Guardianship of Gilman

GIBSON, C. J.

This is a motion to dismiss an appeal from an order adjudging Fanny B. Gilman to be incompetent and appointing a guardian of her person and estate. The appeal was noticed by Herbert Cutler Brown, subscribing himself as attorney for the incompetent. The guardian, as movant, alleges that Mr. Brown was never engaged by or on behalf of the incompetent and therefore was without authority to notice the appeal.

The order appointing guardian was entered August 24, 1943. Among the papers supporting the motion to dismiss the appeal is an affidavit of the incompetent that she had never engaged or employed Mr. Brown to appear for her or to take the appeal, and that he is therefore proceeding without her authority and against her wishes. In opposition thereto, he filed a counter-affidavit in which he avers that he first met the incompetent on September 29, 1943, and that she then stated to him, “I want you to act as my attor

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ney. I want you to get me out from under the control of [the guardian] and away from this place.” It is apparent from the record that Mr. Brown acted in good faith in noticing the appeal.

Mrs. Gilman, as a party aggrieved by the order adjudging her incompetent and appointing a guardian, had the right to appeal therefrom if she so desired.

(Matter of Moss,

120 Cal. 695, 697 [53 P. 357];

Sullivan

v.

Dunne,

198 Cal. 183, 193 [244 P. 343];

cf. Guardianship of Waite,

14 Cal.2d 727 [97 P.2d 238].) The rule that a person under disability must appear by general guardian, or guardian

ad litem,

does not apply to a case where the very question involved is the validity of the order of guardianship itself and where the appeal is taken directly from that order. An attorney who represents an alleged incompetent may take an appeal therefrom on behalf of the incompetent.