62 Cal. 339 | Cal. | 1882
J. R. T. M. Sheppard died in the City and County of San Francisco, leaving certain real estate therein. His widow, Ann Sheppard, was appointed administratrix of his estate, and afterwards obtained an order directing certain of the real estate to be sold. One Regan bid therefor the sum of twenty-eight thousand five hundred dollars, which bid was accepted by the administratrix, who made return of the sale with an application on her part to the Court for confirmation thereof.
. An existing statute declared: “Upon the hearing, the Court must examine the return and witnesses in relation to the
“San Francisco, April 28,1877.
“We hereby agree and promise to pay Isidor Danielwitz all the money in excess or over and above the sum of twenty-nine thousand and five hundred dollars, United States gold coin, for his services in the way of a commission for obtaining a purchaser for property sold on the sixteenth day of April, 1877, by order of the Probate Court of the City and County of San Francisco, belonging to the estate of John E. T. M. Sheppard, deceased. Said purchaser shall pay the sum of thirty-one thousand three hundred and fifty dollars, gold coin, or more; said sum being an advance of ten per cent., or more, as provided by law for said property so sold; the essence of this agreement being the payment to said Isidor Danielwitz of all sum or sums of money obtained or bid for such property sold as hereinafter described, in excess of the sum of twenty-nine thousand five hundred dollars, gold coin, irrespective of what said excess may be as the payment to him, said Danielwitz, in the procuring of such purchaser. Said property is described as follows: [Here follows the description of the property described in the complaint.] This agreement being made with said Danielwitz in good faith, and which we promise faithfully to carry out as hereinbefore stated.
“Ann Sheppard,
“Administratrix of the estate of J. E. T. H. Sheppard, deceased.
“ Jennie Sheppard, Heir.
“ Witnessed by E. B. Turner.”
Afterwards, to wit, on the thirtieth of April, 1877, the
The plaintiff claims that, by virtue of the agreement above set forth, he is entitled to the difference between the sum of twenty-nine thousand five hundred dollars and the sum of thirty-seven thousand dollars, for which the property was sold to Corcoran; and he brought this action against Ann Sheppard and Jennie Sheppard, as “heirs of the estate” of J. R. T. M. Sheppard, deceased, to recover that difference.
Even if the agreement be treated as the individual contract of Ann and Jennie Sheppard, it is invalid. Neither of them had any power so to dispose of the proceeds of sale of the real property of the deceased Sheppard. That property could only be sold in the manner pointed out by statute, and all the money derived from its sale became assets of the estate, and subject to disposition only in accordance with law. The disposition contemplated by the terms of the agreement sought to be enforced in this action, of a portion of those proceeds, is unauthorized by any provision of the statute, and contrary to the policy of the law.
Judgment and order reversed.