Wickersham v. Wickersham

McFARLAND, J.

The appeal in each of the above cases is from a probate order in the estate of I. G. Wickersham, deceased, confirming a sale made by the executors under a power of sale in the will of the deceased. The two appeals involve the same questions; they were submitted on the same arguments; and they will both be determined in this opinion.

The deceased, I. G. Wickersham, who died testate, left a surviving widow, Lydia C. Wickersham, who afterwards died, and, among other children, a son, Frank P. Wickersham, who also died subsequently to the death of his mother, Lydia. Lydia left a will, to the probate of which Frank, during his lifetime, filed a contest. Before that contest was determined Frank died testate, and the contest was continued by his widow and executrix, Cora L. Wickersham, and is still pending. Cora, as executrix of Frank, is the person who made opposition to the confirmation of said sales in the estate of I. G. Wickersham, deceased, and who here appeals from the orders confirming them.

[654]

The written opposition of Cora to the confirmation is quite lengthy, and consists mainly of alleged facts tending to show-that she was a person interested in the estate of I. G. Wicker-sham and had a standing in court to oppose the sales. It is sufficient here to say that her contentions on that subject are, substantially, that all the property of I. G. Wickersham was community property; that on his death one half went to his surviving widow, Lydia; that an asserted waiver by Lydia of her rights in the property as surviving wife and election to take under the will of her husband was invalid for certain assigned reasons; that appellant’s testator, Frank, had an interest 'in the estate of his mother, Lydia, notwithstanding the alleged will of the latter, which is contested as aforesaid; and that, therefore, appellant has an interest in the estate of I. G. Wickersham through the interest of her testator, Frank,, in the estate of his mother, Lydia. But it is not necessary to inquire here as to appellant’s right to oppose the sales, as they must be confirmed on other grounds.

The only real ground of the opposition is stated as follows: “That it was not, and is not, for the best interests of the"estate of Lydia C. Wickersham, deceased, that said property should be sold at this time.” Even if the sales in question here had been made on petition and order of court,—as in the case of an ordinary administrator or executor not acting under a power of sale in a will,—an opposition on the sole ground that the sales would not be for the best-interests of some particular heir would not have been sufficient; it would have to be on the ground that the sales were not for the best interests of the estate in the administration of which the sales were asked—in this case being the estate of I. G. Wickersham. Moreover, in such case, facts showing that the sales were not for the best interests of such estate should be alleged. But in the case at bar the sales were made, not on petition and order of court, but pursuant to a power of sale in the will; and the right to determine whether or not sales should be made was lodged by the testator in the discretion of his executors. The only provisions touching sales under power in a will are in section 1561 of the Code of Civil Procedure. It provides that in such case “the executor may sell any prop: erty of the estate without order of-the court, and at either