Hornaday v. McCallom

SHENK, J.

Respondent Patricia Lee Hornaday, also known as Patricia Lee Leach, has moved to dismiss the appeal of E. Mae McCallom from an order entered April 12, 1946, in this guardianship proceeding, on the ground that the order is not appealable, that E. Mae McCallom is not aggrieved by it, and that her appeal is not taken in good faith.

The order was entered after a full hearing on the petition of the minor to terminate the guardianship upon the reaching of her majority and for other relief, and its entry was preceded by the filing of formal findings of fact and conclusions of law. In the order the court declares that the minor reached majority by virtue of her marriage in October, 1944. It is then ordered that the guardianship proceedings be terminated, subject only to the reserved jurisdiction of the court to require the special guardian to account, and to adjudicate the account and order distribution of the assets of the estate.

The order then directs the special guardian bank to convey to itself and to Earl Redwine as cotrustees for the petitioner Patricia Lee Hornaday, under a full management trust, all of the assets of the guardianship estate except $50,000; directs that the bank, as special guardian, retain the $50,000 for the purpose of discharging all final awards and charges which may be made against the guardianship estate, all until the further order of the court, and that when this purpose is accomplished, the $50,000, or so much thereof as remains in the hands of the special guardian, be paid to itself and Red-wine as cotrustees of the management trust.

Lastly, it is ordered that in all pending appeals in the guardianship proceedings, particularly appeals, post p. 297 [182 P.2d 529] L. A. No. 19231 and post p. 312 [182 P.2d 537] L. A. No. 19527, pending in this court, wherein Patricia Lee Hornaday is named as appellant sui juris and by guardian ad litem, she be authorized' to apply to this court for substitution therein “as an emancipated person and as sui juris, and that Baldwin Robertson, who has heretofore acted in said appeals pursuant to said orders of court,” be discharged as guardian ad litem.

In essence the order is one instructing and directing the special guardian, and as such it is an appealable order (Prob. Code, § 1630). It anticipates the final termination of the guardianship, and the discharge of the special guardian upon its compliance with the instructions given and the settlement of its account.

There is no showing that the appeal is not being prosecuted in good faith. E. Mae McCallom claims to be a person aggrieved for the reason that the order touches upon material issues involved in prior and pending proceedings in the guardianship matter wherein she has prevailed in the trial court, and announces conclusions contrary to those reached in the prior proceedings; also that she was a prior special guardian and asserts an undischarged lien upon the assets of the estate.

The motion to dismiss is denied.

Gibson, C. J., Edmonds, J., Carter, J., Traynor, J., Schauer, J., and Spence, J., concurred.