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payment of debts or family allowance, the court or judge must so direct, and such articles as are not necessary for the support and subsistence of the family of the decedent, or are not specially bequeathed, must be first sold. Articles bequeathed must not be sold to pay debts or family allowance, until all other personal estate has been applied to the navment thereof.

Page 127.

1526. The sale of personal property must be made at public auction, for such money or currency as the Court may direct, and after public notice given for at least ten days, by notices posted in three public places in the county, or by publication in a newspaper, or both, containing the time and place of sale, and a brief description of the property to be sold; unless, for good reason shown, the Probate Court or Judge orders a private sale, or a shorter notice. Public sales of such property must be made at the Court House door, or at the residence of the decedent, or at some other public place, but no sale shall be made of any personal property, which is not present at the time of sale, unless the Court otherwise order.

1536. When a sale of property of the estate is necessary to pay the allowance of the family, or the debts outstanding against the decedent, or the debts, expenses, or charges of administration, or legacies, the executor or administrator may also sell any real, as well as personal property of the estate, for that purpose, upon the order of the Probate Court; and an application for the sale of real property may also embrace the sale of personal property.

If, in a devise to executor, in trust for heirs, the testator expresses & desire that his homestead shall not be sold, unless necessary, and that the same shall be used by his widow and children as a home, the executors have authority to sell the homestead, if it becomes necessary. Etcheborne v. Auzerais, 45 Cal. 122.

estate of any

in part of mines or interests in mines, or of shares, interests or stocks in a mining corporation, such mines, inter

Petition for sale, who

what to con

tain.

ests, stocks or shares may be sold under the order of the probate court having jurisdiction of the estate, as hereinafter provided.

Statutes of 1865-6, p. 359, § 1.

See Halleck v. Moss, 22 Cal. 266, cited under section 1523, ante.

SEC. 1530. The executor, administrator, or any heir at may file and aw, or creditor of the estate, any partner or member of any mining company, in which interests, or shares are held or owned by the estate, may file in the probate court a petition in writing, setting forth the general facts of the estate being then in due course of administration, and particularly describing the mine, interest, or shares which it is desired to sell, and particularly the condition and situation of the mines, or mining interests, or of the mining company or corporation in which such interests or shares are held, and the grounds upon which the sale is asked to be made.

Order to show cause,

and on what

Statutes of 1865-6, p. 539, § 2.

SEC. 1531. Upon the presentation of such petition the how made probate judge must make an order directing all persons notice. interested to appear before him at a time and place specified, not less than four nor more than ten weeks from the time of making such order, to show cause why an order should not be granted to the executor or administrator to sell such mines, mining interests, shares or stocks, as are set forth in the petition and belonging to the estate. A copy of the order to show cause must be personally served on all persons interested in the estate, at least ten days before the time appointed for hearing the petition, or published at least four successive weeks in such newspaper as the court shall specify. If all persons interested in the estate signify in writing their assent to such sale, the notice may be dispensed with.

Order of

and how

made.

Statutes of 1865-6, p. 359, § 2.

See Halleck v. Moss, 22 Cal. 266, cited under section 1523, ante.

SEC. 1532. If, upon hearing the petition, it appears to Bale, when the satisfaction of the probate judge that it is to the interest of the estate that such mining property or interests of the estate should be sold, or if it appears to his satisfaction that an immediate sale is necessary in order to secure

the just rights or interests of the mining partners or tenants in common, in which such shares, stocks or property are held, such probate judge must make an order authorizing the executor or administrator to sell such mining interests, mines or shares, as hereinafter provided.

Statutes of 1865-6, p. 359, § 4.

proceedings

to article

SEC. 1533. After the order of sale is made, all further Further proceedings for the sale of such mining property, and for to conform the notice, report and confirmation thereof, must be in con- four. formity with the provisions of article four of this chapter. Statutes of 1865-6, p. 359, § 5.

ARTICLE IV.

THE SALE OF REAL ESTATE, INTERESTS THEREIN AND CONFIRMA-
TION THEREOF.

SECTION 1536. To sell real estate, when.

1537. Verified petition for sale, what to contain and to what it may

refer.

1538. Order to persons interested to appear.

1539. Copy to be served, assent given, or publication made.

1540. Hearing after proof of service. Presentation of claims.

1541. Administrator, executor and witnesses may be examined.
1542. To sell real estate or any part, when.

1543. Order of sale, when to be made.

1544. What the order of sale must contain. May be at public or
private sale.

1545. Interested persons may apply for order of sale. Form of

petition.

1546. To deliver copy of order to executor.

1547. Notice of sale.

1548. Time and place.

1549. Private sale of real estate, how made, and notice. Bids, when

and how received.

