The morning call., 1891-10-20
THE BANK LOSES.
Executors of the DOnahue Estate
Need Not Sell Railroad Stock.

Judge Angelotti of the Superior Court at
San Rafael yesterday rendered very i'm
portant decision in the suit Of Cashier 5. q.
Murphy OF tie First National Bank TO COM
pei executors Peter McGlynn and j. Burgin
of the Douaaue estate to sell stork OF the
San Francisco and North Pacific Railroad
part of the estate, in order 10 pay off a
claim of $4,000 which the bank holds
against the estate.
The decision is a victory for the eXecu-
tors The demand of the bank was that the
court order the executors TO sell enough of
the railroad stock to pay the Indebtedness
The demand was based upon the language
of the deceased Donahue's will, which
read, after duly appointing Burgin and Me
GIynn as executors, with power to sell
and dispose Of all my property in order to
carry cut the provisions OF this my last VIII
and testament" one Of which provisions
was: Il desire that all my just debts be
paid"
The executors combated the demand on
the ground that it was inexpedent to sell
the railroad stock at this time. They
showed that they had SOLD other property
Of the estate aggregaung S243,O00, but
nearly all this amount had been expended
by them in payment OF preferred claims.
mortgage. funeral expenses, etc. Some
S2j0,0C0 of the estate still remains un sold.
A potion of Judge Angelotti's text, bear
ing upon the right of creditors, is as fol-
lows;
his heirs cannot be considered until his
debts are paid. The payment of these debts
is deferred except in the case of certain pre-
ferred claims until the ime for the presen-
tation of claims has expired, in order that I
may be ascertained whether or not the
estate is solvent. That time having expired
oil l0.ln niFn. hot 40 ~ hA raH hax L
ing been presented, the creditors become at
once entitled to be paid so far as there is
property Of the estate wherewith to pay
them.
This right Of theirs is absolute and un-
qualified. This testatUr could not by any
provision of his will impair it, nor can the
conditions Of the property OF the estate
affect it so long as such property can be
sold. The authority to sell
conferred on the executors by the will rem
ders it unnecessary for them to procure any
order OF sale from the court, and having the
power to sell they should exercise it 50 far
as they can in such manner as will enable
them to answer all proper demands against
the estate as the same become due.
1t Is, however, very clear to me that the
court cannot in this proceeding order the
sale OF any specific property, for the court
never has the jurisdiction to make such an
order. = Before the court can order
the sale of specific property of an estate all
parties interested in the estate must be
properly notified by an order to show cause
regularly published or personally served,
ami given an opportunity TO show such
cause as they may have against an order of
sale in answer to petition containing the
matters made essential by the provisions of
our code.
This is admitted By the attorneys for the
petitioner to be the law, but it is claimed
here that by virtue of the power OF sale con-
tained in the Will the court in the exercise
of its supervisory authority over executors
and administrators can, although the code
provisions relating to sales have not been
followed. make an order directing the ex-
ecutOrs TO proceed under the power of sale
and to sell sufficient property to pay the
debts, without specifying any particular
property to be sold.
This position seemed tenabe; but after
n great deal of thought on the subjert and
full investigation of the law, [ cannot escape
the conclusion that such an order would he
an idle ceremony, with no possible force or
effect and of no use or benefit to any person
interested in the estate"
An order was therefore entered denying
the prayer of the petitioner.