Johnson v. Superior Court

KNIGHT, J.

This is a proceeding for a writ of review whereby petitioner J. A. Johnson seeks to have reviewed and annulled an order made by the Superior Court in and for the County of Fresno, in the matter of the guardianship of the estate of Marie Elizabeth Moline, a minor, directing petitioner to pay to the guardian of said minor, for the latter’s support and education, a continuing .monthly allowance of $40 out of funds which had been distributed to petitioner as testamentary trustee "under a decree of final distribution in the matter of the estate of Oliver Moline, deceased, the grandfather of said minor.

The will of the decedent contained the following provisions: “First, I give, devise, and bequeath all the property, real and personal, of which I die possessed, to my beloved granddaughter Marie Elizabeth Moline. Second, I nominate J. A. Johnson of Kerman, County of Fresno, State of California, to be the executor of this my last will and testament, without bonds. Third, I direct my said executor to keep all moneys which may be realized from the collection of notes, securities and other obligations belonging to my estate, in the First National Bank of Kerman until my said granddaughter shall reach the age of eighteen years.” The residue of said estate, consisting of $5,530.99 in cash and a note secured by a mortgage in the sum of $2,500, was distributed on November 20, 1920, “to J. A. Johnson, as trustee for Elizabeth Moline,” and said trustee was “directed to collect all securities belonging to said estate, and upon collection of any thereof to keep the proceeds, together with all cash belonging to said, estate and hereby distributed to him, in the First National Bank of Kerman until said Marie Elizabeth Moline, shall reach the age of eighteen years.”

[601]

In June, 1925, Anna M. Moline, the mother of said minor, obtained letters of guardianship of the estate of her daughter, and in October, 1925, upon petition, procured and thereafter served upon the said J. A. Johnson as trustee an order requiring him to show cause why he should not pay the sum of $40 a month from the trust fund for the support and education of said minor. In response to said order Johnson, besides appearing in court personally and by attorney, filed a written appearance setting forth that he appeared specially for the purpose of objecting to the hearing of said petition “upon the ground that the court had no jurisdiction over the subject matter of said petition or of the person of said trustee,” and that he appeared “for no other purpose.” The court proceeded with the hearing and after receiving oral and documentary evidence granted the guardian’s petition and on November 20, 1925, entered an order directing Johnson as trustee to pay to the guardian of said minor the monthly sum of $40, commencing on October 1, 1925, and to continue until the further order of the court. At that time the minor was fourteen years of age.