In re Estate of Wise

This is an appeal hy the mother of Kenneth Dare Wise from so much of an order of the superior court of Santa Cruz County as denies her petition for guardianship of the person and estate of said minor.

On September 27, 1916, Pearl Makinney, a grand-aunt of the said minor, petitioned for letters of guardianship of his person and estate. In said petition it was alleged that the boy, then about nine years of age, had been left by his grandfather, Dr. Kenneth Dare Wise, a legacy of the value of about ten thousand dollars, in trust, the income of which, and the principal if necessary, should be used for the child’s educational and other requirements. On the 16th of November, 3.916, the mother of the minor filed her petition asking for letters of guardianship. Both petitions were heard together, and the court denied both on the ground that there was no necessity for the appointment of a guardian, and ordered that the boy remain with his great-grandmother. An additional ground for the denial of the mother’s petition, as found by the court, was that by abandoning the infant she had forfeited her right to the custody and control of her child and his fortune.

Appellant contends that she is a competent person, entitled by absolute right to appointment as the child’s guardian, and that the evidence does not support the finding that she had abandoned her boy.

The child had been in the custody and care of his great-grandmother and his grand-aunt, in their home in Santa Cruz, ever since he was a baby about one year old. For the first three years of the period during which he lived there, the father and mother had resided most of the time in San Francisco. The habits and condition of health of the father (who was suffering from tuberculosis) were such that the home of the boy’s parents was not so suitable for him as that of Mrs. Makinney, his great-grandmother. The father and mother were divorced after three years of separation from their child, and afterward the mother worked for a living in San Francisco. She was on friendly terms with the relatives in Santa Cruz and visited her child as often as twice a year and corresponded with'Mrs. Makinney from time to time regarding him. It appears that the child was intrusted by Mrs. Wise to Mrs. Makinney at the latter’s suggestion and because

“It is argued with great force that 'the trend of modern decisions is to regard as of primary importance the welfare of the minor himself. This is most true. The decisions to this effect are made either under the permission óf the law, which contains no such restriction as that found in our section 1751, or else are given under the command of the law " which, in effect, declares that over and above all else the controlling consideration shall be the welfare of the child. If we were thus at liberty to act, it might well be that the cus- . tody of this child, under the findings of the court, would be given to, the Rouses. This is the injunction declared in our own law by subdivision 1 of section 246 of the Civil Code. But, as we have pointed out, unless the parent has for some reason (and no such reason is here found) forfeited his preferential right to the guardianship of his offspring, all considerations of the welfare of the child must, under our law, be regarded as subordinate to that right.” (In re Mathews, 174 Cal. 679 -683, [ 164 Pac. 8 , 9].)

We must next consider the finding of the superior court that there was no necessity for the appointment of a guardian for the person or the estate of the- minor. This finding was made under the supposed sanction of section 1747 of the Code of Civil Procedure, and was based upon the two circumstances that the child was in a suitable and comfortable home, and that under the terms of the will of Dr. Wise, the minor’s inheritance would be managed, not by a guardian, but by a trustee acting under authority of the probate court of Los Angeles County, wherein the will had been admitted to probate. The section in question is, so far as pertinent to this proceeding, as follows: “The superior court of each county, when it appears necessary or convenient, may appoint guardians for the persons and estates, or either of them, of minors who have no guardian legally appointed by will or deed, and

It is argued with much force in opposition to appellant’s claim of right to letters of guardianship, that this section vests in the court a wide discretion in determining what may be necessary or convenient for the child and its interests. This may be freely conceded, but that concession does not free us from the force of section 1751 of the Code of Civil Procedure, which provides that “The father or the mother of a minor child under the age of fourteen years, if found by the court competent to discharge the duties of guardianship, is entitled to be appointed a guardian of such minor child, in preference to any other person.” That the minor child, who was the object of the affection of the hostile petitioners herein, needs the care and guidance of some adult person may not be denied. The court, by refusing to appoint' either petitioner, virtually bestowed the infant upon the great-grandmother, who was not asking for letters, thus depriving the mother of a preferential right» secured to her by statute. This may not be done under such circumstances as are revealed by the record before us. To allow such an order to stand would be to substitute the discretion of the court for the compulsion of the statute, which gives preference to a qualified parent. It may be, and doubtless is, true that the fund left by Dr. Wise for the care and education of the child may be administered by the trustee without the aid of a guardian. And there can be no doubt that in the home of the great-grandmother the boy would be surrounded in the future, as he has been in the past, by refining influence and by all things which would contribute to his moral and physical welfare. But the court may not, by merely refusing letters to anyone, deprive the mother of a right to the society of her child and the direction of his life during his minority, which is recognized as a natural privilege and is secured to her by solemn enactment. Upon the facts proved the child needed a guardian and the mother was entitled to the appointment. It is * suggested by counsel opposed to appellant that such an interpretation of section 1751 as this court has given would have the effect virtually to eliminate the words “necessary or convenient” from section 1747. If that were its effect there would be nothing novel in the dominance of section 1751, for we have seen that it was held in the second of

The action of the learned judge of the superior court, as shown by his very able written opinion, was based largely upon the authority of In re Gates, 95 Cal. 461 , [ 30 Pac. 596 ], in which Chief Justice Beatty refused to make an order in a proceeding on habeas corpus, enforcing the mere legal right of a mother who had years before surrendered the exclusive control of her child to a relative who had obtained letters of guardianship, which, however, were void for want of jurisdiction in the court awarding them. But that opinion, as all similar ones must do of necessity, left open to the petitioner the right to apply for letters and to test in the proper forum her fitness for the care and control of her minor child. In commenting upon the Gates proceeding and the matter of the Application of Bell, 28 Cal. App. 547 , [ 153 Pac. 240 ], we said, in the opinion in Ex parte Britt, 176 Cal. 177 , [ 167 Pac. 863 -865]: “These cases are to be carefully distinguished from those in which, after hearings held for the very purpose of determining the fitness or unfitness of a parent, courts have awarded the custody of a child.”

In the later proceeding, Ex parte Mathews, 176 Cal. 156 , [ 167 Pac. 873 ], it was held that g, mother to whom letters of guardianship had been issued was entitled to recover the

It will thus be seen that there is no just analogy between the matter at bar and the cited proceeding In re Gates.

The order refusing letters of guardianship to Winifred Wise, mother of Kenneth Dare Wise, is reversed.

Sloss, J., Richards, J., pro tem., Wilbur, J., Victor E. Shaw, J., pro tem., Lorigan, J., and Angellotti, C. J., concurred.