*1 liquor had use and excessive that the continued evidence tissue, brain decedent’s destruction of caused a disease and that, faculties, memory other loss resultant condition, acts, con- therefore, testimony mental as to the execu- after the before and testator, both versations of the jury to deter- properly tion of his submitted will was and, further, execution, of its competency mine his the date province was within of this issue the determination jury. was of Objections testimony that the testator positive executed, those that was unsound mind when will all testator at times had not seen the family physician death, of his continuously up to the time him had not attended testimony likewise matters weight and are go by this jury not court. trial be determined argument itself es- will applies to same rule testamentary capacity. tablished the fact that there certainly not fact, conclu- but be some evidence contrary must all evidence to the sive to the extent that other disregarded. judgment trial court my opinion therefore, the should be reversed. November 12, In Bank. F. No. 16352. 1940.]
[S. Guardian, etc., Petitioner, BROWNE, v. THE BELMORE THE OF CITY AND COURT COUNTY SUPERIOR al., Respondents. et FRANCISCO OF SAN *2 Duffy Freitas, for Petitioner. Keating & Respond- & for Abbott, Appel Dains Daley and V. Harold ents. prohibition, petition a writ
GIBSON, This is C. J. superior de to restrain ciding an for a writ of incompetent behalf of an person. elderly Browne, an Mrs. Ella H. shows adjudged incompetent in nearly ninety years age,
lad}'- *3 County. of proceeding Superior a in the Barbara Court Santa 23, 3934, son, petitioner herein, April Browne, On her Belmore quali- appointed and estate. He guardian person was her upon duties. fied as and entered such October, Browne in Santa Barbara until Mrs. remained upon including time, physicians, 1936. At the advice that placed sent in psychiatrists, she was to San Francisco satisfactory Home, offering the Greer an institution care and son, Browne, in attention. Thereafter J. W. another various guardian, urged to his mother and communications attending physi- Her that she come back to Santa Barbara. dangerous. opposed 22, On 1937, cian the move as November Superior filed Barbara guardian Santa instructions, all seeking foregoing which facts hearing held a forth. The court at which J. were set W. appear, instructing and entered its order failed to Browne the ward should remain San Francisco guardian that at attending physician home, and that her nursing should necessary incoming her if censor mail for the examine avoiding excitement. undue purpose reopen case, then moved to and the W. Browne J. including parties, Browne, J. W. At this so. did submitted the testimony that the matter be stipulated psychiatrist appointed by psychiatrist the court. This tes- sane, mentally tified Mrs. that Browne was but childish practical incapable making judgments age, alone; that her physical dangerous to and her and mental condition made it move Barbara, her Santa for the reason that the excite- attack; bring ment incident might thereto on a heart fatal good that the Greer Home furnished service environment nursing adapted well needs, to her and that there no was home in price; comparable in service and her merely desire return to Santa Barbara was a normal age result her condition, but that it was not safe her to so. do On the basis of this reaf- evidence the court original firmed keep its instructing guardian order Mrs. appeal Browne San Francisco. No was taken either order. 7, April attorney
On had V. Daley, Harold who represented J. proceedings, W. Browne in the made an earlier application in the San a writ Francisco Court for application on behalf of Mrs. Browne. The alleged attorney requested by that he her was and was her institute the restraint; to release her from being she was by her confined in the Greer Home superintendent and the con- doctor; that her finement was unlawful for the reason that she not insane mentally unsound; that conditions and associations in Santa Barbara were more happiness; conducive her that her en- her treaties to to be returned there had been disre- leaving garded, unhappy; homesick and that her estate provide was sufficient to as might institutional care proper upon her (on return to Santa Barbara; and informa- belief) tion and she journey could make dan- without ger. It was further that because of the censorship of visitors, her mail and her attornej'- was unable to discuss freely presented case and for this reason her behalf without prayer verification her. was “that *4 H. detention, said Ella Browne be relieved of and from such and confinement restraint and for such other and further ought relief as to she have”. issued,
