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District Court of Appeal, First District, Division 2, California.


Civ. 9302.

Decided: May 08, 1934

Mills, Hunter & Dunn, Edward C. Mills, and D. Z. Gardner, all of Los Angeles, for appellant. Crail, Shutt, Penprase & Crail, of Los Angeles, for respondent.

From 1920 until 1929 defendant was the duly appointed, qualified, and acting guardian of Clyde Lindsay, an incompetent person. On January 16, 1929, an order was made revoking defendant's letters of guardianship and appointing Kathleen M. Adams in his place and stead. Thereafter said Kathleen M. Adams, as guardian of the incompetent, brought this action against defendant. She alleged in her second amended complaint that defendant had “falsely credited himself” with certain sums “for the alleged care, support and maintenance” of said incompetent. Defendant's demurrer was overruled. His answer admitted that he had credited himself with the various sums set forth in the complaint, but denied the falsity of said credits. He further alleged that all of said credits were set forth in his several accounts filed by him and presented to the court during his administration of the estate of the incompetent; that said accounts were all legally noticed and set for hearing in the probate department of the superior court, and were all regularly heard, settled, and approved by said court; that no appeal has been taken from any of said orders settling and approving said accounts, and that said orders remained in full force and had “become res adjudicata of the matters contained in said account”; and that the balance belonging to the incompetent as shown by his final account, which account was settled and approved on January 24, 1929, had been paid over to the new guardian. Upon the trial, defendant objected to the introduction of any testimony, but the objection was overruled. The testimony introduced regarding defendant's expenditures as guardian was conflicting. The trial court resolved the conflict in favor of plaintiff and entered judgment accordingly. From said judgment defendant appeals.

Appellant sets forth sixteen assignments of error. An examination of these assignments shows that they are but different ways of urging appellant's main contentions, which are as follows: That the probate court had exclusive jurisdiction to hear, examine, and pass upon his accounts which embraced his expenditures as guardian and the credits claimed by him therefor, and that the trial court was without jurisdiction in this action to re–examine said accounts, as the orders of the probate court approving and settling said accounts were final and conclusive. In our opinion, these contentions of appellant must be sustained.

It may first be noted that respondent concedes that appellant reported to the probate court in the guardianship proceeding all of the assets coming into his hands. In other words, there was no claim of concealment of assets in the ordinary sense. Respondent's complaint herein relates solely to alleged false credits set forth in the accounts approved by the probate court. It may further be noted that the record in the guardianship proceedings and the undisputed evidence herein shows that appellant had duly filed and presented five accounts as guardian, in which accounts all of the items now disputed were set forth, and that the orders of the probate court settling and approving said accounts had all become final.

Under the circumstances, the judgment herein must be reversed upon the authority of In re Guardianship of Wells, 140 Cal. 349, 73 P. 1065. The facts there were quite similar, but, in addition to claiming false credits in the accounts which had been approved, it was claimed that the guardian had fraudulently failed to account for certain moneys received by him as guardian. On page 353 of the opinion in 140 Cal., 73 P. 1065, 1066, the Supreme Court said:

“The gist of the petition, and the principal issue in the case, was as to fraud upon the part of the guardian in failing to account to the court or his ward for moneys––rents––belonging to the ward's estate. In fact, this was the only ground upon which, in this case, the lower court could acquire jurisdiction. * * * And the only items of account between the guardian and the ward which the court deals with in the findings are exclusively those contained in the settled accounts. * * * The court, however, had no power to review these matters.

“They were all items––charges for board, lodging, music, books, stationery, including also compensation allowed by the court to the guardian for his services as such––which were embraced in the former accounts. These the court re–examined and revised, making deductions from the allowances previously made for them, and reducing the guardian's compensation. This was clearly beyond the power of the court. All these items had been previously examined and passed on by the court, and the accounts which contain them settled and approved. As to these matters, the orders settling the accounts in which they were contained were final and conclusive. Brodrib v. Brodrib, 56 Cal. 564, 566; Lataillade v. Orena, 91 Cal. 576, 27 P. 924, 25 Am. St. Rep. 219; Estate of Adams, 131 Cal. 417, 63 P. 838; Estate of Grant, 131 Cal. 429, 63 P. 731.”

Again in Re Estate of McGue, 180 Cal. 413, at page 415, 181 P. 637, 638, the Supreme Court quoted approvingly from Woerner on Guardianship as follows: “The law is thus stated by Mr. Woerner: ‘On the termination of the guardianship * * * the accounting between the guardian and ward, or between them and their respective representatives, is final, and the order, judgment, or decree thereon by the court having jurisdiction is necessarily conclusive against all the world, like any other judgment by the court having jurisdiction of the subject–matter and of the parties. * * * Unless appealed from, revoked, or reopened, such settlement cannot be collaterally attacked * * * in any collateral proceeding.’ Woerner on Guardianship, p. 327, § 98. He states only this qualification of the doctrine: ‘As to all matters lawfully embraced therein, the final settlement is conclusive; but matters not embraced therein are not concluded, and the ward may recover of the guardian personally a fund which came to the guardian's hands before his appointment, and which was never accounted for in his settlements.’ Id. p. 340.”

The judgment is therefore reversed, with directions to the trial court to enter judgment in favor of the defendant.

SPENCE, Justice.

We concur: NOURSE, P. J.; STURTEVANT, J.

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