801 .)
For respondent there was a brief with oral arguments by Mr. Walter E. Keyes and Mr. Charles L. McNary.
Mr. Justice Harris
delivered the opinion of the court.
1. The Code confers authority for the appointment of a guardian to manage the estates of designated classes of persons, and unless S. T. Northcutt comes within one of those classes, it would not be proper to appoint another person to manage his affairs. Section 1319, L. O. L., provides that:
“The several County Courts, in their respective counties in this state, shall have power to appoint guardians to take care, custody, and management of the estates, real and personal, of all insane persons, idiots, and all who are incapable of conducting their own affairs. * * ”
Section 1319 recognizes different classes of mental incapacity just as other sections of the Code acknowledge degrees of mental weakness: In re Sneddon, 76 Or. 470, 479 ( 149 Pac. 527 ). The language of Section 1319 includes three classes of persons: (1) Insane persons; (2) idiots; (3) all who are incapable of conducting their own affairs. It is not contended that S. T. Northcutt is an insane person or an idiot, and therefore the inquiry is whether he is one of those persons “who are incapable of conducting their- own affairs. ’ ’ The legislature has defined the words “insane person,” in all statutes relating to guardians and wards, to include “every idiot, every person not of sound mind, every lunatic, and distracted person”; but there is no definition in this jurisdiction of the words “incapable of conducting their own affairs.” It becomes necessary, then, to ascertain the meaning of the *652 words last quoted before attempting to determine whether S. T. Northcutt comes within that class of persons. The term “incapable” signifies: Wanting in capacity for the purpose or end in view; personal lack of ability or power or understanding to perform duties or exercise privileges: Webster’s Dictionary; Century Diet.; 22 Cyc. 40. While the definitions given by lexicographers tell us what is meant by the word “incapable” when used in the abstract, yet they do not furnish a gauge by which the degree of mentality possessed by any given person can be compared and measured so that we can know with reasonable certainty when that person has in fact become one of those who is incapable of conducting his own affairs. In California the legislature provided a test by which to determine whether any person is incapable of managing his own affairs. Section 1767 of the Code of Civil Procedure (3 Kerr’s Cyc. Codes of Cal.) declares that the word “incapable”—
“shall be construed to mean any person who, though not insane, is, by reason of old age, disease, weakness of mind, or from any other cause, unable, unassisted, to properly manage and take care of * * his property, and by reason thereof would be likely to be deceived or imposed upon by artful or designing persons.”
See, also, Matter of Daniels, 140 Cal. 335 ( 73 Pac. 1053 ).
The Supreme Court of Oklahoma was called upon to construe a statute of that state which authorizes the appointment of a guardian for any person who is “incapable” of managing his property, and that court adopted the California statutory definition, saying in the course of the reported opinion that:
“This definition in our judgment fairly expresses the meaning intended by our legislature”: Shelby v. Farve, 33 Okl. 651, 655 ( 126 Pac. 764 ).
*653 Another court has said that:
“A person may be of weak mind, and by reason thereof easily influenced, or dominated by others, so that, in the judgment of men, he ought not to be allowed to manage his affairs”: In re Clark, 175 N. Y. 139 ( 67 N.E. 212 ).
The much cited case of Emerick v. Emerick, 83 Iowa, 411 ( 49 N. W. 1017 , 13 L. R. A. 757), holds that:
“Ordinarily a person who has sufficient mental capacity to make a valid agreement in regard to his property, and to manage it with reasonable care, unaffected by another’s will, should be permitted to retain it.”
The California statutory definition as well as the judicial interpretation of statutes like ours are substantially the same and afford a satisfactory test by which to gauge the legal fitness of a person to manage his own affairs; and therefore, if S. T. Northcutt is unable without assistance properly to manage and take care of his property, and would be likely to be deceived, dominated or imposed upon by artful or designing persons, then he is incapable of conducting his own affairs within the meaning of Section 1319, L. O. L. It must be remembered all the while, however, that a guardian cannot be appointed merely because a person does not manage his property judiciously: Commonwealth v. Reeves, 140 Pa. St. 258 ( 21 Atl. 315 ); Emerick v. Emerick, 83 Iowa, 411 ( 49 N. W. 1017 , 13 L. R. A. 757).
