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Show THE SALT LAKE TIMES FRIDAY, MAY 14, 1976 Utah Supreme Court Opinions 200 Years Ago This Week By Congressman Allan T. Howe On May 15, 1776, the Virginia Convention instructed its delegates to the Continental Congress to propose independence. In the resolution passed by the Virginia Convention, the reasons for taking the road to independence were spelled out: "Forasmuch as all the endeavours of the United Colonies, by the most decent representatives and petitions to the King and Parliment of Great Britain, to restore peace and security to America under thebritish Government and a reunion with that people upon just and liberal terms, instead of a redress of grievances, have produced, from an imperious and vindictive Administration, increased insult, oppression, and a vigorous attempt to effect our total destruction: By a late act all these Colonies are declared to be in rebellion, and out of the protection of the British Crown, our properties subjected to confiscation, our people, when captivated, compelled to join in the murder and plunder of their relations and countrymen, and all former rapine and oppression of Americans' declared legal and just; fleets and armies are raised, and the aid of foreign troops engaged to assist these destructive proposes; the King's representative in this Colony hath not only withheld all the powers of Government from operating for our safety, but, having retired on board an armed ship, is carrying on a piratical and savage war against us, tempting our slaves by every artifice to resort to him, and training and and employing them against their masters. In this state of extreme danger, we have no alternative left but an abject submission to the will of those overbearing tyrants, or a total seperation from the Crown and Government of Great Britain, uniting and exerting the strength of all America for defense, and forming alliances with foreign Powers for commerce and aid in war: Wherefor, appealing to the Searcher of hearts for the sincerity of former declarations expressing our desire to preserve the connection with that nation, and that we are driven from that inclination by their wicked councils, and the eternal law of n: "Resolved, unanimously, That the Delegates appointed to represent this Colony in General Congress be instructed to propose to that respectable body to declare the United Colonies free and independent States, absolved from, all allegiance to, or dependence upon, the Crown of Parliment of Great Britain... Emergency Job Funds Allocated The Labor Department has allocated $960 million in emergency public service employment funds to 416 large areas with unemployment above 6.5 percent where job funds are running low. Secretary of Labor W. J. Usery Jr. said the funds, 80 percent of the $1.2 billion appropriation signed by President Ford yesterday, are being applied immediately to forestall layoffs of federally subsidized workers in Title II areas. The urgency with which funds were made available by the Congress resulted from the fact that a number of CETA Title II prime sponsors were about to exhaust their funds and would have to lay off CETA public job holders if they didnt get more money immediatel- Page Three IN THE SUPREME COURT OF THE STATE OF IS MatUr of Iha (iuirdiaaihip of Fuchsia Fora Cornia, lacompotaal, Furhaia Far a Coraia. Appallaal. Cal Coraia, Da la Coraia, Doa Cornia, Ross' Coraia and Jorry Coraia, V Roapoadoata and CraaoiAppallanta. (continued from page 1) but this is his first role as a central committee officer. He received his law degree from the University of Utah College of Law in 1960. Previously he managed the Utah Cooperative Assn., a wholesale farm supply cooperative. Mr. Stewart defeated in a challenge for the chairmanship Charles N. Nabors Jr., a University of Utah anatomy professor, who in 1972 was state chairman for the McGovern presidential campaign. The vote was 59 to 28. The central committee met in the Salt Lake City Public Library Auditorium and adopted a resolution unanimously commending Mr. Klas for his devoted and effective service as party chairman. governed The warda incompetent, " "mentally incompetent" and "incapable," as uaed in Aia title, ahall bo construed to mean any person who, thourh not inaana. ia. by reason of old aae. diaoaoo, weakness of mind, or from any other cause, unable, unaoaiated. to properly manage and taka caro of himself or his properly, and by rsaaon thereof would ba likely to ba deceived or imposed upon by artful or designing persona. Emphasis