The opinion
CARTER, J.
I dissent.
The majority has seen fit to dismiss this appeal upon the sole ground that the order appealed from is not an appealable order. Such a decision is not only erroneous and misleading *845 but is based upon an inadequate analysis of section 1630 of the Probate Code.
It is well recognized in California that the right of appeal in probate matters is purely statutory and exists only in those cases in which it is given by statute. (Estate of Funkenstein, 170 Cal. 594 [ 150 P. 987 ]; In re Walkerly, 94 Cal. 352 [ 29 P. 719 ].) It is equally well recognized that the right to appeal in guardianship matters is governed exclusively by Probate Code, section 1630. (Guardianship of Leach, 29 Cal.2d 535 [ 176 P.2d 369 ].)
In the case at bar the appellants appealed from an order denying a motion “to vacate, annul and declare void” the appointment of a guardian. Since such an order has to do with guardianship proceedings it can only be appealed from if provision for such appeal has been made by section 1630 of the Probate Code. It therefore becomes apparent that the appealability or nonappealability of the instant order is dependent upon the provisions of section 1630 of the Probate Code.
Section 1630 of the Probate Code provides that “An appeal may be taken to the Supreme Court from an order granting or revoking letters of guardianship; settling an account of a guardian; instructing or directing a guardian; or refusing to make any order heretofore mentioned in this section.” (Emphasis added.) This section makes it unquestionably clear that an appeal may be taken from an order granting or revoking letters of guardianship and that an appeal may also be taken from a refusal to make either of these orders. Thus an order revoking letters of guardianship is an appealable order. Likewise an order refusing to revoke letters of guardianship is also an appealable order. We therefore find that section 1630 of the Probate Code makes express provision for the appeal of an order refusing to revoke letters of guardianship. Not only does section 1630 expressly provide for the appeal of orders refusing to revoke letters of guardianship but the appeal of such orders has long been the accepted practice in California. (In re Morhoff, 179 Cal. 595 [ 178 P. 294 ] ; Matter of Schwartz, 171 Cal. 633 [ 154 P. 304 ] ; Guardianship of Rapp, 54 Cal.App.2d 461 [ 129 P.2d 130 ].) The'rule in California is well established that ‘ ‘ An appeal may be taken from a judgment or order of the superior court granting or refusing to grant, revoking or refusing to revoke, letters of guardianship; ...” (13 Cal.Jur. 167.)
*846 Having determined that an order refusing to revoke letters of guardianship is an appealable order, we must now determine whether in the instant case the order in question was one which refused to revoke letters of guardianship. Looking to appellants’ motion of October'14, 1950, we find that they sought to “vacate, annul and declare void the order of this court [probate court] made in this proceeding, on May 5,1942, appointing W. H. Lorenz [respondent] a guardian of the estates of said Hiroko Kawakita and Tomoya Kawakita, . . . ’ ’ This order of May 5, 1942, which appellants sought to vacate was entitled “Letters op Guardianship” and it provided among other things that “W. H. Lorenz is hereby appointed guardian of” the estate of Hiroko and Tomoya Kawakita. This means that appellants sought to vacate the order of May 5, 1942, by which letters of guardianship were granted to respondent. The court’s refusal to make such an order, vacating the order of May 5, 1942, was clearly a refusal to “vacate, annul and declare void” the letters of guardianship. If an order refusing to “vacate, annul and declare void” is the same thing as an order refusing to “revoke” then the instant order refusing to vacate the letters of guardianship is without question an appealable order within the provisions of section 1630 of the Probate Code.
