Guardianship of Christiansen, In re

• Decision Date: 08 February 1967
• Citation: 248 Cal.App.2d 398,56 Cal.Rptr. 505
• Court: California Court of Appeals Court of Appeals
• Parties: In The Matter of the GUARDIANSHIP of Margaret CHRISTIANSEN, Incompetent. Harry CHRISTIANSEN, Individually, Petitioner and Appellant, v. Harry CHRISTIANSEN, Guardian of the Estate of Margaret Christiansen, an Incompetent Person, Respondent. Civ. 23345.

Page 505

56 Cal.Rptr. 505

248 Cal.App.2d 398

In The Matter of the GUARDIANSHIP of Margaret CHRISTIANSEN, Incompetent.

Harry CHRISTIANSEN, Individually, Petitioner and Appellant, v. Harry CHRISTIANSEN, Guardian of the Estate of Margaret Christiansen, an Incompetent Person, Respondent.

Civ. 23345.

Court of Appeal, First District, Division 1, California.

Feb. 8, 1967.

Lakin, Spears & Gullixson, Palo Alto, for appellants.

Herrick, Gross & Mansfield, Palo Alto, for respondent.

SIMS, Justice.

Harry Christiansen, as a son and one of the prospective heirs of Margaret Christiansen, an incompetent, has appealed personally from an adverse order entered upon a petition for instructions which he filed as guardian of her estate. By the petition he sought authorization, as guardian, to make gifts to the children and grandchildren of the incompetent 'to cut down on the burden of excessive taxes against the estate and to permit the enjoyment of property of the incompetent by her family during her lifetime.'

Parties to the Appeal

Before considering the appeal on the merits, this court raised the question of the propriety of entertaining an appeal in which the appellant and the respondent appeared to be the same party, albeit in different capacities. (See Byrne v. Byrne (1892) 94 Cal. 576, 579--580, 29 P. 1115, 30 P. 196; 2 Witkin, California Procedure, Pleading, § 24, p. 1000; Tate v. Tate (1950) 190 Tenn. 39, 40 and 42--44, 227 S.W.2d 50, 51--52; Comment, 11 Villanova L.Rev. (1965) 150 at pp. 156--157; and Note, 52 Cal.L.Rev. (1964) 192 at pp. 195--196.)

There have been filed with the court, and the record is deemed augmented by, copies of a petition and order which reflect that the guardian was authorized to retain independent counsel to represent the guardianship estate on this appeal. This counsel has appeared and filed an informative brief which zealously advocates the propriety of the order of the lower court.

In Byrne it was recognized on rehearing that the plaintiff could sue personally on her claims against the estate, even though she was administratrix, if she made all heirs and creditors of the estate parties (94 Cal. at pp. 580--581, 29 P. 1115, 30 P. 196; and see Keyes v. Hurlbert (1941) 43 Cal.App.2d 497, 501--503, 111 P.2d 447).

In Haberly v. Haberly (1915) 27 Cal.App. 139, 149 P. 53, the same individual represented his incompetent mother as guardian and the estate of his deceased brother as administrator. As guardian he presented his mother's claim against the estate and it was rejected by the judge in the probate proceedings. He then filed suit, and when the residuary legatee of the estate successfully demurred to the complaint, a guardian ad litem was appointed for the claimant mother. The legatee asserted that the case was still 'one in effect wherein the same person was appearing as both plaintiff and defendant.' The court ruled: 'It is the rule ordinarily, and for reasons that are obvious, that courts will not entertain jurisdiction of an action where the plaintiff and defendant are in fact one and the same person; but the rule has no application to the facts of the present case. The claim of the plaintiff against the estate of * * * deceased, having been rejected by the court in which the estate was pending, relegated her to an action upon the claim; and she could not be deprived of that remedy merely because the guardian of her person and estate happened to be at the same time the administrator of the estate of the deceased. The suggestion that a guardian Ad litem be appointed for the purpose of bringing suit was apparently made in good faith, and it does not appear here that the action was instituted for the purpose of procuring a collusive judgment. That the action was defended in good faith is evidenced by the vigorous defense interposed by the counsel, who, nominally representing (the administrator), in fact appeared in and defended the action as the attorney for the residuary legatee under the will of the deceased, who was the one person most interested in the defense of the action.' (27 Cal.App. at p. 141, 149 P. at p. 54.)

