Ellez v. Pifer

MUSSELL, J. It is conceded by appellant that there is no dispute as to the facts herein and that the only issue involved is whether appellant received sufficient notice of the hearing of April 9, 1954, at which the court approved the final report and account of the guardian, allowed compensation for the guardian and his attorney, terminated the trust and discharged the guardian.

The record shows that on March 12, 1954, a petition for removal of guardian and for appointment of a substitute was filed in the Superior Court of San Diego County. This petition was set for hearing on March 26, 1954, at which time Waif red L. Pifer, the guardian, filed with the clerk a tender of resignation as guardian, subject to approval of the court, and a request for fees for attorneys and as guardian. This document also contained a report and account and set forth the total amounts received by the guardian, the disbursements [604]made by him, and the balance to be turned over to the new guardian.

In accordance with a stipulation of the parties, the trial court signed an order accepting the resignation of the guardian and ordering him or his attorney to file an inventory and final account forthwith. It was further ordered that neither said Waif red L. Pifer nor his surety be discharged from liability until said final account had been settled and approved by the court. This order further recited that notice of the time and place of the hearing had been complied with and Tressa Ellez was appointed as guardian of the estate of Mary Mae Jones and Carmen Wilcox was appointed as guardian of the person of said Mary Mae Jones. It was further ordered that upon the qualification of Tressa Ellez as such guardian, Waif red L. Pifer turn over all the funds and assets of the estate to her forthwith, subject to settlement of said former guardian’s final account.

On March 30, 1954, Pifer filed his account and report as ordered by the court and again set forth the account stated in his tender of resignation. The account of March 30, 1954, was mailed to appellant’s attorney on April 3, 1954, and was admittedly received by him on the following date. On April 9, 1954, an order was made by the court approving Pifer’s final account and report of guardian, allowing compensation for guardian’s and attorney’s fees, discharging Pifer as guardian and releasing his sureties. This order contains a recital that due and regular notice had been given of the hearing according to law and that the matter came on regularly for hearing on April 9, 1954. On April Í6, 1954, the new guardian filed a petition in said court to set aside the order dated April 9 th on the sole ground that said Waif red L. Pifer had failed to comply with the provisions of Probate Code, sections 1200, 1556 and 1556.1 in that he had failed to give notice of the hearing on his report and account. Opposition to this motion and petition was filed by Pifer and on April 29, 1954, exceptions to the final account and inventory were filed by appellant. On April 30, 1954, the parties appeared in court at the hearing on the motion and petition and the trial court denied the motion to set aside the order of April 9th approving the final account.