In re Estate Durham

By the Court, McKinstry, J.: In Delaney’s Estate (ante p. 76), the distinction is shown between a mere power in a will authorizing a sale by executors, and the devise of a legal estate in trust to carry out provisions of the will; and in Tracy v. Tompkins, decided from the Bench, (present term), the same distinction was recognized as continuing after the adoption of the Codes. In the one case, the freehold remains in the heirs until a sale; in the other it vests in the executors on the demise of the decedent. To the former class of cases the provision of section 178 of the Probate Act of 1851—that no sale should be valid, unless confirmed by the Probate Court, was applicable; to the same class are applicable sections 1,517 and 1,561 of the Court of Civil Procedure. The account of sale spoken of in section,,!,561 is the same as the “return” mentioned in section 1,552 of the Code; and the statute evidently contemplates that the same proceedings shall be had, with respect to the return, when the sale is made under a power in a will, as when it is made under an order of Court. When, therefore, the will creates a naked power—a power not coupled with an interest—the executors must give notice of the sale, return accounts thereof, and, unless there are special directions in the will, must conduct the sale in all respects as if made under an order of Court. (Code of Civil Procedure, 1,561.) The sale must be reported under oath, and confirmed by the Probate Court, before the title to the property sold can pass. (Id. 1,517.) The necessity of confirmation implies the hearing and examination provided for in section 1,552 of the Code of Civil Procedure: that section requires, where the property is not sold at public auction—as was the fact in the present in[496]stance—that certain notices be given of the hearing of the return of sale, that the day of. such hearing be fixed by order, etc. In the ease at bar it is stipulated that no day was fixed by order of the Probate Court or Judge, and that “no notice of the hearing of the report or of the filing thereof, was given by posting or publication;” and it does not appear in the record that the persons interested in the estate were actually present at the hearing in person, or by attorney. In the absence of proper notification, the Probate Court had no power to confirm the sale, and the order purporting to confirm it was properly set aside. It is not of importance to inquire whether Gridley had such an interest in the estate as authorized him to move to set aside the order of confirmation, since the Probate Court could annul it whenever the attention of the Judge was called to the circumstance that it had been made without acquisition of jurisdiction over the persons of all interested.