Fitch v. Miller

I. It is contended that only an interest to the extent of two thousand acres--that is, one-half of the interest of each of the minors in the land--was sold under the order of the Probate Court.

The record of the proceedings of the Probate Court shows, on the contrary, that all the interest of the minors was intended and ordered to be sold, and was actually sold.

It is true, that in the guardian's petition for an order of sale an error was committed, in stating the quantity of interest of each of the minors. It was represented to be about two thousand acres, when in fact it was twice as great; and the error in this statement may have originated, as suggested by the appellant's counsel, in the supposition that the property, having been acquired after the testator's marriage, was common property, and that one-half of it belonged to the guardian herself as his widow.

But the error is one which could not have influenced the action of the Probate Court. The will of Henry D. Fitch was before that Court, and all the facts in regard to the origin and nature of the titleof the minors to the land. It is to be presumed that the Court applied the law correctly, and according to its own judgment, and without any regard to the erroneous legal conclusion of the guardian in respect to the comparative interests of herself and her children; and that it dealt with the subject in view of the interests of the minors under the law, and not as they existed in the apprehension of the guardian.

The error might have been material, and might have presented most formidable ground of objection, if the petition and order of sale had been in the form which is assumed by the argument of appellant's counsel. If the petition had been only for the sale of an interest of each of the minors to the extent of two thousand acres, and the Court had ordered a sale only of that interest, yet the guardian had proceeded to sell the whole and a greater interest, she would have exceeded her authority, and the sale would have been void for the excess. Perhaps even a confirmation by the Court of such a sale would not have given it validity. It is to just such a case as the one now supposed that Shriver's Lessee v. Lynn et al., (2 How. 43) cited by appellants' counsel, refers.

Butthis case is different. Here the petition of the guardian was for the sale of the whole interest of the minors in the land, and they were all before the Court; the order of the Court was for the sale of all the right, title and interest of the minors; the sale was made of all their right, title and interest; and that sale was confirmed.

The error of the guardian in stating her opinion as to the extent of the interest of each minor, did not mislead the Court, and was not the cause of this action. Neither the petition nor the order was for a sale of an interest of each minor to the extent of two thousand acres, but of the entire interest, whatever it might be.

It is said that this error may have induced the Judge to order the sale, when, had he known that the interest was twice as great as represented, he might have ordered a sale of only a part of the interest of each minor, or refused the order altogether. This is to allege merely that the Judge was mistaken as to the law; that with the facts before him, he had adopted the erroneous legal conclusion of the guardian. We might safely admit that he did so err, and was led into the error by the guardian, and that, but for thaterror, he would have refused the order. That would only show that in the exercise of its jurisdiction the Court erred; it would not show that the Court had no jurisdiction, and that its proceedings are void. It is the latter proposition that must be established by the appellants before they can recover from the respondents, who purchased the land upon the faith of the decrees of sale and confirmation. No mere irregularity will aid the appellants in this action, in which the order of the Court is collaterally questioned.

It has been said by this Court, in Stuart v. Allen, (16 Cal. 473) that " it is immaterial, so far as the question of jurisdiction is concerned, whether the statements of the petition are true or not--the jurisdiction resting upon the averments of the petition, not upon proof of them." This is a plain principle, too often recognized by Courts to be now controvertible. If the guardian had alleged in her petition that the Rancho Sotoyome contained only four and a half leagues, and that each of the minors had an interest to the extent of two thousand acres, and had prayed that a sale of the whole interest of the minors should be made, and the sale had been orderedand made of their interest, it could not have affected the jurisdiction of the Court. Much less could such a result be produced by the error actually committed by the guardian, which was one of law.

If, in the case supposed of misrepresentation or error in respect to the quantity of land in the rancho, a sale had been ordered and made of the interest of the minors, without any measurement, there might have been room for a proceeding against the original purchasers, to set aside the sale on the ground of gross mistake. But that is a very different question from the one of jurisdiction. And it is to be observed that here there is no such ground, because by the order the land was to be surveyed before the sale, and divided into suitable tracts, and it was so surveyed and sold.

