Bennalack v. Richards

Harrison, J. Philip Richards died in 1887, leaving a last will and testament by which he made certain specific legacies, and left the residue of his estate to his brothers, William S. Richards and Francis Richards. He appointed William G. Richards, Francis Richards, and John Bennalack as executors of his will, and gave them power, after the expiration of two years from his death, to sell any portion of his estate at public or private sale, “ without any order of court or being required to account to any court.” Under this power the executors sold certain land at public auction May 11, 1891, and on the same day executed to the purchaser a conveyance, in which, as executors, they purported to convey to him, by virtue of the power given them in the will, “all the right, title, and estate of the said Philip Richards, deceased, at the time of his death, and also all the right, title, and interest that the said estate, by operation of law or otherwise, may have acquired, other than or in addition to that of said deceased at the time of his death,” in and to the said land. The land was sold for its full value, and for more than an appraisement thereof made within a month prior thereto. The plaintiff has succeeded to the rights of the purchaser, and brought the present action against the executors of the will and the residuary legatees to quiet her title thereto. Judgment was rendered in her favor, and a new trial was denied. From this judgment and order denying a new trial this appeal has been taken.

Section 1561 of the Code of Civil Procedure provides that when a will gives to an executor authority to sell property, he may make such sale without the order of the court, but that he must make return of such sale, as in other cases, and that if special directions are given in the will, he must observe those directions in the sale; and that, “in either case no title passes unless [408]the sale he confirmed by the court.” The power of the legislature to restrict the testamentary disposition of property, or to place limitations upon the authority that may be conferred upon an executor, or upon the exercise by him of the authority given by the will, is too well settled to require discussion. Decisions upon the effect of a conveyance by an executor, without a confirmation by the court, rendered in other jurisdictions in which there is no statute similar to the forego, ing provision of section 1561, are without authority in this state; nor are decisions given under rules prevailing in stales where the executor is held to be a trustee, under a continuing trust for the benefit of all the parties interested in the estate until its final disposition in accordance with the terms of the will, applicable under the system prevailing in this state. Prior to 1861 a testator could confer upon his executor power to dispose of his estate, independent of any control by the probate court. (Larco v. Casaneuava, 30 Cal. 560.) But in that year the legislature passed an act requiring the confirmation of all sales made by executors under authority given by the will; and in 1872 the foregoing provision of the code was adopted. The language used therein is too explicit to admit of construction, and we must hold that no title passed by the sale and conveyance of the executor to the plaintiff's grantor.