In Re Tilton

This is an appeal from an order revoking letters of guardianship issued to appellant Ida A. Killey, of the person and estate of Chloe F. Tilton, an incompetent, and appointing petitioner, Louis Hammersmith, such guardian.

The petition was filed on January 17, 1910, and on that day the court fixed the hearing for January 31, 1910, on which day the guardian of said incompetent appeared and answered, *Page 246 and embodied therein as part thereof what purports to be her first account as such guardian. At the same time her attorney filed a motion that "the order or citation . . . to show cause why her letters of guardianship in said matter should not be revoked, be quashed and the petition . . . be stricken from the files, and said matter dismissed on the ground that under the alleged facts . . . the court had no jurisdiction to make said order nor issue said citation," and that admitting all the averments of the petition to be true, the court had no authority to revoke the guardian's letters.

The evidence is not brought up, and we must, therefore, presume that it supported the findings of the court. There was no demurrer to the petition on the ground of any indefiniteness or uncertainty in the petition or on any other ground, and it may be doubted whether the sufficiency of its averments to support the order can properly be raised by a motion to quash the citation. However, as the motion is based on alleged want of jurisdiction, and as the question of jurisdiction may be raised at any stage of the proceedings, we will not deny appellant's right to have the order reviewed and the question of jurisdiction determined.

It appears from the petition that petitioner has been a friend of Charles Tilton, deceased, husband of said Chloe Tilton, for more than twenty years, "and has interested himself in behalf of said Chloe Tilton, as her friend, since December 12, 1909"; that on April 12, 1905, Ida A. Killey, a resident of the city and county of San Francisco, was appointed by said court the guardian of the person and estate of said Chloe Tilton and ever since has been and now is such guardian; that ever since April 15, 1904, the said Chloe Tilton has been, and still is, an inmate of the state hospital for the insane at Napa; that said incompetent has property, of the value of about $30,000, consisting of real and personal property situated in this state; that all the proceedings in the matter of said guardianship were destroyed by fire on or about April 18, 1906, and said guardian has never taken any steps to restore the same or any part thereof, and there is neither an inventory of said estate nor any account of receipts and disbursements on file herein. On information and belief it is alleged that said guardian has never filed an inventory in said estate, and has never presented to the court *Page 247 any account therein since her appointment as guardian; that petitioner has been informed by the medical superintendent of said hospital "that the said Chloe Tilton is sufficiently restored to health so that she is able to leave said hospital at any time, provided that she be placed under the care of a nurse"; that petitioner has personally visited said incompetent at said hospital, "and is convinced from observation, conversation and reliable inquiry made that she should leave said hospital and take up her private abode attended by a nurse, and that it would be for her best interest and welfare to do so; that the condition of her health is such as to permit her removal from said Napa state hospital and to continue under the care of a nurse." It is further averred that said guardian is also administratrix of the estate of Charles Tilton, the deceased husband of said incompetent, and was duly appointed as such administratrix in April, 1905, and that said incompetent is sole heir to the estate of said deceased; that all the records and proceedings in said last-mentioned estate were destroyed by fire about April 18, 1906, and said administratrix has never taken any steps to restore the same, or any part thereof; that the interests of said Ida A. Killey as such administratrix are adverse to the interests of said incompetent; that the said incompetent, by a proper guardian, should at once bring proceedings in this court against said administratrix to compel an accounting in the matter of the estate of said Charles Tilton, deceased, and to take other steps for the benefit of said estate, and also to obtain a family allowance and distribution on behalf of said incompetent. Whether or not an inventory was ever filed by the guardian does not appear, and none accompanied the account filed with the answer. The court made no finding on that fact, but otherwise the court found the facts as alleged in the petition to be true. It also found that "more than one year ago Dr. Elmer E. Stone, then and now, superintendent of said hospital, notified said Ida A. Killey that it was for the best interests and welfare of said Chloe F. Tilton to be forthwith taken away from said hospital, and its other inmates, to abide elsewhere with a nurse; that at said time, and ever since, the financial condition of her estate enabled her to be supported and maintained in an abode outside of said hospital and in care of a nurse; that said Ida A. Killey has in no way ever *Page 248 attempted to remove said Chloe F. Tilton from said hospital to abide elsewhere in care of a nurse, or otherwise; and has never taken any action to apply any part of her estate, or any proceeds derived therefrom, toward her maintenance and support outside of said hospital." It is also found that the guardian has mismanaged certain designated real property of her ward, and has continuously up to the time of her answer to said citation failed to present or file in court any account or report of her said guardianship, although often notified so to do.