Bannon v. Mon Har Enterprises

Opinion

FILES, P. J. This is an appeal by the administrator of the estate of Shorr from an order made by the probate court on February 6, 1980, denying the administrator’s petition for a direction to withdraw from a sale of real property.

[777]The material facts are not in dispute. On December 14, 1977, the probate court confirmed a sale of real property by the Shorr estate to Mon Ear Enterprises (hereafter buyer). The decedent’s widow appealed from that order, which was affirmed by Division Two of this court in an unpublished opinion filed October 17, 1979 (Estate of Shorr, 2 Civ. 55043). The remittitur was issued December 17, 1979.

On December 28, 1979, the administrator petitioned the probate court for an order directing him to withdraw from the sale and vacating the order confirming the sale, upon the ground that, due to the lapse of time, the terms of the sale were no longer fair and reasonable to the estate. The petition declared: “The income produced by the building is now substantially more than it was at the time of sale, and expenses of managing the building are now less, due primarily to a reduction in real property taxes.”

The probate court denied that petition by its February 6, 1980, order, from which this appeal was taken.

A motion to dismiss this appeal on several grounds was denied by the Supreme Court on February 11, 1981. It is thus the law of the case that the February 6, 1980, order is appealable. (See Pigeon Point Ranch, Inc. v. Perot (1963) 59 Cal.2d 227, 230 [28 Cal.Rptr. 865, 379 P.2d 321].)

No authority has been cited for reexamining the sale price after the order confirming the sale has been affirmed on appeal. The authorities are to the contrary.

The adequacy of the price to be received by an estate from a sale of real property is determined by the probate court after a hearing pursuant to Probate Code section 785. That determination may not be set aside upon a showing made at a later time that a higher price could then be obtained. (See Estate of Lewy (1976) 61 Cal.App.3d 635, 641 [131 Cal.Rptr. 291].)

Baldwin v. Stewart (1933) 218 Cal. 364 [23 P.2d 283] was an action by an administrator for specific performance of a contract to sell real property. Before the sale had been confirmed by the probate court the buyer had given notice of withdrawal. Nevertheless, the probate court