I agree with the opinion on all questions determined therein except one, which is, that it was not reversible error for the court to decline to give to the jury an instruction, defining the extent of incapacity of Mrs. Sabin so as to authorize a verdict finding such incapacity as would authorize the appointment of a committee to manage her estate. The opinion found and held that section 2149 of our present Statutes was the one authorizing this procedure and which directs the appointment of such a committee, if, among other things, the person in charge (and which was the ground relied on in this case) "on account of any infirmity or weight of age, have (has) become so imbecile or unsound as to render them (him) incompetent to manage their (his) estates" (estate). It was the contention of the movants in this case that Mrs. Sabin, on account of her infirmity and weight of age, had become of such unsoundness physically and mentally as to render her incompetent to manage her estate. She denied that charge, and the issue thereby made was the sole one to be determined by the jury. The court, as the opinion points out, submitted that issue in the language of the statute giving the remedy, without furnishing the jury any standard of incompetency that in legal contemplation would disable her to manage her estate and to keep it from being dissipated and squandered by respondent herself on her own volition, or through the machinations of selfish and designing persons taking advantage of her and depriving her of her estate without adequate consideration or compensation, and without ability on her part to prevent it because of such incapacity. The statute, it will be seen, merely states the facts in general terms that would authorize such a procedure, without including any standard from which or by which the facts *Page 645 may be determined, and that is so clear that I am convinced that no one will contend to the contrary.

Judicial utterances are too numerous to the effect that it is incompetent and improper, in jury trials, for the court to submit to it an issue arising under a statute containing such general language in its general terms without an instruction, independently or by way of qualification, defining the condition in the nature of a guide or standard that will authorize the jury to determine the issue involved in such general language, to require a specific reference to, or a cataloging of, them in this dissenting opinion. The same is true with reference to any other issuable fact arising from general language, whether it be a part of a statute or a part of a rule of law evolved by the courts. The cases are almost without exception to the effect that an instruction authorizing the recovery of damages, without containing any standard to guide the jury in arriving at legally recoverable damages, is not only erroneous but always furnishes ground for a reversal of a verdict returning damages. But recently, in the case of Aetna Insurance Co. v. Weekley, 232 Ky. 548, 24 S.W.2d 292, we reversed the judgment of the trial court for the sole reason that the court submitted to the jury the question of "waiver" without defining the facts that would constitute it. In such a case the avoidance contained in that doctrine is laid down by the courts in general terms, i. e., that a litigant may be deprived of a right by waiving it without defining the term; but where the facts are disputed and it becomes necessary to submit the issue to the jury, all courts hold that it is the duty of the court to define to the jury what facts would constitute waiver so as to entitle the party relying on it to its benefit.

In will contest cases the opinions are equally unanimous and without exception that definitions of mental incapacity so as to disqualify one from making his will, and of undue influence that would authorize its setting aside, must be defined by the court to the, jury trying the case, and no case can be found in this or any other court, so far as I am able to discover, that would uphold a verdict in such cases without such defining instructions, when the record was in such condition as to present the question.

The same is true in criminal trials where a plea of insanity is interposed. This court at least, and I think all others, follow the invariable practice of defining the *Page 646 condition of the defendant's mind in criminal prosecutions that would entitle him to an acquittal on the ground of insanity. See Southers v. Commonwealth, 209 Ky. 70, 272 S.W. 26. No case, so far as I am aware, has ever been approved where the court submitted to the jury in general language the issue of whether or not the defendant was insane, without going further and stating what facts would constitute the requisite excusable insanity. Multiplied instances could be given wherein the courts in cases involving analogous questions refused to approve or uphold judgments where the trial court submitted the issue to the jury in only general language giving the right, without an additional instruction or qualification submitting the facts that would constitute such right, or, in other words, defining the grounds of the right relied on, and it would be a work of supererogation for this dissenting opinion to be further lengthened by references to such cases.

It is true, so far as I have been able to find, that the question, as applicable to this character of inquisitorial case, has not been presented to, or expressly determined by, this court; but it has been determined by many courts in surrounding and other jurisdictions. However, in the case of Howard v. Howard, 87 Ky. 616, 9 S.W. 411, 413, 10 Ky. Law Rep. 478, 1 L.R.A. 610, and other cases cited in the opinion, this court did determine that upon such investigations it was the duty of the court to direct the inquiry by the jury to the fact "as to whether the mind of the person was so impaired by age, disease, or otherwise, as to render him incapable of understanding and appreciating his property rights to such an extent as to render him unable to protect himself against designing persons." If the person in charge should be found by the jury to be in that impaired mental state, then a committee should be appointed; otherwise, not. In other words, the language of Judge Bennett, who wrote that opinion for the court, did not stop at reciting the fact of impairment, by disease or otherwise, but went further and said that it should be to such an extent "as to render him incapable of understanding," etc. The cases finding their way to this court, originating in such a procedure, are all silent upon the question now being discussed, and so far as the opinions show it was never raised, discussed, or determined in any opinion of this court. It may be that in many, if not the most of or all of them, the practice as I am contending for was followed *Page 647 by the trial court; or it may be that counsel representing the person in charge did not raise the question either in the trial court or in this court; but, whatever the reason, it is plain to my mind that the mere fact of no such question having heretofore been raised is no argument in favor of the doctrine of the majority opinion.

On the other hand, the annotation referred to in 17 A.L.R. 1065, not only points out and demonstrates that the question has been before the courts of many other jurisdictions, but also that each of them approved the practice of instructing the jury so as to furnish it a proper criterion or measurement by which it may be guided in arriving at the facts relating to the incapacity of the person in charge. In most if not all of the cases discussed in that annotation, there was a statute authorizing the procedure couched in general language very similar to that contained in section 2149, supra, of our statutes. The Supreme Court of the State of Iowa, in the case of Smith v. Hickenbottom, 57 Iowa, 733, 11 N.W. 664, 667, had before it the same kind of proceeding as that involved in this case and which was held under a statute authorizing the appointment of a committee or guardian for "an idiot, lunatic, or person of unsound mind," and the Supreme Court of that state approved and upheld an instruction defining unsoundness of mind within the meaning of the statute, which said: "If, therefore, you find from a preponderance of the evidence that the condition of the defendant's mind is such as discloses incapability of exercising judgment, reason, and deliberation, — of weighing the consequences of his acts and their effects to a reasonable degree upon his property, estate, family, and attendants, and his own person, — it will be your duty to return a verdict that he is unsound of mind." Other similar cases will be found in the annotation and where the same practice was upheld and approved.

Counsel for Mrs. Sabin in this case not only objected to the general instruction given by the court in the language of the statute, but offered a specific instruction defining the mental capacity of their client that would authorize the appointment of a committee to take charge of her property, but which the court declined to give, and which I think was the only error committed at the trial of the case, and which I think was of sufficient materiality as to authorize a reversal of the judgment. To take one's property from his custody without his consent is *Page 648 an act of far-reaching consequences and constitutes a most emphatic encroachment upon the liberties and the rights of the owner, and before it should be done the law providing for it to be done should not only be strictly followed, but in such a way and manner as to create no confusion with the fact finding body, and so as to enable it to clearly ascertain, weigh, measure, and arrive at the facts authorizing such drastic action on the part of courts having jurisdiction of the subject.

I deem it unnecessary to further elaborate the case, but for the reason stated I most respectfully dissent from the opinion on the single point herein discussed.