Vigne v. Superior Court

In Vigne v. Superior Court (1940) 37 Cal.App.2d 346, the more recent of the two guardianship cases, Perry Whiting, executed a will in July 1937 and gave it to Vigne, a director of the company of which Whiting was president, for safekeeping. In 1939 Whiting was adjudicated to be incompetent. Whiting's guardians demanded that Vigne deliver Whiting's will to them. In addition, the ward himself wrote a letter to Vigne demanding that Vigne deliver the will to his and his guardians' attorney. Vigne, the custodian, refused to deliver the will, and a citation was then issued under Probate Code section 1552 directing him to show cause why he should not comply with the demands. The probate court ordered Vigne to deliver the will to the guardians' attorney, but on appeal the order was annulled. The appellate court concluded the will was not an "instrument in writing" for purposes of section 1552 (which, except for its application to wards instead of conservatees, is similar to section 1903), and it reasoned that a will "'cannot in any way relate to any matter within the guardian's power or duties, or in any manner affect his actions as a guardian, because it cannot take effect until after his authority has ceased. He certainly cannot annul, revoke, destroy, or in any way dispose of it, nor can the court authorize him to do so, and we are unable to see upon what ground he is entitled to its possession, or to a knowledge of its contents. If it were in his hands, of course it would be his duty to preserve it; but here it appears that the maker of the will before he became incompetent, selected Vigne as the custodian thereof, with special directions to retain the same until the ward's death . . . and upon his death to deliver it to his executor. The custodian is charged with the execution of this trust. It is a trust which could be revoked only by the ward . . . To hold that the subsequent incompetency of the maker of the will entitles the guardian to possession of the instrument would defeat the evident purpose of the maker.'" ( Vigne, supra, pp. 349-350.)