In Re Estate of Moore

SLOSS, J.

Opposing petitions for letters of guardiansMp of the person and estate of Phelps S. Moore, a minor, were filed by Charles Walter Moore, father of the child, and by Hugh T. Gordon. The petitions were heard together, and the court made its order denying the application of the father, and appointing Mr. Gordon guardian. The father appeals.

In addition to the petitions, there was on file a paper embodying the objections of Hugh T. Gordon to the petition oi Charles W. Moore for appointment. This document alleged the unfitness of the father and his abandonment of the child The court made no finding upon the first issue. It found, in effect, that Charles Walter Moore, the father, had knowingly and willfully failed to contribute to the support of the cMld, or to communicate with it, although he had the ability to do so. A declaration that he had abandoned the child is embodied in the conclusions of law.

[304]

At the time of the hearing, the minor was of the age of seven years. It is-settled law in this state that the father or mother of a minor child under the age of fourteen years has a preferential right to be appointed guardian, and that the court must recognize this right unless it finds the parent seeking appointment incompetent, or unless such parent has knowingly or willfully abandoned the child, or, having the ability so to do, has failed to maintain it. (Code Civ. Proc., sec. 1751; Civ. Code, sec. 246, subd. 4;

Guardianship of Mathews,

169 Cal. 26, [145 Pac. 503];

In re Mathews,

174 Cal. 679, [164 Pac. 8];

In re Forrester,

162 Cal. 493, [123 Pac. 283];

In re Salter,

142 Cal. 412, [76 Pac. 51].) In this case, as we have seen, the court did not find against the father on the issue of his competency, and it is, at the very least, extremely doubtful whether a finding of incompetency could have been sustained on the evidence produced. 'We are satisfied, further, that the evidence was not such as to support a finding that the father had abandoned the child (assuming that the "court did so find), or the finding that he had failed to maintain it.