In Re Crocker

For about twelve years before he died Calvin E. Crocker was the guardian of the person and estate of his wife, Josephine H. Crocker, an incompetent person. For several years prior to his death, which occurred in January, 1916, Mr. Crocker had been an invalid and during that time much, if not all, of the business connected with the estate of his wife was committed to the management of Mr. W.T. Phipps, an attorney at law, whose offices are at Sacramento. After Mr. Crocker's death Mr. Phipps petitioned for letters of guardianship of the person and estate of Josephine H. Crocker, and a similar petition was filed by Josephine B. Freeman, a cousin of the incompetent, who is the nominee of all of the relatives of said Josephine H. Crocker. The court heard both petitions at the same time and appointed Mrs. Freeman guardian of the person and Mr. Phipps guardian of the estate of Mrs. Crocker. From that part of the judgment appointing Mr. Phipps an appeal is taken by Mrs. Freeman.

The court admitted in evidence a writing made by Calvin E. Crocker dated January 18, 1912, by which he requested the proper court, upon his death, to appoint W.T. Phipps guardian of Mrs. Crocker. The admission of this instrument is specified as error. It must be conceded, of course, that a guardian has no statutory right to nominate his successor who shall take his place upon said guardian's death, but we do not see that appellant was harmed by the admission of this instrument. She objected to the receiving of it in evidence but Mr. Oatman, who identified the signature and told of the execution of the writing, testified without objection to the essential fact set forth therein, namely, that Mr. Crocker preferred Mr. Phipps as his successor; and he added that this preference existed because of the lawyer's familiarity with the affairs of the incompetent's estate and because Mr. Crocker did not want her relatives to have any control of his wife's property. After this testimony had been given without objection, the document was offered in evidence and then appellant's counsel objected for the first time. If the court erred, therefore, in admitting the writing, no serious injury was inflicted upon appellant.

It is the theory of appellant that the court abused its discretion in appointing a stranger and in refusing to ratify the choice of all of the incompetent person's kinsfolk. Appellant's counsel concede that no statute compels a court thus to select a guardian from the relatives of the ward, but her counsel say that "analogies of the law" should have governed the court's action, and that the rules prescribed for granting letters upon estates of deceased persons should have been followed.

To this objection the obvious answer is that even if we regard Mr. Phipps as a "stranger" to Mrs. Crocker in the sense that he did not know her very well personally, the evidence showed without conflict that he was familiar with her business affairs — probably more so than any other person; and the equally obvious reply to the argument in favor of analogies of the law," is that such analogies have not impelled the legislature to adopt them. Sections 1763 et seq. of the Code of Civil Procedure prescribing the methods to be followed in matters of guardianship of insane and incompetent persons, and the powers of the courts in such proceedings, give a broad discretion quite analogous to that vested in courts of chancery to conserve the best interests of their wards. This court has held valid and proper the appointment of a stranger as guardian of the person and estate of an incompetent who was a married man and preferred, if a guardian of his person was to be appointed, that his wife should be selected. (Matter of Coburn,165 Cal. 202, 218, [131 P. 352].) Undoubtedly the fact that petitioner Phipps was acquainted with Mrs. Crocker and familiar with the affairs of her estate gave him sufficient standing to justify his application as "a friend" of the incompetent person. (Estate of Schulmeyer, 171 Cal. 340-344, [153 P. 233].) The only duty of the court is to select a proper person for a guardian. (Halett v. Patrick, 49 Cal. 590; Guardianshipof Sullivan, 143 Cal. 462, [77 P. 153].) And we find nothing in this record to justify even a suspicion that the court violated its discretion in bestowing the appointment upon Mr. Phipps. In this behalf appellant, while disclaiming any reflection upon the character or capacity of Mr. Phipps, suggests that his intimate business relations with Mr. Crocker during that gentleman's later years should have governed the court, and should have impelled a refusal to appoint him guardian of an estate having claims against the estate and property of Calvin E. Crocker, deceased. There is no force in this suggestion. This record discloses the fact that Mr. Phipps was employed about the affairs of this very estate of which he now assumes guardianship under the court's order. There is nothing to indicate that he was ever concerned with other or conflicting interests. We must assume that he is not an attorney for the executor of decedent's estate, because, naturally, the court would not appoint him guardian of Mrs. Crocker's estate if he were. We see no reason to disturb the court's action in any particular.

The judgment is affirmed.

Henshaw, J., and Lorigan, J., concurred.