Further, this question of the extent of the interests of the minors is one which could not by any possibility affect a purchaser, for the sale was made of the whole land. The widow and adult heirs united in it. The whole purchase money came to the guardian's hands, and it is to be presumed she retained the full proportion coming to the minors. We submit, therefore, that if any interest of the minors passedby the sale, their whole interest passed to the purchasers.

II. The appellants assert, however, that no title whatever passed by virtue of the sale and conveyances made by order of the Probate Court, because, first, the petition does not state facts sufficient to authorize a sale; and second, the will of the testator prohibited the action of the Court.

1st. As to the sufficiency of the petition. From the form in which the appellants' counsel state their proposition, they seem to suppose that if the facts stated are not sufficient to authorize a sale, it would necessarily follow that no title passed by the sale. But this is unquestionably not so. The distinction must be kept in view between what is requisite to give the Court power to act at all and what is requisite to justify its action in a particular manner; between questions of jurisdiction and questions of regularity; between that class of objections which make the act of a Court absolutely void, and that other class which make its act voidable on appeal.

Now, a petition to the Probate Court may be sufficient to give jurisdiction, though upon the facts stated in it the action of the Court is clearly erroneous. Forexample an administrator applying for a sale of real estate, must show certain things in respect to the condition of the estate in order to give the Court jurisdiction. (Sec. 155, Probate Act.) In accordance with this requirement he presents his verified petition, setting forth " the amount of personal estate that has come to his hands, and how much thereof remains undisposed of; the debts outstanding against the deceased, a description of all the real estate of which the intestate died seized, and the condition and value of the respective portions and lots, and the names and ages of the heirs of the deceased; thereupon, due notice being given, the jurisdiction attaches, and no error of the Court in determining upon the petition will render its decree void, or affect the title of a purchaser. Though it may be perfectly apparent, upon the showing of the administrator, that no sale is necessary; though a reversal of the order of sale on appeal would be inevitable; yet if the Court makes such an order, and no appeal is prosecuted, and it is carried into effect, and the sale made and confirmed, it can never be questioned, and the title acquired by the purchaser is as perfect as if the legalconclusion of the Court involved in the order had been fully warranted by the facts.

For such an error of law, the order can no more be drawn in question collaterally than it could be for error in fact, as if the facts stated in the petition were sufficient to give jurisdiction and to justify the order, but were untrue.

The principle that the judgment of a Court is conclusive, and cannot be collaterally attacked, is just as applicable to the proceedings of Courts of limited jurisdiction, when that jurisdiction has once attached, as to the proceedings of Courts of general jurisdiction; and it has been recognized in cases innumerable. The authorities in support of it are collected in 4 Phil. on Ev., Cowen & Hill's notes, pp. 11, 12, 64, 65, 139-42, 179-80, 297. (And see Jackson v. Robinson, 4 Wend. 436; Jackson v. Crawford , 12 Id. 533; Sheldon v. Wright, 1 Selden, 512; Stuart v. Allen , 16 Cal. 473; Perkins v. Fairfield , 11 Mass. 226; Thompson v. Tolmic 2 Pet. 157; Grignon's Lessee v. Astor, 2 How. 341; McPherson v. Cunliff, 11 Serg. & Rawle, 433; Lightfoot v. Doe , 1 Ala. 479; Alexander v. Maverick, 18 Tex. 196; George v. Waters , 19Id. 370; Hyman v. Campbell, 6 Porter, 219; Lynch v. Baxter, 4 Tex. 441; Thompson v. Tolmie, 2 Pet. 157; Estate of Cook , 14 Cal. 129; Sargeant v. State Bank of Indiana, 12 How. 385; United States v. Aredondo, 6 Pet. 729; 4 Phil. on Ev. 62, n. 42.)

These cases fully establish the doctrine, that when once the Probate Court has acquired jurisdiction, no matter " how extraordinary or erroneous" its determination and proceedings may be, its judgment or decree cannot be impeached or invalidated in a collateral action; and that a purchaser under an order of the Court can be affected by no error or mistake of the Court, and need look no further back than to the order itself.

