GRANVILLE H. LINCOLN and GEORGE S. LINCOLN, Plaintiffs, v. J. D. ALEXANDER, S. H. DAVIS, and GEORGE L. KENNEY, Defendants, 52 Cal. 482

The deed to defendants was void for want of power in the grantor to convey the premises. She was not the guardian, and had no power except such as was conferred by the special Act of April 29th, 1857. That act was unconstitutional, being in conflict with Art. HI of the Constitution. The appointment of a guardian, the control, management, and sale of the wards’ estate, are duties pertaining to the judicial and not to the legislative branch of the Government.

They are duties which had been, and were at the time of the attempted sale under the act in question, vested in the Courts, and generally, this power was one belonging to the judicial branch of the Government. (Poty v. Smith, April Term, 1874; 2 Story’s Eq. Jur. 1333-4; Andrews' Case, 1 Johns. Ch. 99; Cooley’s Const. Lira. 87, and cases cited; Adams’ Eq. 284.) W. II. Patterson, for Respondent, cited Brenham v Davidson, 51 Cal. 352. By the COURT: In Brenham v.

Davidson, 51 Cal. 352, the statute which was under review in that case conferred the power of sale on the guardian of the minor, and the sale was to be approved by the Probate Court. The proceeds of the sale were to be reinvested for the benefit of the minor; and, moreover, no sale was to be made unless the mother of- the minor, who held an undivided interest in the property, united in the sale and conveyance.

Under these circumstances we held that the case was one not provided for by the general law regulating the sale of the estates of minors, and that in passing the statute the Legislature did not attempt to exercise judicial powers; but that as parens patriae, it has the power by special act, in a case not provided for by the general law, to authorize the real estate of the minor to be converted into money by his guardian, if the Probate Court approves the sale.

But in the case at bar the minors had a duly qualified and acting statutory guardian at the time of the passage of the special act, and the general law provided an appropriate method by which the Probate Court could order a sale of the real estate of the minors by the guardian, if a sale was necessary for their education and support. The special act conferred the power of sale, not upon the guardian, but upon the mother of the' minors, who was not their guardian and had no interest in the property.

Ror were any conditions imposed upon her, except that she should first execute a bond, to be approved by the Probate Judge, conditioned that the proceeds of the sale should be appropriated to the support and education of the minors, and that the sale should not be valid unless confirmed by the Probate Court previous to the execution of the deed. In treating of the rights and powers of - statutory guardians of the estates of minors, Mr.

Schouler, in his treatise on Domestic Eelations, (p. 471) says: “ The recognized principle is that such guardians have an authority coupled with an interest, not a bare authority ”; and such we understand to be the well-settled rule. The statute under consideration attempts to take the estate of the minors out of the hands of their guardian, and to withdraw it from the control of the Probate Court, which, under the general law, had ample authority to order it to be sold and the proceeds to be applied to the support and education of the minors.

It wholly ignores the rights and powers of the guardian, who had an authority coupled with an interest—withdraws the estate from the jurisdiction and control of the Probate Court, which that Court might rightfully exercise under the general law—and attempts to substitute another person for the guardian, with authority to dispose of the estate absolutely, on no other conditions than those already mentioned, bio adjudicated case has been called to our attention, in which the exercise of such a power by the Legislature has been upheld.

In his work on Constitutional Limitations, at page 98, Judge Cooley, in discussing legislation of this character, says : “ The rule upon this subject, as we deduce it from the authorities, seems to be this: If the party standing in the position of trustee applies for permission to make the sale, for a purpose apparently for the interest of the cestui que trust, and there are no adverse interests to be considered and adjudicated, the case is not one which requires judicial action; but it is optional with the Legislature to grant the writ by statute, or to refer the case to the Courts for consideration, according as the one course or the other, on considerations of policy, may seem desirable.” But in the present case it does not appear that the application was made by a party “standing in the position of trustee,” and there were “ adverse interests to be considered and adjudicated,” to wit, those of the guardian.

Upon the face of the act there is nothing to show that the Legislature was informed that a general guardian of the estates of these infants had actually been appointed. It is fairly to be presumed that they were ignorant of that fact. At all events, in view of the facts now found by the Court below, the act cannot be permitted to operate, since, under the circumstances, it would be judicial and not legislative in its character, and for that reason unconstitutional. Judgment and order reversed, and cause remanded for a new trial.