1550. Ninety per cent. of appraised value must be offered.

1551. Purchase money on sale, on credit, how secured.

1552. Hearing and setting aside sale, and when re-sale may be

ordered.

1553. May file objections, when and who.

1554. When order of confirmation is to be made and when not.

1555. Conveyances.

1556. Order of confirmation, what to state.

1557. Sale may be postponed.

1558. Notice of postponement.

1559. Sale of real estate to pay legacies.

1560. Where payment of debts, etc., provided for by will.
1561. Sale without order. May require security.

1562. Where provision by will insufficient.

1563. Estate subject to debts, etc.

1564. Contribution among legatees.

1565. Contract for purchase of lands may be sold, how.

1566. Conditions of sale.

1567. Purchaser to give bond.

1568. Executor to assign contract.

1569. Sales by executors or administrators of lands under mortgage

or lien.

1570. The holder of the mortgage or lien may purchase the lands.

Page 130.

1537. To obtain an order for the sale of real property, he must present a verified petition to the Probate Court, or to the Judge at Chambers, setting forth the amount of personal property that has come to his hands, and how much thereof, if any, remains undisposed of ; the debts outstanding against the decedent, as far as can be ascertained or estimated; the amount due upon the family allowance, or that will be due after the same has been in force for one year; the debts, expenses, and charges of administration already accrued, and an estimate of what will or may accrue during the administration; a general description of all the real property of which the decedent died seized, or in which he had any interest, or in which the estate has acquired any interest, and the condition and value thereof, and whether the same be community or separate property; the names of the legatees and devisees, if any, and of the heirs of the decedent, so far as known to the petitioner. If any of the matters here enumerated cannot be ascertained, it must be so stated in the petition; but a failure to set forth the facts showing the sale to be necessary, will not invalidate the subsequent proceedings, if the defect be supplied by the proofs at the hearing, and the general facts showing such necessity be stated in the decree.

in which he had any interest; or in which the estate has acquired any interest, and the condition and value of the respective portions and lots thereof, and whether the same

be community or separate property; the names and ages of the devisees, if any, and of the heirs of the decedent. If all the matters above enumerated cannot be ascertained, it must be so stated in the petition.

Statutes of 1851, p. 467, § 155; 1861, p. 640, § 52.

See section 1353, ante; also section 1544, post, and cases cited.

Act of legislature to authorize sale when unconstitutional.--An act of the Legislature authorizing an administrator to sell real property belonging to the estate of his decedent, except in satisfaction of the lien of creditors, for the support of the family, or to pay the expenses of administration, is unconstitutional. Brenham v. Story, 39 Cal. 179.

When probate court may order sale.—The probate court may order a sale of the real estate left by the deceased, upon petition of the administrator, to pay the expenses of administration even if there are no debts, and there has been no family allowance. Est. of Benty, 36 Cal. 687.

A petition for the sale of real estate by the administrator is sufficient if it shows that the personal estate is insufficient to pay the expenses of administration, etc., and for that purpose it may refer to and make the inventory a part of the petition. Est. of Benty, 36 Cal. 687.

The authority of the probate court to order a sale of real property of an intestate is derived from the statute, and can only be exercised in the cases specially designated. Haynes v. Meeks, 20 Cal. 288.

The truth of the averments-their sufficiency appearing-is a matter which must be determined at the hearing of the petition, and the judgment of the court thereon, if rendered upon legal notice, cannot be questioned collaterally. It may be reviewed, and if erroneous corrected on appeal, but not otherwise. Ibid.

Necessary averments of petition. The petition for the sale of real property must show on its face two things: 1st, the insufficiency of the personal property to pay the debts and charges against the estate; 2nd, the necessity of the sale of the real property, or some portions thereof, for that purpose; and both must appear before the court can take jurisdiction of the proceeding. Ibid.

The petition must show the insufficiency of the personal property, not by mere averment, but by the statement of the facts as to its amount and disposition, and as to the outstanding debts and charges as prescribed in section 155 of the probate act, and must show also the necessity for the sale of the whole or some portion of the real property, not by mere averment of such necessity, but by a description of all the real property of which the intestate died seized, and a statement of its condition and value as required by the same section. Ibid.

A petition filed by an administrator for the sale of real property belonging to the estate, averred that no personal property had come to his hands, and that there was none, to his knowledge; that a former administrator of the same estate had disposed of the whole of it; that the petitioner, who was also a creditor, had made every effort in his power to collect from the former administrator the amount due to him on a judgment against the estate without success, but did not state the amount of personal property which had come to the hands of the former administrator, or what disposition had been

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