SCHAUER, J., Dissenting. “To thus interpret law doth cuckold justice.” The “dim and odious annals of the past” (Lytton Strachey, Elizabeth and Essex) are, indeed, come down to date. Is an adult man who is sane and competent in fact, who has served his country as well as his community as a physician and surgeon, who is convicted of no crime, who owes no debts, who has thousands of dollars of cash in the hands of a bank which had been appointed his guardian, who owns a house which he built on a lot which he bought with funds which he earned, who is possessed of ample income, who needs and wishes to keep the house to use as an office for his practice and as a home for himself and his two young daughters, but who at one time was mentally ill for [22967] days, who, it is res judicata, had recovered and was “sane and competent” at the time of the court order here involved, helpless to prevent a sale by his “guardian” of his property? To the shame of our system of jurisprudence the majority of this court so hold.
Dr. Willard E. Kay, a physician and surgeon, the husband of Nancy Kay and the father of Nancy Ann and Kathryn, who has honorably ministered in the armed forces as well as in his civilian community, about ten years ago built a house at the northwest corner of Scott and Broadway in San Francisco. He built it for himself and his wife Nancy and their two young daughters. Nancy became incompetent several years ago. Dr. Kay used the house both as family residence and professional office. On January 14, 1946, he was adjudged mentally ill and was committed to the Napa Hospital. On January 22, 1946, the Anglo California National Bank of San Francisco was appointed guardian of his estate. (It also, previously, had been appointed to act as guardian of Nancy’s estate.) Fifty-nine days later, on March 22, 1946, the staff of the Veterans Administration Hospital, to which institution Dr. Kay had been transferred on March 20, 1946, examined him and found him “sane and competent.” This is not disputed. He was, nevertheless, temporarily retained under examination. On April 6, 1946, Dr. Kay was again “presented ... to the staff and at that time he was also considered sane and competent; there was another case review on May 1st, 1946 ... at which he was also considered competent, and the last review was on the 13th of May, at which time he was discharged from the hospital as sane and competent.” He was at that time (May 13, 1946) “Discharged to his own custody” to take care of his own affairs and was given a formal certificate of competency as provided for by statute. (Welf. & Inst. Code, § 6729.)
Prior to May 16, 1946, Dr. Kay filed his petition for legal restoration to adjudicated competency. He alleged among other things that “Ever since May 1, 1946, petitioner has been, and he now is sane, and competent and of sound mind, and is entitled to be restored to mental competency and capacity, and ever since said date, he has been, and now is, fully capable of caring for himself and of managing his affairs and his estate, and is entitled to an adjudication to that effect.” On June 7, 1946, all the above allegations were [230]adjudicated to be true. Not one allegation in that petition was challenged by Dr. Kay’s guardian, by the trial judge, by Mr. Edel Epstein who had a deal pending with the guardian to purchase Dr. Kay’s property at private sale, or by anyone else. Nevertheless, with that petition pending hearing, the trial court undertook, on May 16, 1946, to confirm (apparently the trial judge believed that he was merely refusing to “set aside”) a sale of Dr. Kay’s property, over his protests, to Mr. Epstein. The sale was confirmed for a price of $20,200 for Dr. Kay’s interest ($40,400 for the entire property); the property had previously, by the court appraiser, been appraised at $25,000 for Dr. Kay’s interest ($50,000 for the entire property). The property had not been offered publicly or listed with any broker. It was offered by the guardian at private sale to Mr. Epstein and the guardian undertook to make the sale to Mr. Epstein for $40,400 while the property stood appraised at $50,000. That sale was undertaken by the guardian (petition for confirmation filed) on April 15, 1946. It will be remembered that according to the undisputed evidence Dr. Kay, in the opinion of the Veterans Administration Hospital staff, had recovered and was “sane and competent” as early as March 22, 1946, more than three weeks before the guardian even filed the petition for confirmation and nearly two months before the “confirmation.” The excuse stated by the guardian for offering to sell under the circumstances shown was that it did not know that Dr. Kay had recovered. Its representative admitted that no effort had been made to ascertain his condition. Nevertheless, on May 16, 1946, assertedly under the mistaken belief that the property had already been sold and that it did not have the right “to set aside the sale,” the trial (probate) judge confirmed the sale. This egregious error and failure to pursue jurisdiction, the majority hold, cannot be rectified.
