In re Estate of O'Sullivan
Before: Belcher
Synopsis
Estates of Decedents — Order of Sale — Publication in Weekly Newspaper. — The publication of an order to show cause why an administrator’s petition for the sale of the real estate of a decedent should not he granted, and of the notice of the sale of such real estate, may be made in such newspaper in the county as the court or judge shall direct, for the number of successive weeks required by the statute, though such paper be published weekly only, and though other papers are published daily in the same county.
Id. — Statutory Proceedings — Construction of Statute — Power of Court. — Though the validity of statutory [ oc dings to pass title to the real estate of a decedent depends upon a sub toantial compliance with the law, yet the court ca mot, by construction, ingraft upon the statute a new or additional provision not contained therein, in order to declare the proceedings invalid.
Id. —Publication to Day of Sale. —Under our statute, the publication of notice of such a sale must be for two weeks successively next before the day of sale, and as often during the prescribed period as the paper is regularly issued; and such publication, if in a weekly newspaper, is not required to be made on or including the day of sale.
Belcher, C. C. This is an appeal from an prder for the sale of real property, and an order confirming the sale and directing conveyances to be made.'
The facts set out in the record are as follows:—
On November 1,1885, the administrator of the estate of James C. O’Sullivan, deceased, filed in the superior court of the city and county of San Francisco a petition, verified, in all respects sufficient, for the sale of certain real [445]property belonging to the estate. Thereupon an order to show cause why the prayer of the petition should not be granted was duly made and filed. The order directed that a copy thereof should be published once a week for four successive weeks in the Weekly Star, a weekly newspaper printed and published in the said city and county. At the time named in the order, and after proof of its publication for the time specified, and that proper notice had been given, and after taking testimony, the judge of the court made an order for the sale of the property at private sale. Thereafter the administrator caused notice of the sale to be posted up in three of the most public places of the said city and county, and to be published in the Monitor, a weekly newspaper printed and published therein, for two weeks successively next before the day on or after which the sale was to be made. The notice was published on January 27, February 3, and February 10, 1886, and the day named for the sale was February 15, 1886.
A. P. Sullivan became the purchaser of the property for the sum of five hundred dollars, and the administrator then made a return of his proceedings to the court. On the day fixed for a hearing upon the return, Sullivan, the purchaser, appeared and objected to a confirmation of the sale. The court overruled the objections, and entered an order confirming the sale, and directing conveyances to be executed. Hence this appeal. The objections to a confirmation of the sale were,—1. That the order to show cause was published in a weekly, and not a daily, newspaper; 2. That the notice of the sale was published in a weekly, and not a daily, newspaper; 3. That the notice of sale was not published up to and including the day on which the sale was to take place.
And the same objections are urged here as grounds for a reversal of the orders appealed from.
The provisions of the code bearing upon the questions presented are as follows:—
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