Department of Mental Hygiene v. Bank of America National Trust & Savings Ass'n

BRAY, J.

Two appeals by the Department of Mental Hygiene of the State of California: (1) from the order of the probate court approving the 16th annual account of the Bank of America National Trust and Savings Association, as guardian of the estate of Peter Gestner, an incompetent person, and overruling the department’s objections to such account; and (2) from the order denying the department’s petition for an order directing payment of board, care and maintenance of said incompetent at the Mendocino State Hospital.

There are two questions presented: (1) May the superior court, sitting in probate, refuse to hear and determine a disputed claim of the department against the estate of an incompetent for board, care and maintenance, at a state institution ? (2) Is the estate of an incompetent committed to a state mental hospital liable for care furnished prior to the 1945 amendment to section 6650 of the Welfare and Institutions Code?

Facts

Peter Gestner was charged in Los Angeles County with the crime of burglary. He pleaded not guilty and not guilty by reason of insanity. On May 13, 1931, a jury found him guilty of first degree burglary. The following day, on the trial under the second plea, the jury returned a verdict that he was insane at the time of the commission of the offense. Section 1026 of the Penal Code provides, in effect, that upon such verdict, the trial court, unless it appears that the defendant has fully recovered his sanity, shall direct that the defendant be committed to the state hospital for the criminal insane. Pursuant to this section, on May 20, 1931, the trial court committed Gestner to the Mendocino State Hospital, where he has remained ever since.

In November, 1931, the Bank of America was appointed guardian of his estate. It immediately qualified, and ever since has been such guardian. From its appointment, to and including April 30, 1945, the guardian paid to the Department of Institutions (appellant’s predecessor) upon demand the sum of $2,049.67 for board, care and maintenance of the incompetent at the hospital. For the period commencing May 1, 1945, no payment has been made.

The guardian filed its 16th annual account. The appellant immediately filed .its objections to the account and its petition for an order directing the guardian to pay the department the sum of $840, being the unpaid board, etc., at the rate of $40 per month for the period from May 1, 1945, to December 31, 1947, and to pay $40 per month thereafter as long as Gestner might be confined in the hospital. No objection was made to any of the items appearing in the account. Appellant’s only objection to the account was the failure of the guardian to include therein the above mentioned $840. The estate has sufficient assets to pay the department’s demands. The Veterans Administration was represented at the hearing (the estate receives from it a pension of $72 per month). It and the guardian took the position that as Gestner was confined in the hospital under section 1026 of the Penal Code there was no liability for his care and maintenance prior to a change in the law, effective September, 1945; that the $2,049 paid by the guardian was erroneously paid out and should be offset against the liability from 1945 on. In view of the correctness of the items of receipt and disbursement in the account, the attack here is not on the denial by the court of the objections to the account, but to the denial of the petition for an order directing the payment by the guardian of the care and maintenance of the incompetent. The court felt that all matters in this respect could be threshed out better in a civil action, and denied the petition.

1. Had the Probate Court the Right to Refuse to Consider Appellant’s Petition?

Both sides agree that at the present time there are two statutes providing methods for the enforcement of the payment by the incompetent’s estate of his care at a state hospital. One is section 6658 of the Welfare and Institutions Code, which reads: “The Department of Institutions may in its own name bring an action to . . . recover for the use and benefit of any State hospital' or for the State the amount due for the care, support, maintenance, and expenses of any patient or inmate therein . . . against any person, guardian, or relative liable for such care, support, maintenance, and expenses.” This section is based on former Political Code section 2197 as added by Statutes 1903, chapter 364, section 1, page 513, as amended. The other is section 6655 of the Welfare and Institutions Code, based on former Political Code section 2181 as added by Statutes 1903, chapter 364, section 1, page 506. This section reads in part: “If any person committed to a State mental hospital has sufficient estate for the purpose, the guardian of his estate shall pay for his care, support, maintenance, and necessary expenses at the mental hospital to the extent of the estate. Such payment may be enforced by the order of the judge of the superior court where the guardianship proceedings are pending. On the filing of a petition therein by the department, showing that the guardian has failed, refused, or neglected to pay for such care, support, maintenance, and expenses, the court, by order, shall direct the payment by the guardian. Such order may be enforced in the same manner as are other orders of the court.”

