Wilson v. Hastings
Before: Myrick
Synopsis
Estates of Deceased Persons—Petition for Sale of Real Estate—Reference to Inventory—Description.—Under section 155 of the act to regulate the settlement of the estates of deceased persons, in force in 1855-57,' a petition for the sale of real estate to pay debts and expenses may refer to the inventory for a description of the real estate and the condition and value thereof, and both may be considered together. But where the petition contains no description of the real estate, or its condition or value, and the reference to the inventory is for greater certainty, it is insufficient to incorporate the inventory with the petition.
Id.—A description of portions of the real estate as “the undivided one half part of one league on Clear Lake,” and “the undivided one half part of a farm and vineyard at Sonoma, containing 833 acres, more or less,” is insufficient.
Id.—Jurisdiction.—Unless the petition, or inventory, if referred to, substantially complies with the requirements of the statute, the court acquires no jurisdiction to order a sale; and an insufficient description as to one of several parcels of land, referred to in the petition or inventory, will deprive the court of its jurisdiction, although the remaining parcels are sufficiently described.
Id.—Guardian and Ward—Powers of Foreign Guardian — Jurisdiction. —The consent of a guardian appointed in and resident of another state, to a probate sale of real estate belonging to his wards, situated in this state, confers no jurisdiction on the court to make the order of sale.
Myrick, J. Ejectment to recover possession of an undi-
vided one-tenth part of a tract of land in the city and county of San Erancisco, being part of the “ Market Street Gore,” situated at the junction of Market and Sacramento streets.
Plaintiff’s chain of title depends upon the validity of a probate sale had in 1855-57. The will of the testator, James D. Galbrath (then a tenant in common in the premises), was admitted to probate, and letters testamentary were ordered to issue.
The executor filed a petition for the sale of real estate to pay debts and expenses. The petition contained no description of real estate, or statement of value, except that the total value of all the property was stated at $13,842.50; the petition, however, referred to the inventory in the following language: “ Which said inventory and appraisement is now on file in the office of the clerk of this court, and your petitioner begs leave to refer to the same for greater certainty.” It has been held, in Stuart v. Allen, 16 Cal. 473, and other cases following that case, that the petition may refer to the inventory, and both may be considered together. In the case of Stuart v. Allen, the reference in the petition to the inventory was, in terms, for a description of the real estate, and the condition and value thereof, and for those purposes the inventory was made a part of the petition.
Section 155 of the act to regulate the settlement of the estates of deceased persons (Wood’s Digest, p. 406), in force when these proceedings were had, required that the petition contain “ a description of all the real estate of which the testator or intestate died seized, and the condition and value of the respective portions and lots,” etc. Taking the petition and inventory together, for the purpose of ascertaining if the statute was complied with, we find that the inventory, under the head of “real estate,” contained the following:
[245]“ The undivided one-half part of the fifty vara, known on the official map of the city of San Francisco as number seven hundred and eighty-six............. .. $500
<£ The undivided one-third part of a tract of land situate at the junction of Market and Sacramento streets,
commonly called the ‘ Gore ’..................... 500
“ The undivided one-half part of --, situate at the south-
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