98 Cal. 603 | Cal. | 1893
Hiram A. Pearsons died July 7,1889, leaving a last will and testament, bearing date August 9, 1882, which was admitted to probate by the superior court of San Francisco, August 12, 1889, and letters testamentary issued thereon to Elliott J. Moore, who was named therein as its executor. On the 28th of January, 1892, the executor sold at public auction several parcels of land belonging to the estate of his testator, one of which was purchased by the appellant. The executor did not obtain any order of sale from the superior court,
1. The order confirming the sale and directing a conveyance to be made is appealable. Section 963 (3) of the Code of Civil Procedure authorizes an appeal to be taken from the superior court to the supreme court “from a judgment or order .... against or in favor of directing the partition, sale, or conveyance of real property.” There is no limitation upon the character of the proceeding in which the order directing the conveyance is made, and we are not authorized to limit the right of appeal more than it has been limited by the legislature. The provisions of section 1553 of the Code of Civil Procedure are not a limitation of the right of filing objections to the confirmation of the sale, but an extension of such right to those who are “interested” in the estate. The right of the purchaser to be heard at the hearing upon the return is implied in the provision of the previous section, which requires public notice of the day fixed for the hearing to be -given, and his right to be heard carries with it the right to make objection to the confirmation, and section 938 of the Code of Civil Procedure gives the right of appeal to any party “aggrieved” by the action of the court, whether he be “interested” in the estate or not.
2. The chief objection made by the appellant to the confirmation of the sale is that the executor was not authorized by the will to sell the property, and, as there had been no order of sale made by the court, the sale was incapable of confirmation by reason of the want of jurisdiction over the subject-matter.
Section 1651 of the Code of Civil Procedure provides: “When property is directed by the will to be sold, or authority is given in the will to sell property, the executor may sell any property of the estate without order of the court, and at either public or private sale, aud with or without notice, as the executor may determine; but the executor must make return
The will in question contains the following provisions: —
“1. I give, devise, and bequeath unto Betsey Frances Matthewson and Polly Barton, my aunts, the following described lots and pieces of land situate in the city and county of San Francisco, state of California. (Describing the same.)
“2. I do give, devise, and bequeath unto Betsey Frances Matthewson and Polly Barton, my aunts, all real property which I hold jointly with them, and I direct that in the event of the death of either Betsey Frances Matthewson or Polly Barton, prior to that of my own, all property of whatever nature herein bequeathed to them shall revert and vest in the survivor, her heirs, and assigns forever. And furthermore, in the event of the death of both Betsey Frances Matthewson and Polly Barton prior to my decease, the aforesaid property otherwise bequeathed to them shall be sold at" public auction to the highest cash bidder, the proceeds of said sale to be equally distributed among the different orphan asylums of the city and county of San Francisco, and said asylums I request to be designated by the judge of the probate court.” i “7. I do give, devise, and bequeath the remainder of my property of whatever kind to Betsey Frances Matthewson and Polly Barton, subject to the reversion before stated. All the above real property being situated in the city and county of San Francisco, state of California.”
Betsey Frances Matthewson and Polly Barton died prior to the death of the testator without leaving any descendants. By their death in the lifetime of the testator the testamentary disposition in their favor failed, but by virtue of the provisions of section 1343 of the Civil Code, the testamentary disposition of the property which had been devised to them did not fail, for the reason that it is apparent from the terms of the will that the testator intended to substitute the orphan asylums of San Francisco in their place. The provisions of section 1313 of the Civil Code, which preclude these beneficiaries from receiving more than one third of his estate, do not destroy
The property sold by the executor is a portion of that described in the first of the above clauses in the will, and his power to sell it without any previous order of the court depends upon the construction to be given to the latter portion of the second of the above clauses. The executor’s authority to sell property is by the terms of the will brought into existence only in the event of the death of both of the testator’s aunts prior to his own death. Upon the happening of that event he directed the aforesaid property to be sold at public auction to the highest bidder, and it is, therefore, necessary to ascertain what was the “ aforesaid” property to which the authority was extended. On the one hand it is contended that the authority to sell which is given in the will is limited to the property disposed of in the second clause, while on the other hand it is contended that it extends to all the estate which would have been taken by his aunts in case they or either of them had survived him.
By his will the testator made his aunts his devisees of three different classes of property, viz.: 1. The specific lots of land described in the first clause thereof. 2. All property which he held jointly with them. 3. The residuum of his estate after satisfying his other dispositions thereof. The second clause of his will is devoted to three distinct subjects :—
1. The devise to the aunts of the property therein specifically described.
2. The provision for the nature of the estate while they shall take in the property which he leaves to them.
3. The disposition to be made of this property in case both of them should die before him.* This latter subject also contains two testamentary provisions, viz.: that the property shall be sold at public auction, and that its proceeds shall be distributed among the orphan asylums of San Francisco.