It is respondent’s position that while the department may proceed under either or both of these sections, if it proceeds under the latter section, the probate court may, in its discretion, because of press of business or other reason, refuse to accept jurisdiction. Appellant, on the other hand, contends that the two sections give the department the choice of election, and if it proceeds under the second section, the probate court must accept jurisdiction and entertain the proceeding. We agree with this latter contention.

In 1901, in Guardianship of Breslin, 135 Cal. 21 [66 P. 962], the Supreme Court held (p. 22): “The superior court sitting in probate has no jurisdiction to hear and determine a disputed claim against the guardian or the estate. It can settle a guardian’s account, and can allow or reject any item of expenditure which he had deemed a proper charge and had paid; but when there is a claim against the estate which the guardian contests as invalid, the issue thus raised between the claimant and the guardian is the proper subject of a civil action, and can be legitimately brought before a court only by such action. There is no provision of our code on the subject of guardian and ward which undertakes to give to the probate court jurisdiction to determine contests between alleged debtors and creditors such as the one involved in this appeal.” It is significant that two years later the Legislature adopted both section 2181 of the Political Code, which is now section 6655 of the Welfare and Institutions Code, and section 2197 of the Political Code, which is now section 6658 of the Welfare and Institutions Code. Now, because of section 6655, it can no longer be said with reference to claims for care at a state mental hospital, as was said in the Breslin case, supra (p. 22): “There is no provision of our code on the subject of guardian and ward which undertakes to give to the probate court jurisdiction to determine contests between alleged debtors and creditors. ...”

Section 6655 provides “Such payment may be enforced . . .’’¹ Section 6658 provides “The Department of Institutions may in its own name . . . ”¹ However, if the department elects to file a petition in the probate court, section 6655 provides “. . . the court, by order, shall direct the payment by the guardian.”¹ Section 6655 contains nothing that would justify the conclusion that the probate court may refuse jurisdiction of a petition filed under that section. Nor is there any reason why that court may not try all issues which could be raised in a proceeding under section 6658. Such a trial would not be as onerous or time-consuming as most will contests which must be tried in the probate court. That such issues may be tried in the probate court is shown by the decision in Estate of Jacobson, 56 Cal.App.2d 255 [132 P.2d 229]. There the Department of Institutions had applied to the probate court for an order requiring the guardian of an incompetent’s estate to pay its claim for care of the ward at a state hospital. At the hearing, the guardian contended that a part of the claim was barred by section 345 of the Code of Civil Procedure which provides in part that “actions for the recovery of money due on account of the support of patients at the state hospital” is barred after four years. The department took the position that this was a “proceeding” and that section 345 could not apply as it referred only to “actions.” In holding that the section did apply the court said (p. 258): “The instant proceeding has all the characteristics of an action at law. . . . The fact that the proceeding is one within the administration of the incompetent’s estate does not distinguish it in its essentials from an ordinary action at law or in equity. The department could have sued the guardian in an independent action. (Welf. & Inst. Code, § 6658.) The adjudication is just as conclusive on the parties as if rendered in an action at law, except perhaps for the power of modification or termination by order of court.” The reference to the fact that the department could have sued the guardian in an independent action, coupled with the holding that the probate proceeding has all the characteristics of an action at law, supports our holding that the election as to which proceeding to bring is that of the department and not that of the court. The probate court, being more familiar with the affairs of the incompetent’s estate, may be even in a better position to pass upon the questions raised than would the civil department. It would be a rather strange action of the Legislature to provide, in effect, that the department may choose its forum when a guardian refuses to pay for the care of its ward at a state hospital and then when the department exercises its choice of the probate court as the forum, that court could force the department to start all over again in another court.

The dissenting opinion herein intimates that because of certain recitals in the order, the denial of the petition was because the court exercised an independent judgment on the merits by weighing certain factors, such as the condition of the estate, against the department’s claim. The respondent does not claim this. It concedes that the probate court refused to hear the petition, but attempts to justify its action on the ground that the court had the power to require that the questions involved be heard in a civil action. The record supports this concession, as the court so stated. That this statement of the court may be considered by us to determine the “process by which judgment was reached, or the basis on which the court” acted, is well established in Union Sugar Co. v. Hollister Estate Co., 3 Cal.2d 740 [47 P.2d 273]. (See rule 5(a), Rules on Appeal, which permits the opinions of the trial court to be brought up. See, also, Noble v. Kertz & Sons Feed etc. Co., 72 Cal.App.2d 153 [164 P.2d 257].)

