Estate of Roach

CHIPMAN, C.

Appeal by Margaret Copsey, formerly Margaret Roach, widow of deceased, from an order of sale of real estate in the above-entitled matter, on the-judgment-roll. George Roach died testate August 1, 1872, and on September 7, 1872, his will was duly admitted to probate, and the widow was duly appointed executrix. By the terms of the will she had a- life estaté in the property of deceased (all being community property), and, at her death, after deducting the share she was entitled to take under the laws of the state, the remaining one half was to be divided equally among the brothers and sisters of deceased, all of whom resided in Ireland.

The property consisted of four hundred acres of farming land situated in San Joaquin County, and a lot in the city of Stockton, and some money, grain, farming utensils, and other personal property. The farming land was inventoried at $25 per acre ($10,000); the city lot $1,000; money $300; grain and hay on hand $2,443.20; live-stock $739; other personal property (farming implements and household goods), $1,295, —in'all $15,477.20.

The executrix managed the estate until in September, 1901, when she rendered her first and final account and resigned her trust, and William C. Brown was duly appointed administrator with the will annexed. The account of the executrix was duly allowed, and showed that there was no remaining personal property, and it was decreed that the estate was

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indebted to her in the sum of $379.24. On March 11, 1902, the administrator filed his petition for an order of sale of the whole or some part of the real property, which was granted May 23, 1902. It is from this order the appeal is taken. Appellant claims that the order of sale is void for want of jurisdiction of the court to make it. This alleged want of jurisdiction is predicated of insufficiency of facts set forth in the petition for sale, and in like and other defects in the order to show cause, and that the facts found failed to show any necessity for the sale. We must look to the statute in force at the death of the testator, at which time the estate vested in the devisees.

(Estate of Packer,

125 Cal. 396.) It was held in that case that the court has no power to order the sale of real property after the title has vested in the heirs, “except for the purposes provided by the law in force at the death of the ancestor.” The law authorizing the sale, which was in force at the death of Roach, was section 155, and other sections of the Probate Act. (See 2 Hittell’s Gen. Laws, sec. 5S53.) Section 154 of that act provides when the personal property “shall be insufficient to pay .. . . the debts that may be outstanding against the deceased, and the debts, expenses, and charges of administration, the executor or administrator may sell the real estate for that purpose,” etc. It is not necessary to quote from section 155 the statement of facts required to appear in the petition for sale. The liability for which the sale may be ordered may be either a debt against the decedent or a debt, expense, or charge of the administration. It is not necessary to the right of the administrator to petition, or to the power of the court to order, a sale that there should first be a demand upon the administrator to sell. It is his duty to petition for sale whenever a necessity arises under the statute. The creditor or any one interested may make application if the administrator neglects to apply for the order, but we know of no statute that requires a demand to be made upon the administrator, as contended by appellant, before he can act. The petition shows that no personal property was in the hands of the administrator; it shows the amount of debts at the death t)f decedent, and that they are all paid except the balance due the executrix; that nothing is due or to become due for family allowance; that the debts and expenses of administration already accrued amount to $2,129.25, and to accrue amount to $948; a description of real estate and its condition and value