
    [S. F. No. 1034.
    Department One.
    March 26, 1900.]
    In the Matter of the Estate and Guardianship of DAVID HENNING and BESSIE HENNING, Minors. DAVID A. HENNING, Appellant, v. MARY E. DE CORA, Respondent.
    Domicile of Minors—Death of Parents—Change of Domicile.—Minors whose parents were domiciled in this state at their death retain the domicile of their deceased parents until it is shown to have been changed by competent authority. The minors, as infants, are powerless to change their own domicile from one state to another.
    Id.—Permission to Testamentary Guardian to Remove Minors from State—Retention of Jurisdiction—Presumption against Change of Domicile.—The jurisdiction of the superior court of this state over minors domiciled therein is not lost by an order permitting their testamentary guardian to remove them from the state until further order of the court. Such order implies the retention of jurisdiction over them, and it cannot he presumed that their domicile has been changed, or that their residence out of the state has become permanent, in the absence of evidence to show that it is otherwise than temporary.
    Id.—Resignation of Testamentary Guardian—Minors Left Out of State—Jurisdiction to Appoint Succeeding Guardian.—Where the surviving testamentary guardian of the persons and estate of minors domiciled in this state, after an order permitting him to remove them to South Carolina until further order of the court, resigned his trust, and was discharged without further order of the court as to the minors, who were left in the state of South Carolina, the superior court of this state must be presumed to have jurisdiction to appoint a succeeding guardian both of the persons and estates of the minors, in the absence of proof of a change of their domicile or permanent residence by competent authority.
    Id.—Failure to Order Return of Minors—Abandonment of Jurisdiction not Presumed.—The failure of the court to order the return of the minors to this state, when the testamentary guardian was discharged, creates no presumption that the court abandoned jurisdiction of the persons of the minors.
    Id.—Right of Discharged Guardian to Contest Appointment—Non-return of Minors—Claim of Foreign Guardianship—Appeal.— Where the discharged testamentary guardian claimed an appointment as guardian of the minors by a court of competent jurisdiction in South Carolina, and was not ordered by the superior court to return the minors to California, and was served with notice of the application for the appointment of a succeeding guardian of their persons and estates, and appeared in opposition thereto, without objection, to contest the appointment of a guardian of the persons of the minors, it cannot be objected upon appeal that he had no right to contest the appointment, and ought not to be heard upon appeal, without first bringing the minors within the jurisdiction, he not being in default in that regard.
    APPEAL from an order of the Superior Court of the City; and County of San Francisco appointing a guardian of the persons and estate of minors. J. V. Coffey, Judge.
    Ho evidence appears in the record of the alleged appointment of the appellant as guardian in South Carolina. Further facts are stated in the opinion of the court.
    Henry E. Munroe, for Appellant.
    
      The question of residence of the minors must be determined as of the date of the application. (Harding v. Weld, 128 Mass. 591; Allis v. Morton, 4 Gray, 63; Schouler on Domestic Relations, 5th ed., sec. 303, p. 482; In re Raynor, 74 Cal. 421.) And it is a question of residence, and. not domicile, which determines the power of the court to appoint a guardian of the person. (Civ. Code, secs. 243, 244; Code Civ. Proc., sec. 1747; In re Hubbard, 82 N. Y. 90, 93; Johnson v. Beattie, 10 Clark & F. 43; Boyd v. Glass, 34 Ga. 253; 89 Am. Dec. 252; Taney’s Case, 97 Pa. St. 74; In re Wilkins, 146 Pa. St. 585; Sears v. Terry, 26 Conn. 273; In re Wrigley, 8 Wend. 134; Bell v. Pierce, 51 N. Y. 17; Holmes v. Oregon etc. Ry. Co., 5 Fed. Rep. 526.) Independent of statute, a guardian has a right to change the residence, if not the domicile, of his ward. (Holyoke v. Haskins, 5 Pick. 20, 27; 16 Am. Dec. 372; 2 Kent’s Commentaries, Lacy’s ed. 1889, p. 298, note (a); Wood v. Wood, 5 Paige, 596, 604; 28 Am. Dec. 451; Lamar v. Micou, 112 U. S. 452.) The appointment of a guardian of the person is in effect a judgment in personam, and such judgments can only be rendered on personal notice. (Lovejoy v. Albee, 33 Me. 414; 54 Am. Dec. 630; Pennoyer v. Neff, 95 U. S. 714; Boyd v. Glass, supra; Grier v. McLendon, 7 Ga. 364.)
    John Yule, and John M. Poston, for Respondent.
    A guardian- cannot fix the residence of the ward out of the state without the permission of the court. (Civ. Code, sec. 248.) The resignation of one guardian cannot oust the same court of jurisdiction to appoint another. (Code Civ. Proc., sec. 1801.) The absence of the minors from the county or state in which they have their domicile cannot affect the jurisdiction to appoint a guardian of their persons and estates where they have estate in the county of their domicile. (Code Civ. Proc., secs. 1747, 1793, 1794; In re Vance, 92 Cal. 195; In re Danneker, 67 Cal. 643; Gronfier v. Puymirol, 19 Cal. 629; Harding v. Weld, 128 Mass. 590, 591; Lamar v. Micou, 112 U. S. 452.)
   THE COURT.

