If the title passed absolutely by the deed of the executors, then there was no need of an application to the Court to confirm that sale.
Itis hardly necessary here to discuss the question of the power of executors, when the will has, in express and unequivocal language, given them full authority to sell and convey the real property of the estate without an order of sale, or of confirmation, by the Probate Court. This case presents no such question. The will here directs the sale of the real property by the executors, and gives them discretion to determine whether such sale shall be made for cash, or on credit, or partly for cash and partly on credit, but it does not purport to authorize a conveyance without an order of confirmation. If such had been the intention of the testator, he would have used apt and direct words to express his intention. We may safely assert that the jurisdiction of the Court over the confirmation of such sales cannot be ousted unless the intention of the testator to that effect is clearly expressed.
It is the policy of the law to guard against the abuse of their trust by executors and administrators, by requiring the intervention of the Probate Court, to authorize and approve all sales of real property, and it will never allow them to proceed without this wholesome restraint, unless, thetestator has plainly declared his desire that their power in the disposition of his estate should be as ample as in the disposition of their own.
In the cases quoted by appellant, there is a clear expression of the intention of the testator to give full power to the executor, and to take away from the Courts all supervision and control of the discretion of the executor.
JUDGES: McKinstry, J.
OPINION
McKINSTRY, Judge
In Delaney's Estate (ante p. 76), the distinction is shown between a mere power in a will authorizing a sale by executors, and the devise of a legal estate in trust to carry out provisions of the will; and in Tracy v. Tompkins, decided from the Bench, (present term), the same distinction was recognized as continuing after the adoption of the Codes. In the one case, the freehold remains in the heirs until a sale; in the other it vests in the executors on the demise of the decedent. To the former class of cases the provision of section 178 of the Probate Act of 1851--that no sale should be valid, unless confirmed by the Probate Court, was applicable; to the same class are applicable sections 1,517 and 1,561 of the Court of Civil Procedure. The account of sale spoken of in section 1,561 is the same as the " return" mentioned in section 1,552 of the Code; and the statute evidently contemplates that the same proceedings shall be had, with respect to the return, when the sale is made under a power in a will, as when it is made under an order of Court. When, therefore, the will creates a naked power--a power not coupled with an interest--the executors must give notice of the sale, return accounts thereof, and, unless there are special directions in the will, must conduct the sale in all respects as if made under an order of Court. (Code of Civil Procedure, 1,561.) The sale must be reported under oath, and confirmed by the Probate Court, before the title to the property sold can pass. (Id. 1,517.) The necessity of confirmation implies the hearing and examination provided for in section 1,552 of the Code of Civil Procedure: that section requires, where the property is not sold at public auction--as was the fact in the present instance-- that certain notices be given of the hearing of the return of sale, that the day of such hearing be fixed by order, etc. In the case at bar it is stipulated that no day was fixed by order of the Probate Court or Judge, and that " no notice of the hearing of the report or of the filing thereof, was given by posting or publication; " and it does not appear in the record that the persons interested in the estate were actually present at the hearing in person, or by attorney. In the absence of proper notification, the Probate Court had no power to confirm the sale, and the order purporting to confirm it was properly set aside. It is not of importance to inquire whether Gridley had such an interest in the estate as authorized him to move to set aside the order of confirmation, since the Probate Court could annul it whenever the attention of the Judge was called to the circumstance that it had been made without acquisition of jurisdiction over the persons of all interested.
Subsequently to the order setting aside the attempted confirmation, the Probate Judge made the proper order (under section 1,552 of the Code of Civil Procedure ), appointing a time for a hearing on the report of sale, and ordering notice to be given as required by law; which notice was duly given. On the day to which the hearing was adjourned from the day fixed by the Judge, and in the notice, the Probate Court, after evidence, found--in effect--that the sum bid at the sale was disproportionate to the value of the property; and, it appearing that a sum exceeding such bid at least ten per cent., exclusive of the expenses of a new sale, could be obtained, vacated the former sale, and directed another to be had. This the Probate Court had the power to do, under the section of the Code last referred to, and we see nothing in the transcript to induce us to believe that the power was not wisely exercised.
Orders affirmed.