No. 2,275 | Cal. | Jan 15, 1871
delivered tbe opinion of tbe Court, Rhodes, C. J., and Wallace, J., concurring:
The only question in* this case is whether the Probate Court had jurisdiction of the proceeding from the final order in which this appeal is taken. The Act concerning guardian and ward does not, in terms, authorize the Probate Court to entertain a petition for an order to compel the guardian of the estate of a minor to refund moneys advanced, even by the guardian of the person of the minor, for his support and education. Nor does it, in terms, authorize an order, on the^ application of the minor himself, to compel the guardian to advance out of the estate of the minor the necessary sums for his support. I have sought in vain to find some provision in the statute which, by reasonable intendment, could be held to warrant such a proceeding. Section seventeen makes it the duty of the guardian to support and educate the ward out of the income and profits of his estate, if sufficient for that purpose; but no provision whatever appears to have been made to compel the performance of this duty, except by a suit on the guardian’s bond, or by invoking the more efficient remedy to be found in removing the guardian and appointing a more faithful person to execute the trust. It is evidently casus omissus in the statute, that the Court is not authorized, on the application of the ward, to compel the guardian to perform his duty in this respect, or to refund the moneys which others have advanced for necessaries for the ward, because of the failure of the guardian to dp his duty. But the Courts cannot supply omissions in the statute. I am, therefore, of opinion that the Probate Court had no jurisdiction of the proceedings, and could acquire none by reason of the fact that the allegations of the petition were admitted to be true. It had no jurisdiction to inquire whe$ier they were true or otherwise, and the admission of the truth of the
Order reversed, and cause remanded witb a direction to tbe Probate Court to dismiss tbe petition.