The matter is before us on an agreed statement of facts which respondent concedes are correctly sumniarized in appellant’s brief, as follows: “In the year 1893 Clara Henning, the widowed mother of these minors, died testate in the city and county of San Francisco. By her last will, which was duly admitted to probate, she appointed George C. Shreve, of San Francisco, and David A. Henning, of the state of South Carolina, guardians of the persons and estates of these minors. Shreve and Henning accepted the trust and duly qualified October 30, 1893. On the first day of December, 1893, David A. Henning obtained an order of court permitting him to remove these minors to the residence of their grandparents, Isaac L. and Mary Henning, in the city of Sommerville, state of South Carolina, which was also the residence of said David A. Henning, there to remain until further order of court. The children were thereupon removed by their guardian to South Carolina, where they have ever since lived, either with their grandparents, or with their guardian, David A. Henning. In October, 1893, George C. Shreve died, and on the third day of August, 1894, David A. Henning filed his written resignation of his trust as guardian of the minors, and a petition for his discharge. On the fourteenth day of August, 1894, his resignation was accepted by the court, and an order made and filed settling his account and granting his discharge. This order made no provision as to the care, custody, or residence of these minors, and at the time when the order was made they were still living in South Carolina. On the seventeenth day of August, 1894, Mary E. De Cora, the respondent herein, filed a petition praying for her appointment as guardian of the persons and estates of these minors. The appellant answered this petition, denying that these minors were residents of the city and county of San Francisco. On the twenty-third day of March, 1897, an order was made granting the petition of respondent, and David A. Henning appeals to this court from so much of this order as appoints respondent guardian of the persons of these minors.” The children are aged ten and twelve years, respectively.

It should be added that, by order of the court, notice of the hearing of respondent’s petition was served upon Henning as well as the minors, and no question is raised as to the service. Henning appeared by answer and at the hearing by counsel.

1. ¡Respondent suggests in limine that Henning ought not to be heard without first bringing the minors within the jurisdiction of the court, because on his application they were removed to South Carolina “there to remain until further order of the court,” and because, when respondent’s petition was filed, Henning had been discharged as guardian. There is an allegation in his answer that he was, when the petition was filed, guardian of the persons and estate of the minors by order of a court of competent jurisdiction in South Carolina duly given and made. There was no objection made in the lower court to the appearance of Henning and the order of the court required service of notice upon him that he might appear; and he has never been ordered to bring the minors to California, so that he is in no default in that regard. Under the circumstances we see no reason why he should not be heard on this appeal.

