Townsend v. Tallant

California Supreme Court Jul 15, 1867Published

Before: Ssaeter

AI Brief

AI-generated · verify before citing

Holding. The court held that a probate sale of real estate was void due to the administrator's failure to comply with statutory notice requirements and the failure to appoint a guardian ad litem for the minor heir, as the administrator could not represent both the estate and the minor in a hostile proceeding.

Issues

Whether the probate court's order of sale was void due to insufficient publication of notice.
Whether an administrator who is also the minor's general guardian can represent the minor in a proceeding to sell the minor's real estate.
Whether a probate court's confirmation of a sale cures jurisdictional defects in the underlying order of sale.
Whether a minor heir is estopped from challenging a void probate sale if the proceeds were accounted for in the administrator's settlement.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The one hundred and fifty-seventh section of the Act of 1851 contemplates a publication of four weeks in a newspaper designated by the Court, and such publication could not be dispensed with”

“Schallenberger could not represent both sides of the record at the same time.”

“If the order of sale was coram non judice, then the “ sale ” was no sale, and it could not be made valid and binding by any number of so-called confirmations.”

Synopsis

Publication op Notice op Order to sell Land to pay Debts^.—Under the Probate Act of 1851, notice of an order of the Probate Court requiring all persons interested to show cause why the real estate of the intestate should not be sold to pay debts, was required to be published for four successive weeks before the day to show cause, in a paper designated by the Court. If such notice was published three weeks in the paper designated by the Court, and then the fourth week in another paper designated by the administrator, the Court did not acquire juris- , diction by the publication.

Order to show cause why Land should not be Sold to pay Debts.—If the interval between the date of an order of the Probate Court to show cause why land left by the intestate should not be sold to pay debts, and the day fixed for the hearing of the petition, is less than the time required for the publication of the notice, or is less than the time allowed by law from the date of the order for parties interested to appear and show cause, the order is void, and a sale made under proceedings based on the order is also void.

Administrator and Guardian. — If the administrator is also guardian of an infant heir, the two positions, so far as general uses are concerned, are not necessarily incompatible.

Idem.—If, however, under the Probate Act of 1851, the administrator was also guardian of an infant heir, and as administrator attempted to divest the title of the heir by a sale, under an order of the Probate Court, of land to pay debts of the intestate, his position was hostile to the heir, and in such proceeding he could not represent the heir, but a guardian ad litem should have been appointed to watch the interests of the heir.

Attorneys for Minor Heirs.—The Probate Court, under the Act of 1851, had no authority to appoint-attorneys for absent or minor heirs. Under said Act, when the administrator applied for leave to sell land to pay debts, and there were minor heirs with no general guardian, a guardian ad litem.—not an attorney—Was required to be appointed, for the sole purpose of representing the minor heirs, before the petition was acted on.

No Presumptions indulged against Probate Record.—If the probate record is ' full, and shows that an attorney—not a guardian ad litem—was appointed to represent minor heirs on proceedings set on foot by the administrator to sell land to pay debts, it will not be presumed that a guardian ad litem was appointed.

When Heir may attack Probate Sale of Land.—If, in proceedings set on foot by the administrator in the Probate Court to sell land to pay debts, the Court acquires no jurisdiction of minor heirs, the order of sale is void, and the sale may be attacked collaterally by the heir.

Idem.—An order of the Probate Court confirming such sale is void. There was no order of sale for the confirmation to act on.

By the Court, Ssaeter, J.: Ejectment to recover a portion of Fifty Vara Lot Humber Seven Hundred and Hine, in the City of San Francisco. The trial was by the Court, without a jury. The plaintiff had judgment. The defendants moved for a new trial, which being denied, they appealed.

The plaintiff is an infant and sued by his guardian ad litem. At the trial, he proved that his father, John Townsend, died intestate on the 8th of December, 1850; that at the time of his death he was seized of the demanded premises; that the plaintiff was the only heir at law of John Townsend, and that the defendants were in possession at the time the action was commenced.

The defendants claimed to have acquired the title of John Townsend by virtue of a sale made by his administrator, Moses Schallenberger, (who was also at the time the general guardian of the plaintiff,) in the due course of administration, and mesne conveyances from the purchaser at the sale. To prove their title they introduced the record of the proceedings of the Probate Court of Santa Clara County, in which the estate of John Townsend was administered upon and finally settled. To these proceedings various objections were interposed on the part of the plaintiff. The Court below held in effect that these objections were well taken and that the title of John Townsend did not pass by virtue of the administra^ tor’s sale.

The whole case turns upon the validity of the proceedings of the Probate Court under the Act relating to the estates of ■ deceased persons, passed May 1st, 1851, (Acts 1851, p. 448.)

It appears that Schallenberger, acting as administrator, presented a petition to the Probate Court on the 26th of [51]November, 1851, praying that an order might be granted directing all persons interested in Townsend’s estate to appear before the Probate Judge at the next term of the Court, to be held on the fourth Monday of December then next ensuing, to show cause why an order should not be granted to sell real estate for the payment of debts. The Court on the same day made an order directing that public notice should be given in the San José Weekly Visitor, in pursuance of law, to all persons interested in said estate to appear at the Court house in the City of San José on the fourth Monday of December, 1851, and show cause why the prayer of the petitioner should not be granted. Dnder the Probate Act of 1851, section one hundred and fifty-seven, it was necessary to publish this order in the paper named for four successive weeks at least. It appears, however, that the notice was published in that paper for three weeks only—the fourth publication was in the California Courier, published in the City of San Francisco. The order was not complied with for the reason that the Visitor was discontinued at the third publication. The discontinuance of the paper, however, did not annul the order, nor turn the question of publication, or of further publication, over to the discretion of the administrator. The one hundred and fifty-seventh section of the Act of 1851 contemplates a publication of four weeks in a newspaper designated by the Court, and such publication could not be dispensed with except in the event of personal service, or of written assent to the sale by all persons interested in the estate.

Townsend v. Tallant

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief