Kane v. Myers

BARNARD, P. J. This is an appeal from an order confirming sale of personal property, presented on a settled statement.

The property sold consisted of a note and trust deed. At the time of confirmation a balance of $95,000 remained unpaid, being payable over the next 19 years. In his return and petition for confirmation the executor reported that he had sold the note and trust deed to a Mrs. Boyle for $88,350; that he had given the required notice and the sale was legally made and fairly conducted; that this was the highest and best bid received and was not disproportionate to the value of the property; and that it was for the best interest of the estate that the property be sold, for the reason that liquida[182]tion was necessary in order to make distribution under the terms of the will.

At the hearing, the court inquired whether anyone present desired to increase the amount of the returned bid by at least 5 per cent. The appellant Kane, through his attorney, stated that while he did not wish to increase the bid by 5 per cent he was willing to increase the bid to $90,000. He thereupon filed with the clerk a written bid offering $90,000 for the note and trust deed. After a discussion with respect to the right of the court to consider an increased bid which was less than that provided for in section 756.5 of the Probate Code, the court expressed a desire to accept a higher bid if he could legally do so, and continued the hearing for a week. At that time the matter was further argued and the court stated that he did not wish to take the responsibility of rejecting the bid of Mrs. Boyle and ordering a new sale, as there was no assurance that the $90,000 bid would then be made available. Thereupon, the attorney for the appellant stated that he had in his possession a cashier’s check for $10,000 which he was willing to deposit with the court or with the attorney for the executor, as evidence of good faith. Both the court and the attorney for the executor declined to accept the responsibility of accepting and holding the check. The executor then testified that he had written two letters to Kane telling him that the trust deed was for sale; that he had discussed the matter with Kane on several occasions but could not pin him down to a definite figure; that Kane tried unsuccessfully to find out what other bid had been received; that he later sent Kane a bid form but received no answer; and that no definite offer of any amount was made by Kane. Appellant’s counsel then stated that if Kane were present he would testify that he had offered $90,000 for this note and trust deed. The court then confirmed the sale to Mrs. Boyle. In his order the court found that due notice of the hearing had been regularly given; that notice of the sale had been given by the executor as required by law; that the sale was regularly held at the time and place specified in the notice; that the sale was legally made and fairly conducted; that at said sale the executor sold this note and trust deed to Mrs. Boyle for $88,350, this being the highest and best bid made; that the sum so bid is not disproportionate to the value of the property; and that an offer of at least 10 per cent more than the bid was not made in open court.