In re Estate of Callaghan

The estate of Ann Callaghan, under administration in the probate court, being in a condition to warrant a partial distribution, petitions for such partial distribution were filed by Daniel T. Callaghan, son of the decedent, and Mary A. Bailey, daughter of the decedent, and certain of said Mary’s children. Said Daniel and Mary were the only surviving children; and the petitions for distribution excluded any interest of Bertha Callaghan and Josephine Callaghan, who were grandchildren of the decedent and minor children of Sherwood Callaghan, who was the son of the decedent and died during her lifetime. These two grandchildren, Bertha and Josephine, filed oppositions to said petitions for distribution; and they also filed a petition for distribution, in which they claimed that a certain interest in the estate should be distributed to them. The probate *573 court granted the petition of Daniel T. Callaghan and Mary A. Bailey and others, and denied the petition of said grandchildren, who appeal from the order granting the former petition, and also from the order denying their petition. The appeals are brought here in two separate transcripts, numbered 881 and 882; but as the same…

I concur in the opinion, but I think the appeal should be dismissed. The guardian may appear and prosecute or defend actions for his ward, but under our code must do so in the name of his ward. Section 369 of the Code of Civil Procedure expressly authorizes administrators and executors to sue as though trustees of an express trust. In some states this same privilege is awarded to guardians, but our code provides (Code Civ. Proc., sec. 373) that a ward shall himself be a party to a suit which shall bind his estate.

It has been held in some jurisdictions, where there is no special statutory provision upon the subject, that a guardian can maintain an action in his own name upon an obligation made by himself as guardian, and also that as to such contracts he may be sued. Such cases also hold that he is the owner of and personally liable on such contracts and only liable to account in reference to them as trustee of his ward. In case of his death, such choses *577 in action go to Ms representatives. (Chitwood v. Cromwell, 12 Heisk. 658 .)

Whether in the probate court the guardian should appear to object to proposed distribution in his own name as guardian or in the name of his ward…