2. . Liability of Estate .

The liability of the estate for care of the incompetent subsequent to September 15, 1945, the effective date of the amendment of that year to section 6650, Welfare and Institutions Code, is conceded. The controversy is over the question of liability prior to that amendment, during which time there was no statute expressly requiring the estate of a person committed to a state hospital pursuant to the provisions of section 1026 of the Penal Code, to pay for his care while there. Section 6.650, Welfare and Institutions Code, then read: “The husband, wife, father, mother, or children of an insane person or inebriate, the estates of such persons, and the guardian and administrator of the estate of such insane person or inebriate, shall cause him to be properly and suitably cared for and maintained, and shall pay the costs and charges of his transportation to a State institution for the insane or inebriates. The husband, wife, father, mother, or children of an insane person or inebriate, and the administrators of their estates, and the guardian and/or administrator of the estate of such insane person or inebriate, shall be liable for his care, support, and maintenance in a State institution of which he is an inmate. ’ ’

In 1945 the section was amended by adding: “. . . such liability shall exist whether the mentally ill person or inebriate has become an inmate of a state institution pursuant to the provisions of this code or pursuant to the provisions of Sections 1026, 1368, 1369, 1370, and 1372 of the Penal Code.”

Appellant contends that this amendment was merely a clarification of existing law, while respondent contends that it provided a liability where none existed before, and hence that the estate is entitled to an offset of the $2,049 total payments made by it over a period of approximately 13 years, under the mistaken assumption that it was liable for the ward’s care, and is not liable for the period May 1 to September 15, 1945.

The amendment did not establish a new liability, but merely clarified the existing law... Section 6650 as it stood prior to amendment in no wise limited the liability of relatives and estates of persons committed to state mental institutions for their care. Nor was there anything in Penal Code section 1026 or the following sections which did so. Nor is .the commitment under that section penal in character. The section provides: “If the verdict or finding be that the defendant was insane at the time the offense was committed, the court unless it shall appear to the court that the defendant has fully recovered his sanity shall direct that the defendant be confined in the state hospital for the criminal insane. ...” (Emphasis added.) Thus, if a person found not guilty by reason of insanity appears to be sane at the time of the verdict, he may not be committed to a state hospital. The section provides that a hearing must be had. (In re Slayback, 209 Cal. 480 [288 P. 769], held that such hearing is the type then provided for in Political Code section 2168 et seq., now Welfare and Institutions Code section 5050 et seq.) If found sane, the person must be released from custody. If the person is committed under section 1026 to the state hospital, section 1026a provides that a hearing upon the question of his restoration to sanity cannot be held for one year. Concerning. the confinement for that period, the court in In re Slayback, supra, said (p. 491): “The restraint and detention imposed is not, as we have seen, for the purpose of inflicting punishment upon a defendant but to permit a sufficient length of time to elapse to enable those who may be called upon to pass upon the sanity of the patient to intelligently give their judgment as to whether or not he has recovered his reason. ’ ’

At the oral argument, it was suggested, and the dissenting opinion contends, that because one not committed under section 1026 is entitled to release upon recovering his sanity, while one committed under that section must wait one year before having the recovery of his sanity determined, a construction of section 6650 as amended which requires a person who has become sane during that period, to pay for his care at the state hospital while he is awaiting the expiration of the year when a hearing may be had, would make the section unconstitutional. The incompetent here admittedly was insane during that year and still is. Therefore, as he is not in the class of persons as to whom the section is claimed to be unconstitutional, neither he nor his guardian is in a legal position to raise that question. Moreover, the court in In re Slayhack, supra, expressly held, contrary to this very contention, that the section is constitutional.

Section 6655 at all times has read: “If any person committed to a State mental hospital has sufficient estate for the purpose, the guardian of his estate shall pay for his care, . . .” (Emphasis added.) This applies to “any person” who is committed for custodial care, and is not limited to those committed under section 5050, et seq., of the Welfare and Institutions Code.

There are no decisions interpreting section 6650 as it read prior to the amendment, as to whether the liability therein set forth applied to sections 1026,1368,1370 and 1372 of the Penal Code. (The latter three sections apply to situations where doubt as to the sanity of a person charged with a crime appears at any time during the pendency of a criminal action.) Hence, cases like Whitley v. Superior Court, 18 Cal.2d 75 [113 P.2d 449], holding that in adopting a statute the Legislature is presumed to have known of prior court decisions, does not apply.

