MacConnon v. Security-First National Bank

DORAN, J. The appeal herein is from an order confirming the sale of a certain parcel of real property located in the city of Glendale, California, constituting the chief asset of the estate of Erminia G. Kirk, deceased.

[661]The property in question was appraised shortly after decedent’s death, to wit, in June of 1934, at $23,350; three other parcels of real property owned by the deceased were appraised at $10,500, $1400 and $12,600 respectively, making a total of $47,850 in real property.

The debts of the estate consisted of a note in the sum of $17,500 bearing interest at the rate of 7 per cent per annum, secured by a trust deed held by the Security-First National Bank of Los Angeles upon said Glendale property; an unsecured claim in the amount of $15,697.05 inclusive of interest, by one of the legatees; and an unsecured claim by a creditor of the estate in the amount of $8,000, of which $5,000 was advanced by her to carry the-estate along after the death of the decedent.

The will of said deceased was admitted to probate and letters testamentary were issued to said Security-First National Bank of Los Angeles, as executor. One of the provisions contained in the will autiaorized and empowered the executor to “sell, lease or mortgage the whole or any portion of my estate, except as herein otherwise specifically devised, at either public or private sale, with or without notice, without securing any previous order of court therefor, and upon such terms and conditions as it may seem best, but subject, however, to confirmation by court as provided by law. ’ ’

In May of 1936, after the Glendale property had been dormant for two years, the executor listed said property with a real estate agent. Some six months later an offer of $25,000 was received from one Mr. McMullin. The executor consulted with the legatees, one of the creditors and the representative of the other creditor, and thereupon decided to reject the offer. The prospective purchaser then offered $28,000; the executor again conferred with the persons interested, and at that time was advised that it was agreeable to sell. A higher bid was obtained thereafter from Mr. Mc-Mullin, namely, an offer of $30,000 cash, which the executor accepted, and an agreement of sale was entered into on December 10, 1936. The return of sale and a petition for confirmation of said sale was filed on December 11, 1936. Thereafter, the property was reappraised and a value of $33,000 was fixed. Subsequently, the two unsecured creditors requested by letter to the executor that the sale of said property be declined.