I dissent. As to the question of notice and the effect of the failure to make substituted service upon Mrs. Grinbaum of the application for letters of guardianship, I am in doubt, and as the majority of my associates have arrived at a conclusion, I do not desire to further delay the filing of an opinion in order to make the necessary research to definitely determine that question, nor do I think that necessary in view of my conclusion as to the duty of this court in the promises in the exercise of a sound discretion in the granting or withholding of writs of review. The original petition filed in this matter was presented by Mrs. Grinbaum, and upon that petition an order to show cause was issued. Upon the return day the respondent called attention to the fact that the petition showed on its face that Mrs. Grinbaum was under legal disability owing to the adjudication of the German court, and that although she might have presented a petition in this matter in her own right upon the theory that the adjudication of the California court was void for lack of jurisdiction, she was, notwithstanding that proposition, under legal disability owing to the German decree, which was still in full force and effect. Thereupon, upon the suggestion of the attorney who had presented her petition, he was appointed guardian ad litem to present the matters alleged in her petition. At the time *Page 561 of the issuance of the order to show cause upon the petition of Mrs. Grinbaum we had before us two original proceedings instituted by her relating to her proceeding for restoration to capacity then pending before the department of the superior court in which the guardianship proceedings 88were pending. One of these proceedings was an application for writ of prohibition to prohibit the judge of that department from proceeding with the trial of the issues upon the application for restoration to capacity, and the other was a mandamus proceeding to compel him to issue certain commissions for the taking of depositions. It was urged upon us as a reason for entertaining these original proceedings to review the record upon the appointment of a guardianship that a decision favorable to the applicant might render unnecessary a long and expensive trial of the proceedings for restoration to capacity and render unnecessary our own decision in the two original proceedings then pending. It was upon this basis that the order to show cause was issued. It now appears that a favorable judgment in this matter will not at all relieve Mrs. Grinbaum of the necessity of proceedings for restoration to capacity because of the fact that her incapacity is established by the German decree. We are called upon in this matter to exercise our discretion in three different particulars: First, in the question of whether or not the proceedings will be entertained at all in the court of last resort without requiring the parties to first present the matter to the superior court; second, we are called upon to determine whether or not in this proceeding we will exercise our discretion by annulling the order of the trial court appointing the Mercantile Trust Company as guardian in the event that we conclude that the trial court had no jurisdiction to make the appointment; third, we are called upon to determine whether or not for the purpose of prosecuting these proceedings we will appoint and continue in power the guardian ad litem.
In view of the fact that we have already expended the time and labor involved in a consideration of this matter, both by briefs and argument, it may be that if there is no consideration involved other than the inconvenience resulting to the pressing business of this court by taking up such proceedings in the first instance, that we might waive that question and proceed to judgment. Second: With reference *Page 562 to the discretion as to the issuance of the writ of review upon the application of Mrs. Grinbaum, it might be that if we were fully satisfied that she was capable of conducting her own affairs and was only deprived of that authority because of a decree entered without jurisdiction and without notice to her, we might be justified in entertaining jurisdiction on the theories advanced in the main opinion. But as to the exercise of our discretion and power in appointing and continuing in power the guardian ad litem for the purpose of attacking this order declaring Mrs. Grinbaum incompetent and appointing a guardian to take possession of her property, it is clear to my mind that under the circumstances disclosed by the record this ought not to be done.
I will state my reasons briefly for the conclusion. It appears that the Mercantile Trust Company was appointed guardian at a time when Mrs. Grinbaum was insane and under guardianship and for that reason, and that the guardianship in Germany was continued after a full inquiry into her mental capacity. It further appears that the guardianship proceedings here were instituted at the request of the friends and relatives of Mrs. Grinbaum and in all probability with the knowledge and upon the request of the German guardian. This German guardian and the guardian subsequently appointed in Switzerland not only had knowledge of the fact that the Mercantile Trust Company was acting as guardian for Mrs. Grinbaum, but they applied to the guardian for money for the maintenance of the ward, and during almost the entire period of guardianship were in receipt of regular remittances from the Mercantile Trust Company to pay the expenses of caring for Mrs. Grinbaum. It further appears that the Swiss guardian was appointed at the instance of the Mercantile Trust Company and eventually surrendered the custody of the ward to an agent acting jointly for the Mercantile Trust Company, the guardian of her estate in California, and the guardian of the person appointed by the California court. It thus appears that the only persons capable of acting for and on behalf of Mrs. Grinbaum had full knowledge of and fully acquiesced in the appointment of the Mercantile Trust Company as guardian. It is no doubt true that Mrs. Grinbaum would not be bound by the extraterritorial acts of her German and Swiss guardian, and that so far as the conduct of the guardian of her *Page 563 person appointed in California is concerned, that appointment is also under attack. This contention, however, does not dispose of the question involved, namely, as to whether or not we should appoint a guardian ad litem to directly interfere with that which has been acquiesced in by her general guardian, inasmuch as it is necessarily conceded that Mrs. Grinbaum is incapable of acting for herself because of the legal adjudication of incompetency which is still in full force and effect. It seems to me that if the proceedings for the appointment of her guardian here are to be attacked incertiorari proceedings, that attack should be made by a general guardian properly appointed who would have the right in the event of a successful termination of the proceedings to immediately take over the estate now in the custody of the Mercantile Trust Company. The difficulty I see in the matter is that the guardian ad litem is acting under the authority of the appointment by this court and solely upon that authority. It is true that the appointment is predicated upon the petition of the ward herself and of her relatives in this jurisdiction, but inasmuch as her own consent is clouded by the incompetency resulting from the German decree, it seems to me that we ought not to proceed further in the matter. There are other considerations leading to the same conclusion and bearing upon our general discretionary powers. It clearly appears that at the time of the appointment of the Mercantile Trust Company Mrs. Grinbaum was in fact insane and that she continued to be so for many years thereafter. It further appears that her insanity is of such a type that actual notice to her of the pendency of the proceeding for the appointment of a guardian in California would have had no effect whatever upon her. That is to say, she was incapable mentally of receiving notice, and whatever form the notice may have taken her mentality was so clouded that she would not have understood or appreciated the nature or effect of the notice.
