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Sale of personal property.

in three public places in the county, or by publication in a newspaper, or both, containing the time and place of sale, and a brief description of the property to be sold; unless, for good reason shown, the Probate Court or Judge orders a private sale, or a shorter notice. Public sales of such property must be made at the Court House door, at the residence of the decedent, or at some other public place; but no sale shall be made of any property which is not present at the time of selling it, unless the Court otherwise order.

NOTE.-Stats. 1861, p. 640, Secs. 49, 50. By Sec. 1517, the first section of this Chapter, it is provided that "all sales" must be confirmed before title passes; hence, in this section this provision is omitted, and will be omitted wherever it occurs elsewhere. In the case of Halleck vs. Moss, 17 Cal., p. 343, it was said that there was a fatal defect in the proof of the publication of notice. The notice had been given by publication in a newspaper; but it was not shown to have been so given under any order directing it to be so done.

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ARTICLE III.

SUMMARY SALES OF MINES AND MINING INTERESTS.

SECTION 1529. Mines may be sold, how.

1530. Petition for sale, who may file and what to contain. 1531. Order to show cause, how made, and on what notice. 1532. Order of sale, when and how made.

1533. Further proceedings to conform to Articles II and IV.

1529. When it appears from the inventory of the estate of any decedent that his estate consists in whole or in part of mines or interests in mines, such mines or interests may be sold under the order of the Probate Court having jurisdiction of the estate, as hereinafter provided.

NOTE.-Stats. 1865-6, p. 359, Sec. 1. For instance of the sale of stocks in mines, see Halleck vs. Moss, 22 Cal., p. 275.

sale, who

and what

1530. (§ 153.) The executor, administrator, or Petition for any heir at law, or creditor of the estate, any partner may le or member of any mining company in which interests to contain. or shares are held or owned by the estate, may file in the Probate Court a petition in writing, setting forth the general facts of the estate being then in due course of administration, and particularly describing the mine, interest, or shares which it is desired to sell, and particularly the condition and situation of the mines or mining interests, or of the mining company in which such interests or shares are held, and the grounds upon which the sale is asked to be made.

NOTE.-Stats. 1865-6, p. 539, Sec. 2. What constitutes a mining copartnership, see Civil Code, Sec. 2511, and note, and cases there cited.

1531. (§ 153.) Upon the presentation of such petition the Probate Judge must make an order directing all persons interested to appear before him at a time

and place specified, not less than four nor more than ten weeks from the time of making such order, to show cause why an order should not be granted to the executor or administrator to sell such mines, mining interests, shares, or stocks, as are set forth in the petition and belonging to the estate. A copy of the order to show cause must be personally served on all persons interested in the estate, at least ten days before the time appointed for hearing the petition, or published at least four successive weeks in such newspaper as the Court shall specify. If all persons interested in the estate signify in writing their assent to such sale, the notice may be dispensed with.

NOTE.-Stats. 1865-6, p. 359, Sec. 2. See notes to the two preceding sections.

1532. (§ 153.) If, upon hearing the petition, it appears to the satisfaction of the Probate Judge that it is to the interest of the estate that such mining

31-VOL. II.

order to how made what notice

show cause.

and on

Order of

sale, when

and how

made.

Further

proceedings

to conform

to Articles

II and IV.

property or interests of the estate should be sold, or if it appears to his satisfaction that an immediate sale is necessary in order to secure the just rights or interests of the mining partners, or tenants in common, in which such shares or property are held, such Probate Judge must make an order authorizing the executor or administrator to sell such mining interests, mines, or shares, as hereinafter provided.

NOTE.-Stats. 1865-6, p. 359, Sec. 4.

1533. (§ 153.) After the order of sale is made, all further proceedings for the sale of such mining property, and for the notice, report, and confirmation thereof, must be in conformity with the provisions of Article IV of this Chapter.

NOTE.-Stats. 1865-6, p. 359, Sec. 5.

ARTICLE IV.

THE SALE OF REAL ESTATE, INTERESTS THEREIN, AND CONFIRMATION
THEREOF.

SECTION 1536. To sell real estate, when.

1537. Verified petition for sale, what to contain, and to what it may refer.

1538. Order to persons interested to appear.

1539. Copy to be served, assent given, or publication made. 1540. Hearing after proof of service. Presentation of claims. 1541. Administrator, executor, and witnesses may be exam

ined.

1542. To sell real estate or any part, when.

1543. Order of sale, when to be made.

1544. What the order of sale must contain. May be at pub

lic or private sale.

