Crocker First National Bank v. Waite

GIBSON, J. This is an appeal from a decree of the Superior Court of San Francisco, declaring Fannie Rollins Waite, incompetent, and granting letters of guardianship of her person and estate.

On August 15, 1938, Pearl Stewart, daughter of the alleged incompetent, filed a petition praying for the issuance of letters of guardianship of the person and estate of appellant, aged 78. At the hearing two doctors, appointed by the trial court, were called by the respondent and testi[729]fled. Upon the conclusion of the doctors’ evidence the court having been informed by counsel for respondent that there were eight lay witnesses in the matter, said: “I am prepared to make the order in this matter right now, and I am relying on the testimony of the doctors ... I don’t want to hear any lay witnesses.”

Counsel for appellant requested permission of the court to call appellant as a witness. The court replied: “I don’t want to hear from her.” Counsel for appellant then called appellant to the stand and offered her to be sworn. The court said: “If you have any medical testimony I will be glad to hear it, but I don’t want to hear from the lady. I don’t know anything personally about her mental condition. ’ ’

The court thereupon made the decree appointing Pearl Stewart, the daughter, guardian of the person, and Crocker First National Bank, guardian of the estate.

Appellant complains: (1) that the court erred in refusing to permit her to testify in her own behalf; and (2) that the evidence is not sufficient to justify the finding of incompetency.

On the evidence presented it was prejudicial error for the court to refuse to permit appellant to testify in her own behalf. The record clearly shows that she was of sound mind and qualified to testify under sections 1879 and 1880 of the Code of Civil Procedure. The only reason assigned by the court for refusing to permit her to testify was that it did not want to hear any evidence except medical testimony. Appellant’s testimony could not be properly excluded upon the sole ground that she was a lay witness. (Code Civ. Proc., sec. 1870, subd. 1; see Atkins Corp. v. Tourny, 6 Cal. (2d) 206 [57 Pac. (2d) 480].)

This proceeding was commenced pursuant to section 1461 of the Probate Code, which provides that notice shall be given to the alleged insane or incompetent person of the time and place of hearing, and that such person, if able to attend, “must be produced at the hearing”. As this court observed in Matter of Coburn, 165 Cal. 202, 217 [131 Pac. 352], such language “seems to contemplate an examination”. The section has been amended since that decision, but the quoted language remains unchanged. Apart from the provisions of the statute applicable to this proceeding,