Respondent contends that the fact that prior to the amendment there was no liability for care of persons committed under section 1026 is attested by the attorney general’s opinions theretofore given. Respondent refers particularly to Opinion NS 5737, March 16, 1945, in which opinion, after referring to previous opinions No. 9875, April 14, 1935, and No. 10,009, June 18, 1935, the attorney general states that in view of the previous opinions, plus “the apparent departmental construction of Sections 6650 and 6651 in connection with commitments under Section 1370 of the Penal Code, we are of the opinion that persons committed to a State hospital under Sections 1026 and 1026a and 1367 et seq., their estates or their responsible relatives are not liable for the charges for hospital care and maintenance. As there appear to be no other reasons for not holding such persons, their estates and their relatives liable for hospital care and maintenance, we suggest that if the Department of Institutions feels a charge proper it endeavor to have the Welfare and Institutions Code amended to specifically include liability of persons committed under Sections 1026 and 1370 of the Penal Code, their estates and their relatives. ’ ’

Respondent contends that the Legislature is presumed to know of opinions of the attorney general interpreting statutes, and therefore, the fact that the Legislature, almost immediately following the date of this opinion, adopted the amendment to section 6650, shows that it was creating a liability which theretofore did not exist. If the Legislature is presumed to know of the attorney general’s opinions, a point we do not now decide, then it must have known of the confusion that existed in some 25 prior opinions as to liability under sections 1026 and 1368, 1370 and 1372 of the Penal Code. From 1899 to December 1, 1931, the Department of Mental Hygiene had been uniformly advised by the attorney general that a county was responsible for the criminally insane, without any reference to section 1026, and that where the county was responsible it was authorized to collect from their estates or responsible relatives. The history of the later opinions is succinctly set forth in appellant’s reply brief: “Opinion 7851 issued December 1, 1931, held that persons committed under Penal Code Section 1026 are not the responsibility of a county, but no opinion was rendered as to the liability of their estate or relatives for their care. On December 7, 1934, Opinion 9708 held that the estate of a convict committed to a State Hospital pursuant to Section 1587 of the Penal Code was legally responsible for his support after the expiration of the term of sentence. This holding was at least an indirect authorization for the Department of Mental Hygiene to collect the cost of maintenance of one committed under Penal Code Section 1026 inasmuch as he was in the hospital merely for the duration of his mental illness and was not undergoing a term of imprisonment nor under sentence. . . . Opinion 9875, issued April 18, 1935 . . . directly advised that the guardian of an estate of an insane person so committed was not liable for Ms support. TMs opinion was based on the theory that such a person was restrained by the State for the protection of the public. In Opinion 10678 issued May 7,1936, the view was expressed that the estate of a person committed under Penal Code Section 1368 et seq. is liable for his maintenance under the provisions of Political Code Sections 2176 and 2181 (now Sections 6650 and 6651, Welfare and Institutions Code) which opinion is confirmed by Opinion 10678a issued May 26,1936, in regard to the liability of legally responsible relatives. This opinion constitutes an indirect repudiation of Opinions 9875 and 10009 in that it upholds the right of the Department to collect for maintenance charges of persons committed pursuant to the provisions of the Penal Code, in permitting the application of Welfare and Institutions Code sections for collection of maintenance charges by the Department. Opinion 10679 followed on May 23, 1936, to the effect that under the provisions of Penal Code Section 1374 providing that any person charged with the commission of a public offense in any county, who is committed pursuant to the Political Code sec-tions covering regular commitment, the maintenance of such •persons shall be a county charge. Opinion No. 10822 issued July 3, 1936, again in effect repudiated the 1935 Opinions by holding that when Penal Code Section 1373 was amended in 1929 deleting responsibility of the county for maintenance claims for persons committed under 1369 et seq. that the estate and relatives of the incompetent became responsible for his support under the provisions of Political Code Section 2176 (now Welfare and Institutions Code, Section 6650.) No reference is made to this opinion in the opinion ... [opinion ■NS-5737, March 16, 1945] which stated that no collections had been made for persons committed under Section 1370 since the Legislature repealed Section-1373 in 1929. Section 1373 has never been repealed, but was simply amended in 1929 deleting county responsibility. ... Opinion NS702 issued November 9, 1937, held that the county was responsible for maintenance of any incompetent who had been committed while charged with the commission of a public offense and specifically held that tMs included the commitment of any person after May 25, 1937, under Penal Code Section 1026 . . . NS702, issued April 30, 1938, amended that opinion to hold that the county is primarily liable and in turn could collect from the estate of the incompetent and responsible relatives for any one committed under Penal Code Section 1026 either before or after May 25, 1937. . . . Opinion NS702 was overruled by Opinion NS2958 issued September 26, 1940, following an amendment to Welfare and Institutions Code Section 6664 and held that that section did not impose liability upon a county for persons committed under Penal Code Sections 1026 and 1367 et seq. and . .. that even prior to the amendment that Section 6664 did not impose such liability. It was determined however that where the county had paid such support in reliance upon Opinion NS702 that there was no provision authorizing a refund to such counties or making provision for the credit of such payment to future obligations of the counties. None of the opinions issued since November 9, 1937, included consideration of the question of responsibility of an estate or relative for support of the incompetent but merely considered county liability.”