The appellants here must show, not that the petition was " insufficient to authorize a sale," but insufficient to give the Probate Court jurisdiction. This must be determined by the statute. The cases in which a guardian may sell his ward's land are specified in the fifteenth, twentieth and twenty-first sections of the Act to provide for the Appointment and prescribe the Duties of Guardians. (Wood's Dig. 429.)

Certainly, the petition of Josefa Carrillo de Fitch, as guardian, presentedone of the cases mentioned in the statute; for the very ground of the application was that the income of the estate of the minors, as it then existed, was not sufficient to maintain and educate them, and the very object of the proposed sale was so to convert it as to provide for their support and education.

Was the case properly presented, and in such form as to give to the Court power to act in the matter? All that is required by the statute to obtain an order of sale is, that " the guardian shall present to the Probate Court of the county in which he was appointed guardian, a petition therefor, setting forth the condition of the estate of his ward, and the facts and circumstances on which the petition is founded, tending to show the necessity or expediency of a sale; which petition shall be verified by the oath of the petitioner."

Here the petition was presented to the Probate Court of the county in which she was appointed; it was verified; it set forth the condition of the estate of the wards; and it stated various facts and circumstances as tending to show that a sale was necessary or expedient. Literally, and fully, it complied with the statute.

It is contended, however, by the appellants' counsel, that the Probate Court cannot direct a sale for the purpose of paying the debts of a minor, or providing for his support and education, unless the personal estate and the income of the real estate is insufficient for that purpose; and upon this point they cite Bloom v. Burdick, 1 Hill, 130; Corwin v. Merritt, 3 Barb. 341; and Gregory v. McPherson , 13 Cal. 562.

If this were so, it would not touch the question of jurisdiction, and, consequently, would not affect the validity of the sale.

In relation to sales by administrators, our statute (Probate Act, secs. 154-5) says, that when the personal estate is insufficient, the administrator may sell real estate upon the order of the Court, and that to obtain such order he shall in his petition " set forth the amount of personal estate that has come to his hands, and how much thereof, if any, remains undisposed of; " thus, according to the above authorities, making these averments essential to give jurisdiction.

The guardian is only required to set forth " the condition of the estate of his ward."

In the one instance a specific averment is required of a particular fact goingto show the condition of the estate. If that averment is not made, it might reasonably be urged that no foundation was laid for the action of the Court. In the other instance, the statute specifies no particulars, but demands merely a statement of the condition of the estate, which, of course, may be in terms more or less general and indefinite. If not sufficiently explicit, the Court may require a further showing, but no specified averments being made essential by the statute, an insufficient statement would give no ground for a question of jurisdiction. It is to be observed, that in respect to all the proceedings preliminary to, and which are the foundation of, a sale of property, there are marked differences between those provisions of our statute which relate to sales by executors and administrators, and those which relate to sales by guardians, the law plainly intending to give to the Court in the latter case a much wider discretion, and one less trammeled in its exercise.

Even if it were essential that a gurdian, as well as an administrator, should show by his petition what personal estate has come to his hands, and how much of it remains undisposed of, it has been donehere; for the guardian's petition shows all the property belonging to the estate and under the ruling of this Court in Stuart v. Allen, that is sufficient.

But the appellants' counsel is altogether mistaken in supposing that the statute requires anything of the sort. It is true that a sale to pay debts (Wood's Dig. 429, sec. 15) can only be made when the personal estate, and the income of the real estate, are insufficient to pay them; but there is no such restriction whatever in respect to sales for the maintenance and education of a minor. The statute only provides that " when the income of the estate of any person under guardianship shall not be sufficient to maintain the ward and his family, or to educate his family, or to educate the ward when a minor, his guardian may sell his real estate for that purpose, upon obtaining an order therefor," etc. It draws no distinction whatever between real and personal estate, but makes the sale of real estate dependent only upon the contingency of an insufficiency of the income of the whole estate, real and personal; and that fact the guardian in her petition did allege and show.

