Burns v. Superior Court

SHENK, J. This is a proceeding in mandamus to compel the respondent superior court to set aside an order thereto[130]fore made by it “revoking” letters of guardianship of the person and estate of Mary O’Connor, duly issued to her brother Joseph P. Donahue.

Joseph P. Donahue was appointed guardian of the person and estate of Mary O’Connor, an incompetent, on May 21, 1930. He filed a bond in the sum of $17,000, executed by the Massachusetts Bonding & Insurance Company as surety. The estate was valued at $60,567.98. He filed four annual accounts and a final account. During the guardianship proceedings he converted to his own use property belonging to the incompetent. (Guardianship of O’Connor, 28 Cal. App. (2d) 527 [83 P. (2d) 65].) On June 29, 1935, he filed a petition praying that Mary O’Connor be restored to compétency. The court granted the petition and on July 16, 1935, ordered that “said Mary O’Connor be, and she is hereby, restored to capacity, and that the guardianship of said Mary O’Connor cease.” The court also included in the order the following: “that the order heretofore made appointing Joseph P. Donahue guardian of the person and estate of said Mary O’Connor be, and is hereby set aside; that the letters of guardianship issued to said Joseph P. Donahue be and they are hereby revoked, and that said Joseph P. Donahue surrender to the said Mary O’Connor all the estate of said Mary O’Connor, and file herein an account of said estate.”

On September 11, 1935, Mary O’Connor filed exceptions to the five accounts claiming that property of the value of $24,-185.17 had been misappropriated. A hearing on the accounts was conducted by a referee appointed by the court. The court confirmed the referee’s report in part and decreed that Mary O’Connor was entitled to the additional sum of $15,152.70. The court denied her claim for interest. She appealed from that part of the order which denied interest on the additional sum found to be due to her. On appeal it was held she was entitled to interest compounded, and the portion of the order refusing to allow interest was reversed. (Guardianship of O’Connor, supra.)

The order settling the guardian’s final accounts was made on July 1, 1937. That order contained the following provision: “It is also further ordered, adjudged and decreed that . . . upon the filing of vouchers, release or satisfaction therefor, the said guardian be discharged from further liability on his bond given in this proceeding.” The guardian appealed from the whole of said order. The order was affirmed on Jan-