In re the Estate of Byrne

Harrison, J. Appeal from an order directing the sale of certain real property belonging to the estate of the decedent.

The deceased died intestate, and letters of administra[178]tian were issued upon his estate to Maggie G. Barrett, who duly made and returned to the court an inventory of the estate, and caused to be published a proper notice to his creditors. Thereafter one of the heirs at law of the deceased presented to the superior court a petition for the sale of certain real property belonging to the estate, upon the ground that it would be for the best interest of said estate that it should be sold, assigning various reasons therefor. The administratrix demurred to this petition, and filed certain objections thereto which were overruled, and the court made an order directing her to cause the property to be sold. From this order she has appealed.

The authority of the superior court to order the sale of any real property belonging to the estate of a deceased person depends upon the presentation of a petition therefor containing a statement of the facts required by section 1537 of the Code of Civil Procedure. The sufficiency of the petition is the basis of the order of sale, and upon a direct appeal from this order, if the petition is defective in any of these statutory requirements, it is fatal to the validity of the order.

It is conceded by the respondent that the petition fails to state many of the facts made requisite by section 1537. But it is contended by him that because the real property which he asks to have sold is a mine, that section is inapplicable, and that the proceedings are to be governed by the .provisions of sections 1529-33 of the Code of Civil Procedure. These sections are headed “ Summary Sales of Mines and Mining Interests,” and form article III of the chapter providing for “ Sales in General,” while article IV of the same chapter is headed “The Sale of Real Estate, Interests therein, and Confirmation thereof.” Section 1536 authorizes the making of an order for the sale of “ real as well as personal property,” and section 1537 declares that “to obtain such order” the petition therein referred to must be presented containing certain enumerated facts. It may be conceded that a mine, or an interest in a mine, belonging to [179]