After giving to his aunts all real property which he held jointly with them, he directs that in the event of the death of either of them prior to his own, “all property of whatever ■nature herein bequeathed to them shall revert to and vest in the survivor, her heirs and assigns forever.” The evident purpose of the testator in this clause was to make his aunts joint ten
3. After the will had been admitted to probate, and prior to the sale of the land involved in this appeal, the executor filed a petition in the superior court praying for the construction of certain clauses of the will and for a determination of his duties in reference thereto. In his petition he set forth the foregoing clauses of the will, and showed to the court that the aunts had died before the .decedent; that the decedent left certain heirs-at-law, and that the bequest to the orphan asylums exceeded one third of his estate; that in the third clause of his will thq testator had devised to a Mrs. Kinsey all his interest in a certain block excepting that which he held jointly with his aunts, and he asked the court to determine what portion of that block was held jointly by the testator with his aunts, who were the legatees, and who the next of kin, how the estate should be distributed, and what real estate should be sold to pay the bequests to the different orphan asylums. At the hearing upon this petition the court declined to pass upon many of the questions presented therein, for the reason that the proper time for acting thereon would be an application for distribution,
It is now urged by the appellant that by this proceeding the executor cast doubts upon his power to sell any portion of the estate of the testator, and rendered the title to the lands sold by him uncertain, and, therefore, that the purchaser ought not to be compelled to take the same, and that the court should not have made a confirmation of the sale. The judgment of the court upon that petition was, however, limited to the land described in the third clause of the will, and does not affect the land sold to the appellant herein. The question of the power of the executor to sell any property of the decedent was not involved in the proceedings before the court, nor does this power appear to have been questioned, either- by himself or by any of the respondents to the petition, and it is not alluded to in the judgment. The executor did, it is true, ask the court to determine what property should be sold to pay the bequests to the several orphan asylums, but the court did not in its judgment give to him any direction, acting doubtless-upon the theory that, as the discretion upon this subject had been already conferred upon him by the testator, it was not proper for the court to interfere in the absence of any objection by interested parties that such discretion was not being properly exercised. It may have been prudent for the executor to seek in advance instruction upon his duties in these respects, but the court was at liberty to give it or not, and the exercise of its discretion in declining to give it, is not subject to review or comment.
4. It is objected that, inasmuch as the testator’s bequest to charitable purposes is in excess of one third of his estate, he died intestate as to such excess, and therefore the power of sale in the will cannot be executed. The power of sale conferred by the will does not depend for the validity of its execution upon a valid disposition of the proceeds of the sale. The power of converting the estate into money depends upon the will of the testator, and may be conferred without any limitation, while the power of disposing of his estate is limited by a statutory
5. It is further contended by the appellants that it is incumbent upon the executor to satisfy the purchaser that the title which his conveyance will transfer will pass all the estate in the property of which the testator was seized at the moment of his death, and inasmuch as there may have been a wife or a pretermitted child, whose interest in the estate would be paramount to the will, and would not pass by the executor’s conveyance, the court ought not to have confirmed the sale without requiring the executor to furnish evidence in disproof of their existence.
A sale by an executor under a power in the will is not a judicial sale, nor does the statutory requirement that no title shall pass until the sale be confirmed, give to it the incidents of a judicial sale. A judicial sale is one made under the order of a court having jurisdiction of the subject-matter of the sale, and which it directs to be sold for the .purpose of carrying its judgment into effect, or of directing a disposition of its proceeds. (Freeman on Void Judicial Sales, sec. 1.) At such a sale the court is regarded as the vendor, and a purchaser who buys the property at the sale has the right to a couveyance which will vest in him the title to the property sold, and may present in objection to its confirmation any facts which will impair or defeat the title thereby transferred. We refer here to those sales which purport to sell the property itself, and not those in which only the right, title and interest of the parties to the proceeding is sold, as in such cases the purchaser buys at his own risk. The purchaser from an executor at a sale under a power in the will deals with him in making the purchase as he would with any other vendor. He makes the purchase subject to a confirmation by the court, but in all other respects he may incorporate in his contract of purchase the same terms and conditions as he would in dealing with any other agent for the sale of property, and he can repudiate his contract for purchase only for the same reasons as he could in case he had bought from another. The executor is regarded
In the ordinary contract of purchase and sale there is an implication that the conveyance to be made thereunder will transfer the title to the property, but in the absence of any special agreement upon the subject, it is incumbent upon the vendee to examine the title for himself, and to point out any objections he may have to the title tendered him by the vendor. (Easton v. Montgomery, 90 Cal. 307.) The title to a piece of real estate frequently depends as much upon the existence of facts outside of the record as it does upon the records and written muniments of title, and the investigation of these facts
The order is affirmed.
Paterson, J., and Fitzgerald, J., concurred.