A judgment taking a young child from the custody of its aunt and giving it temporarily to its dissolute, immoral, and neglectful mother for the purpose of reforming her, is not countenanced by the law: In re Lee, 165 Cal. 279, 131 Pac. 749.

The parent of a minor has no property right in his or her offspring, and the privilege of the parent to have awarded to it the custody of the child is only a matter of right when the parent is found to be reasonably fitted to become such guardian Clark v. Superior Court, 20 Cal. App. 305, 128 Pac. 1018, 1019.

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On a contest for letters of guardianship of a minor, when neither of the applicants has any preferential right to the appointment, the court is authorized, under section 246 of the Civil Code, to exercise its discretion in appointing one or the other of the contending parties, having due regard for the considerations set forth in that section: Matter of Allen, 162 Cal. 625, 124 Pac. 237.

Under section 1751 of the Code of Civil Procedure, it is the duty of the court to appoint the father or mother of a minor child under the age of fourteen years as its guardian, if such parent is found by the court competent to discharge the duties of guardianship; and inasmuch as the presumption of law is in favor of competency, the section is to be construed as if it read that the father or mother is to be appointed if not found by the court incompetent: Matter of Forrester, 162 Cal. 493, 123 Pac. 283.

Where the father is competent, he is entitled to letters of guardianship in preference to the grandmother, even though the court may find that the child's health and welfare would be promoted by granting guardianship to the grandmother: Matter of Forrester, 162 Cal. 493, 123 Pac. 283. (See page 164.)

(3) Necessity of petition and notice. Proceedings affecting infants and the appointment of guardians are special in their nature, and must be had in accordance with the procedure outlined by the code. The superior court, before

it is authorized to provide for a change in the temporary custody of the minor, must have had a proper motion presented to it and some evidence of the fact that the best interests of the child would be imperiled unless such order was made: Clark v. Superior Court, 20 Cal. App. 305, 128 Pac. 1018, 1019.

To say that the best interests of a child shall be imperiled before the action indicated by section 1747 of the Code of Civil Procedure, providing for the temporary custody of such minor until a hearing can be had on the petition, can be taken, amounts to no more than to say that whenever it appears to be for the best interest of the minor such change of custody may be ordered: Clark v. Superior Court, 20 Cal. App. 305, 128 Pac. 1018, 1019.

Where a motion to provide for a change in the temporary custody of a minor was presented to the court, and the action of the court in granting a change of custody can be sustained by any evidence whatsoever, which was presented to the trial court, however slight that evidence may be, the conclusion there reached will not be disturbed on appeal: Clark v. Superior Court, 20 Cal. App. 305, 128 Pac. 1018, 1019.

Although section 1750 of the Code of Civil Procedure provides that a child under the age of fourteen must have his guardian appointed by the court, it does not follow that every child under that age is of "tender years" within the meaning of section 246 of the Civil Code. The sex is to be considered as is also the physical development. There can not be any fixed and certain age of minority, which, in all cases and for all purposes, can be said to constitute a child of "tender years": Russell v. Russell, 20 Cal. App. 457, 129 Pac. 467. (See page 165.)

(4) Circumstances for consideration. In a proceeding for the guardianship of the person of a minor, the determination from the evidence concerning the character of the petitioning father and other facts bearing on the condition. and welfare of the child, as to whether or not he should have the guardianship, is a question largely in the discretion

of the court below. In the present case the evidence is deemed sufficient to support the conclusion of the lower court that the father was not a fit person to have the guardianship of the person of a female child of about six years of age: Guardianship of Bedford, 158 Cal. 145, 110 Pac. 302.

On an application by a mother to be appointed guardian of the persons and estates of her minor children, which is contested by their aunt on the ground that the mother is not a fit person to act as such guardian, a prior judgment denying an application of the aunt for guardianship of their persons, rendered in a proceeding instituted by her which was contested by the mother, in which her fitness was put in issue and determined in her favor is res adjudicata between the parties as to the mother's fitness to act as guardian of their persons, so far as her fitness might be affected by circumstances existing prior to the former hearing, but not by circumstances occurring subsequently: Guardianship of Snowball, 156 Cal. 240, 104 Pac. 444.

