Guardianship of McConnell

WHITE, J.

After proceedings for that purpose duly had, Emmet McConnell was declared to be incompetent. From the order appointing William A. Cochran guardian of his person and estate, McConnell has appealed.

Appellant’s first contention is that the petition by which these proceedings were initiated is fatally defective, by rea

[104]

son of which the superior court was without jurisdiction to hear or determine the matter of his incompetency. The petition in question alleged, among other things, that Mr. McConnell was about ninety years of age; that he was suffering from cataracts, arteriosclerosis, and senile mental deterioration, “to an extent that deprives him of the ability to manage his affairs and property”. Section 1461 of the Probate Code provides that any relative or friend may file a verified petition alleging that a person is insane or incompetent, while section 1460 of the same code provides as follows:

“Any superior court to which application is made as hereinafter provided may appoint a guardian for the person and estate or person or estate of an insane or an incompetent person. As used in this division of this code, the phrase ‘incompetent person’, ‘incompetent’, or ‘mentally incompetent’ shall be construed to mean or refer to any person, whether insane or not, who by reason of old age, disease, weakness of mind, or other cause, is unable, unassisted, properly to manage and take care of himself or his property, and by reason thereof is likely to be deceived or imposed upon by artful or designing persons.”

There was no demurrer to the petition on the ground of any indefiniteness or uncertainty therein or on any other ground, and it may be doubted whether the sufficiency of its averments can properly be raised for the first time on appeal. However, as the claim here made is based on alleged want of jurisdiction, and as the question of jurisdiction may be raised at any stage of the proceedings, we will not deny appellant’s right to have the order reviewed upon the question of jurisdiction. Conceding that viewed as a pleading in an ordinary action at law, the petition was possibly open to special demurrer on the ground of uncertainty or want of facts to support averments of mere conclusions, nevertheless, in proceedings of the character here involved a petition is not subjected to the test given to complaints in actions at law.