In Re Estate of Bragg

ANGELLOTTI, J.

This is an appeal by Robert Bragg, a creditor of deceased, from an order denying his petition for an order of sale of the real property of deceased, the application for such order being based on section 1545 of the Code of Civil Procedure, which authorizes any person interested in the estate to make such an application, when the executor or administrator neglects or refuses to do so, and the same is necessary, or for the advantage, and benefit or best interests of the estate. The application was opposed by three out of the four devisees under the will of deceased. The court denied the application without making any findings of fact, specific findings being waived.

The record presents a somewhat peculiar combination of facts The petitioner, Robert Bragg, was the father of deceased, and he and Rebecca Bragg Martenstein, a sister of deceased, one of the opposing devisees, are the executors under her will. By her will, dated April 9, 1906, deceased gave her real property fronting on Sixteenth Street, between Noe and Castro streets, in San Francisco, to two of her sisters, and her real property at the corner of Dolores and Fourteenth streets in said' city to her two other sisters. She owned no

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other real property. Subject to bequests of five dollars to each of her three brothers, she gave all the rest and residue of her property to her father, petitioner here, declaring said residue to consist of “money, brie-a-brae, pictures, jewelry, silver, furniture and other belongings.” She died June 15, 1910, and her will has been admitted to probate, and petitioner and Rebecca Bragg Martenstein were regularly appointed and have ever since been executor and executrix. The only personal property immediately available for the payment of debts and expenses of administration is a small lot of furniture and personal belongings of the value of about fifty dollars. If there is any other personal property belonging to the estate it is in the possession of the four devisees, who hold it under claims of ownership, by virtue of alleged gifts from deceased during her lifetime. There is some suggestion in the evidence that petitioner may also have in his possession some personal property belonging to deceased, but he denies that there is any such property in his possession, claiming that such property as he has that ever belonged to deceased, was given to him by deceased. Suits are pending on behalf of the estate, instituted by petitioner as executor, against each of the devisees, for the conversion of certain shares of corporate stock that at one time belonged to deceased, and which, it is claimed, the devisees have converted to their own use. The amount involved therein is something over twenty-five thousand dollars. Each devisee claims to own- the property on account of which a recovery is sought against her, by reason of a gift of the same to her by deceased. The action against Elizabeth Bragg Gumming, one of said devisees, has resulted in a judgment in the superior court against her for $6,357.50 and costs, a motion for a new trial therein has been denied, and an appeal from such judgment by the defendant is now pending in this court The action against Rebecca Bragg Martenstein has resulted in a judgment in the superior court for defendant, and an appeal has been taken by plaintiff to the supreme court. The other two'actions have not yet been tried in the superior court. The only parties interested in the estate, other than the three brothers of deceased, each of whom is given a legacy of five dollars, are the father (petitioner here) and the four devisees. The only creditor is the father, and his claim is: 1. One for $271.75, allowed and ap