Sacks v. Rauch

California Court of Appeal Jul 30, 1949 No. Civ. No. 17167Published

Before: Shinn

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Holding. The court held that a guardian may not take possession of an alleged incompetent's property pending an appeal of the guardianship appointment unless there is a clear showing of necessity to prevent injury or loss to the estate. Because the evidence failed to demonstrate such necessity, the court issued a writ of supersedeas to stay the guardian's control over the property.

Issues

Whether an order instructing a guardian is an appealable order.
Whether a guardian ad litem has the authority to appeal an order instructing the guardian.
Whether the evidence supported the trial court's finding that taking possession of the ward's property was necessary to prevent injury or loss.

Disposition. Motion to dismiss denied; demurrer overruled; writ of supersedeas issued.

Quotations verified verbatim against the opinion

“An appeal may be taken from an order instructing or directing a guardian.”

“It is clear to us that there was no showing of reasonable necessity for an order directing the guardian to take possession of the property.”

“If the evidence is insufficient to support a finding of probable loss or injury to the estate pending the appeal, the court is without authority to place the management of the estate in the hands of the guardian.”

SHINN, P. J. On March 3, 1949, Allie Walters Sacks was adjudged to be incompetent, L. 0. Rauch was appointed as the guardian of her estate and John C. Packard guardian of her person. Thereafter, Morris Lavine was appointed as guardian ad litem for the purpose of prosecuting an appeal from the order. Such an appeal has been taken and is now pending. L. C. Rauch, having qualified as guardian, petitioned the court for instructions that he take possession of the property of the estate for the purpose of preventing injury and loss thereto. Mrs. Sacks opposed the application, requesting that her property be allowed to remain in the management of her agents, R. A. Rowan and Company.

The matter was heard upon the verified petitions and affidavits and on April 22d, the court decided that certain powers of the guardian should be exercised for the purpose of preventing injury or loss. L. C. Rauch was then directed “to take possession of all of the property of said ward, both real and personal, in the State of California”; to collect rents and manage the rental property of the estate “but not to make any improvements or substantial repairs without first reporting to the court on notice to the other interested parties, and receiving instructions therefor”; to pay a monthly allowance for the support of the ward; to pay the costs of the pending appeal; to inventory the property of the estate and all claims against the ward; and to prepare a schedule of all pending litigation to which the ward is a party with recommendations to the court as to what steps should be taken therein. John C. Packard, guardian of the person of the ward was directed to receive the monthly allowance from the guardian of the estate and use it to maintain and support the ward.

A notice of appeal was given by Lavine as guardian ad litem and another, signed by Mrs. Sacks, appealing “from that portion of the order of directions subsequent to appeal, directing L. C. Rauch as Guardian of the estate of Allie Walter Sacks to exercise his powers of guardianship, as follows: To take possession of all property, real and personal, of said ward, in the State of California.”

[211]Eauch gave notice of a motion to dismiss the appeal from the order of April 22d. Mrs. Sacks filed a petition for a writ of supersedeas to stay proceedings under the order. A demurrer to the petition for writ of supersedeas having been filed by Eauch, the motion to dismiss and the application for the writ were heard and submitted.

Sacks v. Rauch

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