Concurring.—I concur.
I concur in the judgment. In considering this ease we must bear in mind that Mrs. Conrad had been appointed guardian of the person, not of the estate, of Jane Blise Sturges, a minor, and that this is a proceeding for the removal of Mrs. Conrad as such guardian and the appointment of Vesta Sturges Thomas in her place after such removal. As no appointment of a new guardian can be made until Mrs. Conrad is removed from her office it is obvious that if the evidence is not sufficient to support the judgment of removal we need give no consideration to the evidence of the fitness of Mrs. Thomas for appointment.
As Mrs. Conrad was the duly appointed, qualified and acting guardian of the person of the minor, the sole ground for her removal must be found in section 1,580 of the Probate Code. In Estate of Atkins, 121 Cal. App. 251 [8 Pac. (2d) 1052], it was said:
“Section 1580 of the Probate Code, based upon former code provisions, sets forth eight specific reasons for the removal of a guardian. All of these provisions were negatived by the trial court. When a guardian has once been appointed upon proper notice, it appears that the letters of guardianship cannot be revoked for other than the reasons specified in the code.
“As stated in 13 California Jurisprudence, 170, section 27: ‘The power of a court to remove a guardian is judicial and not arbitrary or capricious, and inasmuch as the guardian has an authority coupled with an interest, the court will not interfere and remove one who has been legally appointed, unless for sufficient cause. The causes of removal are sped-*502fled by the statutes. ’ The different specifications of the code are then set forth.
“In 28 C. J. 1101, section 140, we find the following text, supported by a long list of authorities, to wit: ‘ The grounds on which a guardian may be removed are frequently enumerated by statute, and it is usually held that the grounds so enumerated are exclusive, and that such an enumeration precludes removal on any other grounds. ’ To the same effect is the text in 12 Ruling Case Law, 11,18, section 20.” (See, also, In re Raynor, 74 Cal. 421 [16 Pac. 229]; Sakurai v. Superior Court, 65 Cal. App. 280 [223 Pac. 575].)
Mrs. Conrad was not the guardian of the estate of the minor. Therefore, the grounds of removal of a guardian set forth in subdivisions one, two and seven of section 1580 of the Probate Code are eliminated from consideration here. It was stipulated that she was not immoral and was of good character. This eliminates the ground for removal contained in the fourth subdivision. The facts of the case also eliminate the grounds for removal set forth in the fifth, sixth and eighth subdivisions. This leaves the third subdivision of the section as the sole remaining provision applicable here, and under which the judgment of removal must be supported. It is there provided that a guardian may be removed “for incapacity to perform his duties properly”.
“Incapacity” has been defined in Travelers Ins. Co. v. Richmond, .(Tex. Com. App.) 291 S. W. 1085, as follows: “ ‘Incapacity’, as the term is used without qualifying words, denotes ‘inefficiency’, ‘incompetency’, ‘lack of adequate power’, etc. Webster. 22 Cyc. 40.” Thus it would seem to follow that, generally speaking, such incompetency may arise from physical weakness, lack of mental capacity or training, or moral deficiency. In the instant case the moral question has been eliminated by the stipulation. It would also seem to follow that incapacity may be proved by direct evidence of the physical or mental condition of the guardian or by circumstantial evidence consisting of proof of her failure to properly perform her duties and obligations towards the ward. The evidence before us falls almost entirely under the latter classification. While there was some effort to prove the physical incapacity of Mrs. Conrad during the earlier years of the guardianship, it was established that an operation had corrected this condition and that her health was good *503at the time of the trial. The portion of finding number five that Mrs. Conrad “is herself afflicted with glandular trouble and is not a well woman” is only supported by evidence of her condition prior to her operation. It is contrary to the evidence of her state of health at the time of trial.
The evidence in the case falls into three divisions, each relating to a separate period of the guardianship. The first relates to the period of residence in the city of Riverside. The second concerns itself with the residence of the guardian and ward with members of Mrs. Conrad’s family in South-gate. The third describes conditions after the marriage of the guardian to William 0. Conrad.
