Bennalack v. Richards

Citations

• 116 Cal. 405
• 48 P. 622
• 1897 Cal. LEXIS 562

Syllabus

<p>Estates op Deceased Persons—Sale by Executor—Necessity op Confirmation—Power Given in Will—Restriction by Legislature.— The legislature has power to restrict the testamentary disposition of property, or to place limitations upon the authority that may be conferred upon an executor, or upon the exercise by him of the authority given by the will, and; under section 1561 of the Code of Civil Procedure, a sale by an executor under a power given in the will must be reported to and confirmed by the court, in order to pass title to the purchaser, notwithstanding the will may have expressly empowered a public or private sale by the executors, “without any order of court, or being required to account to any court. ”</p> <p>Id.—Title op Heirs—Power op Sale—Payment op Unpaid Legacies— Trust not Created.—Where the testator did not devise the land to his executors in trust for the purposes of the will, the title is not in the executors, but in the heirs, until it is divested by a sale of the land confirmed by the court; nor does a provision in the will for a sale of the land, accompanied by an expression of desire of the testator that upon a sale all unpaid legacies be then paid at once in full, create a valid trust in relation to the land, or any trust other than such as pertains to the office of executor.</p> <p>Id.—Construction of Will—Time for Payment of Legacies—Disposition of Proceeds of Sale—Order of Court. — The provision that upon a sale the testator desired all unpaid legacies paid in full, only fixes the time for the payment of the legacies then unpaid, and does not direct or empower the executors to apply or dispose of the proceeds of the sale in payment of the legacies, nor could they be required to pay them without an order of the court therefor.</p> <p>Id.—Validity of Trust—Sale of Real Property for Benefit of Legatees.—Trusts in relation to real property are those only which are specified in the Civil Code in the title on “Uses and Trusts,” and since the amend