As I did not participate in the decision of this cause I take occasion, in passing upon the petition for a rehearing, to state briefly the grounds upon which I concur in the judgment, and in the order denying a rehearing.

As stated in the opinion of the court, this is not a case in which the donor herself seeks to invalidate a gift. The action is prosecuted in her name by a guardian ad litem and against her wishes. If she had com *6 menced the action herself, or had consented to it, or had in any way manifested a desire to set aside her conveyance, her prayer, I think, must have been granted upon the ground that the gift was of her whole estate without any reservation or power of revocation; that it was made upon the understanding that she should be supported and cared for by her donee, and that no provision or condition for her support was contained in the grant, or in any written agreement; and for the further reason that her donee occupied towards her a relation of special trust and confidence; and that she had no independent advice.

But it appears very clearly that since she has had independent advice, and, with a clear understanding of the situation in which she is placed, she desires the gift to stand. This being so, she cannot, if she is now capable of acting for herself, be compelled against her will to take it back.

The question then is, whether she is at present, or was at the time of the trial, capable of acting for herself.

It seems to be contended by counsel that the order of the lower court appointing a guardian ad litem, as long as it stands unrevoked, is conclusive of her want of capacity. But I do not so regard it. If the proceeding and order had been for the appointment of a general guardian on the ground of her incapacity it might have had such effect. But here the guardian was merely appointed as a step in this action, and the findings of the court made at the close of the trial, and after a full hearing—if they amount to a finding that she had the capacity to dispose of her property—completely do away with the effect of the findings, express or implied, upon which the order appointing the guardian ad litem was based.

As I construe the findings of the court (and so construed there is, in my opinion, sufficient evidence to sustain them), they declare, in effect, that the plaintiff was, at the date of her conveyance, and at all times *7 thereafter, of sufficient capacity to make the gift. They are as follows:

The plaintiff has never been able to transact or understand the ordinary business of people engaged in business pursuits. She knows nothing about trading or carrying on a ranch, but with respect to that which is and has always been to her the ordinary business of life, viz., the management and control of the domestic affairs of her family and household, she has displayed full competency, wisdom, and prudence. She is, in other words, not deficient in intellect or natural capacity; at least not in that degree that requires the appointment of a general guardian, but is merely incapable, by reason of ignorance and lack of experience, of managing a ranch, or of conducting any business in which special knowledge and experience are essential.

It is suggested by counsel lor appellant that upon this view of the case the proper judgment for the superior court to have made was a mere judgment of dismissal of the action instead of a judgment on the merits, and they ask us to direct a modification of the judgment accordingly. But on this appeal from the order denying a new trial we cannot order a modification of the judgment.