Rohr

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:

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…