The material fact, and the only one which it canbe contended it was requisite to state in order to give jurisdiction to the Court, was the fact that the income of the estate was insufficient for the maintenance and education of the minors. The statement of other facts, by way of argument, and as special and peculiar reasons for the action of the Court, could not divest its jurisdiction. In the language of this Court in Stuart v. Allen, " so far the petition presented all the facts necessary to give the Court jurisdiction of the matter of the sale; and this was enough, whatever else was inserted, to support its action when attacked collaterally."

If this be not so, then every purchaser at a guardian's sale is a guarantor of the correctness of the conclusion drawn by the Judge from the facts presented upon the application, and takes a title subject to be divested either by a reversal of the order of sale on appeal, or by the opinion of some other Judge, in a collateral action, that it was error to make the order.

2d. It is contended that the Probate Court had no jurisditcion, because the will of Henry D. Fitch prohibited the disposition of the property, and to make the sale was to defeat the intention of the will.

Theappellants' counsel, we think, is mistaken in supposing that the clause in reference to the taking out of his share by each devisee, one-half on his coming of age, and one-half on the coming of age of all the devisees, imposes any restriction upon the power of the heirs to dispose of their respective interests. Its effect was only to postpone their actual enjoyment of the property. The interest of each heir in his share vested upon the death of the testator, but the heir was only to take possession of one-half when he should become of age, and of the other half when the youngest heir should become of age. It was a devise of the property, subject to a temporary possession of another, with a right probably in the heir to all the profits and income of his share from the time the title vested in him, because the will makes no other disposition of such profits and income, and expresses no intention that they shall be applied to the common benefit of all the heirs. The title being in the heir, he could certainly sell subject to the delay of possession, and could give to the purchaser the right he himself had to the income of the property until the right of possession should arise. The effectof this clause is the same as if there had been a devise of land subject to a lease by the testator for a term of years, it being directed by the will that the devisee should have the rents and profits until the expiration of the term. Who would contend, in such a case, either that the devisee had no disposing power over the property subject to the lease, or that the Probate Court could not direct its sale if the devisee were a minor?

The power of the Probate Court extends to the sale of any " real estate" of the minor. It is not in any manner dependent upon the condition of the estate in respect to the minor's right of possession and enjoyment. The statute imposes no condition, even that such a sale shall not be made contrary to the provisions of the will under which it was acquired. It gives to the Probate Court all that jurisdiction over the estates of minors, and the disposition of them for the support and maintenance of minors, which in England, and in many of the United States, is exercised by Courts of Chancery. And these Courts have, in innumerable instances, where not prohibited by positive law, allowed maintenance to infants, contrary to the directions of wills underwhich they claimed, and not only out of the income of their estate, but out of the principal, and even out of the income of property in which the infants had only a contingent or defeasable interest. (Inwood v. Twyne, Amb. 419; Brown v. Temperley, 3 Russ. 263; McDermot v. Kealsy, Id. 264; and see the numerous authorities on this point referred to by Mr. Justice Nelson in Williamson v. Berry, 8 How. 556.)

Some of these authorities, it is true, distinguish between real and personal estate, in the exercise of this power, because of the consequences which would follow from a change of real into personal estate; but such distinctions are inapplicable here, where no such consequences result, and still more clearly inapplicable in a question like this, concerning the power of the Probate Court, because that Court is expressly authorized to sell real estate, as well as personal, to provide support and maintenance for infants. And this distinction does not weaken the force of those authorities upon the proposition for which we cite them, which is, that Courts of Chancery have always taken it upon themselves to disregard the provisions of a will in this matter.

If, then, the will of Henry D. Fitch were construed to prohibit any alienation of the interest of the minors, until the youngest should become of age, or to direct an accumulation till that time--neither of which constructions can be given--it would not divest the Court of the power which the law has conferred, and which is an unlimited power, to direct a sale whensoever it appears to the Court that " it is necessary, or would be beneficial to the ward," that his real estate should be sold.

This is the same enlarged authority which was conferred upon the Court of Chancery in New York by the Act of the ninth of April, 1814, (Laws of 1814, 128) and without that restriction afterwards imposed by statute in that State, " that nothing contained in this Act should authorize the sale or disposition of any lands or term against the provisions of any last will or conveyance."

