Giambroni v. Jurgensen

[1069]Opinion

TAYLOR, P. J. On this appeal1 by D. G. Jurgensen, the buyer, from an order of the probate court confirming the sale of real property by the executor, the major contention is that the court erred as a matter of law as the buyer withdrew his bid before the confirmation hearing. As we have concluded that there is no merit to this contention, the judgment of confirmation must be affirmed.

The record indicates that on December 22, 1971, the buyer submitted to the executor a written bid of $65,000 for the seven parcels of property in question, accompanied by a check for $6,500. On December 27, 1971, the executor filed his return of sale and a petition for confirmation thereof notifying the buyer of the acceptance of the bid and the time and place of the original confirmation hearing on January 13, 1972; the check (No. 1863) that accompanied the offer was collected on December 28, 1971. On January 13, 1972, the buyer filed his objections, alleging that he had never received a written acceptance of his offer and that the offer was withdrawn by a letter dated January 11, 1972, pursuant to paragraph seven of a deposit receipt dated December 16, 1971.2 The court, after refusing to hear the buyer’s oral testimony, confirmed the sale on January 13, 1972. Thereafter, the buyer filed his motion to vacate and set aside the order of sale and the court heard the oral testimony of the parties on March 9 and March 30, 1972. The evidence indicated that prior to the service of the return of sale and petition for confirmation, the buyer had been orally notified of the acceptance by the estate by the executor’s agent.

Accordingly, the court found that: 1) the buyer’s written bid was timely accepted by the estate; 2) the buyer was notified of this acceptance prior to any action on his part to withdraw the sale; 3) there was no rescission of the contract of sale; and 4) the sale was fairly and legally made and should be confirmed.

[1070]As indicated above, the buyer’s major contention is that as a matter of law there was no contract for the court to confirm as his letter of January 11 rescinded the offer prior to the confirmation hearing. The buyer erroneously assumes that the estate was required to accept his offer in writing or in a particular form of writing as recommended by 1 California Decédent Estate Administration (Cont.Ed.Bar 1971) pages 518-521 and 537. This contention is not supported by the facts or any authority. Substantial uncontroverted evidence supports the finding that here, the executor’s acceptance was first orally communicated, and then again communicated by the executor’s performance by filing the verified return of sale and petition for confirmation filed prior to any attempted rescission by the buyer. The buyer’s attempt to argue that his offer was conditioned on obtaining financing was not supported by the evidence. As to any allegations concerning fraud, the trial court properly ruled that as this was an issue to be determined by the parties in superior court it was beyond the limited jurisdiction of a probate court.