In re Snowball's Estate

Citations

• 7 Cal. Unrep. 371
• 104 P. 444

Syllabus

<p>Guardianship — Prior Proceedings—Bes Judicata.—Determination of an issue as to the fitness of the mother of certain children to act as their guardian in a prior application for appointment is res judicata on a subsequent application between the same persons, except as to evidence of facts occurring since the former order.</p> <p>Guardianship.—Where Certain Facts Offered to Prove a Mother’s alleged abandonment of her children, as a defense to her application for guardianship, were insufficient as a matter of law to establish abandonment, objectors to her appointment were not prejudiced by the exclusion of such evidence.</p> <p>Parent and Child—Abandonment of Children.—In the absence of proof that a mother intended to bring about final separation from her minor children, evidence of mere temporary absences accompanied by statements not indicating an intent to surrender parental rights, and the fact that she placed the children in care of another while she was away, was insufficient to establish abandonment.</p> <p>Guardianship — Testamentary Appointment — Consent.—Under Oivil Code, section 241, declaring that a guardian of the person or estate of a child may be appointed by a will or deed if the child be legitimate by the father with the written consent of the mother, or by either parent if the other be dead or incapable of consent, a testamentary appointment by the father of a legitimate child having a surviving mother without the mother’s consent is invalid.</p> <p>Guardianship—Eight to Appointment—Priority.—Code of Civil Procedure, section 1751, gives to the surviving mother of infants a primary right to be appointed their guardian, which should be recognized in the absence of proof compelling a finding of her unfitness.</p>