Estate of Lee

California Court of Appeal Apr 2, 1958 No. Civ. No. 5639Published

Before: Mussell

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Holding. The court held that a probate court has the discretion under Code of Civil Procedure section 473 to vacate an order confirming a sale of estate property when a party's failure to attend the confirmation hearing resulted from mistake, inadvertence, or excusable neglect.

Issues

Whether the probate court has the authority under Code of Civil Procedure section 473 to vacate an order confirming a sale of estate property.
Whether the trial court abused its discretion in vacating the order confirming the sale based on the evidence presented in the affidavits.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In Estate of Herz, 147 Cal.App.2d 100, 106 [305 P.2d 278], this court held that relief under section 473 of the Code of Civil Procedure may be granted for the purpose of vacating an order confirming a probate sale.”

“The facts set forth in the foregoing affidavits were sufficient to justify the trial court in setting aside the sale to appellant under the rules heretofore announced.”

159 Cal.App.2d 109 (1958) Estate of WALTER L. LEE, Deceased. ALMA INVESTMENT COMPANY (a Corporation), Appellant,

LEONARD T. LEE, as Administrator, etc., et al., Respondents.

Civ. No. 5639. California Court of Appeals. Fourth Dist.

Apr. 2, 1958. Norbert Baumgarten for Appellant.

S. B. Gill for Respondents.

MUSSELL, J.

On December 12, 1956, the administrator of the estate of Walter L. Lee, deceased, sold at private sale a parcel of real property belonging to the estate to Laurence DeTilla for the sum of $500. On January 23, 1957, the administrator filed a petition for confirmation of this sale and the petition came on regularly for hearing in the superior court on February 11, 1957. Laurence DeTilla was not present at this hearing. The court ordered that the property be sold to appellant Alma Investment Company, a corporation, for the sum of $550, as the corporation had increased DeTilla's bid in open court by 10 per cent and there were no higher bids for the property. This sale was confirmed and the administrator was authorized to transfer and deliver the property to the appellant. On the same day the appellant paid the amount of its bid to DiGiorgio and Davis, attorneys for the administrator, and a receipt was given therefor. No deed to this property has been delivered to the appellant.

On March 5, 1957, Laurence DeTilla filed in the superior court a notice of motion to set aside the court's order confirming the said sale to appellant. This motion was based on section 473 of the Code of Civil Procedure and on the ground that DeTilla was prevented from being present at the time and place of the hearing of said confirmation for the purpose [111] of protecting his bid and that his failure to be present was through mistake, inadvertence, surprise or excusable neglect. Affidavits of DeTilla and Naomi Dennis, one of the heirs, and of V. P. DiGiorgio were filed in support of the motion. Affidavits were also filed by Fred Drinkhouse, agent of appellant, and by the administrator. The matter was then heard on these affidavits and the court made and entered an order vacating and setting aside its previous order confirming the sale. This appeal followed.

Estate of Lee

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MUSSELL, J.

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