In re Estate of Peets , 1 Cal. Super. Ct. 77 ( 1923 )

Decision ora Application for Discharge.

In the Superior Court of the State of California.,

In and for the County of Alameda.

No. 24412.

In the matter of the estate and guardianship of Leslie S. Peets, a minor.

The Court. The guardian presents the receipt of his ward, and requests a decree discharging him and his sureties, reciting in his petition that the guardian has settled with his ward.

There has been no account filed by the guardian, and his application is made ex parte. The ward is. now past twenty-two years of age.

Section 246 Civil Code provides that “after a ward has come to his majority he may settle his accounts with his guardian and give him a release, which is valid if obtained fairly and without undue influence.” Such a settlement is not, ipso facto, a dischage of the guardian.

Section 250 Civil Code provides that: “The relation' of guardian and ward is confidential, and is subject to the provisions of the title on Trust”.

The sureties on the guardian’s bond given on qualifying are vitally interested.

After reviewing many cases in other jurisdictions, our Supreme Court adopts the Texas rule, and says: “In this State we have one rule which prohibits an action on the bond of a guardian’s surety until there is a final order settling the guardianship account, and another rule barring the action in three years after the removal or discharge of the guardian”. Cook vs. Seas, 143 Cal. 221, 231. And on page 234 of the same case, Mr. Justice Van Dyke, concurring, says: “And when the guardian is appointed by the Court, he is not entitled to his discharge as to the estate until a year after the ward’s majority (C. C. Sec. 257). Here, however, it is expressly found that no order or decree had ever been entered discharging or removing said guardian, nor could such order have been made before the settlement of his final account (C. C. P. Secs. 1697,1808) .”

Again an administrator must present and have settled by the Court his final account and must deliver up “under the order of the Court, all the property of the estate to the parties entitled,” before the Court will make a decree discharging him, etc. (Sec. 1697, C. C. P.) And the provisions of the statutes relating to accounts and discharge of administrators are applicable to guardians. (See Sec. 1808 C. C. P.)

However it seems to me that a guardian should be required to file and have settled by the Court his final account, turn over to his ward (where he has not already done so by settlement under Sec. 256 C. C.) "under the order of the Court” all property belonging to his ward, taking and filing proper voucher or receipt from the ward, and obtain his judicial decree of ■discharge. To all this surety is certainly entitled.

The application is denied.

E. C. Robinson, Judge.