19 Cal. 188 | Cal. | 1861
Field, C. J. and Cope, J. concurring.
Ejectment for a lot in San Francisco. This case involves several important questions, affecting the validity and effect of sales of an infant, through proceedings of the Probate Court. The case has been fully and ably argued by the respective counsel. John Townsend, the father of the infant plaintiff, died in Santa Clara county on the eighth of December, 1850, possessed of considerable real and personal estate. Two days afterwards, Elizabeth, widow of John, died, possessed of a large estate, and leaving a will, in which she disposed of a portion of her estate, and nominated one Moses Schallenberger her sole executor, and also guardian at law of her infant son, the plaintiff here, the only child of John and Elizabeth —then being two or three years of age. Schallenberger, on the seventeenth of December, 1850, filed his petition, addressed as follows: “To the Plonorable the Judge of the Probate Court of the county of Santa Clara, State of California. The petition of Moses Schallenberger, of Monterey, etc. That Dr. John Townsend, late a resident of the county aforesaid, died in said county,” etc. The petition recites the facts as stated before, and prays that the will of Mrs. Townsend may be admitted to probate, and letters testamentary thereon be issued to the petitioner; that he be appointed guardian in law and in fact of said infant, and that letters of administration be issued to him on all the estate of Mrs. Townsend left undisposed of by her will, which, as your petitioner is informed and believes, is of large amount; and also that letters of administration be issued to him on the estate of John Townsend. The County Judge, in vacation, on the same day—seventeenth of December, 1850—made an order that petitioner be appointed guardian at law.
“ In conclusion, petitioner prays that an order be granted directing all persons interested in said estate to appear before the Probate Judge, at the next term of this Court, to be held on the fourth Monday of December next, at the Court House in the city of San José, to show cause why an order should not be granted to your petitioner as administrator, to sell so much of the real estate of the ■deceased as shall be necessary to pay such debts.” In this petition the property sued for was omitted; other real estate inserted.
On the twenty-sixth of November, 1851, the following order was made:—
“ In the matter of the estate of John Townsend, deceased.
“ Wednesday, November 26th, 1851.
“ Now comes M. Schallenberger, administrator, by his attorney, and files his petition praying for the sale of a portion of the following described real estate, to wit: One half of lot nineteen, (19) homestead lot fifty, (50) unimproved lot fifty-three, (63) doubtful lots six, seven, eight, nine and ten, block fifty of Millner’s and White’s survey, south-west half of lot two, (2) block three, (3) range two (2) south, lot eight, (8) block three, (3) range three, (3) south, tract of land on Sacramento river, lease of lot corner of Washington and Kearny streets, San Francisco, one-third interest improved, a portion of South San Francisco, worthless lot in Monterey, to pay the debts of said estate. It is therefore ordered by the Court, that public notice be given in the San José Weekly Visitor, in pursuance of law, to all persons interested in said estate, to appear at the next term of this Court, to show cause, if any they can, why said order should not be made.” Also the following order:
“ Probate Court of Santa Clara county. State of California : In the matter of the estate of John Townsend, deceased. Whereas, Moses Schallenberger, administrator of said estate, has filed a petition in said Court, praying for an order of sale of all or so much of the real estate of said deceased as may be necessary to pay the debts thereof, and costs and charges of administration, etc.; notice is hereby given that the hearing of said petition will be had at the*204 December term of said Court, to be held at the Court House in the city of San José, on the fourth Monday of December, A. D. 1851, when and where all persons interested in said estate may appear and show cause why the order prayed for in said petition should not be made.
“ Witness: Hon. J. W. Redman, Probate-of Santa Clara county, with my private seal (there being no seal yet provided) at office, this twenty-sixth day of November, A. D. 1851.
“ By order of the Court.
[l. s. “ H. C. Melone, County Clerk.”
The following affidavits are appended to a copy of the last order:
“ County of Santa Clara, ss. A. Jones, printer of the San José Visitor, being duly sworn, says that the annexed notice in the estate of John Townsend, deceased, was published three weeks successively, commencing with November 26th, 1851, and discontinued because said newspaper stopped its issue.
“A. Jones, Jr.
“ Sworn before me, December 16th, 1851.
“ D. P. Belknap, Notary Public.
“ Filed December 23d, 1851.
“ H. C. Melone, Clerk.”
“ County of San Francisco, ss. C. O. Gerberding, printer and agent of the California Courier newspaper, being duly sworn, says that the foregoing notice was duly published in said newspaper, in its regular daily edition, on the eighteenth day of December, 1851, in the city of San Francisco.
“ C. O. GERBERDING.
“ Sworn before me, December 20th, 1851.
“ A. G. Randall, Notary Public.
“Filed December 23d, 1851.
“ H. C. Melone, Clerk.”
On the twenty-third of December, 1851, the following order was made : “ In' the matter of the estate of John Townsend, deceased, Probate Court, Santa Clara county, December 23d, 1851.
