Estate of McCrae

SCHOTTKY, J.

This is an appeal from an order vacating an order confirming sale of certain real property of the estate of the above named deceased.

The record shows that on May 15, 1953, the administrator of decedent’s estate filed a return of sale of real property at private sale and petitioned the court for confirmation thereof, setting forth that the property was sold on or after May 12, 1953, to H. A. Grinnell for the sum of $1,085. Thereafter, and on May 25, 1953, a hearing on said petition was duly held and a sale of said property was confirmed to “Joe Witt et ux for $1,193.50.”

On June 1, 1953, H. A. Grinnell and Riith Grinnell, respondents herein, filed their notice of motion to vacate the order confirming sale made on May 25th. Attached thereto was the affidavit of Ruth Grinnell wherein it was stated that affiant and H. A. Grinnell as the high bidders at the private sale of the property “were desirous and anxious of attending the hearing of the Petition for confirmation of said Sale which was noticed for 9:30 o’clock A. M. on Monday, the 25th day of May, 1953; that, however, immediately prior thereto H. A. Grinnell became very ill and it was necessary for Ruth Grinnell to attend him during such illness and by reason thereof neither of said bidders were able to attend said sale, and by reason of said illness and excusable negligence failed to attend said sale and were unable to arrange for any representative to be present; that said parties were prepared to protect their bid for real property, and now make an offer to purchase the same for the sum of $1,650.00. ’ ’

At the hearing on the motion to vacate respondent H. A.

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Grinnell testified that for many years he had been trying to acquire the property in question because he owns other properties surrounding it, one of which is subject to an easement appurtenant to the subject property. He further stated that he fully intended to attend the hearing on confirmation to protect his bid on the property, but that on the evening of May 24th he became extremely ill from a migraine headache, which illness continued through the morning of May 25th, and was in such desperate pain that he did not think of anything. On cross-examination Mr. Grinnell stated that a migraine headache attack, usually lasting from 12 to 24 hours, causes him to lose his reason, and that during this illness his wife attended to his needs. He admitted having received a notice of the hearing on confirmation, but stated that since he fully intended to attend the hearing himself he had made no arrangements for anyone else to appear in his behalf.