104 P. 444 | Cal. | 1909
Aldanita Ann Snowball and Carmen Snowball are minor children of Milton S. Snowball, now deceased, and of the respondent Winnette Squires, who, after having been divorced from Milton S. Snowball, was married to Lowell Squires. Each of the children is under fourteen years of age.
Milton S. Snowball died in January, 1908, leaving a will, under the terms of which his children were named as beneficiaries. On June 15, 1908, Leutie C. Snowball (sister of Milton S.) filed her petition praying that she be appointed guardian of the persons and estates of the said minors. Mrs. Squires, the mother of the children, filed a petition on her own behalf in which she asked that she be appointed as guardian of the estate of each of the minors. Both petitions were set for hearing at the same time and such hearing resulted in an order granting the petition of Winnette Squires and denying that of Leutie C. Snowball. From this order Leutie C. Snowball appeals.
In her pleading the appellant alleged that Winnette Squires was not a fit or proper or competent person to have the care or custody of either of said minor children. The court found this allegation to be untrue. It appeared that on the seventeenth day of February, 1908, some four months prior to the commencement of the present proceeding, Leutie C. Snowball, the petitioner herein, had filed in the superior court a petition asking that she be appointed guardian of the persons of the said minors. Opposition to this application was filed by Winnette Squires. The matter came on for hearing on the twenty-fourth day of February, 1908, at which time the petitioner amended her petition by inserting an allegation that "Winnette Squires, the mother of the said minors, is incompetent and not a fit and proper person to act as their *242
guardian." This allegation was denied by Mrs. Squires, and thereupon, evidence having been introduced, the court made findings to the effect, among other things, that the mother was competent and a fit and proper person to act as guardian of the children and entered a judgment that the amended petition of Leutie C. Snowball be denied. The proceedings upon this former application having been offered in evidence and shown to the court upon the hearing of the petitions in this proceeding, the court, upon the objection of the respondent, excluded certain testimony offered by the petitioner for the purpose of showing unfitness on the part of the mother. If this ruling had gone so far as to preclude the petitioner from showing, by any character of testimony, the alleged unfitness of Mrs. Squires, it would undoubtedly have been erroneous. The doctrine of res adjudicata
cannot apply to successive applications for guardianship of minors to the extent of precluding the court, upon the later application, from a consideration of such circumstances as may have occurred since the rendition of the prior order. If the person appointed guardian should, after appointment, develop or exhibit traits of character indicating an inability to properly perform the functions of guardianship, the changed conditions may, of course, be shown to the court with a view to invoking its power to make new provision for the custody or care of children. (See Beyerle v. Beyerle,
The first application was for guardianship of the persons only, the second for guardianship of persons and estates. The court permitted the appellant to offer any testimony she had on the new issue presented, i.e., the fitness of respondent to act as guardian of the estates of the minors.
The appellant made an offer to prove certain facts which, as she claimed, tended to show that the respondent had abandoned the children, and had thereby forfeited her right to guardianship (Civ. Code, sec.
The court properly declined to consider the will of Milton S. Snowball, whereby he undertook to appoint the appellant as guardian of his children. Unsupported, as it was, by the written consent of the mother of the children, the attempted appointment was void. (Civ. Code, sec.
The point that the evidence is insufficient to sustain the finding of fitness on the part of the respondent is without merit. There was testimony which fully authorized the conclusion reached. The mother had the primary right to be appointed (Code Civ. Proc., sec. 1751) and, in the absence of proof compelling a finding that she was not fit to act as guardian, this right was properly recognized. (In re Campbell,
There was no substantial error in admitting or rejecting evidence.
The order appealed from is affirmed.
Shaw, J., and Angellotti, J., concurred.
Hearing in Bank denied. *245