Engelhardt v. Superior Court

STURTEVANT, J.

This is an application for a writ of review. The petitioner is attacking an order made by the trial court appointing a guardian of the estate of the petitioner, an alleged incompetent person of the age of seventy-nine years.

In her points and authorities the petitioner devotes much time in arguing that she has adopted the correct procedure. We think that she has.

(Grinbaum

v.

Superior Court,

192 Cal. 528 [221 Pac. 635].)

The gravamen of her complaint is that the trial court exceeded its jurisdiction when, under the facts, it made any order except to dismiss the application. This point rests on the claim that this petitioner was a resident of Alameda County at the time the order complained of was made in the city and county of San Francisco. The petitioner contends that the petition for letters should have alleged that the ward was a resident of San Francisco and that such fact should have been sustained by the evidence. She claims the petition contained no allegation regarding her residence, that no evidence was adduced on the subject, and that the trial court therefore exceeded its jurisdiction.

[322]

The evidence taken in the trial court on the hearing of the application for -letters has not been brought up, but she has brought up copies of the files in the guardianship proceeding. The respondents admit that in the petition there is no allegation as to the residence of the ward at the time the petition was filed and respondents assert that such an allegation is not a necessary part of a petition for letters of guardianship of an alleged incompetent adult person and they cite and rely on the provisions of article II, chapter XIV, title 11, part 3, of the Code of Civil Procedure, that is, sections 1763-1767. The petitioner, on the other hand, claims that we should read together all of the sections of the entire chapter, that is, sections 1747-1810c. The chapter deals generally with the procedure applicable to proceedings entitled “Guardian and Ward.” The first article deals with proceedings entitled “Guardians of Minors.” The second article deals with proceedings entitled “Guardians of Insane and Incompetent Persons.” Both articles are a codification of the Act of April 19, 1850 (Stats. 1850, p. 268), and the several acts amendatory thereof. (1 Hittell's General Laws 487.) Since 1850 it has been the law that the power of the probate court to appoint a guardian of the estate of a minor was limited to minors who were “inhabitants or residents” of the county in which the court was held. Except, as we will note, during the same period there has been no such limitation as to the power to appoint a guardian of the estate of an insane or incompetent person. The exception existed in 1907. On March 23, 1907, two sections, each numbered 1763, were enacted. One of those sections (Stats. 1907, chap. 514) contained a limitation as to residence. That law was of short duration. The length of its life need not be determined. Long before this case arose it was repealed by amendment. (Stats. 1909, p. 329.) It is patent that article I,