None of the essential facts are disputed. This is not a case wherein, there being a conflict in the testimony or in the inferences to be drawn from the testimony or documents or circumstances shown, it is the duty of the reviewing court to sustain the inferences and conclusions of the trial court. The holding in Estate of Bristol (1943), 23 Cal.2d 221, 223 [143 P.2d 689], inferentially relied upon, although not cited, in the majority opinion, has no pertinency here. That case deals with a question as to the sufficiency of evidence; here [231]we are confronted not merely with a paucity of evidence to support a finding which was made but, more particularly, with an overwhelming, undisputed, affirmative showing that the act of the probate court exceeded its “defined power” as “defined by . . . express statutory declaration.” (Abelleira v. District Court of Appeal (1941), 17 Cal.2d 280, 291 [109 P.2d 942, 132 A.L.R. 715].) It has frequently been held, in substance, that if from all the facts only a single inference and one conclusion may be drawn, then such single inference becomes a fact in the case and the “one conclusion” must be drawn as a matter of law. (Baugh v. Rogers (1944), 24 Cal. 2d 200, 206 [148 P.2d 633, 152 A.L.R. 1043]; Perguica v. Industrial Acc. Com. (1947), 29 Cal.2d 857, 859 [179 P.2d 812]; Fields v. Sanders (1947), 29 Cal.2d 834, 842-843 [180 P.2d 684], Justice Traynor, on another occasion (Mosley v. Arden Farms Co. (1945), 26 Cal.2d 213 [157 P.2d 372, 158 A.L.R. 872], concurring opinion, p. 223) stated his view to be that “ [I]f reasonable men could not differ as to whether the evidence does or does not establish the existence of a fact, the court will not submit the issue to the jury.”) Here, all the essential facts are either undisputed or are res judicata. Only one conclusion in respect to departure from jurisdictional procedure can be drawn by a reasonable mind. If the same rule of law which was followed in the Abelleira case is applied here the order rendered must be annulled.
It is undisputed that there was no necessity for the sale. Dr. Kay was at all times concerned in receipt of a cash income of some $500 or $600 a month from insurance policies and it was not disputed that such income would continue as long as he remained unable to carry on his practice. He had thousands of dollars of cash on hand. It is also undisputed that he was possessed of some $8,000 to $15,000 worth of readily marketable securities. No cash was needed in the estate and the personal property securities were not offered for sale. The real property was never offered for rent; the guardian held it vacant.