Therefore, prior to the March, 1945, opinion, the last opinion concerning liability of the estate of a person committed during a criminal proceeding was that of July 3, 1936, holding liable the estate of a person committed under section 1368 et seq. It is obvious that the situation as disclosed by the multitudinous opinions of the attorney general needed clarification. The department has always collected maintenance charges for persons committed under section 1368 et seq. of the Penal Code, from their estates or relatives. There is no real difference as to persons committed under these sections and those committed under section 1026. They are both committed during the pendency of criminal proceedings against them. The type of confinement is the same. It is not penal but custodial. The only important difference between a commitment under section 1368 et seq. and under section 1026 is that in the latter case the confinement must be for at least one year. But even that fact does not make the commitment a penal one. (In re Slayback, supra, 209 Cal. 480.) For over 13 years, until the attorney general’s opinion in March, 1945, the department collected for Gestner’s care. These facts show an administrative interpretation of the law prior to the amendment, which the amendment merely continues in effect and clarifies. It is true that courts ordinarily infer an intent to change the law from a material change in the language of a statute. (W. R. Grace & Co. v. California Emp. Comm., 24 Cal.2d 720 [151 P.2d 215]; People v. Weitzel, 201 Cal. 116 [255 P. 792, 52 A.L.R. 811].) However, as said in the Grace case, supra (p. 729) : “. . . the circumstances may indicate merely a legislative intent to clarify the law.”

The following statement in Hise v. McColgan, 24 Cal.2d 147, 159 [148 P.2d 616], applies here: “Under appropriate circumstances an amendment to a statute may be for the purpose of clarification rather than new matter or an alteration of the former law. [Citing eases.] Inasmuch as we have determined that the act prior to the amendment was applicable to the instant case, and the stated purpose of the amendment, we believe the amendment was only for clarification purposes.”

Napa State Hospital v. Yuba County (1903), 138 Cal. 378 [71 P. 450], cited by respondent, was a case brought to determine the liability of a county under section 1373 of the Penal Code (since repealed) for the care at a state hospital of a person committed under section 1370 of the Penal Code. In holding the county liable and section 1373 constitutional, the court used the following language (p. 381) : “Persons charged with crime who are or become insane naturally belong to a class distinct and different from insane persons who are not so charged with crime. Under the general law, the expense of capture, detention, and prosecution of persons charged with crime is to be borne by the county. The party, though insane, is still detained under the law to answer for his crime when he shall become sane. If he were not charged with crime, though he were insane, he might not be sent to the asylum. His insanity might be of a nature not requiring that he be restrained, or his friends, relatives, or guardian might take care of him or consign him to a private institution. ’ ’ This language in nowise conflicts with the holding in the later ease of In re Slayback, supra (209 Cal. 480). While such a person is in a class different from persons not charged with crime who become insane, such difference is not sufficient to make their confinement a penal rather than a custodial one.

Inasmuch as the amendment merely clarified the law theretofore existing, the payments made by the guardian for care of the ward for approximately 13 years were properly paid and the estate is liable for his support from May 1, 1945, on. The probate court should hear the petition of the department, and unless the guardian has other defenses to the petition than those considered here, the petition should be granted.