The order of the trial court in response to a petition for instructions (Prob.Code, § 1516) is an appealable order. (Prob.Code, § 1630; and see Stratton v. Superior Court (1948) 87 Cal.App.2d 809, 812, 197 P.2d 821; and cf. Estate of Charters (1956) 46 Cal.2d 227, 234, 293 P.2d 778 and Estate of Ferrall (1948) 33 Cal.2d 202, 204, 200 P.2d 1, 6 A.L.R.2d 142, construing Prob.Code, §§ 1120 and 1240 in regard to appeal from an order instructing a trustee; and Estate of Putnam (1959) 175 Cal.App.2d 781, 783--784, 346 P.2d 841, construing §§ 1120 and 588 in regard to appeal from an order instructing an executor or administrator.) The foregoing authorities make it clear that the representative--the guardian in this case--may institute an appeal from the failure to grant the relief where it appears that the estate will be adversely affected by the ruling of the trial court. In such event, it is conceivable that there could be no representation of any possible alternative interest of the estate. Here the appeal is by an individual who is allegedly aggrieved by the failure to grant the authorization which the guardian requested. The doctrine which is recognized in Byrne precludes that same individual from acting as the representative of the estate of the incompetent, where, according to the decision of the lower court, the estate has an interest adverse to that asserted by him on the appeal.

The record now reflects that this objection has been recognized and met. There has been no substitution of representatives, as suggested in Byrne prior to rehearing (94 Cal. at p. 580, 29 P. 1115, 30 P. 196), nor has a guardian ad litem been appointed to represent the incompetent in this matter, as was done in Haberly (27 Cal.App. at p. 141, 149 P. 53). Nevertheless the appointment of independent counsel would appear to permit the nominal continuance of the litigation in the name of the ward's estate, with the son, as guardian, as the respondent. The litigation was so continued in Haberly. There the attorney for the residuary legatee represented the interest of the estate, and the court noted that the litigation was then only nominally in the name of the individual who had a possible adverse interest.

The real party in interest is the incompetent, and the general guardian, or, if appointed, a guardian ad litem merely appears for him. (See Code Civ.Proc. § 372; Prob.Code, § 1501; Fox v. Minor (1867) 32 Cal. 111, 116--119; Siegal v. Superior Court (1962) 203 Cal.App.2d 22, 24--25, 21 Cal.Rptr. 348, and 2 Witkin, op. cit., Pleading, § 26, p. 1003.) In Fox v. Minor, the court noted: 'executors and administrators are strictly and technically representatives of the deceased, while guardians are not technically representatives of anybody. They simply stand in the position of protectors. The guardian is the counsel assigned by operation of law to conduct the suit.' (32 Cal. at p. 117, and see O'Shea v. Wilkinson (1892) 95 Cal. 454, 456, 30 P. 588.)

Prudence might have dictated the appointment of a guardian ad litem to represent the interests of the incompetent in resisting the appeal, taken in his individual capacity, by the same person who was her general guardian. Nevertheless, since the aims of such appointment--to procure proper representation of the interests of the ward and to prevent a collusive judgment--have been attained, the procedure followed is approved, and the appeal will be entertained.

Statement of Facts

On July 10, 1943, Margaret Christiansen was admitted to Agnews State Hospital and five days later she was adjudged insane and ordered committed. On March 13, 1952, after proceedings regularly taken to that end, appellant was appointed the guardian of her estate.

In August 1954 her husband, the father of appellant, died. A thorough search was made for any will he might have left, and it was determined that, although he had gone through the paperwork of preparing a will, he had never executed it. According to the inventory and appraisement filed in the guardianship proceedings, the incompetent, after her husband's death, had an estate consisting of real property, stocks and bonds, cash, and personal property appraised at $166,420.19 as of November 3, 1955.

The incompetent was released from the hospital on an indefinite leave of absence December 11, 1963, and was placed in the home of her son Robert in Palo Alto.

On July 8, 1965, appellant, as guardian, filed his petition for authorization to make gifts from the guardianship estate of $3,000 per year, over a period of three years, to each of three children and seven grandchildren of the incompetent. This petition was accompanied by documents entitled 'Assent to Lifetime Gift Program' executed by the incompetent's daughter and other son, individually and for their respective minor children, and by her three adult grandchildren. In open court the petition was amended to limit the application to a one-year program.

At the hearing on the petition October 6, 1965 evidence was produced which established, in addition to the facts set forth above, the following:

The incompetent attained seventy-three years on September 2, 1965. A medical examination later that month reflected that her health was very good for her age, that she had slight high blood pressure, but nothing that was unusual. She ate well, was happy, had no problems, and appeared in excellent health.

A psychiatrist testified that he had reviewed the records at the state hospital and had examined the incompetent on September 20, 1965. He diagnosed her condition as a severe and chronic schizophrenic reaction of the paranoid type. He found she was delusional and hallucinating and that her insight and her judgment with regard to her own life and person was virtually nil. There was no indication in the hospital records that she was ever free from obvious gross...