Guardianship of Joaquin

[100]

DOOLING, J.

Appellant, father of the minor, a boy 7 years of age, appeals from an order appointing respondent guardian of the person and estate of said minor. Appellant and the minor’s mother were divorced and the custody of the minor had been given to the mother. The mother died in 1957 leaving her entire estate of the value of approximately $20,000 to the minor. By her will she nominated the respondent to be the guardian of her minor son.

The matter was submitted to the court on the oral testimony of appellant and respondent and an extensive report of the probation officer. This report concluded that no substantial unfitness of the father was determined. The probate court made no finding of the father’s unfitness and although respondent argues that findings must be presumed to have been waived-or are not required (arguments which we need not here

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consider) he makes no argument that the evidence would support a finding that the father is unfit and we find no substantial evidence of unfitness in the record.

The father frankly stated that if granted the guardianship he would place the boy to live with an adult brother of the minor and his wife because he has no houskeeper and could | not look out for the boy himself during his working hours. The probation officer’s report includes a finding that the care of the minor in the home of this adult brother and his wife would be adequate. Respondent is a Roman Catholic parish priest and he as frankly stated that he could not take the boy to live with him but would leave him in the Catholic boarding school where he was at the time of the hearing or place him in some similar school if made his guardian.

Because of differences in the statutory law the guardianship of the person and estate must be separately considered.

Probate Code, sections 1402 and 1403, govern:

“1402. A parent may appoint a guardian by will . . . for the property of any child of such parent. . . which such child may také from such parent by will or succession.

“1403. Either parent of a legitimate child . . . may appoint a guardian of the person and estate ... of such child, by will... to take effect upon the death of the parent appointing, with the written consent of the other parent, or if the other parent is dead or incapable of consent. ...”