J. E. DE LA MONTAGNIE v. THE UNION INSURANCE COMPANY, 42 Cal. 290

By the Court, Wallace, J.: This is an action to recover the value of certain shares of the capital stock of the corporation defendant, which the plaintiff alleges to be his property, and to have been converted by the defendant to its own use.

It appears that one James Michael, deceased, was at the time of his death owner of some thirteen shares of the capital stock of this insurance company, evidenced by a certificate standing in his own name, and that, under the order of' distribution of the Probate Court, these shares came to Michael Prank Michael, an infant son of the decedent, and of whose person and estate his mother, Augusta B. Josephi, was the duly appointed guardian; and upon surrender of the original certificate by her a new certificate was issued to her, which ran on its face to “Augusta B.

Josephi, Guardian,” and she thereupon, and without any order of or authority from the Probate Court, sold the stock to Be la Montagnie, “and on the same day assigned the said certificate thereof to him by an indorsement thereon, signed by her Augusta E. Josephi, Guardian.’” The corporation defendant refused to recognize the transfer, and declined to issue a new certificate of stock to Be la Montagnie, upon his proffered surrender of this one. The first question is, whether or not the sale and transfer, under the circumstances, vested a title to the stock in Be la Montagnie.

The Court below found in this connection that the latter “had no knowledge that the said Augusta R. Joseph! held the said stock as guardian of Michael Frank Michael, or that said stock belonged to him;’’ but that fact, in our opinion, is of no import. In Kendall v. Miller, 9 Cal. 591, it was held by this Court, that a sale made by a guardian of a portion of the estate of the ward, without authority from the Probate Court, conveyed no title to the purchaser; and the rule announced in that case was subsequently recognized here, at least by fair implication, in Schmidt v.

Wieland, 35 Cal. 343, as being the correct exposition of the statute in force, regulating the sale of the property of wards by their guardians. We think, too, irrespective of adjudged cases, that the plain intent of the statute is to make void every alienation of the property of the ward, if made by the guardian without the order of the Court; and that the rule, in itself, is one of wholesome application to such sales, whether of the personal or real estate of the ward. Judgment reversed, and cause remanded, with directions to render judgment for the defendant. Mr.

Justice Temple, being disqualified, did not sit in this case.