Estate of Roche

California Court of Appeal Apr 11, 1962 No. Civ. No. 20125Published

Before: Agee

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Holding. The probate court is not required to grant a petition under Probate Code section 850 to compel a conveyance of property when there is a dispute regarding the right to specific performance, as the parties should instead resolve such conflicts through an independent action.

Issues

Whether the probate court was required as a matter of law to grant a petition under Probate Code section 850 to compel the executor to convey property to the lessee.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Section 850 does not and was never intended to preclude or supersede the remedy of specific performance in an independent action.”

“The use of the word "may" in section 850, instead of "shall" or "must," is significant in determining whether the Probate Court was required to adjudicate the rights of the respective parties herein.”

202 Cal.App.2d 295 (1962) Estate of THOMAS G. ROCHE, Deceased. JAMES M. McCABE, as Executor, etc., et al., Petitioners and Respondents,

SHELL OIL COMPANY, Objector and Appellant.

Civ. No. 20125. California Court of Appeals. First Dist., Div. Two.

Apr. 11, 1962. A. J. Fabris, N.E. Davis and David D. Ring for Objector and Appellant.

Robert J. Smith, Eisner & Titchell and Norman A. Eisner for Petitioners and Respondents. [296]

AGEE, J.

Thomas G. Roche died on September 10, 1959. He owned property at Valencia and 20th Streets in San Francisco, which was under lease to Shell Oil Company. The lease contained an agreement that if the lessor received an offer for the property and decided to accept the same, Shell would be given notice of the offer and have a specified time within which to purchase the property for the same price.

The executor of the will of decedent commenced proceedings under the Probate Code to sell the property. Shell presented a bid of $46,000. The executor accepted the bid, subject to confirmation by the court. (Prob. Code, 755.) At the hearing, held on April 28, 1961, respondent Jennie Einspruch made a bid of $48,800. Shell's representative stated that Shell was not interested in increasing this bid. The court took the matter under submission and thereafter entered its minute order on June 1, 1961, confirming the sale to Jennie Einspruch (Prob. Code, 785). A formal written order of confirmation was made and filed on June 20, 1961. It recites that "this Order Confirming Sale of Real Property is entered subject to the rights of the Shell Oil Company under said Lease, as Amended."

On June 8, 1961, the executor notified Shell of the order of June 1, 1961. On June 16, 1961, which was within the time specified in the lease, Shell notified the executor in writing that it had elected to exercise its option to purchase the property for the said sum of $48,800.

On June 20, 1961, the executor filed a verified petition under section 850 of the Probate Code, reciting the above pertinent facts, and praying that the court order him to transfer and convey the property to Shell. This petition was heard and denied on July 10, 1961. A formal order was thereafter signed and filed on July 17, 1961.

Estate of Roche

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AGEE, J.

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