Mayhew v. Gallagher

Citations

• 149 Cal. 214

Syllabus

<p>Trust under Will — Power of Sale by Executor — Trust as to Proceeds—Termination—Improper Order Pilling Vacancy.—It is essential to an order appointing a trustee under a will to fill a vacancy under section 2289 of the Civil Code, that there should be an existing trust to be executed; and where the will creating the trust devised no land to the trustee, but merely empowered the executor to sell the land without an order of court, and made him trustee only to invest the proceeds for the benefit of two grandnieces until they attained majority, which they had both attained, an order appointing a new trustee, after the death of the former trustee, to complete the contract of sale at the instance of the purchaser, was improper.</p> <p>Id.—Estoppel of Beneficiaries—Confirmation of Sale—Remedy in Probate Proceeding.—The estoppel of the beneficiaries to dispute the contract of sale, by acceptance and retention of the proceeds thereof, cannot be inquired into on a proceeding to fill a vacancy in the appointment of a trustee; but the proper remedy for the enforcement of the contract of sale is by a confirmation thereof ia the probate proceeding, which is necessary to perfect the title of the purchaser upon fulfillment of the contract, and if the only persons interested in the proceeds of such sale have so ratified the contract that they are estopped to dispute it, the court may upon that ground confirm the sale and direct a conveyance on compliance by the purchaser with the terms of the contract.</p>