The writ a filed, and demurrer answer and were denying allegations most mainly of the material raising and jurisdiction judicata. issues and res The demurrer overruled and the proceeding court set the in
597 pro- Thereupon petitioner a writ of corpus for trial. writ issued. court, in this an alternative hibition and respondents objection is that preliminary A tribunal, prohibition only to an inferior and can issue superior jurisdiction corpus the court issue habeas its appellate argument plane the same court. This is on as an un recognizing power restrain is answered cases (France Superior corpus. v. authorized issuance of habeas Court, 869]; A. L. R. Bart 201 122 Pac. 52 Cal. [255 Court, ; Superior App. 108 Cal. Pac. lett v. [292 545] 1218.) 116; 12 R. these authorities there J.,C. C. L. Under duty grant power doubt and can be no of our acting prohibition respondent superior is herein if the court jurisdiction. in excess of its is petitioner contention of that the chief jurisdiction custody court over has exclusive has no incompetent, and that the San Francisco court
power proposition it. This familiar interfere is jurisdiction have over that where several courts concurrent type first one to and proceeding, a certain assume jurisdiction acquires case particular exercise such a jurisdiction. though it Thereafter another exclusive jurisdiction, might originally wholly have taken is without power interfere, prohibition. be restrained Court, App. (See (2d) v. 23 Cal. Gorman 173 [72 774].) (2d) generally The rule where Pac. invoked a completed judg pending; is still it is when final, ment has become has exhausted and been application. no the rule has applying guardianship proceed this doctrine to keep stages mind distinct
ing, we must at least two in the petition brought there proceedings. First court is the incompetency of the ward establish to obtain concluded, appointment guardian. this matter is When stage reached, wherein the undertakes the second providing administering duties stage, incom As the first the determination of affairs. resulting guardian, petency appointment of a the issues adjudication longer pending. A final has been made. no are present of the Santa Barbara In the case fully exercised, this matter been over purposes adjudication If normal this is conclusive. for all again, incompetency may properly raised question *5 pending objection any that the matter is longer is no there court. within stage, however, the matter is not con As to the second out guardian. carrying discharge cluded until authority under his duties administration he acts him, must render supervision appointed court which instructions, accountings, may petition for and is jurisdiction of liability or removal for misconduct. The though no respect continuing one, and the court in this is a may be motion, petition incidental proceeding or other such jurisdic pending any particular time, the court still at believe, has court, we guardianship. tion over No other power continuing control over to interfere with that his ac guardian; approve no other could receive and Fran counting, him The San or instruct his duties. corpus proceed cannot, cisco this habeas ing, propriety any enter into consideration of Browne, medical or residence, other care of Mrs. her the ex supervision visitors, personal tent of over her mail or other activities, any guardian or other matters with her connected ship. allegation Bar The that she desires to return to Santa significance legal recited; bara has no under the no facts indeed, significance, personal preference more than her drugs doctors, guard law treatment. Under the (Prob. Code, 1500), ian must her place choose of residence sec. fully and the Santa Barbara court has considered all matters pertaining juris wholly thereto. These are all within scope beyond diction of the Santa Barbara and are any corpus. Ordinarily, in habeas corpus proceeding court in a have of this kind can being but one issue to determine: Whether the is liberty. competent, deprived of If she is she custody should freed from all choose her own residence and mode of life. If incompetent, she is she is properly custody of her and is not entitled discharge. to a present proceeding by remains now test the principles.