The case of Williamson v. Berry (8 How. 495) cited by appellants' counsel, we rely upon as strongly in our favor. (See, also, Clark v. Van Surley, 15 Wend. 436; and Cochran v. Van Surley, 20 Wend. 365.)

The question of the unconstitutionality of these Acts was raised in these cases, not on theground that it was beyond the power of the Legislature to authorize a disposition of the estate of minors in violation of the will, for it seems to have been conceded that this could be done by a general law; but on the ground that it was done by a private act. Those Courts declared these Acts constitutional, and they went further than the Supreme Court of the United States, for they held that the objections urged against the proceedings of the Chancellor, however well founded, did not make them void, and they could not be collaterally attacked. We respectfully refer the Court to the opinions of Mr. Justice Bronson in 15 Wend. 439 and Chancellor Walworth in 20 Wend. 370, as conclusive arguments, both upon reason and authority, in support of the power of the Legislature to make proper provision for infants, or to change the form of their estate, in defiance of the will under which they hold their property. As Mr. Justice Bronson observes, to affirm that the exercise of such a power deprives an infant of any constitutional right, " is little better than saying that an infant has a constitutional right to grow up in ignorance, or enjoy the chartered privilege or suffering for the wantof necessary food and raiment."

3d. The appellants further contend that, instead of selling the land, the Court proceeded to barter it off, and they quote from the opinion of the majority of the Court in Williamson v. Berry, certain remarks as to the meaning of the word " sale."

However correct that opinion may be, it has no application to the case before this Court. The facts are altogether different. Here was no order for an exchange of lands, nor for any conveyance in satisfaction of antecedent debts, but for a sale of the interest of the minors in the land. The words of the order are, " that the said Josefa Carrillo de Fitch have leave and authority to sell, at public auction, the right, title and interest of the said minor children," etc., " in and to the rancho and lands called Sotoyome, situated in the county of Sonoma." The order then proceeds to give directions as to the manner in which the sale should be made, and as to the division of it into suitable parcels; and, in accordance with the petition, it permits the widow and adult heirs to become purchasers to the extent of their respective interests.

It is the last clause which the appellants' counsel supposesto change the character of the transaction, and make it something else than a sale for money or on time. But this is not so. The land was held in undivided interests by the guardian, the adult heirs, and the minor heirs. A sale of the interests of the minor heirs alone would not have realized as much, nor have been so beneficial to them, as if their interests were sold in connection with those of all their cotenants. This was the representation of the guardian, and she and the adult heirs consented to unite in the sale, so as to give to each purchaser a full and complete title to a specified tract. They only reserved to themselves the right to bid to the extent of their several interests. If they should go beyond that, they were to occupy the position of any other purchaser. The result was to effect a sale upon the terms prescribed in the order--that is, for cash, or notes and mortgages--of all the interests of the minors, for an enhanced price. Nothing would remain to be done after the sale but a division of the proceeds.

This mode of making the sale was greatly to the advantage of the minors, and it was certainly competent for the Court to direct it to be so made. The Courthas a general authority in this matter, and is not limited in the exercise of its power to a specified mode of sale. It may take into consideration the condition of the title, and the peculiar circumstances of the estate of the minors, and so order the sale as to make their property bring the best price. That it was intended to confer such a discretion results from the reason and necessity of the case, and from the absence of any negative provision in the law, and from the power given in respect to the terms of sale and the time of payment.

Under the same circumstances, and under a law similar to our own, a sale in the same manner was made in the State of Texas. (Reid v. Allen, 18 Texas, 242.)

III. There is yet another proposition of the appellants' counsel in denial of the jurisdiction of the Probate Court.

It is, that the will having been executed under the Mexican law, the estate of the minors was beyond the reach of the Probate Court, and that Court could neither appoint a guardian, nor order a sale. The authorities relied on to support this idea are Castro v. Castro , 6 Cal. 158, and Grimes v. Norris , 6 Id. 621.

The former case decides that in Englandand the United States a will is regarded as a conveyance, and takes effect as a deed, on proof of its execution, unless there be some express statute requiring it to be probated; that it did not appear that there ever was a Court of Probate in California under the Mexican rule, and that devisees under a will became, therefore, immediately entitled upon the death of the testator. The latter case affirms this doctrine, and holds that our statute does not require wills, made prior to the passage of the statute of wills, to be probated, and, consequently, that the Probate Court had no jurisdiction to pass upon such a will.

