Gregory v. Taber

Citations

• 19 Cal. 397

Syllabus

<p>The petition by an executor for the sale of the real property of an estate must state the amount of the personal property which has come to his hands, otherwise the order of sale made by the Probate Court on such petition and the sale thereunder will be void.</p> <p>It is not sufficient that the executor has filed an account of the personal property at or about the time of filing his petition for sale of the real estate. The petition itself must set forth the personal property, or the account must be referred to in the petition so as to become a part of it for the reference.</p> <p>To maintain a sale of a decedent’s real estate, under the order of the Probate ' Court, the petition for the sale must state the facts required by the one hundred and fifty-fifth section of the Act concerning the Estates of Deceased Persons. (Stat. 1850, 377.)</p> <p>Although a sale of the real estate of a deceased person has been made under order of the Probate Court, and the report of such sale confirmed by the Court, and a deed ordered to be executed to the purchaser under the one hundred and seventy-first and one hundred and seventy-second sections of the Estate Act, still the sale will be void, and the title of the property sold will not pass unless the petition for such sale contain the averments required by section one hundred and fifty-five of that act.</p> <p>The one hundred and seventy-first and one hundred and seventy-second sections have effect only upon sales made under orders which the Probate Court had jurisdiction to make, and a petition, with the averments prescribed in section one hundred and fifty-five, is essential to the jurisdiction.</p> <p>Whether the Act of 1858 (Stat. 1858, 95) makes a different rule for cases of sales occurring after its passage, not decided.</p>