The dissenting opinion raises a question not raised by respondent, namely, that section 6650 as amended, as applied to persons committed under section 1026, is unconstitutional in another particular, namely, that such persons have not been found insane or mentally ill by a hearing of the type allowed persons committed under other statutes; that here, the person is committed only because it did not “appear to the court that the defendant has fully recovered his sanity”; and further, that persons committed other than pursuant to section 1026 may be released from the state hospital on certificate of the medical superintendent, whereas persons committed under this section must have their sanity considered at a court or jury trial. But a jury preceding that finding by the court has found that the defendant was insane on the day of the commission of the crime. While there is a difference in the test of insanity as between that which will excuse a homicide and that which will cause a person ordinarily to be placed in a mental institution, still the defendant has had his jury hearing on the question of insanity. Moreover, although the test which the jury considered in Gestner’s ease was the lack of ability to distinguish right from wrong, it still is insanity, and as said in In re Slayback, supra, page 490, “... it is proven that such person is not only insane, but has developed criminal tendencies as a result of his mental derangement which has caused him to take the life of a human being under circumstances which, but for Ms mental state, would amount to murder.” (Emphasis added.) “ ‘As to the necessity for a finding as to the continuance of the insanity of one acquitted on that ground, as a prerequisite to his confinement, it is usually held that the insanity of such a person is presumed to continue until the contrary is shown, and that it is not necessary to hold the inquisition generally required by statute in the case of persons alleged to be insane before their commitment.’ ” (P. 485, quoting from 14 R.C.L., p. 609.)

As to the necessity for another hearing to determine the defendant’s sanity at the time of the commitment, the court said that “ ‘the commitment resulting from the express command of the statute, the trial and verdict upon the criminal charge was only an equivalent of proceedings provided to determine the question of insanity in cases not involving a charge of crime.’ ” (P. 487, quoting from Ex parte Clark, 86 Kan. 539 [121 P. 492, 495, Ann.Cas. 1913C, 317, 39 L.R.A.N.S. 680].)

There is nothing unreasonable in requiring that persons who have been found by a jury to have been insane at the time of the commission of the offense, and whose insanity is presumed to continue, be required to have their sanity established by a jury, rather than by a medical superintendent’s certificate. It is a reasonable classification and requirement.

As the court held in the above quoted excerpt from In re Slayback, that it was not unreasonable to leave to the judgment of the trial court the question whether a person so adjudged insane appears to have recovered his sanity, and if it does not so appear, to require such person to receive treatment in a state hospital for a period of a year before any other test of his sanity is made, and as that ease also holds that his confinement during that period is not penal, there is no good reason why, if financially able, such person should not be required to pay for his care and maintenance, just as all other persons committed to the state hospitals are required to do.

There is no inconsistency between section 1026, Penal Code, and section 6650 et seq., Welfare and Institutions Code, on the one hand, and the provisions of the “Uniform Veterans’ Guardianship Act” (Prob. Code, § 1650 et seq.) on the other. This act merely provides the procedure for appointment of a guardian of an incompetent veteran and the procedure in handling his estate. Just as in any other guardianship proceeding, the probate court has the complete power to protect the ward and his estate, and if the condition of the estate does not justify payment to a state institution of the cost of care and maintenance of such ward, the probate court would have the right to refuse to order such payment, whether the ward be a veteran or otherwise. Section 6650 does not invade the fundamental and constitutional right of the judicial branch of the government of this state in that it interferes with the right of the judiciary to control the management of the estate of insane persons. Sections 6650 and 6655 establish the liability, but just as with any other liability of an incompetent, the probate court determines whether the estate is financially able to discharge that liability.

The dissenting opinion refers to the statement in the order settling the account “that all of such present assets have been carefully examined and considered by the guardian; that their retention by the guardian in the guardianship estate has been for the best interests of the guardianship estate and those interested therein,” examines the assets of the estate, and primarily because to be able to pay the $840 claim of the department, the guardian might have to sell some of the bonds of the estate, holds that the above quoted statement is a finding on the merits of the department’s petition, and further holds, in effect, that the probate court did not abuse its discretion in refusing to order the guardian to pay the department’s claim. That matter is not before this court, first, because such a contention was never made by the parties, and secondly, because, as heretofore pointed out, the court refused to consider the petition on its merits. The above statement in the order referred only to the items of receipts and disbursements set forth in the account as presented. As to these, the. appellant made no objection.

The order is reversed and the probate court instructed to hear the petition and proceed in accordance with the views herein expressed.

Peters, P. J., concurred.

1 Emphasis added.