Strobehn v. Crumley

Opinion

AISO, J. This is an appeal by Jack W. Crumley, Marshall L. Foreman, Jr., and Robert E. McGinnis (hereafter referred to as “appellants”) from an order of the probate court denying confirmation of a sale of real property which had been made by the executor to the appellants. The order is appealable under Probate Code section 1240.

A sale of the property after due notice was made at a private sale for $13,000; this sum was $1,000 more than the appraised value of the property. A petition requesting that the sale be confirmed was signed and verified by the executrix. It alleged that “The sale was legally made and fairly conducted. It is to the advantage and benefit of the estate and those interested therein, in order to prevent loss to the estate, that the real property hereafter described be sold.” On the same date appellants’ bid for $13,000 was filed with the court; the bid promised that the full purchase price would be paid before recording of the deed.

When the confirmation came before the court, however, the attorney for the executrix stated orally that one of the heirs objected to the sale because the price was too low. This objection was made in a conversation with him and the executrix and there is nothing in the record referring to it other than the attorney’s statement to the probate court. The court refused to confirm the sale and the prospective purchasers have appealed.

The will of the deceased was not made a part of the record, hence we cannot assume that the executrix had express authority to sell the prop[1171]erty. If the will had granted her authority to sell then no showing of “the necessity of the sale, or its advantage or benefit to the estate or to those interested therein” would be necessary. (Prob. Code, § 757; Estate of Flaherty (1924) 69 Cal.App. 429, 430 [231 P. 591].) Therefore we assume the sale was governed by the general provisions in Probate Code section 785: “Upon the hearing the court must examine into the necessity for the sale, or the advantage, benefit and interest of the estate in having the sale made, and must examine the return and witnesses in relation to the sale; and if it appears to the court that good reason existed for the sale, that the sale was legally made and fairly conducted, and complied with the requirements of the previous section, that the sum bid is not disproportionate to the value, and it does not appear that a sum exceeding such bid at least 10 percent on the first ten thousand dollars ($10,000) bid and 5 percent on the amount of the bid in excess of ten thousand dollars ($10,000), exclusive of the expenses of a new sale, may be obtained, the court shall make an order confirming the sale and directing conveyances to be executed; otherwise it shall vacate the sale and direct another to be had, of which notice must be given and the sale in all respects conducted as if no previous sale had taken place. ...”