Estate of Walsh

SHINN, P. J.

Bertha I. Walsh appeals from an order denying her petition to remove Edith Jaeger as guardian of the person and estate of Michael James Walsh, a minor 6 years of age, and for the appointment of herself as guardian, which order also granted the petition of Edith Jaeger for modification of an order respecting the custody of said minor. The order, before modification, allowed Mrs. Walsh to have the custody of the minor each Saturday and Sunday, and as modified gives her only the right to visit the child at reasonable times and upon reasonable notice in the home of Mrs. Jaeger.

A former appeal by Mrs. Walsh, paternal grandmother, from the order appointing Mrs. Jaeger, maternal grandmother, guardian, was before us two years ago. The decision on that appeal affirming the order is reported in 100 Cal.App.2d 194 [223 P.2d 322, 22 A.L.R.2d 689], However, at the time Mrs. Jaeger was appointed the court had not admitted to probate the will of Michael’s father, in which he appointed his mother, Mrs. Walsh, guardian of the minor. The duly probated will was before the court in the instant proceeding and the principal question now presented is whether upon the facts found at the hearing the court was required to remove Mrs. Jaeger and appoint Mrs. Walsh.

In the petition of Mrs. Walsh it was alleged that Michael’s father appointed her by his will as guardian of Michael and another child; that the father was of the Catholic faith; that Mrs. Jaeger would not rear Michael in that faith, and that she, Mrs. Walsh, would so so. These were the facts principally relied upon for the removal of Mrs. Jaeger. It was also

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alleged that Mrs. Jaeger discouraged Michael from visiting Mrs. Walsh.

It appears to be the theory of appellant that as an appointee by will she would have had a better right originally to be appointed guardian by the court than would Mrs. Jaeger, even though the court had found that it was for the best interest of Michael that he should be under the guardianship of Mrs. Jaeger, and from this premise appellant argues that she, Mrs. Walsh, had a right to have Mrs. Jaeger removed and herself appointed.

The statutory provisions with respect to preference between persons equally entitled in other respects, which are governing in the matter of the appointment of guardians, are not applicable to ■ a proceeding for the removal of a guardian. The question is not presented and we intimate nothing as to whether one appointed by a will, or another applicant whose appointment is found by the court to be for the best interests of the minor, has the better right to guardianship.