Rohr v. Johnson

BARNARD, P. J.—

This is an action to recover for approximately $1,500 worth of personal property claimed to have been given to the defendant by Gelia A. Rohr at a time when she was incompetent. This appeal is presented on an agreed statement. However, after all briefs were filed the appellant filed a clerk’s transcript.

The complaint alleged that the defendant came into possession of this property while occupying a confidential and fiduciary relationship with Gelia. A. Rohr, and that she was then incompetent. It is not directly alleged that the defendant exercised any undue influence in regard to the matter, but there is a suggestion to this effect in an allegation that by reason of her being incompetent she reposed great trust and confidence in him. The answer denied all allegations of the complaint except those relating to the appointment of a guardian.

It appears that after all evidence was presented, and before argument, the trial judge made a statement in which he said:

“May I say this: the question in my mind is this—I have not any idea whatsoever that Mr. Johnson conspired to get anything away from the old lady; I do not entertain that notion for a second. I know Mr. Johnson. I know what kind of a man he is: I think he is a high minded, intelligent, honorable citizen.”

He then pointed out that there still remained for him to determine whether Gelia A. Rohr was mentally competent at the time she made this gift and whether the defendant was acting in a fiduciary capacity at the time he accepted the gift. He

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then said: “I am not doubting his honesty of purpose whatsoever. I think he accepted this in good faith. He may or may not be in a position to retain it—I don’t know—I have not decided the case yet.” He then asked for the citation of any authorities the parties might have to sustain their contentions.

Thereafter, the court found that on April 24, 1942, Gelia A. Rohr, in the presence of two witnesses, gave a portion of the property involved to the defendant as a gift; that in August, 1942, being about to discontinue housekeeping, Gelia A. Rohr asked the defendant to sell certain of her furniture (a part of the property involved here); that the defendant sold this furniture and paid the proceeds to her; that she was not mentally incompetent at the times in question but on the contrary was competent and in full control of her mental faculties; that when the property was turned over to the defendant she fully understood her act and the effect thereof, and did so with the full knowledge that it was being delivered as a gift; that no undue influence was at any time exerted over her by the defendant or by anyone on his behalf; and that on October 5, 1942, Gelia A. Rohr was by an order of court declared to be an incompetent person and a guardian was appointed. Judgment was entered in favor of the defendant.