which it is claimed militate against their opinions or the contradictory testimony of plaintiff's witnesses we are not concerned. The weight of the testimony was for the jury. Any of plaintiff's witnesses who approximated this degree of long familiarity with and knowledge of plaintiff and his affairs were permitted to give their opinions as to his mental competency to have the care, custody and management of his estate. All were permitted to tell what they personally observed in his talk and conduct and those showing such acquaintance and knowledge as to reasonably judge were allowed to state whether they detected anything unusual in his talk or actions indicating that he was mentally abnormal or incompetent. Error is assigned on the refusal of the court to permit five witnesses, Stiles Carter, Anna Udell, Dr. George A. Hughes, Adelbert Field and Frank Jones, to express their opinions as to plaintiff's mental competency to have the care, custody and control of his estate in direct answer to the formal question. As to the first two witnesses, there is nothing in the record giving any force to such objection. While in the progress of Carter's examination the court made somewhat erratic rulings, he was eventually allowed to answer as follows: "Q. In your opinion would you say that Milton A. Henderson is mentally competent to care for, have the management of his property and have the custody of it himself? "A. Never discovered anything but what he was just as much so as ever, any more than he was growing old. "Q. Then you would say that he was mentally competent? "A. Yes, sir." The witness, Udell; a school teacher, who formed plaintiff's acquaintance after September 4, 1917, and was favorably impressed with his discussion of the civil war as well as the war then in progress, was permitted to answer all questions asked her without objection and apparently to volunteer any information upon the subject she desired. She was directly asked by plaintiff's counsel: "Q. Based upon your observation and acquaintance with him, what would you say as to his mental condition, whether he is of sound mind or not; whether in your opinion he would be mentally competent to manage his own property and have the custody of it?" And answered without objection, "I think he is." Dr. Hughes was employed professionally to examine plaintiff and did so in the office of his attorneys and elsewhere; and when he got through was told he would be called as a witness. He was asked for his opinion based on the examinations he had made at various times, his acquaintance and association with plaintiff and experience as a physician and surgeon. To this and another somewhat similar question counsel for defendant renewed his objection that it did not "appear to be an inquiry based upon his knowledge as an expert," which the court sustained "under the decision of Matthews v. Lamberton [198 Mich. 746]." This ruling unmodified would call for serious consideration, but in the course of his examination and after stating his observations witness was asked, and answered: "Q. State from the examination that you have made of Milton A. Henderson, whether in your opinion as a physician and surgeon, Milton A. Henderson is competent to have the charge, care, management and custody of his person and property? "A. I believe he is." The last question with the answer, asked him by plaintiff's counsel, was: "Q. You may state, from the examination you made of Milton A. Henderson, whether you noticed any thing that indicated to you that he was mentally incompetent any fact or circumstance? "A. No, sir, I detected nothing." Field, who, as a child, lived in the same neighborhood and knew plaintiff, stated, "but as I got older I moved away," to Union where he had lived for the past 30 years. He had met him occasionally since at the stores in Union, mostly during the past five years, and discussed the weather and roads with him, but a question as to his opinion of plaintiff's mental competency being objected to and sustained because sufficient facts were not stated, his counsel said: "Well, you hesitated when you were asked whether or not you were well acquainted with Mr. Henderson, now I renew my question: You may state whether or not you are well acquainted with Milton A. Henderson?" To which witness replied, "I would say not." "Q. You would say you are not well acquainted with him? "A. No." The only further facts elicited from this witness were that plaintiff subpoenaed him, and that "In an early day he had observed his conduct when he saw him around where threshing was done," but for ten years or more knew nothing about farming matters "up there." The court held that he had not qualified by his answers to sufficient acquaintance with plaintiff and knowledge of his affairs to testify as to his mental competency in the particular matter under inquiry. We are not prepared to say this was an abuse of discretion, or otherwise erroneous. Jones did not know plaintiff until sent to take him in an automobile to Conkright's in August, 1917, shortly before these proceedings were instituted. He stayed a couple of weeks at Conkright's where he at times played cards with plaintiff and visited with him. He was permitted to state that he did not notice anything in his conversation or conduct indicating he was mentally incompetent. The conclusion of his examination by plaintiff's counsel, to which no previous objection was made, appears in the printed record as follows: "Q. You may state whether or not, in your opinion, he is competent to have the care, management and custody of his person and property? "A. I think he is. "Mr. C.: I object to that. "The Court: That may go it." The witness was permitted to tell all the facts counsel could elicit and to state that he detected no indication of mental incompetency. We are not impressed with the seriousness of the court's ruling, whatever may have been intended-whether it should go in or out. In this connection counsel for plaintiff complained that the court made "no distinction between the testimony necessary as a basis for opinions of insanity and sanity." As before stated, sanity and insanity were not the issue. This is made emphatic and instructively discussed at length, with reference to our own cases, in Re Streiff, 119 Wis. 566 (97 N. W. 189, 100 Am. St. Rep. 903). Even in People v. Borgetto, 99 Mich. 336, cited for plaintiff, a criminal case involving a conviction for murder in the first degree, where insanity appears to have been urged as a defense, this court in discussing the distinction and sustaining an answer that "He seemed to be all right to me," recognized a discretion in the trial court where such testimony is offered, based on "a sufficient acquaintance (with the party) under circumstances that give a reasonable opportunity for judging" as a preliminary to such answer. In this class of cases the single inquiry is directed to that degree of mental incompetency by reason of old age or disease, which disqualifies persons so afflicted, but not necessarily insane, from the normal care, custody and management of their estates. In the instant case there was ample evidence of plaintiff's mental incompetency in that respect to carry the case to the jury, and after a careful reading of plaintiff's own testimony we cannot disagree with the view of the trial court that it tended to sustain rather than refute defendant's contention on that issue. Plaintiff took the stand as a witness in his own behalf at the outset of the trial and again near the close. His testimony as it reads indicates a fluctuating memory, at times clouded comprehension and contradictions in both important and unimportant matters. As illustrative of the latter he at one time stated there were no proceedings in September looking towards appointing a guardian for him, at another time that he did not consent to have a guardian of his own free will, that defendant promised to resign in two years, made statements indicating he was under the impression that defendant had title to all his property and ought to deed it back to him; having told many things about his troubles with the women he employed, who he at one time asserted "was all good women" after he had related how the threatening conduct of one "scared" and "unstrung" him, when subsequently interrogated about it denied he was afraid and declared "Never was. You can't scare me;" he frequently emphasized his military service, about which his counsel interrogated him and elicited the following information: "Q. During your service were you wounded? "A. Well, it come pretty close. It made my hair white. "Q. What? 66 'A. It turned all white. They used to call me 'Rabbit.' My hair turned white, but it is all turned white |