The record-union., 1895-12-23
PROBATE SALES OF REAL ESTATE.
How Legislatures Have Bungled the
Codifed Laws.
Lawyer Isaac Joseph Lectures on a
Subject of No Little
Importance.

The Law Club held one of its inter-
esting meetings on Saturday evening,
and the members listened to very in
teresting discourse by Isaac Joseph on
Estate" Mr.. Joseph said:
Under the law of this State the Su-
perior Courts are vested with the power
to order the sale of the realty of de-
| cedent for the purpose of raising funds
with which to pay his debts or to sat
iSfy the debts, expenses and charges or
administering the affairs Of his estate,
or to pay the allowance made by the
court for the maintenance Of the widow
or minor children, or both, during the
period required to settle the estate, or
the proceeds of the sale may be ap-
piled toward the payment of the lega-
cies bestowed upon the beneficiaries
named in his last will.
In 1893 the Legislature amended a
number of the probate sections of the
Code of Civil Procedure relating to
sales, and attempted to give the Supe-
| rior Courts power to order sale of real
estate when it appeared to the salts
faction of the court that it would be
for the advantage, benefit and best in
terests of the estate and those inter-
ested therein, to sell the whole or some
portion of the real estate"
The passage of this amendment, un-
derstand, was secured through the ef-
forts of a lawyer who represented an
estate situated in one of the southern
counties of the State. In the estate
referred to all the debts and claims OF
every character had been discharged,
but a portion of the property consisted
of large number of town lots in the
southern citrus belt. AS an order of
sale could not be obtained to pay debts,
ETC., as there were none unpaid, and as
the representatives Of the estate were
exceedingly anxious to dispose of the
lots, a convenient way out of the diff
Guilty was to apply to an accommodate
ing Legislature to amend the statutes
TO fit this particular case.
Doubtless many sales have already
been made under the amendment of
1893, which vests the court with discre-
tionary power to order a sale whenever
the court deems that sale would be
advantageous and for the best interests
of the estate and those interested there
in, but in 1870, in the case entitled
Brennan VS.. Story, reported in vol. 80
of the California Reports, page 1I9, the
highest court of our State held that
an Act of the Legislature granting such
power to the courts was unconStitu-
tional and void; that upon the death
Of the ancestor the heir becomes vested
at once with the full property, subject
to the payment of the debts of the in-
testate, expenses of administration and
family allowance, and subject to those
charges and the temporary right of
possession of the administrator he may
at once sell and dispose Of the property
and has the same right TO judge for
himself of the relative advantages Of
selling or holding that any other
owner has. His estate is inde-
feasible, except in satisfaction of
these prior liens, and the Legis-
lature has no more right to order
a sale of his vested interest in his in
heritance, because it will be, in the es-
timation Of the administrator and the
Probate Judge, for his advantage, than
il has to direct the sale of the property
Of any other person acquired in any
other way" (Brenham VS.. Story, SO
Cal 1851
If the lawyer who is said to be re-
sponsible for the amendment of 1893
and the members of the Judiciary Com
mittees of both houses of the Legisla
ture of 1893 had taken the trouble to
read the decision of the Supreme Court
of this State rendered not later than
April, 1891, in Smith VS.. Olmstead (S8
Cal $3.50, they would have found the
same doctrine enunciated, as was laid
down in Brennan VS.. Story, and the
probate law would not be burdened with
an unconstitutional and void amend
ment.
If the amendment in question were
permitted to stand unchallenged, the
Superior Court could direct that the
property of an heir be sold against his
express wish, and although no necessity
for the sale arose, and we would also
be confronted with the proposition that
an heir could make no sale of the prop
erty inherited until final settlement of
the estate, because if a sale by the heir
were effected, the purchaser would still
hold the real estate subject to the dis
cretfonary power of the court to order
a sale and vest the title in a stranger.
The amendment also contraveneu the
provision in our National and State
Constitution, which provides that no
person shall be deprived of his prop
erty without due process of law.
If depression might be permitted, I
could direct your attention to many
injurious results ensuing from various
amendments to the code law of this
Nv ha al in
many instances solely to ena
BILE some lawyer to avoid some
wise provision of the existing statutes.
Our codes. as originally adopted, pro-
vided plain and concise code of law,