these The for the writ of habeas cor pus allegations illegal competent contains restraint of a person, which, juris standing alone, give would doubtless diction competency court to determine her to release from restraint. But there are statements in the pleadings entirely light briefs which throw different alleges prohibition proceeding. sought “it application for In the guardian”. custody of her said from the free attorneys obtained petition, who filed answer appli- they “Deny corpus, the writ of habeas corpus it Browne for cation of Ella H. custody from the free said Ella H. Browne *6 state: guardian.” briefs, said counsel in their And one of Supe- Francisco corpus “Her in the San for habeas rior her Barbara.” removal to Santa seeks argument oral at the confusion,
Because of this counsel At object application. questioned were to the of the real of any intention that time denied counsel custody having the seeking of or the release the ward from first, was, guardian removed, purpose and stated that the freedom, of “to enable this ward to have a certain measure using part her to be that term in the sense of a desire on Barbara”; “to rem- permitted second, return to to edy personal upon unreasonable restraint her liberties respect improper, contend, censorship to the as we of her right mail denial have visitors and also the to her of the kept Home, at the was in come her Greer she effect where guardian”. These incommunicado her statements consti- only proper ground upon tute an abandonment the which of the writ could issue. The the court action of issuing undoubtedly its writ of habeas based upon misconception object applied a of the of counsel who subsequent for it. The disclosures matters show the determined, namely, the residence and method juris- ward, exclusively of treatment of the are within the scope diction of the of Santa Barbara and outside the corpus. the writ brought If facts had been these attention, might to its properly the lower court have dismissed proceeding. equally proper grant the It is for this court prohibition to restrain it. applicant, true,
Counsel for the it is at makes some tempt justify the use the of writ rem edy what he describes as the upon restraint “unreasonable liberties”, designation personal consisting of San residence, placed upon Francisco as her limitations the to receive mail and visitors. He has furnished us point, general but with no case relies on a few statements personal effect that unreasonable interference with the 600 inquired on habeas
.liberty person be into or welfare of a notwithstanding person fact corpus, Raymond custody ex guardian. The case of State rel. 931], A. 769, 58 L. R. Lawrence, N. W. v. Minn. [90 typical meaning of statements. illustration these offers a ward “The welfare of the The court there declared that rela- wishes the chief matter be considered—not guard- . guardian. . . The tives, nor the convenience power ward, and cannot ian does not have unlimited over the detri- permanent residence to its change temporary its or at- on, the said: “Where an ment ...” Further court any by guardian anybody tempt is or else to exercise person anyone state, restraint over this within remedy, al- corpus, any will appropriate or other such ways inquire any propriety effectual to into the restraint, inquiry proper attempted court judgment case particular can make such an order ’’ may require. study opinion However, a reveals personal guardians the rela- hostility were actuated tor, daughter gave ward, “scant consideration” Notwithstanding to the welfare of the ward. this miscon- duct, that, probate court, held until removed guardians any control could care for and *7 “They may designate persons reasonable manner. charge be,—such attending whose immediate she shall as the physician nurses,—and may upon and insist the observance regulations of reasonable rules and conducive to her health Accordingly, comfort.” the court approve declined to attempt by change an the lower court commissioner to make a custody control, in her but reaffirmed the rule that these matters were within sound guardians. discretion of the entirely
Such decisions are reasonable when considered in particular with their facts. mayWe connection assume that guardian incompetent herein, if the of the without instruction court, away or authorization from the took the ward from unsatisfactory place residence, unjusti- her home to an or fiably imprisoned or her deny confined so as to plea- her the visiting family friends, deprived sures of her or or her opportunity receive medical care preventing her seeing physician, these might, restraints in the ab- adequate remedy, sence of another be the inquiry corpus. guardian The custody on habeas has and care ward, but the is not prisoner. his may He limit
601 benefit, manner, own for her a reasonable activities reason, deny as is freedom cannot, good but without essential to her welfare. bearing on case. this, has no the instant however,