Dr. Kay was incompetent for but a few weeks, or at most, even in a legalistic sense, months. As previously noted the guardian was appointed on or about January 22, 1946. On March 22, 1946, Dr. Kay was pronounced sane and competent by the hospital staff; on May 13, he was discharged and given his formal certificate of competency; and on June 7, it was formally adjudged that he was then, and at all times [232]subsequent to May 1, 1946, had been, “sane, competent and of sound mind and . . . entitled to be restored to mental competency and ever since said date, he has been, and now is, fully capable ... of managing his affairs and his estate.” In apparent haste to sell Dr. Kay’s property before he was fully restored to legal competency, the petition for confirmation was filed April 15, 1946, without consulting him and without inquiry as to his then condition of health. The petition alleges, among other things, that “the interest of this estate in said parcel has been appraised at $25,000.00, but your petitioner is informed and believes, and therefore alleges, that said appraisement is too high, and therefore respectfully requests that a new appraisement be forthwith had. (6) That said sale was made directly with said purchaser [Edel R. Epstein] without the employment or assistance of any broker or agent and no real estate broker’s commission is payable.” Such petition was set for hearing on May 3,1946. This was some six weeks after Dr. Kay had been found sane and competent by the staff at the Veterans Administration Hospital but while he was still under observation there. On that day a telegram which had been received by the clerk of the court on the preceding day, was called to the attention of the trial judge. The telegram purported to come from the brother-in-law of Dr. Kay and read as follows : “Dr. Kay’s home is not to be sold or sale confirmed in court without his personal consent. Arrangements were made for his release on May 1st from Veterans Hospital. Mrs. Kay may arrive May 2nd. Dr. Kay’s condition was only temporary and not permanent and is well now. They must be allowed to occupy the house and sale must not be confirmed until and unless Dr. Kay consents to it. Meanwhile confirmation can be continued two or three weeks or a month.” The trial judge remarked, “I really see no reason why this matter should be postponed. I can’t pay any attention to telegrams from somebody that knows nothing about the circumstances, or from relatives. ... We cannot be postponing these sales for trivial matters ... I understand Dr. Kay was—before Dr. Kay was committed, the whole neighborhood was out hiring attorneys—he was firing shots through the ceiling—isn’t that true? [The record before us'is devoid of evidence to this effect.] . . . This incompetency has been going on for a long time, hasn’t it?” “Mr..Herrington: Not Dr. Kay—it is only three or four months old.” “The Court:
“We are asking on behalf of Dr. Kay for a continuance in this matter, and that the sale either not be confirmed or that it be continued for a sufficient period of time to enable this incompetent to have an opportunity to be restored. [Italics added.] The reason this request is made is because this is his home, and he has no place to go and live and have his office, since he is a practicing physician—he was before he was adjudicated an incompetent—and he asks the Court to continue the matter, or to disapprove the sale for that reason. We believe that it is within the Court’s discretion to do that, to enable him to save his home. Legally, he is incompetent and insane today, but in a few days, from the information that we have, he will be declared competent. ...”
“The Court: ... I think the only thing I can do, to preserve the rights of Mr. Gullinan and his clients [the Epsteins] —after all, they have some rights—this sale is legitimate, in spite of the natural sentiment we have about taking a home from somebody. I think a few days’ continuance should be granted. . . . And I want a substantial showing at that time— I don’t want to hear what is going to be done, and all that; I want some substantial showing at that time.” (Italics added.) There is in the record not the slightest basis for holding that either the prospective purchasers or their attorney had any “rights” in the premises to be “preserved.” It was Dr. Kay and his wife, Nancy, who had rights which should have been the primary concern of the court and the guardian.
On May 16, the hearing resumed. At that time it appeared that not only had Dr. Kay been released from the hospital as restored to sanity and competency in the opinion of the medical staff, but that he had filed a petition for restoration by the court to full legal competency and that hearing on [234]such petition had been set for June 6, only some three weeks away. The petition averred that petitioner was in fact sane and competent as of the date of its filing and that he had been sane and competent “ever since May 1, 1946.” As previously noted none of its allegations was challenged by anyone and on June 7, they were adjudicated true.
The evidence upon which the majority rely to support the jurisdiction of the trial court in its purported confirmation of the sale—actually, its denial of rescission—is that of one Myron L. Glover, an employe of the trust department of the guardian bank. In response to leading questions he undertook to state the naked belief and feeling, not his personal opinion, of his corporate employer as to the advantage to Dr. Kay and his estate of making the sale in question. He gave no reason, whatsoever, for the “belief” or “feeling” of the bank except the indicated basic belief that Dr. Kay was insane and incompetent and would remain so indefinitely. The transcript shows: “Q. Do you believe it to be to the advantage and best interest of Dr. Kay’s estate, and Dr. Kay, that the property be sold? A. We do. . .. Q. As representative of the Bank, representing the Bank, they feel that the property should be sold, that it is to the best interest of the estate, and of the incompetent ? A. Yes. . . . Q. (Mr. Lang) I will ask you if you made any investigation or caused any investigation to be made as to the possible recovery of Dr. Kay on or before April 15, 1946 [the date the petition for confirmation was filed] ? ... A. No. Q. Did you have any reason to make any investigation at that time? Had anyone informed you that Dr. Kay had made any application for restoration? A. No. If there had been, we would have made no effort to sell the property. Q. You did not know that he was found to be sane and competent by the medical staff on March 22? . . . A. No, we had no knowledge.” (Italics added.)