addad In ihn CROCKETT. No. 14111 FILED March I. 1176 Allan E. Mocham, Clark Juatico: Fuchaia Fara Coraia, oho ia aa old widow, appoala from a fiading that aha ia iacompataat and aa ordar appointing a guardian of hor citato. She conlonda that Iha ovidoaca doa a aot aupport tho fiading nor juattfy the ardor. ar Prior to hor huoband'a death, oa July 11, 1171, Mra. Coraia lived on (hair roach ia Rich County, Utah. Thora ara aovoa living children. Cal, Data, Doa, Roaa, Jarry, Grace McKinnon and Boaaio Wadaworth. Sparing enact detail of money valuae, Mra. Coraia'a ahara of tho family (hor huabaad'a) eatato coaaiatad of thoaa aaaata: five $5,000 cartificataa of deposit, hold jointly, oas with oach of hor fiva aoaa, and too $2,500 certificated each hold jointly with oach of two graadeoaa; alao a $6, 500 time certificate held jointly with her aoa Jarry, la addition, aha owned a lot ia Bountiful which had bean given to hor by hor mother; tho family homo in Woodruff; and a aaviaga and chocking account in tho Fire! National Bank of Evanston, Wyoming. Three provisions, autad ia tho disjunctive "or, " so that any one of tha grounds could justify the order, are both general and liberal. From them it plainly appaara that if because of aithar physical or mantel limitations, or a combination of them, a poraoa ia unable to properly take caro of haraalf or . her property, or would likely ba docoivad or imposed upon, tho court ia authorised to appoint a guardian. Thera was a groat deal of testimony, both pro and con, rotating to tha iaaua of Mra. Coraia'a competsaca. Recognising tha pro rogativo of tha trial court aa tho trior of tho facta, it la our duly to asauma that ha baliavad thoaa aspects of tha ovidonco which support hia findings. Wa aa carpi certain significant parts of tho ovidoacai Her doctor, J. C. Hayward, toatifiad: that ha had examined Mra. Cornia on aovaral occasions between February 13, 1173, and May 16, 1174; that aha was oxtramaly hard of hearing, had poor eyesight, and suffered from artarioeclaroais, a diaaaso which had a particular effact upon tho brain and dimiaiehaa the ability to reason; and that Aia normally increases as ona grows oldar. Ila alas stated Aat ia hia opinion Mrs. Cornia waa aeaila to a greater degree Asa is normal for a parson bar age. Thors waa testimony by Aa Robort Wadaworth, that if Mra. Cornia had confidence ia a person, ha could easily impose upon and taka hor property from bar. Thora was also testimony by Mra. Cornia that Mra. Cornia ralied on bar and her huabaad to pay hor bills by signing blank checks and leaving them to ba fillad ia and mailed. On January 1, 1172, five months after hor huabnad'a death, Mtf. Coraia anocutod a warranty dead to her Bountiful property to hor aoaa Jerry and Doa, and five days later, on January I, aha enocutod a trust agreement in favor of tho aama aoaa to tho same property. On that aama day aha anocutod a will which loft practically all hor property to hor aoaa. Mra. Coraia toatifiad diet aha did not recall making tbs will or eaacuting either tho dead or tho trust agreement. Shs said thia was because at that timaho was engaged in tho administration of hor huabaad'a aetata and had baaa "signing papara by the bushel. ta From the foregoing it aaema cloar that the trial court was not without justification for baliaving that a guardian should ba appointed to safeguard As interests of Mrs, Cornia; and that this court would not be justified ia ravaraing that. ruling. In Aia coanoction wo Aiak it is appropriate to point out that if aha ia indeed now competent both physically and mentally to handle hor affairs, Asra is statutory auAority uadar Section U.C.A. 1153, for proceedings to hava hor declared com pa font and the guardianship terminated. Aftar hor huabaad'a death, Mra, Coraia moved from hor homo ia Woodruff to a trailer adjacent to hor a on Jarry'a houaa ia Weston, Idaho. Sha become lanaly thora and want to Ariaona to visit hor daughter, Greco McKinnon. She did not return to Weston, but moved ia with bar daughter Boasia Wadsworth, in Ogdon, Utah, saying that aha prafarrod going to a rest home whara aha could bo with other aldarly paopta, rather than returning to Wanton. Thia appaara to have givon offenaa to hor asas. They aaaart that thoy boliava their mother is baiag unduly influenced by bar daughters. dtappaMMdcross-appsa- l. Thoy argua that tha trial court orrad ia declaring null and void tha will and trust deed Mra. Cornia had assented. Wa ara convinced of Aa moril of Aia argument, Tha petition, filed In Octobor, 1174, alleged Aat aha