Estate of Naftzger

SCHAUER, J.

This appeal presents the question of whether on the hearing of a petition to confirm a sale of real property of a decedent’s estate the probate court is authorized by section 785 of the Probate Code (hereinafter quoted) to confirm a sale to a new bidder for a price which is “ten per cent more in amount than that named in the return [petition] ” but is not 10 per cent more than such amount plus expenses of sale. We have concluded that such increased price may properly be accepted and the sale to the new bidder forthwith confirmed.

Eespondent Fred E. Naftzger, as the duly appointed and qualified executor of the last will and testament of Louise E. Naftzger, deceased, and pursuant to authority granted by such will, sold to contestants-appellants, at private sale, for the sum of $11,500 cash, certain real property of the estate. A petition for confirmation of the sale, reciting that “No broker’s commission is payable on said sale,” was duly filed with the superior court, sitting in probate, and at the hearing

[597]

upon such petition respondent Beth M. Preninger (to whom the designation “respondent” will hereinafter refer) made a written hid in open court for the property. The bid offered $12,650 cash (exactly 10 per cent more than the original bid) and stated that “The name of real estate agent procuring within bid, and to whom commission is to be paid, according to law, if confirmed by court to within bidder is as follows: Geo. S. Preninger. ’ ’ The court accepted such bid, confirmed the sale to respondent, and ordered the payment of a commision of $345 to the real estate agent named in the bid.

Thereafter appellants petitioned the probate court to set aside the order of confirmation. Prom an order denying such petition and from the order confirming the sale to respondent this appeal is taken.

Determination of the limits within which the probate court has discretion to act under the circumstances outlined above rests on the construction to be placed upon the provisions of section 785 of the Probate Code. That section reads as follows: “Upon the hearing the court must examine into the necessity for the sale, or the advantage, benefit and interest of the estate in having the sale made, and must examine the return and witnesses in relation to the sale; and if it appears to the court that good reason existed for the sale, that the sale was legally made and fairly conducted, and complied with the requirements of the previous section, that the sum bid is not disproportionate to the value, and it does not appear that a sum exceeding such bid at least ten per cent exclusive of the expenses of a new sale may be obtained, the court shall make an order confirming the sale and directing conveyances to be executed; otherwise it shall' vacate the sale and direct another to be had, of which notice must be given and the sale in all respects conducted as if no previous sale had taken place. But if a written offer of ten per cent more in amount than that named in the return is made to the court by a responsible person, and the bid complies with all provisions of the law, it is in the discretion of the court to accept such offer and confirm the sale to such person or to order a new sale. ’ ’