It is thus obvious that the “belief” of the bank clerk as to the “feeling” of the bank was based on the further erroneous belief that Dr. Kay continued insane and incompetent when in fact he had recovered. The attitude of the bank on the final hearing (May 16, 1946) in relation to the question of Dr. Kay’s restoration to legal competency, is reflected by the following passage from the transcript: ‘ ‘ [By Mr. Herrington.] Mr. Cullinan is here representing the purchasers, and Mr. Lang is also here, and I think your Honor has the picture in mind from last week. As far as the petition for [235]restoration, I might say that the Bank’s position on that is neutral; if the doctor can establish that he has recovered and is entitled to handle his own affairs, the Bank will be only too happy to cooperate and abide by any order the Court may make in that connection. We do not expect to oppose that at all.” (Italics added.) But the effort to confirm the sale went on.
Evidence was introduced which, without any substantial dispute, established that Dr. Kay had in fact largely recovered his health and strength, that he was then sane and competent but should avoid overworking and worry for some months. It was undisputed that he had been released, as restored to sanity and competency, to return to his own home, that he was able to resume to some extent his practice of medicine, and that he needed and wanted his home place in which to reside and maintain his family and his office. The property had been kept vacant during the months that Dr. Kay had been in the hospital and, upon Dr. Kay’s recovery and restoration, his guardian refused to allow him to enter it.
It is to be remembered that we are here concerned with a guardianship matter and with the limited power of the court, sitting in probate, in a special statutory proceeding. No ease in modern legal literature, in California or elsewhere, which indulges hyper-technicality to a similar end and to the extent of the majority opinion in this ease, has been cited. Section 785 (Prob. Code) declares that “Upon the hearing, the court must examine into the necessity for the sale, or the advantage, benefit and interest of the estate in having the sale made, and must examine the return and witnesses in relation to the sale. ...” (Italics added.) In Abelleira v. District Court of Appeal (1941), supra, 17 Cal. 2d 280, 291, this court said: “The concept of jurisdiction embraces a large number of ideas of similar character, some fundamental to the nature of any judicial system, some derived from the requirement of due process, some determined by the constitutional or statutory structure of a particular court, and some based upon mere procedural rules originally devised for convenience and efficiency, and by precedent made mandatory and jurisdictional. Speaking generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction, in so far as that term is used to [236]indicate that those acts may he restrained by prohibition or annulled on certiorari.”
It is Hornbook law that the jurisdiction of a probate court, as such, is limited and special. (Olcese v. Superior Court (1930), 210 Cal. 566, 568 [292 P. 964]; Haynes v. Meeks (1862), 20 Cal. 288, 312, 314; Janes v. Throckmorton (1881), 57 Cal. 368, 387; 21 Am.Jur. § 582, p. 709. See, also, Estate of Davis (1902), 136 Cal. 590, 597 [69 P. 412]; McPike v. Superior Court (1934), 220 Cal. 254, 258 [30 P.2d 17]; Texas Co. v. Bank of America (1935), 5 Cal.2d 35, 39 [53 P.2d 127].) In Rodman v. Superior Court (1939), 13 Cal.2d 262, at 269 [89 P.2d 109], this court said: “An examination of the numerous cases which deal with this problem impels the conclusion that some confusion exists with reference to what constitutes an excess, and what constitutes an error, in the exercise of. jurisdiction. However, it seems well settled (and there appears to be no case holding to the contrary) that when a statute authorizes prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction, and certiorari will lie to correct such excess.” See, also, Sprockets S. Co. v. Industrial Acc. Com. (1921), 186 Cal. 256, 260 [199 P. 8]. There is no appeal, in a guardianship proceeding, from an order confirming a sale of property. (Guardianship of Reser (1943), 57 Cal.App.2d 935, 936 [135 P.2d 709].)
