69 P. 968 | Cal. | 1902
Lead Opinion
This appeal is from an order of the superior court directing the sale of real property belonging to the estate of said John Cook (otherwise known as Giovanni Cuoco), deceased. The appellants are those who would succeed to his estate.
The ground upon which a reversal is urged is, that the petition upon which the order was based does not comply with the requirements of section 1537 of the Code of Civil Procedure, in that the value of the real estate sought to be sold was not stated in the petition, and it was not alleged that its value could not be ascertained.
Said section of the code provides that the petition shall contain, among other things, "a general description of all the real property of which the decedent died seised, or in which he had any interest, or in which the estate has acquired any interest, and the condition and value thereof."
The only real estate of which the decedent died seised consisted of one hundred and sixty acres of land in Kern County, and the petition alleged: "That said land is unimproved desert land. It is situate in the McKittrick District, and is chiefly valuable for the possibility that it may contain petroleum."
Respondents, while not admitting that the statement in the petition relating to the value of the land is not a sufficient *186 compliance with the requirements of the code in that regard, insist that the alleged insufficiency of the petition is cured by the recitals in the order of sale, pursuant to that further provision of said section 1537 which reads as follows: —
"If any of the matters herein enumerated cannot be ascertained, it must be so stated in the petition; but a failure to set forth facts hereinbefore enumerated will not invalidate the subsequent proceedings if the defect be supplied by the proofs at the hearing and the general facts showing that such sale is necessary or that such sale is for the advantage, benefit, and best interests of the estate and those interested therein be stated in the decree."
The proceeding in the superior court directing the sale of real estate by an administrator for the payment of debts and expenses of administration is statutory. The statute prescribes the purposes for which the sale may be made, what facts shall be stated in the petition, what notice shall be given of the hearing, how witnesses may be compelled to attend and testify, and what facts shall be made to appear to the satisfaction of the court. In acting upon such petition the superior court is still a court of general jurisdiction, and its action thereon is entitled to the same presumptions that attach to its action in other cases, when collaterally attacked. (Burris v. Kennedy,
The petition was clearly defective. It did not state the value of the property, nor did it comply with that provision of section 1537 of the Code of Civil Procedure which requires that "If any of the matters here enumerated cannot be ascertained, it must be so stated in the petition."
But it is contended that the defects in the petition as to the value of the land are cured by the order of sale, pursuant to the provision in said section, hereinbefore quoted, authorizing *187 defects in the petition to be supplied by proofs at the hearing.
In the decree or order of sale it is recited that "The court heard and examined all of the allegations and proofs of said petition which were of all said matters which are required to be stated in a petition for an order of sale of real property according to the provisions of section 1537 of said Code of Civil Procedure, and the evidence heard in support of the allegations of this petition. No person interested in said estate appeared to oppose said application, and from the proofs made it appeared to the satisfaction of the court that a sale of said real property is necessary to pay the debts, expenses, and charges of administration of said estate, and that said sale is for the advantage, benefit, and best interests of said estate and of those interested therein. It is therefore ordered," etc.
Assuming, without deciding, that if a sale had been made and confirmed under said order that it would have been held valid upon a collateral attack, it would not follow that it should be held valid when directly attacked upon appeal. Such proceedings are no more exempt from the corrective power of an appellate court than others, and, except as otherwise specially provided, the practice in probate proceedings, including sales and conveyances of the real estate, is the same as in other civil cases. It is clear that if a general demurrer had been interposed to the petition before the order appealed from was made, it must have been sustained, as in cases of complaints obnoxious to such demurrer, and in the latter case the fact that the defendants made default, and that judgment had been entered upon it as though the complaint were sufficient, would not prevent its reversal upon appeal. Upon appeal from the order of sale, it cannot be sustained in the absence of a sufficient petition any more than a judgment in an ordinary civil action can be sustained upon appeal therefrom if no cause of action be stated in the complaint.
In Gharky v. Werner,
Recurring now to the curative clause of said section, it must be obvious that appellants could not be affected on this appeal from the order by evidence of material facts not alleged in the petition, and of which they had no notice, and without which no valid order could have been made. In Estate of Smith,
It is contended by respondents that it has long been settled that a substantial compliance with section 1537 is sufficient (citing Stuart v. Allen,
In Estate of Heydenfeldt,
It is further contended by respondents that the sufficiency *190 of the petition must be determined by the circumstances of each case; that here a sale is shown to be necessary for the payment of debts and expenses of administration, and as the estate consists of a single parcel of real property, a court would require less particularity in the petition than where there were several pieces of property. But assuming the correctness of this statement, it does not aid the respondents. The land is described in the petition as the north half of the south half of a designated section, containing one hundred and sixty acres, and that it is unimproved. It is obvious that it is capable of many subdivisions without injury, while a single parcel is one that cannot be divided without loss or injury. For aught that appears in the record a ten-acre lot taken from either corner of the tract would bring in the market ten times the amount required, and if so, it is clearly important that the court should be informed of the value, and that the quantity to be sold be restricted to the requirements of the estate; or if, on the other hand, the value is so little that the whole would not produce more than the expenses of sale, it is equally clear that a sale should not be ordered. Reason and justice require that the value should be alleged and shown, even if we were at liberty to disregard the positive requirement of the statute.
But respondents further contend that an inventory and appraisement of all the estate was made, and that that fact was alleged in the complaint. The allegation is, that on a day named "your petitioner duly made and returned to this court a true inventory and appraisement of all the estate of said deceased which has come into his possession or knowledge; that your petitioner has published notice to the creditors of said decedent as required by law and the order of this court in the premises to present their claims against the deceased, all of which will more fully appear by reference to the papers on file in the clerk's office herein and to the records of the court in the matter of said estate, to which reference is hereby made."
"Matters of substance must be alleged in direct terms, and not by way of recital or reference, much less by exhibits merely attached to the pleading. Whatever is essential to a cause of action must be presented by a distinct averment, and cannot be left to an inference to be drawn from the construction *191
of a document attached to the complaint." (Burkett v. Griffith,
We regard the rule as well settled that a necessary allegation in a complaint or petition must be distinctly averred in the complaint or petition, and if omitted it cannot be supplied by a reference to an exhibit; but if the allegation be defective it may be aided by an express reference to an exhibit for that avowed purpose. Thus tested, the reference to the inventory in this case is wholly unavailing to supply the want of an allegation of value.
I advise that the order appealed from be reversed and the petition dismissed.
Chipman, C., and Smith, C., concurred.
For the reasons given in the foregoing opinion the order appealed from is reversed and the petition dismissed.
Henshaw, J., Temple, J.
Concurrence Opinion
I concur in the judgment of reversal on the ground that the court in its decree does not find the value of the property. The opinion of the commissioner seems to hold that no defect or insufficiency in *192 the petition for sale can be remedied under section 1537 of the Code of Civil Procedure by proofs at the hearing and findings by the court. If the opinion be susceptible of that construction, I could not concur in it.