125 Cal. 396 | Cal. | 1899
Pending administration of the above-entitled estate the administrator filed his petition praying for an order to sell certain real property belonging to the estate “on the ground that it was for the advantage, benefit and best interests of the estate and those interested therein,” setting forth in detail “in what way an advantage and benefit would accrue to the estate, and those interested therein, by such sale.” An order was duly made reciting the substance of the petition and fixing a time and place for its hearing. This order was duly published as required by law. Upon the hearing proofs in support of the petition were submitted, and no one interested in
The petition showed that there were no debts, expenses, or charges of administration to be met, and that the only ground for the order was as above stated. Section 1537 of the Code of Civil Procedure, as amended in 1893, reads: “And if said order for sale of real estate is petitioned for on the ground that it is for the advantage, benefit, and best interests of the estate and those interested therein that a sale be made, the petition .... must set forth in what way an advantage or benefit would accrue to the estate, and those interested, by such sale,” et cetera. Section 1538 of the Code of Civil Procedure provides as follows: “If it appears to the court or judge, from such petition, that it is necessary, or that it would be for the advantage, benefit and best interests of the estate and those interested therein, to sell the whole or some portion of the real estate for the purposes and reasons mentioned in the preceding section, or any of them, such petition must be filed, and an order thereupon made” directing all persons interested to appear and show cause, et cetera, at a time and place specified. Section 1542 of the Code of Civil Procedure authorizes the court to order the sale if the allegations of the petition are sustained by the proofs. Sections 1543 and 1544 relate to the same matters.
Appellant relies upon the case of Brenham v. Story, 39 Cal. 179. (Citing, also, Pryor v. Downey, 50 Cal. 409; 19 Am. Rep. 656; McNeil v. Congregational Soc., 66 Cal. 110; Smith v. Olmstead, 88 Cal. 582; 22 Am. St. Rep. 336; Bates v. Howard, 105 Cal. 173; and some other cases; also, 2 Woerner's American Law of Administration, secs. 469, 470.)
In Brenham v. Story, supra, an act of the legislature approved April 15, 1861 (Stats. 1861, p. 152), authorized the administrator of Charles White, deceased, “to sell at public or private sale, at his discretion, and without having first obtained an order of the probate court therefor, the whole or any portion of the real estate, or any right, title, or interest therein, claimed, held, or owned by the said Charles White, at the time of his death, as in the judgment of such administrator will best pro
Respondent presents reasons in support of the statute as applicable to estates where the decedent died after the passage of the law, but, as we have said, that question does not necessarily arise here and ought not to be decided until it does arise; any expression of opinion upon it now would be obiter.
We advise that the order be reversed.
For the reasons given in the foregoing opinion the order is reversed.
Garoutte, J., Van Dyke, J., Harrison, J.