61 P. 659 | Cal. | 1900
James Porter died intestate in the county of Sonoma in November, 1897, leaving an estate consisting of real and personal property, the latter being more than sufficient to pay all debts and liabilities of the estate and the costs and expenses of administration. He left, however, no known heirs, relatives, or other person who would be entitled to inherit his estate, and the court so found.
The court also found as follows: "That said real estate is expensive to properly maintain and manage; that a portion of the same is planted to vines which need the constant care and attention of some person qualified to attend to the same; that the remainder of said real estate required to be cultivated and the fruit trees growing thereon attended to; that the fences and buildings on said premises will become dilapidated unless properly attended to; that said real estate, by reason of its not being occupied by some person interested therein, will deteriorate and depreciate in value; that said real estate can be sold at the present time for a better price than if sold later; that it will be difficult to lease said premises for a fair compensation by reason of there being no dwelling-house thereon; that the expense of maintaining and caring for said premises by said administrator, if he is compelled to employ labor and help, therefor, will largely exceed the revenues derived therefrom, and coupled with the taxes to be annually collected on said premises will be a source of expense which will be a disadvantage to the parties entitled to said estate."
As a conclusion of law the court found that it had no jurisdiction to make the order prayed for, and denied the petition, and from that order this appeal is taken.
The court placed its refusal to grant the order upon the ground that the following provision found in section 1536 of the Code of Civil Procedure is unconstitutional: "Or when it appears to the satisfaction of the court that it is for the advantage, benefit, and best interests of the estate, and those interested therein, that the real estate, or some part thereof, be sold, the executor or administrator may sell any real as well as personal property of the estate upon the order of the court." *88
The portion of said section above quoted was inserted therein by an amendment approved March 23, 1893. Prior to said amendment property of the estate was authorized to be sold for the payment of the family allowance, or debts due from the decedent, expenses of administration, or payment of legacies.
It is said the court below relied principally upon the case ofBrenham v. Story,
It is a fundamental proposition that governments are formed, among other things, for the protection, not only of the rights of property, but of property itself; and its power to provide for the custody, care, and the descent and distribution of the property of interstates, real and personal, as well as the disposition of it by will, is unquestioned. (In re Wilmerding,
These instances in which the state, by its statutes, disposes of private property are familiar and unchallenged, and are based upon the duty and power of the government to prevent injury by converting one kind of property into another for the benefit of the owner.
The statute before us involves no different principle, nor the exercise of any different power. We see no difference in principle between the sale of "personal property likely to depreciate in value, or which will incur loss or expense by being kept," and the sale of real estate under the facts found by the court in this case, nor any difference in the exercise *90
of legislative power in the two cases. The statute under consideration divests no one of his property, but authorizes one's real estate to be transmuted into personal property under such circumstances that the consent of the owner, if capable of giving it, would be presumed. The administration is in a condition to be closed if there were known heirs to whom it could be distributed. If none should appear, it will escheat to the state under the provisions of the Civil Code, sections 1404 to 1406. But in People v. Roach,
The order denying the petition should be reversed, with directions to the court below to amend its conclusions of law to conform to this opinion, and grant an order of sale as prayed for.
Chipman, C., and Cooper, C., concurred.
For the reasons given in the foregoing opinion the order denying the petition is reversed, with directions to the court below to amend its conclusions of law to conform to this opinion, and grant an order of sale as prayed for.
Henshaw, J., McFarland, J.,
Temple, J., Van Dyke, J.,
Harrison, J.