Estate of Sherman

California Supreme Court May 25, 1956 No. Docket Nos. L.A. 23078, 23115Published

Before: Shenk

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Holding. The court held that a general power to manage and distribute an estate does not grant an executor an implied power of sale, and that an appeal from an order vacating a confirmation of sale stays further proceedings regarding that sale.

Issues

Whether a general testamentary power to manage and distribute an estate includes an implied power of sale.
Whether an appeal from an order vacating a confirmation of sale deprives the trial court of jurisdiction to re-confirm the sale while the appeal is pending.
Whether the sale of estate property was authorized under Probate Code section 770 as perishable property.

Disposition. Affirmed in part and reversed in part.

Quotations verified verbatim against the opinion

“It appears from the foregoing that a power of sale must be clearly and definitely indicated and that the language in the present case is insufficient to confer such a power.”

“Accordingly it would appear that the appeal by Hopalong ousted the court of authority to confirm the sale pending that appeal.”

46 Cal.2d 534 (1956) 297 P.2d 425 Estate of HARRY A. SHERMAN, Deceased.

JACOB H. KARP, Petitioner,

HOPALONG CASSIDY, INC., Appellant;

THEODORA LOIS SHERMAN et al., Respondents.

Estate of HARRY A. SHERMAN, Deceased.

JACOB H. KARP, Petitioner,

HOPALONG CASSIDY, INC., Respondent;

THEODORA SHERMAN et al., Appellants.

Docket Nos. L.A. 23078, 23115. Supreme Court of California. In Bank.

May 25, 1956. [535] H.P. Babson and John C. Goff for Petitioner.

Gang, Kopp & Tyre, Hermione K. Brown, Arthur London and Milton A. Rudin for Appellant in No. 23078 and Respondent in No. 23115.

Morris Lavine and Wm. J. Clark for Appellants in No. 23115 and Respondents in No. 23078.

SHENK, J.

These are consolidated appeals from orders of the superior court sitting in the probate of the estate of Harry A. Sherman. The contestant Hopalong Cassidy, Inc., in action Number 23078 appeals from an order of August 10, 1953, vacating an order of June 22, 1953, confirming the sale [536] of personal property from the estate to Hopalong individually. The contestants in action Number 23115, who claim to be heirs at law and creditors of the decedent, appeal from an order of August 24 confirming for the second time the sale of the property to Hopalong.

Harry A. Sherman died testate on September 25, 1952. Jacob H. Karp was appointed and qualified as executor of his will. The testator provided in his will that the executor might "do any and all things necessary in the management and distribution of my estate as he, in his discretion, shall deem advisable." The estate consisted in part of 200,000 feet of film footage. The executor negotiated for and made a private agreement for the sale of the film to Hopalong for $5,000. He petitioned for and obtained the order of June 22d confirming the sale but he failed to serve notice of the hearing on the heirs and creditors appearing herein. (See Prob. Code, §§ 1200, 1202.) On motion of those heirs and creditors the order of confirmation was set aside and vacated by the order of August 10th, and the petition for confirmation of the sale to Hopalong was reset for hearing. Hopalong appealed from the order of vacation but the court nevertheless proceeded with the second hearing as scheduled and again confirmed the sale on August 24th. The heirs and creditors appeal on procedural grounds from the latter order of confirmation. That appeal will be disposed of first.

Estate of Sherman

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SHENK, J.

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