2. The only error specified is that the evidence is insufficient to justify the finding and decision that the said minors were residents of this state when the order was made, and that the order appointing a guardian of the person of the minors is void. The code provisions upon the subject of appointing guardians are as follows: “A guardian of the person and estate . . . . may be appointed by will or by deed, to take effect upon the death of the parent appointing.” (Civ. Code, sec. 241.) “A guardian of the person or property, or both, of a person residing in this state, who is a minor, .... may be appointed in all cases, other than those named in section 241 by the superior court, as provided in the Code of Civil Procedure.” (Civ. Code, sec. 243.) “A guardian of the person is charged with the custody of the ward, and .... may fix the residence of the ward at any place within the state, but not elsewhere, without permission of the court.” (Civ. Code, see. 248.)

In the present case, guardian Shreve died and Henning resigned and was discharged. Section 1801 of the Code of Civil Procedure provides for such resignation and authorizes the court to appoint another guardian in the place of the one resigning. “The superior court .... may appoint guardians for the persons and estates, or either of them, of minors who have no guardian legally appointed by will or deed, and who are inhabitants or residents of the county, or who reside without the state and have estate within the county,” etc. (Code Civ. Proc., sec. 1747.)

One of the guardians appointed by the will having died and the other having resigned and been 'discharged, the minors were without guardians appointed by will, and the court had jurisdiction to appoint, under the provisions of section 1747 of the Code of Civil Procedure, unaffected by the sections of the Civil Code referred to; the power was the same as if no appointments at all had been made by will; the death of one and resignation of the other guardian terminated the guardianship.

Eespondent relies upon Gronfier v. Puymirol, 19 Cal. 629, to support the order made here, but the legal soundness of the appointment need not rest upon that case. The parents of the minors were, at their death, domiciled here, and their domicile became the domicile of their children. As infants they were incapable themselves of changing their domicile> and as there is no evidence that it was changed by anyone having authority, or at all, for that matter, their domicile is still in the city and county of San Francisco. (Woerner’s Law of Guardianship, sec. 26, p. 80.) There is nothing in the record to show for what purpose the children were taken to South Carolina, and the order permitting their removal to that state, “to remain until the further order of the court,” indicates no intention to surrender jurisdiction of their persons; on the contrary, the order implies the retention of such jurisdiction. The fact that Henning was discharged without being ordered to return the wards to this state gives rise to no presumption that the court had abandoned its jurisdiction over the persons of the wards; their domicile still remained in San Francisco. They are absent from the state, but there is nó evidence tending in any way to show that their residence in South Carolina is anything but temporary. We cannot presume that their domicile is -changed, nor -can we presume that their residence has become permanent in South Carolina. Whatever presumptions are indulged upon these questions must be in favor of the jurisdiction.

Appellant cites numerous eases to show that it is a question of residence and not domicile which determines the power of

the court to appoint a guardian of the person; that the code authorizes the appointment of guardians for the persons and estates of minors who are “inhabitants or residents of the county,” but that neither of these terms is equivalent to domicile. The argument seems to be that the residence of the minors became fixed in South Carolina under the permission of the court, and as the guardian was allowed to resign without himself voluntarily having returned the wards to this jurisdiction, and as he was not ordered to do so, and is not now subject to any such order, the wards are no longer within this jurisdiction. Mr. Woerner, at the page of his valuable treatise already cited, says: “The residence of infants conferring the jurisdiction in the sense of these statutes [statutes giving jurisdiction where the residence is within the county] means domicile, or home, as distinguished from residence, which may be temporary, or for a special purpose.” However this may be, ■the word “domicile” certainly includes residence, conceding, as is the fact, that there may be a temporary residence separate from the domicile and at the same time (Woerner’s Law of Guardianship, 82); and as we think the evidence and the presumptions fix both the domicile and the residence of these children at San Francisco, we cannot see that the cases relied upon have application.

What may be or should be held in the event that a guardian of the persons should be appointed in South Carolina, and that the best interest of the minors should require that they permanently take up their abode in that state, and application should be made under the provisions of our code by their guardian appointed in that state to allow the removal of any property situated in this state, susceptible of removal, to the state of the ward’s residence, are questions which may be remitted to the tribunal before which they may come. The parties in ihterest may have the assurance that our courts will be governed by the enlightened spirit of comity which should prevail between sister states of the Union, subject to such legislative restrictions as our statutes impose and agreeably to established rules of law.

For the foregoing reasons the order is affirmed.  