Townsend v. Tallant

Citations

• 33 Cal. 45

Syllabus

<p>Publication op Notice op Order to sell Land to pay Debts^.—Under the Probate Act of 1851, notice of an order of the Probate Court requiring all persons interested to show cause why the real estate of the intestate should not be sold to pay debts, was required to be published for four successive weeks before the day to show cause, in a paper designated by the Court. If such notice was published three weeks in the paper designated by the Court, and then the fourth week in another paper designated by the administrator, the Court did not acquire juris- , diction by the publication.</p> <p>Order to show cause why Land should not be Sold to pay Debts.—If the interval between the date of an order of the Probate Court to show cause why land left by the intestate should not be sold to pay debts, and the day fixed for the hearing of the petition, is less than the time required for the publication of the notice, or is less than the time allowed by law from the date of the order for parties interested to appear and show cause, the order is void, and a sale made under proceedings based on the order is also void.</p> <p>Administrator and Guardian. — If the administrator is also guardian of an infant heir, the two positions, so far as general uses are concerned, are not necessarily incompatible.</p> <p>Idem.—If, however, under the Probate Act of 1851, the administrator was also guardian of an infant heir, and as administrator attempted to divest the title of the heir by a sale, under an order of the Probate Court, of land to pay debts of the intestate, his position was hostile to the heir, and in such proceeding he could not represent the heir, but a guardian ad litem should have been appointed to watch the interests of the heir.</p> <p>Attorneys for Minor Heirs.—The Probate Court, under the Act of 1851, had no authority to appoint-attorneys for absent or minor heirs. Under said Act, when the administrator applied for leave to sell land to pay debts, and there were minor heirs