2. S. T. Northcutt has been a resident of Marion County for many years, and now lives in the town of Turner. By his industry, thrift and business judgment he has accumulated considerable property. He is a widower, was about 77 years of age when the petition was filed, and he has cared for the daughter and her children and they have made their home with him during much of the time since she has been divorced. *654 He has bought and sold lands in Marion County, and about five or six years ago he purchased a large tract of land, and in two or three years afterward sold the property at a profit of about $10,000. One witness referred to him as one who is “quite venturesome for a man of Ms age, and he is a live—what I would term a live business man,” and “wants to be doing all the time.” In October, 1913, Northcutt left for New Orleans for the purpose of investigating some property. Upon the advice of a business friend and a banker he took his money in the form of a letter of credit for $6,000 or $7,000 instead of carrying coin with him. "While en route on the train he fell in with a woman and two men who were bunco steerers, and, while he denies that he lost his money, nevertheless we shall assume that the sharpers succeeded in relieving him of all or most of the money represented by the letter of credit. Upon his return to Turner, according to the testimony of the petitioner, a man named Harpool interviewed Mm about investing in land in Arizona, and at some time during the summer of 1914 one Manrod attempted to interest Northcutt in “some kind of a fertilizer” in Mexico. He did not invest, however, in the Arizona land nor in the fertilizer. The daughter testified that her father had been writing poetry ever since she was a little girl. A litterateur acknowledged that, while Northcutt’s poétry “is in a class by itself,” and while the poems “could be better,” and “they won’t compare with the best poets,” yet “through them all runs a connective chain.” The petitioner says that evidence of her father’s incapacity is found in the fact that he has been known to arise between 2 and 4 o’clock in the morning and recite poems, and she especially emphasizes instances occurring in 1913 when he would in Ms imagination address the chairman of a *655 civic organization known as the Cherrians and rehearse poetry, occasionally interspersing the recital with the use of profane language. It turns out, however, that the Cherrians had offered a prize of $10 for the best poem to be submitted, and, in his own peculiar way, Northcutt was only composing a poem to compete for the $10. At one time he offered a poem to a moving-picture man to ascertain whether the verses could be used in the moving-picture business. Only a few weeks before the filing of the petition Northcutt went to Missouri and entered into a contract for the purchase of a section of land. So far as is disclosed by the evidence, the land is worth what he agreed to pay for it, and there is not even an intimation anywhere that he was overreached or dominated or influenced by anyone. He has also talked about the feasibility= of erecting an electric lighting plant in the town where the section of land is located. He contemplates a change of residence with the hope that a change in climate will relieve him of catarrh. In view of his plan to move out of the state and buy land in Missouri, and possibly install an electric lighting plant, Northcutt intends to call in his loans so that he can use his money in the contemplated investments. He intends to marry a woman who is 58 years of age, and with whom he has been acquainted for about 20 years; and the evidence shows that she is an estimable and respectable woman, notwithstanding the opinion of the petitioner to the contrary. It may be that it is not best for a man 77 years of age to move away from the place where he has resided for many years and invest his money in land elsewhere, and possibly build a lighting plant, and, while one witness thought the withdrawal of his loans and the purchase of land in another state involved a risk, yet no witness ventured to say that the *656 proposed investments would prove unprofitable. In spite of bis penchant for writing poetry, and although he may have been ambitious to have one of his poems dramatized, he has nevertheless made money even in his old age, because one witness gave it as his opinion that Northcutt “had made more money in the last five years than any man in Turner.” Standing by itself, his experience with the three swindlers might suggest the propriety of appointing a guardian, but by the same token it would become advisable to conserve the estates of two witnesses who, when testifying, confessed to having been buncoed at one time, and yet each of them is recognized as a successful business man. There is no intimation of any person overreaching Northcutt in any transaction since 1913.
The petitioner said that she did not think her father was competent to manage his affairs. One witness thought that “it was hardly good judgment” for Northcutt to go away and invest heavily. Upon hearing of the perpetration of the swindle a nephew was of the opinion that Northcutt needed a guardian, but after seeing and talking with his uncle the nephew was convinced that a guardian was not necessary. Mrs. Frances Hubbard thought a guardian was needed, and John M. Watson testified about saying that “I thought it was foolish for a man of his age to speculate in land.” In addition to the circumstances already narrated and the opinions of the witnesses mentioned, there was some evidence indicating that Northcutt practiced calisthenics while on the much-talked of New Orleans trip, and there was also some testimony about Northcutt saying that he intended to try to relocate an oil spring which he saw near Salt Lake years ago.
The mayor of Turner testified that Northcutt’s business ability “compares favorably with most any man.” *657 The cashier of the Turner State Bank said that Northcutt was competent, and Mr. McKinney thought that he was about as able to transact business as the average man. H. W. Smith stated that Northcutt was as capable of transacting business as the average man of his age. E. C. Baker, a hotel-keeper, considered “him one of the shrewdest men in Turner when it came to business.” J. T. Cannon testified that: “I consider him as shr'ewd a man in business as there is in the country.” Eight other witnesses said that he was competent to transact business. And finally Dr. L. F. Griffith, who has been employed at the state hospital for the insane since May, 1891, testified that while, generally speaking, it was not good business for an old man to engage actively in business, yet, after making an examination, he found Northcutt “quite remarkably preserved for a man of 77 years of age, both physically and intellectually,” and that he was competent to transact business.
Without the evidence of the fraud practiced upon Northcutt in 1913, the records would be barren of any suggestions looking toward the advisability of appointing a guardian, but it is worthy of notice that no attempt was made to appoint a guardian upon his return in 1913, and it was not until a year afterward, when he planned to marry and talked of moving away and investing in land in Missouri, that the petition was filed. Moreover, some information of the motives prompting the guardianship proceedings is afforded by the frank admission of the petitioner that she objects to her father marrying the lady of his choice. She has no right, however, to say that her father shall not marry nor to say whom he shall marry: Hogan v. Leeper, 37 Okl. 665 ( 133 Pac. 190 , 47 L. R. A. (N. S.) 475). It may not be judicious for Northcutt to marry, *658 or to move away, or to invest his money in Missouri, but he had a right to do so unless for some reason he is incapacitated. If men of competent judgment and who have known him for years are to be credited, then at the time of the trial Northcutt was not an incapable person within the meaning of the statute, even though his doings betray some of the foibles which frequently accompany old age.
The decree of the Circuit Court is affirmed.
Affirmed.
Me. Chief Justice Mooee, Me. Justice MoBeide and Me. Justice Bean concur.