124 P. 237 | Cal. | 1912
The controversy embodied in these appeals turns upon the right to the custody of Mavis Kathryn Allen, a minor. The minor is the daughter of Peri E. Allen and Catherine B. Allen, who, at the date of the child's birth, August 29, 1900, were husband and wife. On October 16, 1901, in an action instituted by the wife, a decree of divorce was entered in her favor, and by the decree the care, custody, and control of the minor were awarded to the plaintiff in the action, "with the privilege given the defendant of visiting said child at all reasonable times."
The mother, to whom the custody of the child had thus been granted, died on June 2, 1903, leaving a will which contained, among other things, a request that if the testatrix should leave issue, Jennie Allen, a sister of Peri E. Allen, and appellant here, should "have the care and custody of such issue." We *627 shall assume, for the purposes of this opinion, that the appellant is correct in construing the language quoted as equivalent to a testamentary appointment of Jennie Allen as guardian, so far as the testatrix had power to make such appointment. The will was admitted to probate in the superior court of the city and county of San Francisco. After the death of the mother, the father applied to said court for letters of guardianship of the person and estate of said child, and such letters were issued to him on August 12, 1903. From then until August 19, 1910, when Peri E. Allen died, he remained the guardian of the person and estate of the child.
On September 15, 1910, Louisa V. Allen, with whom Peri E. Allen had contracted a second marriage, instituted a proceeding for the adoption of the minor, and on the same day the superior court of the city and county of San Francisco made an order for such adoption. At that time, and for a long period theretofore, the appellant was out of the jurisdiction. She returned to San Francisco, and on December 14, 1910, served a notice of motion to revoke the order of adoption and filed a petition for letters of guardianship of the person and estate of the minor. The respondent, Louisa V. Allen, filed an opposition and a counter petition for her own appointment as guardian. The motion to set aside the adoption and the petitions for letters of guardianship, were heard together. The court denied the motion to set aside the adoption, and in the guardianship proceeding, made an order denying Jennie Allen's petition for letters of guardianship and granting Louisa V. Allen's petition for such letters.
Jennie Allen now appeals from these orders. She raises many points, but as most of them are founded upon the assumption that the attempt of the mother to appoint a guardian by will was valid, the inquiry may be simplified by an examination of the soundness of this assumption.
The right to appoint a guardian by will or deed is statutory. Under the law of this state (Civ. Code, sec.
If the appellant could base no valid claim on the provision of the mother's will, it follows that she is without interest or standing to attack the adoption proceedings, and cannot complain of any error, if error there was, in those proceedings. She had no natural right to the custody of the child, and had not been appointed guardian by the court.
She was, however, entitled, as any other competent person would be, to petition the court to appoint her as guardian, and to appeal from the order denying her petition. But, on such application for letters, she had no right to preference over the respondent, who also sought to be appointed. Since the appointment sought to be made by the will of the mother was ineffectual, the court was authorized, under the provisions of section
We have not discussed the question whether by the adoption the respondent had not gained the status of parent, and, as such, a preferential right to letters of guardianship. In view of the claim that the respondent sought, by adopting the child, to forestall appellant's expected assertion of a right to guardianship, we have preferred to consider the respective claims of the parties to letters as if the adoption had not preceded the rival applications to be appointed guardian. Even on this state of facts, the action of the court below should, as we have seen, be upheld.
The orders appealed from are affirmed.
Shaw, J., and Angellotti, J., concurred.
Hearing in Bank denied.