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19 Cal. 397

Gregory v. Taber

California Supreme Court

Decided July 1, 1861

California Supreme Court · decided 1861-07-01

<p>Appeal from the Seventh District.</p> <p>Ejectment for one hundred and thirty-five acres of land in Contra Costa county.</p> <p>The land in controversy is part of a larger tract granted in the year 1834 to Juan Sanchez de Pacheco, called the Rancho San Miguel. The grantee, Juana Sanchez de Pacheco, died in the county of Santa Clara, in the year 1853. Frank Lightston and Joaquin Y. Castro were named as executors in her will. The will was proved and admitted to probate on the twenty-sixth day of September, 1853, and Lightston and, Castro were appointed executors and qualified as such. On the twenty-fourth day of November, 1856, Lightston, one of the executors, petitioned the Probate Court for an order to sell the land to pay debts and costs. The petition avers that there is due from the estate $1,000 to Robert Allen, and $8,713 to petitioner for money advanced for expenses and commissions as executor; that there are no funds belonging to the estate in the hands of the executor, and no personal property remaining unsold; that the whole of the real estate of the deceased consists of a tract of land in Contra Costa county known as the Rancho San Miguel, containing about 11,000 acres, the value of which petitioner cannot state, and which is demised to her heirs jointly—the names of the devisees being then given, with an averment that their ages are unknown to petitioner. Prayer for a sale of a described portion of the Rancho to pay the debts named above.</p> <p>This petition was filed Nov. 24th, 1856, and on the same day, whether at precisely the same time does not appear, an account of the personal estate was also filed; but the account was on a separate piece of paper and not annexed to the petition, nor referred to in it.</p> <p>The hearing of the petition was set for January 12th, 1857, and notice served on the heirs and devisees. On that day the executor filed an amended petition, stating the condition of the real property of the estate, its value, and also the ages of the devisees, and the hearing was continued until the twenty-fourth of that month; and so on several times until March, when an order of sale was made.-</p> <p>On the trial, after proving by stipulation title to the land in the estate named, with other formal matters, and possession in defendant, claiming title to one-ninth of the Rancho by deed dated Oct. 1st, 1858, from one of the heirs of Juana Sanchez, plaintiff offered in evidence a copy of the foregoing petition and account, of the order of the Probate Court setting a time for hearing the petition, proof of service on the heirs, a copy of the order of the Court directing a sale as prayed for, copy of a decree confirming the sale which was made and the deed from the executor Lightston to plaintiff, as also a deed of confirmation from the other executor, Castro. Defendant objected to the petition on the ground, among others, that it did not comply with the statute, and therefore gave the Probate Court no jurisdiction to order a sale. Plaintiff then rested and defendant moved for a nonsuit, which was granted.</p> <p>Plaintiff appeals.</p>

Relies on Gregory v. McPherson

Good law ✅— No negative treatment on recordhow we know

Decided 1861-07-01

How this case has been cited

Cited by 4 later decisions — most recently July 1925

3 state decisions

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Baldwin, J. delivered the opinion of the Court

¶1Field, C. J. and Cope, J. concurring.

¶2■ This case involves most of the facts and principles embraced in the case of (Gregory v. McPherson, reported in 13 Cal. 562.

¶3The action is ejectment, the plaintiff claiming the tract of land sued for by virtue of an executor’s sale of the property as that of *409the estate of Juana Sanchez de Pacheco. The defendant resisted the suit, upon the ground that the proceedings for the sale were fatally defective, and the sale void. The defects insisted on are, as in the case of Gregory v. McPherson, mainly: 1st, that two executors qualified upon-Mrs. Pacheco’s will, and that the proceedings were instituted and. conducted by only one of them; 2d, that the petition for the sale neither sets forth the amount of the personal property which had come to the hands of the executors, nor the condition or the value of the respective portions or lots of the real estate of which the testatrix died seized, nor the ages of the heirs or devisees.

¶4It is said that this case differs from that of Gregory v. McPherson in this, that here an account of the personal estate, fulfilling the requirements of the statute, was proved to have been filed at or about the date of filing the petition. But the answer is, that no such account was filed with, or as a part of, the petition. The mere fact that an account was filed, or was found among the papers of the probate proceedings, is not sufficient. It must have been referred to in the petition so as to become a part of it for the purpose of the reference. The statute is peremptory, that the facts prescribed shall be stated in the petition. By a liberal construction of this requirement, we held in Stuart v. Allen that if the petition referred to another paper on file, for the purpose of a more full and explicit statement of facts, that paper might be considered in connection with the petition, and both be taken together as a statement, of all the required facts. But it is apparent that no such result could be attained, unless the petition itself made the reference» The case of Bloom v. Burdick is not opposed to this conclusion.. (See 1 Hill, 185.) It seems that the Hew York statute of 1813 required the administrator “ to accompany his petition with an-account,” etc. But our statute in this respect is different. It requires the petition to state particular facts as to the condition of the estate, and these are essential facts going to the jurisdiction. It is not sufficient that the administrator files a separate paper, not a part of or referred to in the petition, though this paper should state part of the facts which the statute requires the petition to state. If this were so, the consequence would be that a large number of.' *410separate papers might be filed, each containing but a single averment, and it be contended that the whole, taken together, constituted a sufficient petition within the meaning of the statute. It is enough to say that, whatever the intention of filing this paper might be, it was not made a part of the petition, and that, as the parties interested are not presumed to have had knowledge of the filing of it, or any reason to suspect that it was filed, their notice or that of the Court would not probably be drawn to it on the hearing of the petition; nor could its statements be answered, or in any wise drawn in issue. In no way did it become part of the proceedings in the case of application for the sale of the estate ; and therefore, cannot be considered as curing the defects, or supplying the place of the averments of the petition.

¶5We have attentively considered the authorities and arguments on the question of probate sales, and have reluctantly reached the conclusion announced in the principal opinion in Gregory v. McPherson—that, to maintain a sale of a decedent’s real estate, under the order of the Probate Court, it is necessary that the petition should state the facts required by the one hundred and fifty-fifth section of the act.

¶6It has been urged that the statute, in the one hunded and seventy-first-and one hundred and seventy-second sections, in effect confirms these sales in cases where the report of the administrator is made, and the Probate Judge confirms the sale and orders a deed to be executed to the purchaser. But the answer is, that the sole authority and jurisdiction of the Probate .Court come from the petition with the averments required in the one hundred and fifty-fifth section, and that, without this jurisdiction, the Probate Court has no power to confirm the sale or impart validity to it. If this be not so, it would follow that the whole estate might pass without any petition, or perhaps, even any proceedings, except an order of sale and the order of confirmation. No such effect was designed to be given by the one hundred and seventy-first and one hundred and seventy-second sections, but they refer only to sales made under orders which the Probate Court had jurisdiction to make.

¶7It is unnecessary to consider other points, or whether the statute of 1858 makes a different rule for cases of sales occurring after that act.

¶8Judgment affirmed.

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