Cole v. Evans

MOORE, P. J. The question for decision is whether the probate court abused its discretion in directing the adminis[756]trator to convey property, the sale of which had already been confirmed, and in denying the motion of the administrator to vacate the order of confirmation, substantial evidence having shown that the delay was not due to the neglect or refusal of respondents.

On October 7, 1943, the court below made its order confirming the sale of a residential property belonging to decedent’s estate for the sum of $5,550. At that time respondents held a lien in the sum of $2,474.05 upon the property, secured by a trust deed, and it was in default. An escrow was immediately opened in which respondents deposited $550 in cash and a statement acknowledging receipt of $2,474.05. Also, they promptly arranged with a bank for a loan of $2,500. Subsequently, they deposited in the escrow a valid, nonnegotiable order drawn upon the bank for the borrowed amount. The aggregate of the foregoing sums constitutes the total purchase price. The executrix, acting through her husband, William Akin, deposited her deed conveying the property to respondents. At the same time he filed also a rental statement in the escrow by which it was disclosed that he was occupant of the premises under- an oral, one-year lease recently granted to him by the executrix.

Following the disclosure of the lease and respondents’ resentment thereat negotiations resulted in a tentative agreement for delivery of possession by Mr. Akin prior to April 1, 1944. Directly after that agreement the executrix deceased. The administrator with will annexed, appellant herein, qualified on February 18, 1944. Straightway following his qualification demands were made upon him for the filing of a new deed. He refused at all times to make such deposit. Moreover, his attorneys consistently reiterated to respondents that a deed to the property would be obtained only by order of court. Appellant’s motion to vacate the confirmation of sale came on for hearing concomitantly with the citation issued to appellant for the purpose of enforcing the execution and delivery of a deed. The motion was denied but appellant was ordered to deposit his deed in escrow conveying the property pursuant to the order of October 7, 1943.

Section 788, Probate Code, provides: “If, after the confirmation, the purchaser neglects or refuses to comply with the terms of the sale, the court, on motion of the executor or administrator, and after notice to the purchaser, may vacate