There is substantial evidence to the effect that while they were living in Riverside, the housekeeping of the guardian, her mother and sisters was very poor. There is little evidence of the health and condition of the ward during that period.
The evidence offered by Mrs. Thomas concerning the living conditions in Southgate is found almost entirely in the testimony of Mae L. Barry, a private investigator, who visited the homes of the guardian on about five occasions. Mrs. Barry described the houses as overcrowded, ill kept, the ward poorly dressed and not clean, and suffering with colds. Her evidence, if it was offered to establish a general and permanent condition, was flatly contradicted by a large number of responsible and disinterested witnesses who were often in the homes in which Mrs. Conrad and Jane lived and very frequently observed conditions there. These witnesses were unanimous in stating that the houses were clean and well kept; that Jane had an abundance of good food; that she was clean and neatly dressed, was a courteous and well-behaved child, was healthy after her tonsils and adenoids had been removed, and evidenced the best of moral and religious training. In view of this overwhelming evidence, the effect of the testimony of Mrs. Barry, giving it its utmost weight, is, that on the occasions of her visits she found the conditions she described. The evidence of all the other witnesses shows the conditions described by Mrs. Barry to be unusual and that they did not ordinarily prevail in the home life of Mrs. Conrad and Jane. The only possible conclusion, based on all the evidence, that can be reached concerning the life of Jane and her guardian in Soúthgate prior to the marriage *504to Mr. Conrad is that the homes were overcrowded and that Jane had to wear clothes that were not new, but that in all other respects she was cared for as well as the financial conditions permitted and that she suffered no bad effects from her life there. The home was that of the poor, but, except on isolated occasions, was well kept and Jane was well trained and well cared for. Poverty alone which does not deprive a ward of the necessaries of life, nor affect her health or well-being, and which does not deprive her of proper training certainly can furnish no ground for the removal of a guardian nor does it prove that such guardian lacks capacity to perform her duties suitably.
The third period covered by the evidence is that which follows the marriage of the guardian to Mr. Conrad. The home then provided for Jane is described in the fifth and sixth paragraphs of the report of the probation officer, quoted in the opinion of Mr. Justice pro tem Warmer. That this was a suitable home for the ward is clearly established by all of the evidence in the case. Mr. Conrad is an honest, industrious man of good habits and morals. He expressed his desire to take Jane into his family and to properly care for her. There is shown a deep and reciprocal affection between Mrs. Conrad and Jane and between the little girl and her half brother. That Jane will receive proper moral and religious training and instruction in proper conduct cannot be questioned.
This period shows an entirely new chapter in the lives of Mrs. Conrad and Jane. They will not live with Mrs. Conrad’s father, mother and three sisters. The overcrowded conditions of those homes will not exist in this new environment. In fact the evidence describing the home life of Jane prior to the marriage of her step-mother can be given little weight in the ultimate decision of this case because there is an entire lack of any evidence showing that any of those conditions will be continued in the home life of Mr. and Mrs. Conrad. The evidence indicates that a wholesome, pleasant and congenial home life is to be expected free from the objectional conditions described by Mrs. Barry.
