In re Brannan's Estate

California Supreme Court Dec 16, 1897 No. S. F. No. 655Published

Before: Belcher

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Holding. The court affirmed an order directing the sale of estate property to pay debts and legacies, holding that the petition's allegations were deemed admitted because they were not denied and were supported by the court's records.

Issues

Whether the court erred in ordering a sale of estate property without additional proof when the petition's allegations were not denied by the executrix.
Whether the executrix's claims regarding potential financial loss and lease obligations provided valid grounds to reverse the order of sale.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The answer to this contention is that none of the averments referred to were denied by appellant, and they were therefore deemed admitted to be true, and no proof in support of them was required.”

“We find in the record no valid ground for reversal, and advise that the order appealed from be affirmed.”

Synopsis

Executors—Petition to Sell Land.—Legatees presenting a verified. petition for the sale of testator’s land need not prove the allegations of the same, where they are not denied by answer.

Executors—Sale of Land—Evidence.—A Contention that certain allegations in a petition to sell a testator’s land were not proved cannot be sustained where they were matters which appeared from the papers on file in the case, to which the attention of the court was called.

Executors—Sale of Land.—Where Testator’s Land was Leased

for a certain period, an executrix cannot object to a sale thereof before the expiration of the lease, to pay debts and legacies, on the ground that it would cause a loss of the rents, if they would not greatly exceed the interest on such debts and legacies.

Executors—Sale of Land.—An Objection That, on Account of the depreciated value of testator’s property, a sale thereof would be to the damage of the residuary legatees, cannot be interposed against a petition for an order directing the executrix to sell, as the objection can be considered, under Code of Civil Procedure, section 1552 et seq., only when the sale comes up for confirmation.

Executors—Sale of Land Subject to Lease,—An executrix may be directed to sell testator’s property, subject to an existing lease for a term of years, giving the lessee an option to purchase at the end of the term, where the lease does not prohibit a sale during the term.

BELCHER, C. The court below made an order on April 24, 1896, authorizing and directing the executrix of the last will and testament of Thomas J. Brannan, deceased, to sell at public auction a certain described lot of land in the city of San Francisco, belonging to the estate of the deceased, for [883]the purpose of paying the debts and legacies of said deceased. From that order this appeal is prosecuted by the executrix.

It appears that Mary James, Margaret Brannan, John Brannan and William Brannan, legatees under the will of said decedent, presented a verified petition to the court below asking for a sale of the said lot. The petition stated all the facts required by section 1537 of the Code of Civil Procedure, and, among other things, that the will of the decedent was admitted to probate in said court on the thirtieth day of April, 1894, and on the same day letters testamentary were issued to the appellant, Johanna Manseau, as the executrix thereof; that notice to creditors was duly given, and the time for presenting claims against the estate had expired; that the inventory and appraisement of the estate was filed June 5, 1894, and the first annual account of the executrix was filed January 3, 1895, from which it appeared that the amount of personal property that had come into the hands of the executrix was $4,269.81; that the second annual account of the executrix was filed in February, 1896, and the amount of personal property then remaining in her hands undisposed of was $3,147.25; that the debts outstanding to be paid out of the estate amounted to $792; that the debts, expenses and charges of administration, accrued and paid by the executrix, amounted to $641.33; that the legacies given to the legatees, who were named, amounted to $5,450, and that appellant was made residuary legatee; that decedent died seised of the said lot of land, and the same was rented under a term lease for five years, at the monthly rental of $40, which lease would expire on the twenty-third day of March, 1899, with the privilege of purchase, at the expiration thereof, by the lessees for the sum of $8,000; that the appraised value of said lot was $5,000, and a sale of the same was necessary to pay the legacies and remaining expenses and charges of administration; that the decedent was an unmarried man, and since his death the estate had not acquired any interest in any other real property; that third parties had represented to petitioners that they were ready and willing to buy said real property at a price not disproportionate to its value, and to comply with and make their offers in accordance with the terms of sections 1549 and 1550 of the Code of Civil Procedure; and that said third parties had made known their said offers to the executrix, through her attorney, and she had refused

In re Brannan's Estate

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