had "bacoma, incompetent ia recant moaAs and that particularly wlAla tha past two months" by reason of bar ago and physical infirmities, had becomo "confused ia hor mind and unablo to understand tha circumstancoa of her estate. " Tho answer illad waa a gaaaral denial. Thus Aa foregoing waa Aa only iaaua raised and triad in thia proceeding. Mors specifically, tha iaaua as to her capacity and state of mind in axacuting tho will and trust agreement in January, 1172, ana noithor raiaad nor triad. White it is trua that our ruloa provide for liberality A procedure and tha granting of relief to which Ao evidence shows a party ia entitled, Aia doa a aot go ao far aa to authorise the granting of raliaf on iaauas noithor raiaad nor triad. IN THE SUPREME COURT OF THE STATE OF UTAH j,, Bafora leaving for Ariaona, Mra. Cornia withdraw approaimately $1, 000 from her savings account ia Evanston aftar aha loomed that Mra. Doa Cornia had bean making withdrawals without her consent. Upon her return from Ariaona, Mrs. Cornia raquaatad hor sons to give her tho cartificataa of do pool! which worn in thair possession. Thia was rafuasd and tho sons iaatitutod there procoo dings to hava a guardian appointed, to which tho daughters indicate thair opposition. 1. Wo review tho findings and conclusions of the trial court with cenaidarabla indulgence, and will disturb its findings and judgment or ardor only if thora is no subotantial basis ia tha evidence for thorn. Page no v. Walkar, 531 P. 2d 452 (Utah 1175); In ra Lament's Estate, 15 Utah 211, 71 P.2d 641 (1138); h ra Swan's Eatato, 51 Utah 410, 170 P. 452 (1110). y- Stewart Selected The degree of incompetence requisite to Aa appointment of a guardian U.C.A. 1153: by Section UTAH ..... ooOoo ..... -- ooOoo- Thomas J, Connelly, Plaintiff and Appellant, Though aot essential to our resolution of tho problems presented on thia appeal, wa further obaarva that tho iaaua as to Mrs. Carnia'a capacity and state of mind in axacuting tha will and tha trust daed uadar tho circumstances existing ia January, 1172, may arias at soma subsequent time, if and whan those decumaato may be presantad and raliad upon aa authentic; and a further if, someone challenges one or both of them. Wa alao nets that the teat aa to capacity to onecuto a will, or a trust dead, or enter into other transactions, is quite different from tho requirements of Section U.C.A. 1153, rotating to the appointment of a guardian. The order appointing a guardian ia affirmed. But tho declaration that tho will and tho trust dead ara nullified is rovoraed. No coats awarded. WE CONCUR: F, A. Hanri Henriod, Chief H. Justice Eliott, Justice R. L. Tuckett, Juatico 2. Sea in ra Hanson's Estate, 17 Utah 510, 52 P. 2d 1103; In re Richards' Eatato, 5 Utah 2d 106, 217 P.2d 542. MAUCHAN. Juatico: (Concurring and dissenting) No. 14035 FILED Dalbey, Defendants and Raspondaats. Allan E. Mocham, Clerk ELLETT, Justice! A complaint waa filed against Rathjan and another seeking damngsa sustained by plaintiff in an automobile collision, BoA defendants anawarsd and Rathjan died before trial. Notice of his death was duly made oa record pursuant to Rulo 25(a), U. R.C.P. . la thia case ao motion for substitution was aver Iliad and tha action against Rathjan was dismissed on motion soma a even monAa after his doaA was noted upon As record. Tho plaintiff appoala, claiming that tula 25(a) ia ia conflict with Aa Probata Code which givss Area months to tha next of kin in which to apply lor Utters of administration, 1 bafora a nonrelated into rested parson may apply. Thus, where tho namod ratativsa2 fall to incurs Utters wlAla tha Area months' ported, thora is ao parson who can ba substituted lor Aa deceased party daring that ported. Tho laws ara to tho offset that a creditor is aa intorasted parson who may apply lor Utters of administration II Aa namod relatives all Ukdo so wiAia tha Arse months' timo. There doss at lirst blush seam A bo difficulty whara Aa doaA U noted upon As record Ao vary day ol tho doaA of a pjrrty. However, in Ate cass tho notice was not fllad until May 17, 1174, whlls tha daaA of Mr. Rathjan occurred March 24, 1174. Thus tha plaintiff, aa an Interested person, had 53 days to Ilia lor letters of administration after tho timo allowed As ratativsa to petition Aarsfor had expired. ' Plaintiff mads no roquoit lor Aa probate pf tho s state of As deesassd and thus is ia ao position A complain of any conflict betwaaa tho Utah Ruloa ol Civil Procedure and Aa statutory provisions of tho Probate Code. 4 The trial court had before it evidanca