The finding “that the health of said minor will be endangered should she be allowed to remain with Ardis Blaine Sturges Conrad” is not supported by any evidence and is contrary to all the evidence. After her operation Jane’s *505health was excellent. A physician who examined her just before the trial testified as follows:
‘1 The child weighed 53 and % lbs., and the average weight of a girl of seven years of age is 48 pounds. The child measured 47 and % inches in height, and the average height of a girl of se.ven years of age is 44 and % inches. The summary of the examination is, the child of seven years of age in good physical state, 11% above average in weight, 7% above average in height. I gave her a very careful examination of the lungs and I say she was suffering from a slight cold but no finding typical of pulmonary tuberculosis, or any other disease. I did not find any condition whatever which was in any wise dangerous or that would tend to danger, which would require particular care or attention. ’ ’
■Some point is made of the fact that Jane did not attend school regularly and was somewhat deficient in arithmetic. Prior to her operation she was at times absent from school because of childhood ills. Afterwards she missed schooling, because, as stated in the report of the probation officer, of the fear “that Jane might be kidnapped”. An assistant supervisor of attendance with the Los Angeles Board of Education testified that she had excused Jane from school. Mrs. Conrad attempted to prove the cause of this lapse in schooling. This evidence was excluded on objection of counsel for Mrs. Thomas. No proffer of proof was made and we cannot determine exactly what was to be proved by this excluded evidence. However, from a careful study of the record we have gained the distinct impression that these absences from school were caused by the fear of kidnapping by the relatives of Jane’s deceased father and that the school authorities permitted her to remain away from school for that reason.
Some point is made of the fact that Mrs. Conrad spent the insurance on the life of her deceased husband in litigation instead of in the care of Jane and her half brother. In an affidavit of Mrs. Conrad it is stated she has been engaged in three contested matters in the probate court and in no other litigation. The first was her original petition for appointment as guardian of the person of Jane, which was granted, although contested by a sister of her deceased husband. The second was a contest of a will of her deceased husband. The third is the present proceeding to remove her as guardian.
*506We can find no reason to blame Mrs. Conrad for attempting to be appointed, and after her appointment, for resisting removal as guardian of the person of -Jane. She had the exclusive care of Jane after she was two years of age. Strong bonds of mutual affection existed between the two. The little girl knew no other mother. It would have been an unusual and strange situation had Mrs. Conrad not been willing to spend her money to continue her custody of the child she loved and who loved her.
A. E. Sturges, Jane’s father, left a purported last will and testament. This document left his widow and unborn child his life insurance. It left Jane nothing except life insurance that had been assigned to her. All the rest of his estate was left to his brothers and sisters. The widow was successful in her contest of this will thereby establishing the right of herself, her son, and Jane to take the estate as heirs at law. We can find no reason to blame the widow for her contest of this unnatural will. Certainly Jane profited by this litigation. She became, as heir at law, entitled to share in the estate of her deceased father in addition to receiving the insurance which had been assigned to her.
Counsel for Mrs. Conrad made repeated efforts to prove the value and amount of the estate of A. E. Sturges, deceased. All of this evidence was excluded on objection of counsel for Mrs. Thomas. A large maj'ority of the objections were properly sustained for technical reasons and no proffers of proof were made. However, we do find in the record, marked for identification, an exemplified copy of a decree of foreclosure of a mortgage on property in Yuma County, Arizona, obtained by the administrators of the estate of A. E. Sturges, deceased. The decree shows principal in the sum of $11,500, and accrued interest to September 24, 1934, in the sum of $2,118.43, were due and unpaid on the note. There was also offered, and excluded, an agreement of compromise of the estate of A. E. Sturges, deceased, signed by his brothers and sisters, including Vesta Sturges Thomas, as parties of the first part, and Ardis E. Sturges (Conrad) and the representatives of the minors and of the estate of A. E. Sturges, deceased, as parties of the second part. This contract indicates that A. E. Sturges, deceased, left real property in Arizona in addition to that described in the foreclosure decree.
*507Evidence of the value of the estate of A. E. Sturges, deceased, if offered in proper form, should be received in evidence and would be material in this proceeding. It would have a direct bearing on the ability of Mrs. Conrad to assist her husband in the maintenance of a suitable home in which Jane could live. It would also be evidence of the amount of the estate coming to Jane. She, through her guardian, now receives $25 per month from the insurance on the life of her deceased father. There is now no evidence of the value of the minor’s estate nor of how long this allowance may be continued. If the financial condition of Mrs. Conrad and that of Mrs. Thomas are to be considered in determining this guardianship contest (which they were) there should be disclosed to the trial judge the complete resources of those directly interested in the proceeding.
The judgment is reversed.
Barnard, P. J., concurred.