All confining limiting free arbitrarily is not The acting upon is un dom of his initiative. He the ward own having der the instructions gave after those instructions guardianship, and the court ample practically upon possible hearing, the fullest testimony particular conduct that the course of conclusive The court prescribed was for best interests of ward. then, may wrong now. For may be wrong have been it then, may appellate review was the error it committed have commiting now, appli may possible. For the error it be continuing jurisdiction court, which has cation to that Evidence the condi guardianship, possible. still tion, may presented desires of the needs and the the ward be behalf, and fairness of the to that court on her may appeal. decision reviewed on or the correctness of the be ground present possible is no But in the circumstances there illegal whatever. corpus. There is no restraint for habeas with the lawful Everything been done accordance them, to make evi orders a court with fully If supports the orders. were dence which permit application demands, acting he be what would in violation of the orders of the Santa Barbara for his would answerable to that court misconduct. only requires
The other contention that consideration may permit incompetent issue to to con the writ right attorney, denied her. sult with her now are, hold course, There authorities which prisoner to consult counsel be en an accused or a Rider, corpus (see App. re Cal. forced on any 965]), relevancy are to see but unable Pac. we [195 present for habeas those decisions. attorney Daley, Harold who was V. was filed never, guardian, but who far as record brother *8 However, granting ward. even his shows, represented right do so never been denied. authority, his has The which, seen, only as we have is the Santa Barbara jurisdiction raised consider the matters having appli- to hear an present proceeding, has never refused ward, by cation on behalf Daley any at- other Mr. torney. proper place The right enforce is, consult the instance, ward first Santa Barbara court. But any the record fails attempt to show to seek relief there. On the it contrary, expressly admitted at argument the oral this was not done. We cannot assume that deny request court will Barbara which has never been made. peremptory prohibition
Let a writ of re- restraining issue spondent superior court from trial or determination of by issues raised corpus. for habeas Curtis, J., Edmonds, J., Moore, J., tem., pro concurred. CARTER, Concurring. J., I concur in the conclusion opinion reached in the prepared by justice. my the chief opinion Superior Court had County Santa Barbara jurisdiction exclusive pertaining per over all matters son and alleged incompetent person estate of the and was jurisdiction pursuing its directing guardian as to where and in what manner his should be maintained. Superior County open Court of Santa Barbara anyone personal ward or interested in wel or financial imposed fare seek modification the restrictions maintenance, anyone for her applying for a modification of said appeal any order has the further Superior or additional orders made said Court.
itWhile Superior City true that Court of County jurisdiction of San Francisco to issue a writ of anyone city corpus detained within the county Francisco, of San cannot nullify exercised to executory Superior order made Court of County Santa Barbara proceeding clearly in a within the latter court. granting
It is obvious that the prayed case at bar would absurdity; result in an assuming is, City that the Court of the County granted of San Francisco the writ of for, would have the prayed releasing which effect of the in- person from the control of her competent in San county; that she could return to Francisco so Santa Barbara be in violation of order such return would County, of Santa and the Superior latter
603 the return undoubtedly the court would order in Francisco; would be in San this the Greer Home corpus issued out Su- the writ of habeas violation of perior City of San Francisco. County Court of the and having their re- persisting in effect of each these courts making in spective would result orders writs executed party being a out of either shuttle-cock the ward without instructing the order appeal, able relief since obtain the ward respect the maintenance of final, habeas granting become and the order the writ corpus appealable. is not my applied
To mind the rule should be here was same Court, 23 applied Superior Cal. in case of v. Gorman was held App. (2d) (2d) 774], where it Pac. [72 subject jurisdiction matter obtaining first over jurisdic- had parties thereto, of an exclusive action disposition action, and that proceed tion to with the action was court of concurrent in which same subsequently by writ commenced should restrained be disposition the case prohibition proceeding from with the Superior jurisdiction. until the first Court had exhausted its Superior The instant case is not one where the Court of final County has Santa Barbara made a determination subject thereby proceeding it, matter of the before jurisdic- still jurisdiction, its said court retains exhausted proceeding relating tion of its order said enforce ward; order is to modifica- maintenance of the Superior tion from to time Court of Santa Bar- time appears County, question and there no but that bara amply safeguarded by the interests of ward will be Superior County of Santa permitting the Court determining place where exclusive exercise shall the manner which said ward maintained guardian. prohibition a writ of I think it is obvious that should be City restraining granted proceeding County further with of San Francisco proceeding therein. Dissenting. SHENK, J., I dissent. proceeding borne in mind that this not a
