96 P. 12 | Cal. | 1908
This is an appeal from an order refusing to revoke letters of guardianship and set aside an order fixing the amount of guardian's bond. It involves the validity of the appointment and qualification of a testamentary guardian.
The ward is the son of the appellant and her former husband, Westwood J. Baker. The parents were divorced on April 1, 1898, and thereafter lived apart, the father residing in Fresno County and the mother in San Francisco. The father died on July 4, 1905, leaving a considerable estate, which he disposed of by will. The will, which was admitted to probate on August 14, 1905, in the superior court of Fresno County, contained this provision: "I hereby appoint L.O. Stephens of the city of Fresno, guardian of the person and estate of my said son Joseph Westwood Baker." The estate of the child consisted entirely of property held in trust by the said Stephens, part of it derived from the father, which part was to remain in trust until the child became twenty-five years of age, and the remainder by devise from one Sarah W. Garrett to remain in trust until he was of age. All of it was situated in Fresno County and a considerable portion of it was real estate. The fact that the will purported to appoint Stephens the guardian of her son coming to the knowledge of the appellant, she employed an attorney in Fresno to represent her in the matter and instructed him that she desired to retain the custody and guardianship of the person of her *539 son. Thereupon it was agreed between her attorney and the attorney for Stephens that Stephens should waive the guardianship of the person and yield to her the custody and control of the child, but that he should be the guardian of the estate. Stephens then filed his application in the superior court of Fresno County, reciting the testamentary appointment aforesaid, and declining the guardianship of the person of the child, alleging that the minor was a resident of Fresno County, and asking the court to fix the amount of his bond as guardian and trustee of said estate, and to direct the clerk to issue letters of guardianship to him. The court made an order that this application be heard on September 11, 1905. This application and order were served on the appellant's attorney and by him delivered to her. She then signed and filed a writing as follows: "I hereby consent and agree that L.O. Stephens may be the trustee and guardian of the estate of said minor, but not of his person." Upon the hearing the court made an order fixing the amount of bond of Stephens as guardian and trustee and directing the issuance of letters of guardianship of the estate to him. Stephens filed the required bond, took the oath, and received the letters accordingly. Afterwards, on March 8, 1906, the mother filed in the said court a petition to revoke the order and the letters so issued and to dismiss the guardianship proceedings. The appeal is from the order denying this petition.
The provision of the statute, applicable herein, relating to testamentary guardians are as follows: —
"A guardian of the person or estate, or of both, of a child born, or likely to be born, may be appointed by will or by deed, to take effect upon the death of the parent appointing: 1. If the child be legitimate, by the father, with the written consent of the mother; or by either parent, if the other be dead or incapable of consent; 2. If the child be illegitimate, by the mother." (Civ. Code, sec.
"The superior court of each county, when it appears necessary or convenient, may appoint guardians for the persons and estates, or either of them, of minors who have no guardian legally appointed by will or deed, and who are inhabitants or residents of the county, or who reside without the state and have estate within the county." (Code Civ. Proc., sec. 1747) *540
"Every testamentary guardian must qualify and has the same powers and must perform the same duties with regard to the person and estate of his ward as guardians appointed by the court, except so far as his powers and duties are legally modified, enlarged, or changed by the will by which such guardian was appointed, and except that such guardian need not give bond unless directed to do so by the court from which the letters of guardianship issue." (Code Civ. Proc., sec. 1758)
The appellant contends that the testamentary appointment of Stephens was ineffectual because she did not consent thereto during the lifetime of the father, and that the proceedings in the superior court of Fresno County are void, for the reason, as alleged, that the minor was not at that time or afterwards, a resident or inhabitant of Fresno County, but lived and resided in San Francisco, and that therefore the superior court of Fresno County was without jurisdiction.
A deed may be made, to take effect immediately upon its execution, or, within certain limitations, at any time afterwards, even after the death of the grantor. A will can have no effect whatever until the testator is dead. Hence it is probable that the phrase "to take effect upon the death of the parent appointing," added as a qualification to the introductory paragraph of section
The argument that the superior court of Fresno County was without jurisdiction to make the order directing Stephens to give a bond as testamentary guardian, is based on the assumption that, at the time that order was made and the proceeding therefor instituted, the minor was not a resident of Fresno County. In the original proceeding the petition of Stephens alleged that the minor was then a resident of Fresno County. Upon the hearing of that petition the court found this allegation to be true and so recited in the order directing and fixing the amount of the bond. This finding as to the jurisdictional fact is conclusive unless it was obtained by fraud or mistake. In the present proceeding to set aside that order there is an attempt to allege that this finding as to the residence of the minor was obtained by fraud upon the court and upon the present petitioner, Page E.T. Baker, the mother of the minor. The court finds that this allegation is untrue and that there was no fraud in obtaining the former order. It is contended that this finding is contrary to the evidence. The record before us, however, does not enable us to review the finding of the court below on that subject and it is therefore *542
conclusive. The bill of exceptions contains no specifications of particulars wherein the evidence is insufficient to justify the findings. Such specification is necessary in order to authorize this court to review the evidence and consider its sufficiency to support the order. (Code Civ. Proc., sec. 648; Winterburn v.Chambers,
In view of the conclusions we have reached upon the merits we think that the alleged errors of law occurring at the trial and so very briefly discussed by counsel are unimportant. It is unnecessary to consider them.
There are some indications that this petition was intended as an application, under section
The order appealed from is affirmed.
Angellotti, J., and Sloss, J., concurred.
Hearing in Bank denied.