1545. Interested persons may apply for order of sale. Form

of petition.

1546. To deliver copy of order to executor.

1547. Notice of sale.

1548. Time and place.

1549. Private sale of real estate, how made, and notice.

Bids, when and how received.

1550. Ninety per cent of appraised value must be offered. 1551. Purchase money on sale on credit, how secured.

SECTION 1552. Hearing and setting aside sale, and when resale may

be ordered.

1553. May file objections, when and who.

1554. When order of confirmation is to be made, and when

not.

1555. Conveyances.

1556. Order of confirmation, what to state.

1557. Sale may be postponed.

1558. Notice of postponement.

1559. Sale of real estate to pay legacies.

1560. Where payment of debts, etc., provided for by will.

1561. Sale without order, may require security.

1562. Where provision by will insufficient.

1563. Estate subject to debts, etc.

1564, Contribution among legatees.

1565. Contract for purchase of lands may be sold, how.

1566. Conditions of sale.

1567. Purchaser to give bond.

1568. Executor to assign contract.

1569. Sales by executors or administrators of lands under

mortgage or lien.

1570. The holder of the mortgage or lien may purchase the
lands. His receipt to the amount of his claim a
valid payment.

1571. Administrator and executor liable for misconduct in

sale.

1572. Fraudulent sales.

1573. Limitation of actions for vacating sale, etc.

1574. To what cases preceding section not to apply.
1575. Account of sale to be returned.

1576. Executor, etc., not to be purchaser.

1536. (§ 154.) When the personal estate in the hands of the executor or administrator is exhausted or insufficient to pay the allowance of the family, the debts outstanding against the decedent, and the debts, expenses, and charges of administration, the executor or administrator may sell the real estate for that purpose, upon the order of the Probate Court.

NOTE.-When real estate may be resorted to.-See reference to Civil Code, in note to Sec. 1519, ante.

1. THE PETITION.-See the Matter of the Estate of E. Knight, 12 Cal., p. 207, for that which is said by the Court to be a hard case on an administrator who appears to have acted, in making payments out of due course, in good faith; but the Court refused to relax

To sell real when.

estate,

the rule of adherence to the requirements of the statutes. And he is certainly not allowed to pay money not due, under the idea that the estate will be benefited thereby. Gregory vs. McPherson, 13 Cal., p. 570.Held: that the petition must set forth the amount of personal estate which came to the hands of the administrator; but this was afterwards questioned in Stuart vs. Allen, 16 Cal., p. 473, holding that referring to the inventory on file was sufficient. In this case, this and the succeeding two sections are commented on. But whilst, to a certain extent, Townsend vs. Gordon, 19 Cal., p. 207, affirms it, Stuart vs. Allen in the sufficiency of the reference to the inventory as a compliance with the statute, it is held, however, that it is necessary to make the inventory a part of the petition when such inventory is sufficiently descriptive. And says: "This petition is unquestionably the foundation of the jurisdiction-all other proceedings rest upon this." "A petition substantially different from that required would not do." The petition must contain, substantially, all the required facts, and "the condition and value of the respective portions and lots thereof." These are facts not usually shown in the inventory, so a simple reference to it is not sufficient, the Court holding these to be jurisdictional facts. The 154th Sec. (Code Sec. 1536,) confers the jurisdiction, and those following are merely directory.-Id.

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2. AUTHORITY OF THE COURT STATUTORY AND LIMITED regarding the sale of real property. It may be exercised in certain specially designated cases; it can be exercised in no other.-People vs. Corliss, 1 Sandf., p. 247; Corwin vs. Merritt, 3 Barb., p. 343; Bloom vs. Burdick, 1 Hill, p. 139; Currie vs. Stewart, 27 Miss., p. 55; Langhman vs. Thompson, 6 Sm. & Mar., p. 259; Wiley vs. White, 3 Stew., p. 355; Townsend vs. Gordon, 19 Cal., p. 189. To determine the question was the order made in a case provided by the statute. The petition must be examined, the entire proceeding being in the nature of an action of which the petition is the beginning, and the order the judgment. The entire question is here fully discussed.— Haynes vs. Meeks, 20 Cal., p. 312.

3. THE ORDER.-This section, together with the succeeding, to and including 1544, post, are considered in the case of Spriggs' Estate, 20 Cal., p. 124, where the Court say: "The order thus made, after notice to all parties interested, and after examination of the proofs presented, is adjudication of the Court that the sale of the property described is necessary. From this order

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