LUNDY FURNITURE COMPANY v. WHITE. CONDITIONAL SALE-SALE ON INSTALLMENTS—INSTRUMENT IN FORM OF LEASE.-A written contract in the form of a lease of personal property, by the terms of which payments were to be made in monthly installments, designated rent, the title to remain in the lessor until the final payment was made, at which time a bill of sale was to be given and the transaction closed, is a conditional sale and not a lease. F. A. Berlin, for the appellant. Denson, Oatman & Denson, for John H. Roberts, intervenor, one of the respondents. George H. Perry, for Charles Levy & Co., one of the respondents. W. W. Allen, for Sterling Furniture Company, one of the respondents. 171 HENSHAW, J. This is an action of claim and delivery. The Lundy Furniture Company, under a written contract hereinafter to be considered, delivered certain goods to Johanna White. The defendants Charles Levy and Henry Meyer claimed as purchasers from Johanna White. John Roberts, the intervenor, claimed as assignee of a mortgage made by Johanna White to the defendants, Bier & Regensburger. The intervenor sought a foreclosure of his mortgage. The court rendered judgment in favor of the intervenor for the goods replevied by plaintiff, or for three hundred and seventy dollars found to be the value thereof, directed the foreclosure of his mortgage, and provided that after payment of the amount due on the mortgage the remainder should be paid to the defendants Levy & Co., as purchasers from Johanna White. The court thus determined that the transaction between the Lundy Furniture Company and Johanna White was an absolute sale of the personal property in question. The written contract under which plaintiff delivered possession of the property to defendant Johanna White is designated a lease. The true construction of this instrument is the principal matter in controversy. By its terms the property was delivered 172 to Johanna White at the monthly rent of forty dollars, payable upon the twenty-fifth day of each and every month, until the rents paid should aggregate the sum of eleven hun dred and ninety-eight dollars and forty-five cents, which was agreed between the parties to be the value of the property. "And until the said sum has been fully paid the title to said property shall remain in the party of the first part, after which the party of the first part shall make a bill of sale of the same to the party of the second part." The instrument further provided for the prompt payment of rents, for the insurance of the property, and that the lessee would not remove it from her residence without the written consent of the furniture company. It is quite true, and has been often said, that the name by which the parties designate their contract is not determinative of its nature. The calling of this agreement a lease did not make it such. Reference is to be had to the instrument itself, to a reading and consideration of all its terms, conditions, and covenants, to determine its true character. So considering it, we think there can be no doubt that the contract was one of conditional sale, with possession given to the vendee. The payments to be made monthly in installments, designated rent, were in fact nothing but partial payments. The title was to remain in plaintiff until the final payment was made, at which time a bill of sale was to be given to Johanna White, and the transaction thus closed. This court, in both departments, has so recently been called upon to consider the nature of such contracts, that it is unnecessary here to enter into an elaborate discussion of them. Suffice it to refer to the cases of Van Allen v. Francis, 123 Cal. 474, 56 Pac. 339, and Perkins v. Mettler, 126 Cal. 100, 58 Pac. 284. The conclusion thus reached renders unnecessary the consideration of certain minor points as to the value of the property and the right of the court to decree a foreclosure in favor of the intervening assignee of the mortgagee. For the foregoing reasons the judgment and order appealed from are reversed. Temple, J., and McFarland, J., concurred. CONDITIONAL SALE.-A LEASE of personal property, containing conditions for the payment of rent at stated times, and on the last payment of rent the property to belong to the lessee, in the meantime the title to remain in the lessor, is in effect a conditional sale: Clark v. Hill, 117 N. C. 11, 53 Am. St. Rep. 574, 23 S. E. 91. See, further, the note to Andrews v. Colorado Sav. Bank, 46 Am. St. Rep. 295-298. ESTATE OF HENNING. [128 Cal. 214, 60 Pac. 762.] NOT GUARDIANS – RIGHT ΤΟ APPEAL-MINORS BROUGHT WITHIN STATE.-A discharged testamentary guardlan may be heard on an appeal from an order appointing a succeeding guardian without first bringing the minors within the jurisdiction of the court, where he claims to be the guardian of such minors by appointment of a competent court in another state, where there was no objection made in the lower court to his appearance, and he had never been ordered to bring the minors to California, so that he was not in default in that regard. GUARDIANS-POWER OF COURT TO APPOINT.-Where one of the guardians appointed by a will is dead and the other has resigned, the power of the court to appoint a succeeding guardian is the same as if no appointment at all had been made by the will. INFANTS-DOMICILE.-WHERE PARENTS of minors are domiciled in a certain state, such state becomes at their death the domicile of the minors, until it is shown to have been changed by competent authority. INFANTS ARE INCAPABLE THEMSELVES OF CHANGING their own domicile. INFANTS--DOMICILE-REMOVAL TO ANOTHER STATE -DISCHARGE OF GUARDIAN.-Where minors are permitted to be removed to another state, "to remain until the further order of the court," a subsequent discharge of their guardian without being ordered to return the wards to the state raises no presumption that the court has abandoned its jurisdiction over the persons of the wards, and their domicile still remains in the state from which they had been removed. INFANTS - DOMICILE AND RESIDENCE - JURISDICTION.