Schmidt v. Wieland

By the Court,' Sanderson, J.: The complaint shows that the Probate Court made an order directing the defendants, as executors of the will of Henry J. Isaacs, to pay to Mrs. Kate S. Isaacs, in her own right, and as guardian of the infant heirs of Henry J. Isaacs, the sum sued for in this action. That the plaintiff advanced the money, and Mrs. Kate S. Isaacs, acting in her own right and as guardian, assigned the order of the Probate Court to him.

The order of the Probate Court was not the property of the infant heirs of the estate of Henry J. Isaacs, in the sense of the statute in relation to the duties and powers of guardians. It constituted no part of their estate in the sense of the statute or of the rule in Kendall v. Miller, 9 Cal. 591. Their estate was in the hands of the Probate Court, or of the defendants, as its officers, and the order was an appropriation of a part of the estate by the Probate Court itself to the immediate use of the infant wards.

Where the guardian is in the control and possession of the ward’s estate, and is in need of funds for the education and [346]maintenance of the ward, the twentieth section of the Act in relation to guardians applies, and the proper course for the guardian is to apply to the Probate Court for leave to raise the necessary funds by selling a portion of the ward’s property; but here the guardian was not in the control or possession of the ward’s estate, and did not undertake to sell or dispose of any part of it, either with or without leave of the Probate Court. The estate of the wards was in possession of the defendants, as officers of the Probate Court, and whatever disposition was made of it was made, in the sense of the statute in relation to guardians, by order of the Court.

The demurrer to the complaint was properly overruled.

Judgment affirmed.