White v. Moses

Citations

• 21 Cal. 43

Syllabus

<p>An executor’s deed is not admissible in evidence of a sale of a testator’s property, except upon preliminary proof of a compliance with the statutory provisions for sales by executors and administrators, or of an express power in the will authorizing the sale in the mode in which it appears by the deed to have been made.</p> <p>Thus, m an action of ejectment by the executors of W. to recover from M. certain real estate devised by the testator, the defendant, for the purpose of showing an outstanding title, offered in evidence a deed of the property made by the executors to a third person, which deed recited that the executors were authorized by the will “ to sell his (the testator’s) property as therein mentioned and contained.” No order of the Probate Court for the sale of the property was shown, but the admissibility of the deed was rested upon its own recitals with proof of its execution: Held, that it was inadmissible; that from the recital alone, without the production of the will, it could not be concluded that the power to sell was given absolutely by the will; and that in the absence of proof of such a power in the will, the validity of the sale could only be established by proof of a compliance with the forms prescribed by statute for the sale of property by executors.</p>