The trial court, seeming to be of the view that the purchaser acquired vested rights as of the date of his bid and that those “rights” must prevail unless and until Dr. Kay proved some “grounds” for rescinding or “setting aside the sale,” placed the burden on Dr. Kay to prove grounds for “setting aside the sale,” rather than on the guardian or Mr. Epstein to prove existence of jurisdictional facts necessary to warrant confirming the projected sale. The court further held that the recovery of sanity and competency by Dr. Kay was not a sufficient ground for “setting aside the sale,” that the sale could not be set aside or confirmation withheld “for the grounds that we have heard here today” and concluded the hearing with these words: “I think the showing here is absolutely insufficient. I have heard (all this evidence here today just to accommodate those who came here, and to give everyone a hearing—I do not think it affects the issues of the case at all. The order is that this sale is confirmed.” (Italics added.)
Regardless, therefore, of the sufficiency of the evidence otherwise to show jurisdiction to confirm the sale, it un[237]mistakably appears that the probate court in ordering that “this sale is confirmed” was not actually complying, in any sense, with section 785 of the Probate Code but was holding merely that as a matter of law the recovery of Dr. Kay was insufficient to constitute, and wholly immaterial as, a ground for “setting aside” the sale which, in its conception, had already been made by the guardian to Mr. Epstein. As repeatedly indicated by the trial judge he was concerning himself not with a diligent inquiry into the best interests of Dr. Kay and his estate, as the statute requires, but rather with protecting the “rights” of those whom he considered already to be purchasers. He said, “I think the only thing I can do, to preserve the rights of Mr. Cullinan and his clients [Mr. and Mrs. Epstein]-—-after all, they have some rights—this sale is legitimate, in spite of the natural sentiment we have about taking a home from somebody. I think a few days’ continuance could be granted; and ... I don’t want any of these certificates that I get here, they are of very little weight. Where anybody is likely to be deprived of his rights, that is the position that this court is going to take. . . . Mr. Herrington : Does your Honor care to appoint doctors ? The Court : There is nothing before the court now. This is a case where both of these parties were committed. ... At the time this was submitted for sale was there any question then about his petition for recovery here? ...” (Italics added.)
The bank representative then testified that at the time the property was offered by the bank to Mr. Epstein, the bank did not know that Dr. Kay had recovered his reason. The following then appears: “Q. [by Mr. Lang] I will ask you if you made any investigation or caused any investigation to be made as to the possible recovery of Dr. Kay on or before April 15, 1946? Mr. Herrington : I will object to the question on the ground—The Court: Do you think that it is the duty of the Bank—before confirmation of a sale— that they should go—when a man is in some institution, and has been regularly committed—that it is the duty of any bank to go, before property is offered for sale, and find out whether there is a possibility that this man may be restored to competency; is that your question? Mr. Lang: Yes, your Honor, in view of the fact that it is home and his castle. The Court : That is not the point at all here—I do not want any of this sentiment in this case about a man’s home being his castle—we had all that up here before. Let us get down to the legal points. . . . I am giving a great deal of time to [238]this case—this type of testimony would be appropriate on cm application for restoration, which is not before the Court at all at this time [it was filed and pending, awaiting hearing] , but I did not want these doctors to come up here without hearing them. Of course, they have not impressed me that much on the issue here, which is the question of this confirmation of sale—that is the issue. Mr. Lang : The whole question is whether the sale would be detrimental—I intimated or suggested that it would seem to me the fair thing to do would be to lease this property out. The Court : What about all the legal steps that have been taken here ? The sale was advertised; the bids were received; the Court called for further bids—all of those things have