Estate of Flaherty

LANGDON, P. J.

This is an appeal by W. T. Lass from an order of the superior court, in and for the county of Alameda, denying confirmation of a sale of real property, which sale had been made by the executor of the last will and testament of Richard Flaherty, deceased, to said appellant for $33,300.

The executor filed his return of sale of the real property, which sale was made privately pursuant to power given by the last will and testament of the decedent. The executor stated in his return that he had received the highest bid from appellant, in the sum of $33,300, and that prior to

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said sale a contract had been entered into between certain real estate brokers and said executor whereby the executor had promised to pay the usual commission upon the amount of said sale. It was prayed that the sale be confirmed and that an order be made directing payment of the commission. out of the proceeds of the sale.

Upon the hearing there was offered in open court the sum of $35,576.75 for the property. The court, however, could not accept this bid because it was not ten per cent in excess of the price for which the executor had sold the property. After some discussion, the court stated that it had come to. the conclusion that it “would not be in furtherance of justice to confirm the sale,” and made the order from which the appeal is taken.

Section 1517 of the Code of Civil Procedure requires that “All sales of property must be under oath, reported to and confirmed by the court, before the title to the property passes.”

Section 1561 of the Code of Civil Procedure provides: “When property is directed by the will to be sold, or authority is given in the will to sell property, the executor may sell any property of the estate at either public or "private sale . . . but the executor must make return of sales as in other cases. ... In either case no title passes unless the sale be confirmed by the court; but the necessity, advantage or benefit to the estate, or to those interested therein, of the sale need not be shown.”

In the instant case the executor was bound to make a return of sale “as in other cases . . . but the necessity, advantage or benefit to the estate, or to those interested therein, of the sale need not be shown.” The “other cases” are covered by the provisions of sections 1552 and 1554 of the Code of Civil Procedure, the pertinent portions of which read as follows: