This is an appeal by the defendants from the judgment and from an order denying their motion for a new trial. The complaint sets forth an action to enforce a lien against certain lands formerly belonging to the deceased Delfina L. Ratti, the said Giovanni being her sole surviving heir at law.
Teresa B. Livermore was the mother of the deceased Delfina L. Ratti. In April, 1888, she was appointed guardian of the person and estate of Delfina, and continued to act in that capacity until the said Delfina arrived at the age of eighteen years, which was on the 25th of November, 1892. No account of her trust as guardian was ever filed or presented to the court during the minority of the ward, nor at all until March 15, 1899. On September 29, 1897, the ward, Delfina, was married to the defendant, Giovanni B. Ratti, and on September 19, 1898, she died intestate, leaving surviving her husband and one child, which child has since died at the age of four months. On March 15, 1899, when the guardian, Teresa B. Livermore, filed her final account as guardian of her daughter, Delfina, there had been no administrator appointed of the estate of her said daughter, although proceedings to that effect were then pending and were set for hearing on March 20, 1899. The hearing of the final account filed on March 15th was set for March 27th, and the usual ten days' notice of that hearing was given by posting, in the manner required by the statute. On March 20th the defendant, Giovanni, was appointed administrator of the estate of the ward. The order settling the *Page 464 account recites that proof was made to the satisfaction of the court that notice of said settlement had been given as required by law and as ordered by the court. The account showed disbursements of $1,508.18 by the guardian in excess of cash receipts, and that the entire estate of the ward consisted of a one-ninth interest in certain real estate. The order settled and allowed this balance, and declared that it should be a charge against the estate of the ward. The purpose of the action is to have this charge declared a lien against the estate and enforced by foreclosure.
The respondent contends that the order settling the final account and declaring the balance a charge upon the estate of the ward is invalid for want of jurisdiction in the court over the legal representative of the ward. By the provisions of section 1754 of the Code of Civil Procedure it is made the duty of the guardian "at the expiration of his trust, to settle his accounts with the court, or with the ward, if he be of full age, or his legal representatives, and to pay over and deliver all the estate, moneys, and effects remaining in his hands, or due from him on such settlement, to the person who is lawfully entitled thereto." The proceedings to settle the account of a guardian instituted after the ward has arrived at full age, or after the ward has deceased, is one in which no persons are directly interested except the guardian, on the one hand, and the ward, or his legal representative, on the other. The proceeding is regulated by the provisions of the act concerning administrators of deceased persons (Code Civ. Proc., sec. 1789), and under section 1634 of the Code of Civil Procedure, when a final account is to be settled, notice of at least ten days must be given of the time and place of the hearing thereof. The effect of the provisions of section 1754, above quoted, in a case where the ward has deceased, is that the proceeding for the settlement of the account must be had with the legal representative. It would seem to be a reasonable conclusion from this provision that such proceeding cannot be instituted nor determined unless there is a legal representative against whom it can be prosecuted, who may appear and resist the claims of the guardian, and who may be bound by the adjudication therein made. His interests are adverse to those of the guardian, and he is a necessary party to the proceeding, although he may be brought in by constructive *Page 465 notice only. It is a proceeding of a special nature in which the only process required by law is the posting of a general notice for ten days. In all cases where by statute a substituted service of notice is authorized in place of actual service, a strict compliance with the statute is essential to a valid service. (17 Ency. of Plead. and Prac. 45; 19 Ency. of Plead. and Prac. 625;Forbes v. Hyde, 31 Cal. 342; Ricketts v. Richardson, 26 Cal. 149;People v. Huber, 20 Cal. 81; McMinn v. Whelan, 27 Cal. 300.) A publication or posting for less than the required time is ineffectual to give jurisdiction, and renders the subsequent proceedings under such notice void. (17 Ency. of Plead. Prac. 94; Foster v. Vehmeyer, 133 Cal. 460, [65 P. 974].) The theory upon which such constructive service is allowed as a substitute for actual service is, that if such public notice is given for a reasonable time, the parties interested will, during the prescribed period, thereby obtain knowledge of the proceeding, and where the proper notice is given for the required time such knowledge is conclusively presumed. The legislature, within reasonable limits, has power to determine the length of the period over which the publication is to extend. Such determination implies that in the legislative judgment the whole of the period is necessary to create the presumption that the published notice has imparted knowledge to the persons interested. It is always in the power of the guardian to procure the appointment of an administrator with whom he may settle the account, and who will then be in existence to receive such constructive notice. Such legal representative being made by the statute a necessary party to the settlement, and constructive notice being authorized as to him, and the only notice given him, as in the present case, it seems to follow that his existence during the entire period required to make that form of service valid is necessary to raise the statutory presumption that he has obtained from such notice a knowledge of the pendency of the proceeding. In cases under the statute, where the ward dies before the account is filed, the full period of posting must run while the person against whom the notice is directed is in legal existence and capable of receiving such knowledge; otherwise there will not be the full statutory notice to him, and jurisdiction of the proceedings will be lacking. The giving of such notice before the appointment of a legal representative, *Page 466 or in part before and in part after such appointment, will not give the court jurisdiction to make a valid order settling the account. In the present case the notices were posted on March 16, 1899, the legal representative was not appointed until March 20, 1899, and the hearing of the account and the order settling it was on March 27th. The administrator was not legally in existence in his representative capacity to receive such constructive notice during the period of the notice, except for the last seven days thereof, and consequently he could not in that capacity have received the full statutory constructive notice, upon which alone jurisdiction to make the order was predicated.
It follows, therefore, that the order in question is invalid. The evidence is therefore insufficient to support the finding that the order settling the account was duly given and made; the court erred in admitting the order in evidence over the objection of the defendant; and as the findings show the dates of the notice and order and of the appointment of the administrator, and the consequent invalidity of the order, they are not sufficient to support the judgment.
In view of the conclusion we have reached upon this point in the case, it is unnecessary to consider the effect of the previous judgment as a former adjudication of the same cause of action, nor the numerous other questions presented.
The judgment and order are reversed.
Angellotti, J., and Sloss, J., concurred.