McCabe v. Shell Oil Co.

AGEE, J. Thomas G. Roche died on September 10, 1959. He owned property at Valencia and 20th Streets in San Francisco, which was under lease to Shell Oil Company. The lease contained an agreement that if the lessor received an offer for the property and decided to accept the same,- Shell would be given notice of the offer and have a specified time within which to purchase the property for the same price.

The executor of the will of decedent commenced proceedings under the Probate Code to sell the property. Shell presented a bid of $46,000. The executor accepted the bid, subject to confirmation by the court. (Prob. Code, § 755.) At the hearing, held on April 28, 1961, respondent Jennie Einsprueh made a bid of $48,800. Shell’s representative .stated that Shell was not interested in increasing this bid. The court took the matter under submission and thereafter entered its minute order on June 1, 1961, confirming the sale to Jennie Einsprueh (Prob. Code, § 785). A formal written order of confirmation was made and filed on June 20, 1961. It recites that “this Order Confirming Sale of Real Property is entered subject to the rights of the Shell Oil Company under said Lease, as Amended.”

On June 8, 1961, the executor notified Shell of the order of June 1, 1961. On June 16, 1961, which was within the time specified in the lease, Shell notified the executor in writing that it had elected to exercise its option to purchase the property for the said sum of $48,800.

On June 20,1961, the executor filed a verified petition under section 850 of the Probate Code, reciting the above pertinent facts, and praying that the court order him to transfer and convey the property to Shell. This petition was heard and denied on July 10, 1961. A formal order was thereafter signed and filed on July 17, 1961.

On June 1, 1961, when the minute order confirming the sale to Einsprueh was made, and on June 20, 1961, when the formal order pursuant thereto was signed and filed, there- was nothing before the court which would have justified it in not confirming the sale. As stated in Estate of Vezina, 116 Cal. App.2d 438 [254 P.2d 103], at 441: “Under section 785 the court is required to investigate into the necessity for the sale and the advantage therefrom, as ascertained from the return and the evidence. If it finds good reason for the sale, legality and fairness in the conduct of the sale, and that the bid meets certain specified standards, then ‘the court shall make an order confirming the sale.’ . . . The return, and the evi[297]