It should be passing upon superior court from the appli- to restrain corpus. That had in cation a writ had issued before the passed been and the writ fact opinion present proceeding The main states was commenced. proceeds issued, on the had but much it respondents theory not, consequently that the that it .had put proof justifi- to their need not be concurring alleged unlawful restraint. The cation of the assumption of opinion definitely the mistaken proceeds on not been issued. That fact that the writ had prima stated a case when for the writ of habeas facie *10 respondent presented court cannot denied. it was be release of the ward purport That it did not demand a fairly guardian on custody from the was disclosed of the freely by counsel petition was conceded face of the and also petitioner argument on oral herein. The for the obvious have corpus proceeding was and purpose of the habeas is rights respondent under the of the court define hearing at the return to writ. facts to disclosed petitioner for the How the concession of counsel as “an would constitute purpose limited of his only proper ground which the abandonment of the comprehension. beyond my To so de- could issue” is corpus deny define clare is to to resort to discharge. complete rights and obtain relief less than respondent before the court which has been The matter by stopped by on the issues this court framed allegations writ of habeas petition for the majority proceeded has to de- the return thereto. and controversy in pro- the merits of that cide assumed, majority do, It cannot be as the seem to hibition. disregard showing court will on the that the arbitrarily to the writ of habeas and decide return contrary law before it and the facts there matter is certain that issues of both law fact presented. and hearing. presented to that court on Those would be for the were raised writ of habeas issues it was that on or about the 23rd of corpus wherein 1934, California, Court of the State of April, Barbara, County Santa and entered in and per- guardian Browne appointing Belmore as an order (cid:127) petitioner, alleged incompetent son and estate Browne since and still and that Belmore has been person; guardian; applicant that the Ella H. Browne acting as such years past last and for several has been now improperly confined and liberty and restrained of her and Home, at the Greer located at No. 6000 Fulton detained street, Francisco, said certain named San and persons acting in at direction of said concert and guardian; applicant’s liberty and the the restraint of person by persons of her said confinement and detention (1) respect alleges follows: unlawful, are and years, That while of she is not and never has been advanced high mentally unsound, person of insane or is a cultural possesses mental background, education, refinement and and fully capacity comprehend distinguish her environ- voluntarily ment and residences she has chosen which happiness contentment; afford her (2) which that for twenty years more appointment than before the of said maintained her home Bar- bara, dwelling, "whereshe now owns a residential where she long standing company friends whose and association enjoys desires; appointment she since (3) that guardian, Browne, said Belmore on or about October 1936, removed her from Santa Barbara to San Francisco placed her in Home, said Greer where she has since been continuously confined, detained and restrained liberty, of her against her wishes without her consent and in utter disregard of her entreaties to be returned Barbara; to Santa guardian’s disregard reason wishes *11 returned, be so she continues to homesick, remain unhappy, discontented and distressed; (4) that the appli- estate of the amply cant expenses sufficient to meet all incident to her return to Santa Barbara and her proper care and mainte- city nance in during that life; remainder of her (5) that reputable physicians psychiatrists and have examined the applicant and have advised that she can journey make the Barbara danger without or harm to her health or physical being change well and will be of extreme her; (6) benefit to refusing that in applicant’s effect re- turn to Santa Barbara causing and in her detained, to be confined and restrained of liberty her at the Greer Home Francisco, in her San acting arbitrarily, im- unreasonably properly, and and in abuse of the spirit and intent the powers conferred him as such guardian, regard any respect, and without or consideration welfare, happiness comfort and applicant; just cause (7) without and those acting him accomplished in complete concert with have strict and censorship correspondence of all the appli- to and cant, including her letters to her son John W. Browne and her, his letters to and likewise with do interfere and violate personal and passing confidential communications between applicant attorney herein; (8) guardian, and her her acting with the and aid assistance of those in concert with him, just cause, applicant and has without refused to allow notwithstanding long standing, to be visited her friends brought happiness fact that such visits would have much applicant her and could nowise be detrimental her being, petitioner, health and well refused to allow her matters con- attorney, to visit with her and discuss with personal restraint ceming affairs, her her confinement and liberty. of her petitioner the writ prayed that the court issue having custody,
corpus directing persons named, body “to have Ella H. thus confined and of said Browne aforesaid, liberty, detained and restrained of before court, place specified, said at a certain therein to be time to do and receive what shall then and there be considered concerning together IT. Browne the time said Ella restraint, cause of her detention and writ; and said and that detention, said Ella TI. Browne be relieved of and from such confinement and restraint and for such other and further ought relief as she to have”.
