
    [No. 5975.
    Decided March 19, 1906.]
    
      In the Matter of the Guardianship of Margaret P. Crosby et al., Minors.
      
       Josiah L. Pettingill, Guardian, Appellant, v. A. H. Anderson et al., Respondents.
    
    Appeal — Final Orders — Vacation of Leave to Sue Executors. The vacation of an order granting leave to sue executors of an estate upon a rejected claim in effect determines the right to maintain the action, and is appealable as a final order.
    Guardian and Ward — Actions—By Foreign Guardian — Courts— Jurisdiction — Leave to Sue. The superior court has jurisdiction, on the principles of comity, to grant leave to a foreign guardian of nonresident wards to maintain an action in this state against the executors of an estate, there being no statute prohibiting the same.
    Same — Property—Statutes—Construction. Bal Code, § 6419, providing for the removal to another state of the “property” of nonresident wards, where the guardian is also a nonresident, applies to choses in action, in view of the provision authorizing the guardian to sue therefor.
    Appeal from an order of the superior court for King county, Prater, J., entered September 22, 1905, vacating an order granting a foreign guardian leave to sue executors of the estate of a deceased.person.
    Reversed.
    
      William B. Allison and Wiley, Herr & Bayley, for appellant.
    
      Chas. F. Munday, for respondents.
    
      
       Reported in 85 Pac. 1.
    
   Mount, C. J.

— On July 31, 1905, the appellant J. L. Pettingill filed a petition in the superior court of King county, praying that he he appointed guardian of the estate of Margaret P. Orosby and William A. Crosby, minors, and for permission to institute an action as foreign guardian of said minors in the courts of King county, against the estate of Benjamin B. Healy, deceased, to recover an account alleged to be due from said estate to said minors. The petition alleged, in substance, that the minors were residents of the state of Wisconsin; that the petitioner was also a resident of that state, and had theretofore been regularly appointed and qualified, according to the law of that state, as guardian of the persons and estate of said minors. A duly certified copy of the records of the probate court of LaOrosse county, Wisconsin, was attached to the petition.

The petition further alleged, that Benjamin B. Healy, deceased, was during his lifetime, indebted to the said minors in a large amount; that, at the time of his death, said Benjamin B. Healy was a resident of King county, in this state, and left a large estate therein; that .Alfred H. Anderson and Lucy M. Healy were named, and are acting as, executors of the said estate of Benj amin B. Healy, deceased; that the petitioner duly presented a verified claim against said estate for the amount of the debt owing to his wards, and that the executors rejected said claim; that by reason thereof it is necessary for petitioner to bring an action in this state for the purpose of collecting the amount of said claim, and to remove the proceeds thereof to the state of Wisconsin for the benefit of said minors.

Hpon filing this petition, the court made an order fixing a time for the hearing of the petition, and thirty days5 notice thereof was served upon the executors of the estate of Benjamin B. Healy, deceased, and upon their attorney. At the time fixed for the hearing, no onei appeared to resist the application, and the court thereupon made an order authorizing the petitioner to remove any properly of his wards found in the state, and granted authority and leave to the petitioner to sue the estate of Benjamin B. Healy, deceased, on the claim set out in the petition, and to receive and remove the proceeds thereof from this state for the benefit of said wards. Thereafter, on September 7, 1905, the said J. L. Pettingill, as guardian, brought an action against the executors of the estate of Benjamin B. Healy, deceased. t^> recover upon the claim which had been presented to and rejected by the executor, and which was stated in the petition. On September 12, 1905, the executors of the estate of Benjamin B. Healy, deceased, served and filed a motion and petition to vacate the order granting Mr. Pettingill a right to sue in this state. The petition and motion were based upon several grounds. The court, upon the hearing, sustained the -petition and motion, and vacated and set aside the order. This appeal is from the last named order.

Respondents have' interposed several motions to strike the statement of facts and dismiss the appeal. There is no merit in any of the motions. The order appealed from, in effect, determines the action brought by the appellant against the executors of the estate, because if the order permitting him to sue is vacated, he has no right to further maintain the action. The order is therefore appealable.

The only ground upon which the court would have vacated the order granting the foreign guardian leave to sue in this state was that the court had no jurisdiction to make the order. This is apparently the main contention of respondents. Certainly none of the others are well founded. We think the court had jurisdiction, upon the principle of comity, to make the order allowing the foreign guardian to maintain the action, because we have no statute prohibiting the same. Wharton on Conflict of Laws, Vol. 1 (3d ed.), at § 265a, p. 592, says:

“Many of the state legislatures have, upon principles of comity, relaxed the rule, as stated by Judge Story, requiring an ancillary appointment; and have recognized the authority of foreign guardians who make due proof of their foreign appointment and authorization, and comply with such other conditions as may be imposed. Thus, by local statutes in many states, foreign guardians of nonresident wards are authorized to receive and remove from the state, personal property of. their wards in the hands of local guardians or others; and to this end they have been authorized to maintain suits within the state. Even in the absence of such a statute, it seems to be competent, for a court possessing chancery powers to order funds belonging to the ward in the hands of a resident guardian to he transmitted to, or paid over to; the domiciliary guardian. It is discretionary, however, with the local courts, even under such statutes, to refuse permission to the foreign guardian to remove the property from the state if it is for the hest interests of the ward that the property should he administered within the state'.”

Upon the principle of aomity the legislature of this state enacted § 6419, Bal. Code, which provides as follows:

“When the guardian and ward are both nonresidents, and the ward is entitled to property in this state, which may he removed to another state or territory, without conflict to any restriction or limitation thereupon, or impairing the right of the ward thereto, such property may he removed to the state or territory in which such ward may reside, upon the application of the guardian to the judge of the superior court of the county in which the estate of the ward, or the principal part thereof, may he, in the manner following: The guardian so applying must produce a transcript from the records of a court of competent jurisdiction, certified according to the laws of this state, showing his appointment as guardian of the ward in the state or territory in which he and the said ward reside; that he has qualified as such according to the laws thereof, and given bond, with sureties, for the performance of his trust; and must also give thirty days’ notice, to the resident executor, administrator, guardian, agent, or trustee, if there he such, of the applications. Thereupon, if no objection he made, or if no good cause be shown to the contrary, the judge of the court shall make an order granting such guardian leave to remove the property of said ward to the' state or territory in which he or she may reside; which order shall he full and complete authority to said guardian to sue for and receive the same in his own name; for the use and benefit of said ward.”

It is argued by respondents that this section does not apply to this case, because there is no tangible property involved here; that at most the property sought in this case is a disputed, unliquidated demand, a mere chose in action. The statute, however, uses the word “property” in its comprehensive sense, and evidently includes choses in action, because the last part of the section recites that the “order shall be full and complete authority to said guardian to sue for and receive the same in his own name for the use and benefit of said ward.” This provision seems to mate it clear that choses in action are included within the meaning of the word “property,” as well as tangible property. It follows, therefore, that, under the statute, the court had jurisdiction to mate the order. We see no good reason why it should be vacated. In fact, we are convinced that the court properly made the order permitting the foreign guardian to maintain the action in this state. If the estate of Benjamin B. Healy is indebted to the estate of the nonresident wards, there ought to be a recovery.

The judgment of the trial court vacating the order is therefore reversed.

Dunbar, Hadley, Fullerton, and Crow, JJ., concur.  