-UNDER A STATUTE giving jurisdiction over the persons and estates of minors who are "inhabitants or residents of the county," the word "residence" means domicile or home, as distinguished from a temporary residence, and includes jurisdiction over minors who are temporarily residing in another state. Henry E. Munroe, for the appellant. John Yule and John M. Poston, for the respondent. 216 THE COURT. The matter is before us on an agreed statement of facts which respondent concedes are correctly summarized 217 in appellant'e brief, as follows: "In the year 1892 Clara Henning, the widowed mother of these minors, died testate in the city and county of San Francisco. By her last will, which was duly admitted to probate, she appointed George C. Shreve, of San Francisco, and David A. Henning, of the state of South Carolina, guardians of the persons and estates of these minors. Shreve and Henning accepted the trust and duly qualified October 20, 1892. On the first day of December, 1892, David A. Henning obtained an order of court permitting him to remove these minors to the residence of their grandparents, Isaac L. and Mary Henning, in the city of Sommerville, state of South Carolina, which was also the residence of said David A. Henning, there to remain until further order of court. The children were thereupon removed by their guardian to South Carolina, where they have ever since lived, either with their grandparents, or with their guardian, David A. Henning. In October, 1893, George C. Shreve died, and on the third day of August, 1894, David A. Henning filed his written resignation of his trust as guardian of the minors, and a petition for his discharge. On the fourteenth day of August, 1894, his resignation was accepted by the court, and an order made and filed settling his account and granting his discharge. This order made no provision as to the care, custody, or residence of these minors, and at the time when the order was made they were still living in South Carolina. On the seventeenth day of August, 1894, Mary E. De Cora, the respondent herein, filed a petition praying for her appointment as guardian of the persons and estates of these minors. The appellant answered this petition, denying that these minors were residents of the city and county of San Francisco. On the twenty-third day of March, 1897, an order was made granting the petition of respondent, and David A. Henning appeals to this court from so much of this order as appoints respondent guardian of the persons of these minors." The children are aged ten and twelve years, respectively. It should be added that, by order of the court, notice of the hearing of respondent's petition was served upon Henning as well as the minors, and no question is raised as to the service. Henning appeared by answer and at the hearing by counsel. 218 1. Respondent suggests in limine that Henning ought not to be heard without first bringing the minors within the jurisdiction of the court, because on his application they were removed to South Carolina, "there to remain until further order of the court," and because, when respondent's petition was filed, Henning had been discharged as guardian. There is an allegation in his answer that he was, when the petition was filed, guardian of the persons and estate of the minors by order of a court of competent jurisdiction in South Carolina duly given and made. There was no objection made in the. lower court to the appearance of Henning and the order of the court required service of notice upon him that he might appear; and he has never been ordered to bring the minors to California, so that he is in no default in that regard. Under the circumstances we see no reason why he should not be heard on this appeal. 2. The only error specified is that the evidence is insufficient to justify the finding and decision that the said minors were residents of this state when the order was made, and that the order appointing a guardian of the person of the minors is void. The code provisions upon the subject of appointing guardians are as follows: "A guardian of the person and estate may be appointed by will or by deed, to take effect upon the death of the parent appointing": Civ. Code, sec. 241. “A guardian of the person or property, or both, of a person residing in this state, who is a minor, . . . . may be appointed in all cases, other than those named in section 241 by the superior court, as provided in the Code of Civil Procedure": Civ. Code, sec. 243. "A guardian of the person is charged with the custody of the ward, and . . . . may fix the residence of the ward at any place within the state, but not elsewhere, without permission of the court": Civ. Code, sec. 248. .... In the present case, guardian Shreve died and Henning resigned and was discharged. Section 1801 of the Code of Civil Procedure provides for such resignation and authorizes the court to appoint another guardian in the place of the one resigning. "The superior court. . . . may appoint guardians for the persons and estates, or either of them, of minors who 219 have no guardian legally appointed by will or deed, and who are inhabitants or residents of the county, or who reside without the state and have estate within the county," etc.: Code Civ. Proc., sec. 1747. One of the guardians appointed by the will having died and the other having resigned and been discharged, the minors were without guardians appointed by will, and the court had jurisdiction to appoint, under the provisions of section 1747 of the Code of Civil Procedure, unaffected by the sections of the Civil Code referred to; the power was the same as if no appointments at all had been made by will; the death of one and resignation of the other guardian terminated the guardianship. Respondent relies upon Gronfier v. Puymirol, 19 Cal. 629, to support the order made here, but the legal soundness of the appointment need not rest upon that case. The parents of the minors were, at their death, domiciled here, and their domicile became the domicile of their children. As infants they were |