In re Estate of Smith

By the Court: 1. The order of the Probate Court refusing to set aside the order of sale previously entered is not the subject of appeal to this court. (C. C. P., Sec. 969.)

2. The appeal is also taken from the order of sale, and it is urged by the appellant that the petition upon which the order is founded is insufficient. The several matters required to be set forth in such a petition are enumerated in the Code of Civil Procedure (Sec. 1537); amongst these is the “ condition ” of the property to be sold. The description of the property is distinctly required to be stated, and also its value, and, besides these, its condition is to be set forth in the petition. The court should be informed by the petition of the condition of the property: that is, whether the property is improved or unimproved; productive or unproductive; occupied or vacant, and the like; such information is necessary to enable the court to intelligently exercise its judgment in the selection of the property of the estate, which can be most advantageously sold. In the petition filed in this case the condition of the property is not stated, and in this respect the petition is substantially defective; the provision found in the statute, (section 1537 supra,) that a failure to set out the necessary facts in the petition will not invalidate the subsequent proceedings, if the defects be supplied by proof at the hearing, and stated in the decree, does not aid the respondents. The provision of the statute has no applicability to a petition, the sufficiency of which is directly attacked by general demurrer in the Probate Court, or by objection to its sufficiency, taken upon appeal from the order of sale.

3. It seems that the refusal by the Probate Court to set aside the homestead was not upon the merits, but was put mainly upon the ground that a proper order of sale of the premises prayed to be set aside had already been duly entered. Under the circumstances, and without express[566]ing an opinion now upon the merits of the application, the order refusing to set aside the homestead will be reversed, leaving the" appellant at liberty, upon return of the cause, to apply de novo.

Appeal from order refusing to set aside order of sale dismissed; order of sale and order refusing to set apart a homestead reversed, and cause remanded for further proceedings, and with leave to the executor to amend his petition, and to the appellant to make her application for a homestead de novo.

Bemittitur forthwith.