In re the Estate of Williams

Sharpstein, J. By the terms of the last will of Thomas H. Williams, all his property was devised to his executor, George E. Williams, in trust, for the payment of debts of the estate, and to distribute the remainder among various devisees.

In item 9 of the will, the testator declares: “That no confusion may arise in reference to title to any property [184]of my estate, I hereby desire that all the property of which I die the owner .... vest absolutely in my executor herein appointed, .... said executor to hold said property, and every part thereof, in trust for the uses and purposes in this will mentioned, and for the use and benefit of my children, as herein provided.

“ Item 10. To my executor herein appointed, I give and grant the following powers and authority: 1. To carry on all business in which I was engaged at the time of my death; 2. To borrow money for use of such business, or the benefit of my estate; 3. To bargain, sell, and convey any portion or part of the property of my estate, without any order of court or any other proceeding, and to execute all mortgages or conveyances necessary or deemed proper by him; 4. To sell and convey any part or parcel of property set aside for any one of my children, after distribution,” etc.

“ Item 2. That my executor shall pay all just claims against my estate, out of the income thereof, or sales if necessary, or money borrowed.”

This will was admitted to probate in San Francisco on April 6, 1886, and letters testamentary on the same day were issued to George E. Williams. The administration is still pending.

On July 31, 1890, George E. Williams, as trustee and executor under the will, entered into a contract to sell to Gustave Niebaum (the appellant here) certain lands in San Francisco belonging to the estate, for the sum of ten thousand dollars, whereof, one thousand dollars was paid by the purchaser at that date. The agreement acknowledged receipt of one thousand dollars in part payment, and provided that the purchase should be completed within fifteen days thereafter, and contained no reference to any return to or confirmation by any court. On August 25, 1890, without the knowledge or consent of the purchaser, the executor filed a return of sale in the probate court, in the usual form, requesting confirmation by the court, and an order was entered setting the petition for hearing by the court on September 5, [185189]