Now, it would seem that the vesting of the estate in a minor immediately upon the death of the testator, should be a reason why the Court ought to appoint him a guardian, and why there ought to be, somewhere, authority to manage his estate. Nor can we perceive the force of the argument that nobody ought to be appointed to administer a minor's estate, because he has an estate to be administered.

Nor does it follow that because the Probate Court cannot act upon a will which took effect in 1849, that that Court cannot appoint a guardian of the estate of a minoracquired under such a will. It is a question of authority, to be decided by the statute. Now, the statute does not give that Court power to admit to probate a will made prior to 1850. That is the ground of the decision in Grimes v. Norris .

But the statute does give to the Probate Judge of each county power to appoint a guardian for all minors who " have no guardians legally appointed," and " who are inhabitants or residents in the same county, or who shall reside without the State and have estate within the county." There are no other limitations than these upon the power of the Judge to appoint; certainly there are none whatever which make the power of appointment in the least degree dependent upon the time at which the estate of the minor was vested in him. Any such distinction would be senseless, for the necessity of guardianship results from the ownership of property, not from the period of its acquisition.

JUDGES: Norton, J. delivered the opinion of the Court. Field, C. J. and Cope, J. concurring.

OPINION

NORTON, Judge

This is an action of ejectment, in which the plaintiffs claim title to the premises in dispute as devisees under the will of Henry D. Fitch, deceased, and the defendants claim title under a sale of the same premises by the guardian of said devisees, under the order of a Probate Court, and the question for decision is, whether the provisions of the statute under which such sale was made, were complied with in the particulars essential to the validity of the title acquired by the purchasers. The proceedings were not conducted with the careful regard to the directions of the statute which their importance required, and various irregularities appear in the record. The point of difficulty in this, as in other similar cases, is to see that the safeguards provided by the law for the protection of the estates of infants against the frauds or negligence of those to whose care they are necessarily intrusted have been observed, and at the same time not to allow innocent purchasers to be divested of their property by minute objections to the form or manner in which the proceedings have been conducted not affecting their substance. The difficulty of some of the objections raised, and the importance of this case, as well on account of the value of the property, as of the influence of its decisions in affecting the rights of parties under such sales, induced us to order a reargument. After a careful consideration of these objections, we are satisfied that they are not sufficient to show that the proceedings were defective in substance, so as to render a title under them void.

In order to render the sale effectual to confer a valid title, the Probate Court must have acquired jurisdiction of the case by the presentation of a proper petition by the guardian. What shall be the contents of such a petition, is prescribed by section twenty-four of the " Act to provide for the Appointment and Prescribe the Duties of Guardians," which is as follows: " To obtain an order for such sale, the guardian shall present to the Probate Court of the county in which he was appointed guardian, a petition therefor, setting forth the condition of the estate of his ward, and the facts and circumstances on which the petition is founded tending to show the necessity or expediency of a sale, which petition shall be verified by the oath of the petitioner."

The necessity or expediency of the sale must arise from one or more of these circumstances: 1st. The existence of debts due from the ward, which cannot be paid out of his personal estate and the income of his real estate. 2d. The insufficiency of the income of the estate of the ward to maintain the ward and his family, or to educate his family, or to educate him when a minor. 3d. That it would be for the benefit of the ward that his real estate, or a part thereof, should be sold, and the proceeds put out on interest, or invested in some productive stock. (Secs. 15, 20, 21.)

In order to enable the Court to judge of this necessity or expediency, the first requisite of the petition is, that it shall set forth the condition of the estate; and it is objected that the petition in this case fails to comply with this requirement, in not stating the value of the several items and parcels of property of which the estate consists. But this is not directly required by the statute, and it would seem to be only necessary to state the condition in such manner as to enable the Court to judge of the existence of one or more of the circumstances above specified, rendering a sale necessary or expedient. In this case the items of which the estate consists, real and personal, are stated, and its situation and condition, so far as to enable the Probate Court to judge whether or not it would be for the benefit of the wards that their interest in the Sotoyome ranch should be sold, and the proceeds thereof put out on interest. It may be observed that the circumstances authorizing an executor or administrator to apply for a sale of real estate, are not the same as in the case of a guardian, and that the petition of the former is expressly required to state the condition and value of the respective portions.

