Guardianship of Rapp

PETERS, P. J.

Janis Rapp appeals from an order refusing to vacate an order appointing Ann Pendergraft guardian of a minor and refusing to vacate the letters of guardianship issued on such order.

On November 24, 1941, Ann Pendergraft was appointed guardian of the minor, David, aged 12, upon her petition and testimony, and the testimony of Louis Rapp, the boy’s father, that Ann was the aunt of the minor; that the mother was dead; that the father had no objection to the appointment, and that the minor had a trust fund of $5,000. Thereafter, on December 29, 1941, appellant Janis Rapp, filed a petition to vacate, alleging that she was the mother of the child; that no notice had been given to her of the application for letters of guardianship; that the order was based on perjured testimony. These charges were supported by her affidavit filed with the motion. The motion came on for hearing on January 5, 1942, on which date appellant filed an amended affidavit, in which she averred she was the “foster mother” of the minor, and that, since his birth and until the time of the guardianship, she had and was entitled to his care and custody. She urged, therefore, that under the provisions of section 1441 of the Probate Code she was entitled to notice of the guardianship proceeding, and that since such notice had not been given, the proceedings were void. That section requires that before making the order appointing the guardian reasonable notice must be given “to the person having the care of the minor and to such relatives of the minor residing in the state as the court or judge deems proper.” There can be no doubt that if appellant was, in fact, the person “having the care” of the minor, she was entitled to notice under this section, and that the failure to give such notice where required is jurisdictional, rendering the order of appointment subject to a motion to vacate made within a reasonable time.

(In re Dahnke,

64 Cal. App. 555 [222 Pac. 381].) The trial court having denied the motion to vacate, the question presented is whether the evi

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deuce adduced at the hearing of the motion to vacate, together with the affidavits, show, as a matter of law, that appellant was, at the time of the guardianship proceeding, the person actually having the care of the minor. If the evidence does not show that fact, or if the evidence is conflicting on the issue, the order of the trial court refusing to vacate must; and should, be affirmed.