266 P. 532 | Cal. | 1928
Petitioner herein seeks by writ of mandate to compel the respondents, Superior Court and the judge thereof, to hear and determine an application filed by her as executrix of the estate of the above-named decedent, for an order authorizing the execution of a deed of trust, which is to serve as security for a promissory note sought to be executed to pay off and discharge a certain note, and mortgage securing the same, already existing and constituting an encumbrance upon the real property of the estate. Application for the order was made under the provisions of section
Prior to the amendment of section
[1] We are unable to agree with respondents' contention that the abortive attempt to amend section 1577 precludes the execution of trust deeds by executors, administrators, and guardians. The provisions of section
"After making the order to mortgage, or execute the deed of trust, the executor, administrator, or guardian of a minor or incompetent person shall execute and deliver the note or notes for the amount and period specified in the order, and shall execute, acknowledge and deliver a mortgage, or deed of trust, of the premises, setting forth in the mortgage, or deed of trust, that it is made by the authority of the order, and giving the date of such order. . . .
"Every note or notes and mortgage, or deed of trust, so made shall be effectual to mortgage or convey by means of a deed of trust, all right, title, interest and estate which the decedent, minor, or incompetent person had in the premises described therein at the time of the death of such decedent, or at the time of the appointment of the guardian of such minor or of such incompetent person, or prior thereto, and any right, title or interest in said premises acquired by the estate of such decedent, minor, or incompetent person, by operation of law or otherwise, since the time of the death of such decedent, or the appointment of the guardian of such minor or incompetent person.
"Jurisdiction of the court to administer the estate of such decedent, minor, or incompetent person shall be effectual to vest such court or judge with jurisdiction to make the order for the note or notes, and mortgage, or deed of trust, and such jurisdiction shall conclusively inure to the benefit of the mortgagee named in the mortgage, or the trustee and beneficiary in the deed of trust, his or their heirs and assigns." This language of the section is sufficiently broad to confer the substantive right authorizing the execution of trust deeds by executors, administrators, and guardians. To reply that such a construction of section
[2] The testatrix in the present case died in 1924, and the question is raised whether or not the amended statute (1927) applies to an estate in a case where the decedent died prior to the passage of the act. We are of the view that it does, for the reason that the purposes for which a deed of trust may now be authorized by the court are the same as those for which the power previously existed to permit the due execution of a mortgage. The statute has not been changed in that respect. The legislature has not imposed any greater burden upon the property of the decedent than that which existed at the time of her death. It has merely enacted a remedial statute prescribing a different mode of procedure for raising money for the needs of the estate, to carry out such objects as were provided for by the law in force at the time of the decedent's death. (Murphy v. Farmers Merchants'Bank,
Let a peremptory writ of mandate issue directing the respondents to entertain, hear and determine the application of the petitioner below for permission to execute a deed of trust upon the property of the estate.
Curtis, J., Preston, J., Richards, J., Seawell, J., Shenk, J., and Langdon J., concurred.