In Re the Estate & Guardianship of Livermore

GAROUTTE,J. —This appeal is taken from an order allowing a guardian to sell real estate which formerly belonged to the ward. Prior to the application for the order the ward had died, being at the time over the age of majority. After her death the guardian filed her accounts, and upon the settlement thereof it was found and decreed by the court that the estate of the ward was indebted to her in a considerable sum of money. Thereupon this application for a sale of the real estate of the late ward was made by the guardian, and ordered granted by the court. The foregoing proceeding is unique in this state, and the order made by the trial court cannot find support in the law. The title furnished to a purchaser at the sale by the deed of the guardian would not be worth a dollar. The proceedings here taken for the sale were had under the code provisions *101 pertaining to guardianship matters, and as to a sale of real estate, those proceedings only contemplate a case where there is a living ward,—a living ward not only when the proceedings are inaugurated, but up to and including the moment the deed is made. When the guardian executes the deed, he executes it for and in the place and stead of his ward, and the moment that ward is dead, his power to execute the deed is gone. He has no more power to execute a deed under these circumstances than would an attorney in fact after the death of his principal. It is unnecessary to consider here what a court of equity might do under the circumstances presented by the facts of this case, in aid of the probate jurisdiction of the superior court. For here the statutory procedure laid down in the code in guardianship proceedings alone has been followed, and the sale is asked under that procedure. The guardian, as such, is attempting to make the sale, and the court is well assured it cannot be done. In Alford v. Halbert, 74 Tex. 354, a case similar in principle to the one at bar, the court said, in speaking of the efforts of a guardian to recover from the ward’s estate the amount found due him by the probate court: “We think the only course left her was to administer in the proper court upon the estate of the deceased ward.” For the foregoing reasons the order is reversed and the cause remanded. Van Dyke, J., and Harrison, J., concurred. Hearing in Bank denied.