Gregory v. Taber

Baldwin, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring.

■ This case involves most of the facts and principles embraced in the case of (Gregory v. McPherson, reported in 13 Cal. 562.

The action is ejectment, the plaintiff claiming the tract of land sued for by virtue of an executor’s sale of the property as that of [409]the estate of Juana Sanchez de Pacheco. The defendant resisted the suit, upon the ground that the proceedings for the sale were fatally defective, and the sale void. The defects insisted on are, as in the case of Gregory v. McPherson, mainly: 1st, that two executors qualified upon-Mrs. Pacheco’s will, and that the proceedings were instituted and. conducted by only one of them; 2d, that the petition for the sale neither sets forth the amount of the personal property which had come to the hands of the executors, nor the condition or the value of the respective portions or lots of the real estate of which the testatrix died seized, nor the ages of the heirs or devisees.

It is said that this case differs from that of Gregory v. McPherson in this, that here an account of the personal estate, fulfilling the requirements of the statute, was proved to have been filed at or about the date of filing the petition. But the answer is, that no such account was filed with, or as a part of, the petition. The mere fact that an account was filed, or was found among the papers of the probate proceedings, is not sufficient. It must have been referred to in the petition so as to become a part of it for the purpose of the reference. The statute is peremptory, that the facts prescribed shall be stated in the petition. By a liberal construction of this requirement, we held in Stuart v. Allen that if the petition referred to another paper on file, for the purpose of a more full and explicit statement of facts, that paper might be considered in connection with the petition, and both be taken together as a statement, of all the required facts. But it is apparent that no such result could be attained, unless the petition itself made the reference» The case of Bloom v. Burdick is not opposed to this conclusion.. (See 1 Hill, 185.) It seems that the Hew York statute of 1813 required the administrator “ to accompany his petition with an-account,” etc. But our statute in this respect is different. It requires the petition to state particular facts as to the condition of the estate, and these are essential facts going to the jurisdiction. It is not sufficient that the administrator files a separate paper, not a part of or referred to in the petition, though this paper should state part of the facts which the statute requires the petition to state. If this were so, the consequence would be that a large number of.'