Estate of Bazzuro

SHAW, J.

This is an appeal from an order confirming a sale of real estate made by the administrator of the estate of the decedent in pursuance of a previous order of sale.

The appellant is a niece of the decedent and is entitled to a share of his estate. She opposed the confirmation on the ground that the real estate, a lot in San Francisco, was not subject to sale by the administrator, and that the price for which it was sold was grossly inadequate.

One ground on which the sale was asked and ordered was that it was for the best interests of the heirs of the decedent that such-sale should be made because of the fact that some of them lived in Italy and others in San Francisco. The fact that it was for the advantage and best interests of the heirs that a sale of real property should be had was made a ground of sale in 1893, by an amendment of sections 1536 and 1545 of the Code of Civil Procedure (Stats. 1893, p. 212). Francesco Bazzuro died intestate in 1879. In 1893 the title to the real and personal property of which he died seised had already vested in his heirs. At the time it so vested the probate court

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had no power in administration proceedings to order a sale of real property owned by the deceased at his death for this cause. The amendment of 1893 was prospective only, in effect, and it has been held that it does not authorize a sale for this cause of .real estate, or interests therein, held by the decedent at his death, where such death occurred prior to the enactment of the amendment.

(Estate of Freud,

131 Cal. 667, [82 Am. St. Rep. 407, 63 Pac.

1080]; Estate of Packer,

125 Cal. 396, [73 Am. St. Rep. 58, 58 Pac. 59];

Brenham

v.

Story,

39 Cal. 179.) It is argued from these decisions that the sale, so far as it was based on this ground, was a nullity. The basis and reason for these decisions was that the title had vested in the heirs before the law was enacted and that, because of constitutional limitations to legislative power over vested rights, such title could not be impaired or burdened by subsequent legislation imposing burdens not before existing. At the time of his death, Bazzuro had no interest in this lot. He held a note and mortgage thereon, executed by one Castagnini. This mortgage was foreclosed by the first adminstrator of his estate, his brother Giuseppe, since dead, who bought the lot at the foreclosure sale and obtained thereon a deed therefor conveying it to him as such administrator. The record title still remains in that condition. Hence, the title to the lot did not vest in the heirs at the death of the decedent, nor at all. It vested in Giuseppe, the administrator.