Guardianship of Kimball

[885]

SHINN, Acting P. J.

On May 20, 1946, Prances C. Engelhardt and Beverly Hills National Bank and Trust Company were appointed guardians, respectively, of the person and estate of John Alden Kimball, the 12-year-old minor involved in these proceedings. They appeal from an order made on June 19, 1946, in another department of the court, appointing May A. Sorensen, guardian of the person and estate of the minor.

Appellant Engelhardt is the maternal grandmother, while respondent Sorensen is the paternal aunt of the minor. The estate of the minor includes personal property and real property, which was formerly the separate property of his mother and was devised to him under the terms of her will. The minor’s mother died July 1, 1942. Thereafter the minor remained with his father until the latter’s death on May 19, 1946. On that day respondent advised appellant Engelhardt of the father’s death and directed her to take custody and control of the minor. Appellant did so immediately and has at all times retained the custody of the minor. On the following day, May 20th, appellant Engelhardt filed her petition for the appointment of appellant bank as guardian of the estate and of herself as guardian of the person of the minor. Among other matters, her petition contained an allegation, upon information and belief, that the father had died intestate and that the minor had no guardian “legally appointed by will or otherwise.” On the same day, the court, in a department located in Los Angeles, after a hearing, found that since appellant Engelhardt was the grandmother of the minor and had the care and custody of the minor no notice to any other relatives residing in the state was necessary, and further found that all of the allegations of the petition were true, that Mrs. Engelhardt was a competent and proper person to be appointed guardian of the person of the minor, and that appellant bank was a proper institution to be appointed guardian of his estate, and made its order forthwith.

Two days later, on May 22d, respondent Sorensen filed with the Santa Monica department of the superior court a petition in which she alleged that she had been appointed guardian of the minor by the will of his father and sought confirmation of her appointment as testamentary guardian. The hearing was set for May 31st and notice of the proceeding was given to appellant Engelhardt. Thereafter, on May 31st, the appellants filed a motion to dismiss the proceedings