of Mra. Coraia'a activities from tho date of her husband's death until tha data of trial. Part of this evidanca, was the alatoment that Mra. Cornia navar advanced by tha cross-appellahas taken cars of her own affairs. . Tho sum total of tha proof produced ballav-abl- o evidence, upon which the trial court arrived at its decision; that not only should tha petition for guardianship bo granted, but that Aa prior convoyaacoa and testamentary disposition should not be operative. U addition to what is said above, Rulo 6(b) of Ao Utah Rules ol Civil Procedure provides that for good causa shown, As court may ardor aa of time lor any act which is by tho rules roquirsd to ba psrformsd wiAia a specified timo. Tha plaintiff navar asksd Ao court lor any anlarga-meof tho 10 days ia which to move for a substitution of part las and ao ha has no just basis for this appeal. 1. Rule 15(b), U.R.C.P. st Epilepsy America has announced a new nationwide low cost drug program for its members which will reduce the cost of medication to persons with epilepsy by as much as thirty to seventy per cent. An estimated four million Americans have epilepsy and are in need of continued medication to control their seizures. six hundred Approximately thousand people with epilepsy receive some type of public assistance through federal and state programs. But, the remaining 3.4 million must provide their own durg and medical care through private means. An estimate by the National Institute of Neurological qj Tha ordar dismissing tho case as ta Ac deceased party was proparly mads and it is hereby affirmed. Thors being no party substituted for As deceased, Asro Is ao ona to racaivs costa and consequently no coots oro awarded. U.C.A. llSJ. U.C.A. 1153. 3. ta rs Owens' Estate, 30 Utah 351, 85 P. 277 (1106); In ra Cleward's Estate, S5 Utah 453, 466, 82 P. 2d 336(1138); 33C.J.8. , Executors and Administrators, Section 31, p. 122. 4. Pride Club Inc. v. State of Utah, 25 Utah 2d 333. 481 P.2d 6(1 (1171). 1. 3, 2. 1, Epilepsy Foundation Announces Low-CoDrug Program The Foundation of Diseases and Stroke BOURBON WHISKEY. 80 PROOF DBTILLED AND BOTIltD BY THE JAMES B B1 AM DISTILLING CO , CLERMONT. BEAM, KY 1176 . With that part of tho main opinion which sustains the trial court ia its appointment of a guardian, I concur. From that part of the mala opinion which reverses the trial court's judgment declaring the will and trust dead enocutod in January, 1172, to bo void, I dissent. Tho main opinion says that tha only laauo raised and triad in tha proceeding was tha iacompotoncy "in recant months and that particularly within tho past two months by roaaoa of hor old ago and physical infirmities. " It appears apparent that all of the so issues wore triad by Implied consent, and a judgment was rendered thcroon. Our practica provides for, and allows this. Tho nils ia, "Whan lesuaa not raiaad by Aa pleading ara triad by axpraaa or implied consent of tho parties, thoy shall ba treated in all respocta aa if they had bean raised in Aa pleadings . . . failure . . . to amend does not affect tho result of tho trial of these iaauas. " I oubmit there ia substantial basis ia tho evidence for tha findings and judgment of the trial court, thus its judgment should ba sustained. KENTUCKY STRAIGHT March 11, Norris Rnthjen and Clifford C. Seeks Post King (continued from page 1) the people was ever unreasonably this delayed for lack of prompt response places total yearly cost for drugs, plus to legal questions. Mr. King a native Utahn, gradphysician fees in monitoring and patients as to their uated from Davis High School in 1954. He received his Bachelor's drug usage legel, at $1.7 billion. in 1958 and his Juris Doctor an inherent Degree "Epilepsy presents 1962 from the University in no is known There cure, degree problem. therefore the patient must learn to of Utah. Mr. King has held several public live with the disorder. If he or she offices. He was a member of the has seizures they have great diffiUtah House of Representatives in culty obtaining employment. Because they cannot work, they can- 1965-6Chairmn, House Judiciary not afford the diagnosis or medicaCommittee, House Majority Whip tion which would stop the seizures. in 1966, Utah Legislative Council This program can help break that Judicial Study Committee, Utah vicious circle. Legislative Legal Services CommitAn estimated 50,000 different tee, Davis County Reapportionin addition to ment Committee and the former drugs and vitamins will president, Kaysville Civic medications be available. 6, anti-convulsa- nt , |