It is clear, then, that if the almost universal form of notice given by the probate court under the statutes of this state, namely, a notice posted for ten days in three public places in the county, had been given, that such notice would have been utterly unavailing to actually bring home to the insane person, then in Germany, knowledge of the proposed proceeding in California. It is true that of necessity we *Page 564 indulge in the conclusive presumption that notices of that type do in fact notify nonresidents of the pendency of proceedings affecting their rights in California. Assuming, as the majority opinion holds, that in default of such notice the proceedings are utterly void, I do not think that we should indulge in the legal fiction that only by such notice or a similar notice could the ward be subject to the jurisdiction of the court when the result of our action will be to declare that the acts of the guardian for more than ten years had been without legal authority. The Mercantile Trust Company in their answer to these proceedings allege that the transactions of the estate have involved the transfer of nearly $2,000,000 worth of property, and that during its administration the estate has increased from a value of $800,000 to nearly $2,000,000. We are asked to declare these proceedings all void at the instance, not of the ward, but of a guardian ad litem appointed by ourselves. I think this ought not to be done.
It is true that in considering this matter we must recognize that Mrs. Grinbaum, being under a formal adjudication of incapacity, could not herself take any action which would be binding upon her. Nevertheless, it is true that during all this period she has been supported by moneys provided by the Mercantile Trust Company from the funds belonging to her in their hands. If she is not estopped by her conduct in thus acquiescing in the appointment of the Mercantile Trust Company as guardian, it is only because of her adjudicated incapacity, and it seems to me that we ought not to appoint another guardian ad litem to attack this guardian and thus have at the instance of the guardian ad litem a declaration that an order to which she and her general guardian have consented, as far as they were capable of consenting, declared null and void.
It may be said that we have already exercised our discretion by the appointment of the guardian ad litem. This is true, but when after a complete hearing of the matter it is manifest that the result of his appointment is merly to give this guardian so appointed by us an opportunity to attack a guardian appointed by the superior court, where such appointment has been acquiesced in not only by the ward herself, but also by duly appointed general guardians of *Page 565 her person and estate in Germany and Switzerland, I think we should not continue the guardian ad litem in office.
The fact is that we are baffled at every turn in this case by the fact that Mrs. Grinbaum is under adjudication of complete and total incapacity to transact business, and that at the same time she claims to be sane and is prosecuting a proceeding for restoration to capacity.
It has been held by the supreme court of the state of Missouri in the case of Dutcher v. Hill, 29 Mo. 271 [77 Am.Dec. 572], that where an alleged insane person petitions for restoration to capacity in a guardianship proceeding, he could not subsequently attack the validity of those proceedings upon the ground that he had had no notice of the original appointment of the guardian and that he was thereby estopped from pursuing property which had been sold by the general guardian so appointed in the hands of an innocent purchaser from the guardian. Under the principles established by this Missouri case, Mrs. Grinbaum, after having applied for an order restoring her to capacity, cannot now be heard to claim that the guardian was not originally appointed upon proper notice. But here we again encounter the baffling difficulty that while Mrs. Grinbaum in her own proper person could apply for restoration to capacity in the probate court in California and after such restoration might be bound by the original order appointing a guardian, she was in this case under the additional disability of the German and Swiss decrees of incompetency, and it is doubtful if her application for restoration to capacity in the California court would have any effect as a waiver or estoppel because of her disability under the German and Swiss decrees. It seems to me that an order vacating the appointment of the Mercantile Trust Company before the appointment of a guardian entitled to receive the property of the ward and without any adjudication as to her restoration to capacity would result in confusion and delay. And confusion and delay in an estate involving $2,000,000 means great expense. The guardian ad litem in this matter, it should also be stated, adheres consistently to his contention that the real purpose of these proceedings is to obviate the delay and difficulty incident to a trial of the proceedings for restoration to capacity, and when we have determined that such proceedings in some form or other are essential, *Page 566 it is clear that we ought not to proceed further in the matter.
In my judgment we should discharge the guardian ad litem and dismiss the proceedings without prejudice to any further actions that may be undertaken by the parties interested.
Rehearing denied.
All the Justices concurred.