Mastick v. Superior Court

Citations

• 94 Cal. 347
• 29 P. 869
• 1892 Cal. LEXIS 688

Syllabus

<p>Will — Appointment of Custodian — Subsequent Incompetency of Maker ■— Guardian. — A person competent to make a will has a right to select the custodian, and to cause it to remain in his hands until called for, or until death makes it necessary for the custodian to deliver it to the court, or to a person named in the will; and the subsequent incompetency of the maker of the will does not entitle the guardian to the possession of the instrument.</p> <p>Id. — Construction of Code—“Instrument in Writing” — Assets of Ward’s Estate — Will of Ward. —Section 1800 of the Code of Civil Procedure should he read in connection with sections 1459 and 1460 of the same code, and the phrase “instrument in writing,” as used in section 1800 of such code, must he construed as referring to instruments to the possession of which the guardian is entitled as an asset or as evidence of his ward’s title to property, and does not apply to the last will and testament of the ward.</p> <p>Id.—Trust — Revocation — Delivery of Will to Messenger at Testator’s Request — Return of Will — Continuance of Original Trust. —■ Where a person competent to make a will delivered it to another as the custodian thereof, with special directions to retain the same until her death, unless she called for it, and upon her death to deliver it to her executor, the custodian so selected is charged with the execution of the trust, which trust can only he revoked by the.testator; and the fact that the custodian afterwards delivered the will to a messenger at the request of the testator, and that subsequently the same messenger delivered to such custodian a sealed package indorsed thereon as containing the testator’s will, does not extinguish the trust.</p> <p>Id.—Certiorari — Excess of Jurisdiction — Failure to Object to Jurisdiction. —The failure of counsel to question the jurisdiction of the trial court in a proceeding before it, even if unfair to the court, does not deprive him of questioning its jurisdiction upon