In comparing the word “revoke” with the word “vacate” we find that the courts of this country have frequently held the two terms to be synonymous (People ex rel. Filippone v. Martin, 46 N.Y.S.2d 234 , 235). As for comparing the word “revoke” with the word “annul” we find that to revoke is “to annul by recalling or taking back; . . . An annulling; a cancellation. ...” Webster’s New International Dictionary, second ed., 1933, unabridged.) In Black’s Law Dictionary (third ed., 1933) it is stated that “revoke” means “To call back; to recall; to annul an act by calling or taking it back. ’ ’ The courts of this country have been in accord with such definitions. (Braun Estate, 358 Pa. 271 [ 56 A.2d 201 ] ; Mayor, etc., of Houston v. Houston City St. Ry. Co., 83 Tex. 548 [ 19 S.W. 127 ] ; Ford v. Greenawalt, 292 Ill. 121 [ 126 N.E. 555 ].) It is equally well established that the word “revoke” means to “declare void.” (O’Hagen v. Kracke, 165 Misc. 4 [ 300 N.Y.S. 351, 362 ]; In re Will of Barrie, 393 Ill. 111 [ 65 N.E.2d 433 ] ; Commissioner of Internal Revenue v. Holmes’ Estate, 148 F.2d 740, 742 .) In California our courts have frequently used such terms as “revoke,” “vacate” and “set aside” interchangeably. (Guar dianship of Van Loan, 142 Cal. 423 [ 76 P. *847 37 ]; In re Morhoff, supra, 179 Cal. 595 ; Estate of Eikerenkotter, 126 Cal. 54 [ 58 P. 370 ] ; In re Dahnke, 64 Cal.App. 555 [ 222 P. 381 ].) It thus becomes apparent that a motion to “vacate, annul and declare void” is the equivalent of a motion to “revoke.”
In the case at bar the appellants sought to “vacate, annul and declare void” the letters of guardianship of respondent. This was in effect a motion to revoke such letters. The order of the probate court refusing to revoke such letters of guardianship was clearly and unequivocally an appealable order within the provisions of section 1630 of the Probate Code.
The net result is that the order appealed from is an appeal-able order and it is incumbent upon this court to decide the case upon its merits. The mere fact that the guardian was previously discharged .is immaterial since the order to revoke and vacate because of an absence of jurisdiction does more than merely discharge a guardian, it goes back and cancels all proceedings based upon such appointment. It is well established that an order of the court which, as here, is void on its face can be set aside at any time. (In re Dahnke, supra, 64 Cal.App. 555 ; People v. Greene, 74 Cal. 400 [ 16 P. 197 , 5 Am.St.Rep. 448 ] ; Estate of Estrem, 16 Cal.2d 563 [ 107 P.2d 36 ].)
In the ease at bar the lower court committed a patent and obvious error in refusing to revoke the letters of guardianship since the record of the order of appointment was void on its face. The valid appointment of a guardian for a minor requires that notice of the appointment proceedings be given to the parents of the minor, or alternatively, proof must be made that such notice cannot be given. It is also requisite that the appointment be “necessary or convenient.” (Prob. Code, §§ 1440, 1441.) In the instant ease no notice was given to the parents of Hiroko and Tomoya and an appointment made without such notice is a nullity. (In re Dahnke, supra, 64 Cal.App. 555 ; Guardianship of Kerns, 74 Cal.App.2d 862 [ 169 P.2d 975 ] ; Guardianship of Van Loan, supra, 142 Cal. 423 .) The record also indicates that the appointment was neither necessary nor convenient since at the time the letters of guardianship were issued the record before the court showed that the property of the estate was worth less than $6,000; that liabilities amounted to more than $13,000; and that therefore Hiroko and Tomoya had “no equity whatever” in the property which was to constitute the guardianship estate. The law in California is well established that an order *848 appointing a guardian of the person and estate of a minor may he vacated at any time, if the record of the appointment discloses affirmatively upon its face that the order was void for want of jurisdiction of the court to make it. (Estate of Eikerenkotter, supra, 126 Cal. 54 .) It thus becomes apparent that the order which appellants sought to revoke was a nullity and should have been set aside.
For these reasons I would reverse the order appealed from with directions to enter an order setting aside the order appointing respondent guardian of these petitioners and all subsequent orders based thereon.
Appellants’ petition for a rehearing was denied June 23, 1954. Carter, J., was of the opinion that the petition should be granted.