“ On reading the petition of Moses Schallenberger, administrator of the above estate, said petition having been heretofore filed in the office of the Clerk of this Court, on the twenty-sixth day of November, 1851, setting forth in substance that the above estate is largely indebted for various claims and incumbrances upon the real estate, and that the personal property is insufficient to pay said debts, together with the just and necessary expenses of said administration, and the support of the infant heir; and on reading and filing the statement and consent of the attorney for the infant and absent heirs of said estate heretofore appointed by this Court, and on giving proof of due publication of notice of this application as required by law, and on filing of said proof:
“ It is hereby ordered, adjudged and decreed, that Moses Schallenberger, said administrator of said estate, have leave and authority to sell and convey, according to law, the following described real estate belonging to the said estate of John Townsend, deceased, and situate in the counties of Santa Clara, San Francisco, Sutter and Butte, in this State. In the county of Santa Clara, all the following real estate and property, to wit:" Here follows the property, including that sued for.
The consent and representation of the attorney of the infant and absent heirs appear in the record. The administrator, on the twenty-fourth of February, 1852, made his report of sales of real estate in San Francisco. In February, 1852, sales and report confirmed. The defendant claims title through the sale made under the proceedings set out; and the plaintiff contends that they vest no title, the ground being that the Probate Court had no jurisdiction to make the orders on which the administrator’s sale is based.
It is too late to dispute the first general proposition of respondent’s counsel, that the Courts of Probate, in the construction of their proceedings had before the passage of the Act of 1858, are to be regarded as Courts of limited and inferior jurisdiction. Such has been the construction given by this Court in many cases. (See Smith v. Andrews, 6 Cal. 652 ; 7 Id. 215 ; 10 Id. 110 ; 5 Id. 60 ;
The Act of 1858, changing the rule of construction of the proceedings of these Courts, has no application to proceedings taken before its passage. So the act expressly provides in the first section. (Statutes of 1858, 95.)
1. The first objection to the record of proceedings already set out is, that the petition does not show that John Toxynsend xvas, at the time of his death, a resident of Santa Clara county. But this point is not sustained by the record. The petition in the address or direction mentions the county of Santa Clara. This is a part of the petition; the word “ Monterey ” occurs in connection with the name of Schallenberger—but this name, though that of a county, is also that of a town, and the “ aforesaid,” following “ county,” was designed to denote the county, and the only county mentioned before—which was Santa Clara.
2. That the petition embraces matters pertaining to another estate than that of John Townsend. This, though irregular, does not affect the jurisdiction. It is sufficient if the petition contains the requisite averments to justify the action of the Court had in pursuance of the prayer or of the matter set out. If it goes beyond, and includes irrelevant and redundant matter, this furnishes a good objection for the rejection of this irrelevant matter, or probably constitutes a good exception for want of form or for defective pleading; but it does not affect the jurisdiction of the Court. (See Stuart v. Allen, 16 Cal.)
“ Section 155. To obtain such order, he shall present a petition to the Probate Court, setting forth the amount of personal estate that has come to his hands, and how much thereof, if any, remains undisposed of; the debts outstanding against the deceased, so far as can be ascertained ; a description of all the real estate of which the testator or intestate died seized, and the condition and value of the respective portions and lots ; the names and ages of the devisees, if any, and of the heirs of the deceased; which petition shall be verified by the oath of the party presenting the same.”
It is said, that the petition in this case refers to the inventory, and that the inventory sets forth this lot as a part of the real estate of the deceased. It is required by the one hundred and fifty-fifth section, that the petition shall set forth “ all the real estate ; ” but we held in Stuart v. Allen that if reference were made to the inventory in such way as “ to make the inventory a part of the petition, the inventory and petition might be read together as one paper, and the defects or omissions of the petition could in this way be corrected by means of this reference.” But the difficulty here is in the fact that no reference is made to the inventory for any such purpose. The only notice of the inventory is in this sentence : “ That the personal property consists of rents arising from a portion of the real estate in San Francisco, which have become greatly reduced in consequence of the destruction of the buildings by the fire of May last, and the furniture and other goods mentioned in the inventory.” This may be considered, under the somewhat liberal view we took in Stuart v. Allen, as justifying the omission to include in the petition a more particular statement of the personal effects than that made in it; but this statement does not make the
The authorities cited by the counsel for the respondent upon statutes not dissimilar maintain the proposition, that the facts required must appear in the petition, or else that the action of the Court is void. (Bloom v. Burdick, 1 Hill, 130 ; Bronson’s opinion, 4 Hill, 86 ; 7 Id. 29.)
Nothing in this opinion conflicts with the case of Irwin v. Scriber, recently decided; for that case came under the Act of 1858.
It is unnecessary to consider other points, for this is decisive.
Judgment affirmed.