An order removing an infant from the temporary custody of its paternal grandfather, who had applied for final letters of guardianship thereof, and restoring its temporary custody to the mother, subject to restrictions, pending the final hearing of the application, that a nurse to whom its mother had committed the charge thereof be retained as such, who should take the child daily to the home of its grandparents, and that the mother should be forbidden to take the child out of the city where the court was held, was a proper order, subject to such restrictions; and there being sufficient evidence to support it, as made, it can not be annulled upon certiorari on petition of the paternal grandfather: Clark v. Superior Court, 20 Cal. App. 305, 128 Pac. 1018.

When there was nothing to impeach the good faith of a guardian except the statement that he was a client of some of the attorneys in the proceedings that relation would not disqualify him from serving as guardian unless the retainer was in a matter relating to the subject in dispute: Anderson v. McClellan, 54 Or. 206, 102 Pac. 1016.

Determination from evidence of father's character and other facts bearing on condition and welfare of child whether he shall have guardianship of her person, is discretionary with trial court: In re Bedford's Estate (Cal.), 110 Pac. 302. Proof of judgment of divorce against applicant on ground of desertion and awarding custody of child to mother, may be considered, as also may be prior consent of applicant to adoption of infant child by grandmother: In re Bedford's Estate (Cal.), 110 Pac. 302.

General statements by witnesses manifestly unfriendly, that child was always filthy and that mother did not keep clean house, are not sufficient to deprive her of guardianship: In re Lindner's Estate, 13 Cal. App. 208, 109 Pac. 101.

Denial of petition for letters of guardianship is res adju dicata as to question of fitness of applicant: In re Guardianship of Snowball, 156 Cal. 240, 104 Pac. 444. (See page 166.)

(5) Bond. Estoppel. (See page 167.)

(6) Appointment here, notwithstanding foreign guardian. (See page 168.)

REFERENCES.

Desire of aged person to marry as ground for appointment of guardian, see note 47 L. R. A. (N. S.) 475.

(7) Validity of appointment. Where the custody of a minor has been given to the father, an oral agreement entered into by him in California giving its custody to a third person is valid and binding on the mother, where the parents had separated by agreement: In re Swall, 36 Nev. 171, 134 Pac. 96.

A document which recited that a certain person had been appointed by the probate court of a territory as guardian of a minor, and which was signed by the probate judge, who, under the law is his own clerk, had attached thereto a certificate of the same probate judge, to which the seal of the court was attached certifying that the foregoing document was a true copy of the original letters of guardianship as shown by the record of his office. Held that it was in sub

stantial compliance with the provisions of section 368 of the Civil Code of Kansas (Gen. Stats. 1909, Sec. 5963): Bruck v. Morris, 90 Kan. 64, 132 Pac. 1186.

An appointment of a guardian in another state may, for the purpose of securing an appointment of the same guardian in this state be proven by the duly authenticated copy of the original appointment, but it is not the exclusive method of proving that such appointment had been made. Other proof admissible under the general rules of evidence may be received for that purpose: Bruck v. Morris, 90 Kan. 64, 132 Pac. 1186.

An appointment of guardian of minors by a probate court must be made of record and the non-existence of such a record negatives any appointment: Harrison v. Miller, 87 Kan. 48, 123 Pac. 854.

An attempted appointment of another without the consent of the parent is invalid: In re Guardianship of Snowball, 156 Cal. 240, 104 Pac. 444.

Interest in property adverse to that of the ward does not necessarily disqualify one from being a personal guardian, where the guardianship of the estate is awarded to another: In re Bedford's Estate (Cal.), 110 Pac. 302. (See page 168.)

2. GUARDIANSHIP OF INDIANS.

(1) In general. The royalties and proceeds of an allotment of a member of the Cherokee tribe of Indians, shown by the enrollment record to be a minor, are, under the provisions of an Act of Congress of May 27, 1908, Ch. 199, 35 Stats. 312, subject to the jurisdiction of the county court in the exercise of its probate jurisdiction, notwithstanding the fact that by extrinsic evidence it may be shown that the said member had in fact attained his majority: Cochran v. Teehee, Okla. 138 Pac. 563.

The guardian and mother of two Cherokee minor children made, under section 22 of an Act of Congress approved April 26, 1906 (34 U. S. Stats. at L., Ch. 1876, p. 145), application to the proper court for an order to sell to the proposed pur