Smith v. Olmstead
Before: Harrison, Haven
Synopsis
Estates of Decedents—Will — Sale under Power—Bights of Pretermitted Children of Testator. — Where a will does not provide for the children of the testator, or show that the omission to do so was intentional, hut gives to the testator’s wife all of his property, with absolute power to sell any or all of it without application to or approval or authority of any court, a sale of the property by the wife of the testator, without any previous order of the court therefor, which is not shown to have been necessary for the payment of debts of the decedent, or expenses of administration, although Confirmed by the court, does not transfer to the purchaser the title to the land as against the testator’s children.
Id. —■ Construction of Code — Operation of Law — Inheritance of Pretermitted Children — Effect of Will.—Under sections 1306 and 1307 of the Civil Code, providing that where a testator omits to provide in his will for any of his children, unless it appears that the omission was intentional, the child succeeds to the same portion of the estate of the testator as he would have received if the testator had died intestate, the child succeeds immediately, by operation of law, to the same portion of the real property as if no will had been made, the testator being regarded as dying intestate as to that portion, and every provision of the will directly or indirectly attempting to dispose oí such portion o£ the estate, except for the discharge of the decedent’s debts or other charges o£ administration, is inoperative as against the child.
Opinion — Haven
De Haven, J. This is an action for the purpose of determining conflicting claims to real property.
The record shows that one Z. B. Smith, now deceased, in his lifetime made » last will, by which, after directing the payment of his debts, he, in terms, gave to his wife all of his property, with “ absolute power to sell any or all of said real and personal property, at public or private sale, with or without advertisement, and without application to any court, and without approval or authority of any court whatever.” In a subsequent clause the wife was also named as executrix of the will. She duly qualified as such, and sold to the defendants the property described in the complaint. Such sale was made without any previous order therefor; but was after-wards confirmed by the court in which the administration of her deceased husband’s estate was pending. The land was community property. The record does not show that the sale was necessary for any of the reasons stated in section 1536 of the Code of Civil Procedure, that is, in order “to pay the allowance of the family, or of the debts outstanding against the decedent, or the debts, expenses, or charges of administration, or legacies.”
The plaintiffs are minor children of the said Z. B. Smith, deceased, and are not provided for in said will, nor does the will show that the omission to provide for them was intentional.
'There has never been any distribution of this property, and the administration of the estate of said Smith is still pending.
The judgment of the court below was in favor of plaintiffs, and the defendants appeal. This judgment was affirmed by department one of this court, on January 25, 1890, but a hearing in Bank was afterwards ordered, and the case is now before us for determination.
The question for decision is, whether, upon the facts as here stated, the power of sale contained in the will is so far operative against the plaintiffs that a sale made [585]under it, and confirmed by the court, transferred to the defendants the title to the land in controversy. To determine this, a brief reference to the language of the law relating to wills, and the right to succession of property of a decedent, in the absence of a will disposing of it, is necessary.
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