94 Cal. 347 | Cal. | 1892
The petitioner drew a will for Mrs. Langdon, which she executed and left in his possession, with directions to retain the same, unless otherwise directed, and at her death to deliver it to the person named as executor therein. Some time afterwards, — the exact time does not appear,■—-Mrs. Langdon sent a messenger to petitioner, requesting him to deliver the package to the former. This request was complied with, and subsequently the same messenger, at the request of Mrs. Langdon, delivered to petitioner a sealed package, indorsed on the envelope, “ Mrs. Langdon’s will.” This package was placed in the petitioner’s safe, and the possession thereof has ever since been retained by him. It does not appear who made the indorsement on the envelope, nor does any one know the contents of the package. Some time after it was returned to the petitioner, Mrs. Langdon became incompetent to manage her affairs, and after due proceedings had, R. M. Fitzgerald was, on December 17, 1890, appointed guardian of her person and estate. Thereafter said guardian demanded of the petitioner the delivery of all property and instruments in his hands belonging to the estate of Mrs. Langdon. The petitioner refused to comply with this demand, whereupon Mr. Fitzgerald applied to the superior court for an order directing petitioner to show cause why he should not deliver up the instrument. After a hearing, the court decided that the guardian was entitled to the possession of the package. The petitioner appeared in court and offered to allow the court to open the package, and if anything was found therein except Mrs. Lang-don’s will, to surrender the same to the guardian, but
Counsel for the respondent claim that the order was a proper one, under section 1800 of the Code of Civil Procedure.
We think that this section should be read in connection with sections 1459 and 1460 of the Code of Civil Procedure, and that the phrase “ instrument in writing,” as used in section 1800, must be construed as referring to instruments to the possession of which the guardian is entitled as an asset or as evidence of his ward’s title to property. The last will and testament of the ward is not an asset. Neither is it an instrument which the guardian could use in the recovery of an asset. It cannot in any way relate to any matter within his power or duties, or in any manner affect his action as a guardian, because it cannot take effect until after his authority has ceased. He certainly cannot annul/ revoke, destroy, or in any way dispose of it, nor can the court authorize him to do so, and we are unable to see upon what ground he is entitled to its possession, or to a knowledge of its contents. If it were in his hands, of course it would be his duty to preserve it; but here it appears that the maker of the will, before she became incompetent, selected the petitioner as the custodian thereof, with special directions to retain the same until her death, unless she called for it, and upon her death
It is claimed by counsel for respondent that if there was any trust it was extinguished when petitioner delivered the package to the messenger, and that it was only the second package with which the court dealt. We think the facts stated in the findings show that the will was called for, not with the intent of terminating the trust, hut only for a temporary purpose, and that the subsequent delivery by Mrs. Langdon, without further instruction, and under circumstances showing no intention to revoke or modify her directions, left the package in the possession of the petitioner upon the terms of the original trust.
Counsel for respondent contends that we ought to deny this writ because the petitioner appeared in person in the court below, answered, offered testimony, submitted the case, and never in any way suggested that he questioned the jurisdiction of the court,—“in fact, never did question it by plea or otherwise.” We do not know what was said in the argument in the court below. Of course, in fairness to the court, counsel for the petitioner ought to have called its attention fully to the points now made; but the failure to do so does not deprive him of his right to have the order annulled, if it was in fact
The court found that “said sealed package belonged to said Nora Langdon, and belongs to the estate of said Nora Langdon, and said guardian is entitled to the possession of the same.” It is claimed by counsel for respondent that this finding is conclusive. Assuming that the facts found, and not the issues and order, are the tests of jurisdiction, and are decisive of the question whether certiorari will lie, the point made is not well taken. The finding quoted is the conclusion of law which the court drew from the facts found. No one knows what is in the package; hut it must be treated as containing only the will of Mrs. Langdon. The findings show that the petitioner tendered the package to the court for examination of its contents, and offered to deliver the possession of anything contained therein except the will. If we are right in the views we have expressed on the main question, this is all the petitioner can be required to do.
We think that the learned judge of the court below erred in his conclusion, and that the order is void for want of jurisdiction.
The order under review is annulled.
Harrison, J., De Haven, J., Garoutte, J., McFarland, J., and Sharpstein, J., concurred.