been done. I just went out of my way to do what I suppose I had no authority to do, over Mr. Cullinan’s objection here, to go into this matter; and upon your personal request to me the other day—you told me you had been retained in the case; but whether those things affect the issue here is another question. . . . Mr. Herrington : . . . The question seems to be: is this sale, as it now stands, for the advantage, benefit, and best interest of Dr. Kay? Mr. Lang : That is the whole question. It has been my procedure, or at least it has been the custom of myself and the Bank of America or the Anglo California Bank— I can’t say the Anglo California—to make an investigation before going into a matter like this. The Coubt : I never heard of such a custom. . . . Mr. Cullinan : There is not much for me to say in addition to what I have already said at previous hearings—this is a difficult time for purchasers to find places, and when they find a place and put a lot of money and obligate themselves for the title search and make arrangements for contractors, painters, and other trades to fix the place up—Mr. Lang : You know, Mr. Cullinan, don’t you, that all sales are subject to the confirmation of the Court ? The Court : But not for the grounds that we have heard here today. ... I think the showing here is absolutely insufficient. I have heard all this evidence here today just to accommodate those who came here, and to give everyone a hearing—I do not think it affects the issues of the case at all. The order is that this sale is confirmed.” (Italics added.)
It is manifest from the record hereinabove .quoted that the trial judge did not comply with the procedure prescribed by section 785 of the Probate Code and that he wholly ignored [239]section 40 of the Civil Code.* He made no pretense of examining “into the necessity for the sale, or-the advantage, benefit and interest of the estate in having the sale made” in relation to the interest of Dr. Kay as a living competent person, or in relation to the “sale” as a mere contemplated or proposed, rather than a consummated, project. He considered that the sale had already been made; that the purchaser had “rights” which it was the court’s duty to “preserve”; that the proceeding was one whereby Dr. Kay sought to “set aside” the sale; and that he was passing on the legal sufficiency of grounds for “setting aside the sale.” He held those grounds insufficient as a matter of law to “set aside the sale”; he did not comply with section 785 of the Probate Code, and the order sought to be annulled is not in actuality an order which the court in this proceeding had jurisdiction to make. It is unmistakably an order denying rescission of what the court denominated a “legitimate” sale.
Of course, under our procedure a sale is not made until it is confirmed. (Estate of Rule (1944), 25 Cal.2d 1, 10 [152 P.2d 1003, 155 A.L.R. 1319].) Mr. Epstein had not bought Dr. Kay’s property; he had merely offered to buy it. The court did not have before it, and did not have jurisdiction to pass upon, any issue as to rescission or “setting aside” of an otherwise binding sale. Yet it did not assume to pass upon any other issue. (Whether mandate should issue, upon proper application, to require the court to exercise the jurisdiction given it by section 785 of the Probate Code, is not now before us.) It is obvious that the court did not follow the procedure prescribed by section 785 of the Probate Code; that it entered no order whatsoever based on that procedure; i. e., on a settlement of issues projected by that statute; and that the order it did enter, by which it undertook to deny a rescission or “setting aside” of what it erroneously conceived to be an accomplished sale, is wholly void. As such, it should be annulled.
Section 40 of the Civil Code provides that “After his incapacity has been judicially determined, a person of unsound mind can make no conveyance or other contract . . . until his restoration to capacity. But a certificate from the medical superintendent or resident physician of the insane asylum to which such person may have been committed, showing that such person had been discharged therefrom, cured and restored to reason, shall establish the presumption of legal capacity in such person from the time of such discharge.” Here Dr. Kay had been released as “sane and competent”; he had been provided with the formal certificate of “Discharge of Insane Person as Recovered” and the document was read into evidence.