Upon filing petition the respondent aforesaid a court issued writ of habeas returnable at specified place. respondents As a time return to the writ the filed demurrer said and also an answer, in which it was denied that the was un- lawfully liberty of her restrained and which it adjudicated that the matters in the Superior proceeding in the Court in and for City presented County had been of San Francisco county adjudicated Court of Santa had “been superior fully appears as more said from the record proceedings court”, on file with said proceedings which to in and referred said are described answer with certain attached. exhibits *12 hearing matter on for came before respond-
When the guardian the writ, on the return to ent court interposed
607 objection an to the court’s further to hear and ground determine the matter on the said court with- that was premises out in the Su- for reason perior in County of Santa Barbara "has acquired things and exercising and is in all person es- guardianship of pertaining matters to Browne, incompetent person”, all tate of Ella and that H. an in Bar- the court such matters should be addressed to county. bara objection and the
The court overruled present proceeding brought prohibit to court from any in the making further determination habeas corpus proceeding. corpus proceeding
The of the habeas purpose conceded (1) right guardian to test of the confine the ward in San the Greer Home Francisco under the circumstances alleged; (2) right having custody of to test the those deprive privilege ward to censor her mail and of having her; (3) right her friends visit to test acting guardian prevent him and those the ward from attorney. consulting with her
As
enumerated and
protected,
the liberties
prima
it must be said
states a
case
facie
favor
the issuance of the writ.
"The officeof
the writ
speedy
the citizen a
afford
effective
securing
method of
any
removal of
unlawful restraint
his liberty; and
always
the statute which confers the
been construed
liberty
(In
favor of the
the citizen.”
Rider,
re
50 Cal.
App.
965].)
797
Pac.
does not have
[195
power
ward,
over the
though
unlimited
even
the ward be an
person.
incompetent
(State
Raymond
ex
Lawrence,
rel.
v.
769,
It well be that on the return to the justification complete alleged writ full and unlawful proceed- restraint would be established records of the ings in pro- the Santa Barbara The of court. record those ceedings, brought part before the court as a of the return to corpus, might writ defensive character and justification operate in well unlawful restraint. justification of do go Matters not to the of respondent presented court to consider the issues the re- turn to the writ. permitted
The should be to hear and de- corpus proceeding: the habeas First, termine right because against to resort unlawful restraint of personal liberty or freedom of action is firmly grounded in law, statutory. both constitutional and The essential ob- inquire ject writ are to purpose into all manner involuntary restraints. This writ long been regarded remedy greatest known to the whereby law one unlaw- liberty may his fully restrained of secure release or have his rights origin defined. Its is obscured in antiquity. civil Magna Oharta, right and the to resort to antedated it is uni- recognized English versally American law. The Con- (art. I, 9) States of the United see. provides: stitution ‘‘The shall be suspended, not privilege of rebellion public or when cases invasion safety unless I, Article require it.” may section our state Constitu- provision. the same Although makes these tion, constitu- generally legislature are directed mandates tional pro- p. 149) (25 Jur., Am. departments, or executive both en- right declared has been there fundamental tection Penal joined state, 1473 of the on the court. section this imprisoned or unlawfully re- provides: “Every person Code whatever, may liberty, any pretense his under strained of enquire into the cause corpus, prosecute a writ of habeas imprisonment or restraint." Under that and code, any person succeeding deeming sections same liberty himself has the restrained of apply competent to a court of the issuance ruling ruling writ and to have a thereon. denying form of to state the writ for failure order *14 Having it, here, justifying facts its issuance. issued as question then is whether return shows lawful thereto justification just restraint, petitioner and the is sufficiency much entitled have the court rule insufficiency ap- of the return ruling he is to have a plication for the issuance writ. superior
Secondly, court has constitutional to issue the writ (art. VI, 5). see. The con- ruling sideration on the for the writ is ordi- narily ex parte. “After to writ, a return the court or judge to whom the return pass upon ques- is made must all tions of both law and fact and ques- determine the ultimate prisoner tions whether is wrongfully restrained of his liberty. necessary for the court to weight determine credibility of the evidence where the testimony is con- (25 flicting." Jur., p. Am. cited.) authorities there When rightfully in custody the hearing on may partial the return disclose a unlawful restraint, or no unlawful restraint pending at all. respondent court conclude that the al- illegal
leged justified by restraints are prior reason of adjudi- county, justified Santa Barbara cations or are by reason present mental and physical condition of applicant. questions should be These determined its consideration the issues raised on the return to the writ, and its constitutional and statutory power so to do present not interfered with in should proceeding. tem., pro J., Marks, concurred.
Rehearing Shenk, J., denied. voted for a rehearing.