In Re Estate of Snowball

This is an appeal by Leutie C. Snowball, in her own behalf, and also in her capacity as executrix of the estate of Milton S. Snowball, deceased, from an order of the superior court making a family allowance to the two minor children of said deceased.

The order in question directed the executrix to pay to said children, or to the guardian of their estates, the sum of forty dollars per month for their support and maintenance during the administration of the estate, and until further order. The two children, Carmen and Aldanita Snowball, are respectively seven and nine years of age. The estate is of the probable *Page 237 value of about twelve thousand dollars, and by the terms of the will of the deceased it is all given to the two children, but is to be held during their minority in trust for their use, by Leutie C. Snowball, who is their aunt. The estate is not indebted except to the amount of five hundred dollars.

The appellant, in her own behalf, has no sufficient interest in the matter at issue to entitle her to maintain an appeal. She has no personal interest in the estate and hence she is not a party aggrieved. As executrix she has, abstractly speaking, a duty to perform in protecting the estate from depletion by an extravagant family allowance. She is therefore, as executrix, technically a party aggrieved, and as such she has a right to maintain the appeal. It is difficult, however, to deduce from this duty a sufficient motive for taking an appeal from an order allowing forty dollars a month for the support of two small children, out of an estate of twelve thousand dollars, all of which belongs to them. The order was made on the petition of Mrs. Winnette Squires, the mother of the children. Before filing the petition, she obtained an order appointing herself as guardian ad litem of the minors for that purpose. This was alleged in the petition and denied in the answer thereto. Upon the hearing, the order appointing her guardian ad litem was admitted in evidence over the appellant's objection. This is assigned as error, the objection being that there is no legal authority for appointing a guardian ad litem to carry on such proceedings in behalf of minors. The objection is without merit. "A guardian ad litem may be appointed in any case, when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge thereof, expedient to represent the infant, . . . in the action or proceeding." (Code Civ. Proc., sec. 372.) An application to obtain a family allowance is a "proceeding" and a "case" within the meaning of this provision. Although not necessary to do so, it may be expedient, and it is within the discretion of the court to appoint a guardian ad litem for that purpose. The objection is immaterial for another reason. The court may make such order of its own motion, without a petition from any person. (Leach v.Pierce, 93 Cal. 619, [29 P. 235]; Code Civ. Proc., secs. 1465, 1466.) It could be made on the petition of any person on behalf of the children. (Estate of Garrity, 108 Cal. 468, [38 P. 628, 41 P. 485].) It was therefore immaterial *Page 238 whether a guardian ad litem was appointed or not and the proof of the order was useless and harmless.