It is objected, that in consequence of the petition stating the interest of the several wards in the Sotoyome Rancho to be two thousand acres each, instead of four thousand acres, the Court only acquired jurisdiction to order a sale of an undivided two thousand acres; and that hence, as to the other two thousand acres, the title has not passed, and as to such interest, the plaintiffs were entitled to recover. The petition, however, asks for a sale of their whole interest, and the order of sale was of the whole interest, and the sale and order of confirmation was of the whole interest. The question arising, therefore, is whether a mistake in the petition in stating the amount of the wards' estate is fatal to the jurisdiction either as not truly setting forth the condition of the estate, or the amount of the property which the ward has, so as to present to the Court the proper data by which it can judge of the portion necessary to be sold. In the case of Stuart v. Allen, (16 Cal. 501) the Court say: " It will be remarked that it is immaterial, so far as this question of jurisdiction is concerned, whether the statements of the petition are true or not; the jurisdiction resting upon the averments of the petition, not upon proof of them." A purchaser at a sale ordered by the Probate Court must look to the proceedings so far as to see that such a petition was presented as gave jurisdiction of the case to the Court; and if the petition is on its face sufficient for this purpose, he is not required to investigate the truth of the allegations. He is bound to know the law, but he cannot be supposed to have any knowledge of the facts on which the petition is predicated; and to require a strict investigation of these facts by each bidder, and to make the title depend on their being ultimately found to be accurate, would greatly embarrass, if not defeat, such proceedings, and would be a manifest injustice to innocent purchasers. The guardian had the right to ask, and did ask, for authority to sell the whole interest, and the Court had jurisdiction to order, and did order, a sale of the whole interest. If by reason of this mistake the purchasers obtained an estate or interest in the land double that which they supposed they purchased, and the wards, on the other hand, received one-half the value of their property, it might have been a sufficient ground for setting aside the sale by a direct proceeding for that purpose; but it does not reach the point of the jurisdiction of the proceeding by the Court, or authorize the sale to be treated as a nullity when questioned collaterally. In fact, by reason of the adult owners joining in the sale, the whole title to each portion of the land was sold, and the purchasers have obtained no greater estate or interest than they bid and paid for; and whether the wards have obtained their proper portion of the purchase money, should not affect the rights of the purchasers. They are not responsible for the disposition of the money after they have paid it.

It is also objected that the petition does not set forth " the facts and circumstances on which the petition is founded, tending to show the necessity or expediency of the sale." These facts and circumstances, it may be assumed, are those which show the existence of at least one of the three contingencies above specified, in which a sale may be ordered. It must be conceded that this petition does not state in direct terms that there are debts to be paid, or that the income is not sufficient for the support and education of the wards, or that it would be for the benefit of the words that the property should be sold and the proceeds put out at interest. The petitioner appears to have thought it appropriate to set forth facts showing the existence of all the three contingencies, without in express words averring the existence of either. But no form is prescribed for the petition; and if by a fair application of all the statements, it can be seen that there is an averment that one or more of those three contingencies existed, it was sufficient to give jurisdiction. We think the allegations of the petition present a case for the judgment of the Probate Court, whether the guardian should have leave to sell the interest of the wards in the Sotoyome ranch, on the ground that it would be for their benefit that it should be sold, and the proceeds put out at interest. The guardian also evidently considered it necessary that a sale should take place, in order to realize the necessary means for the support of the wards. For this purpose the petition alleges that the wards have a slight increase from a portion of their estate (not the Sotoyome ranch); that this portion cannot be sold without great sacrifice; that they have no other means of support, save such pittance as she, their guardian and mother, can divide from her private property among all her children, which is small and uncertain; and if the property is sold, the income of the proceeds, after paying debts, will be sufficient for their ordinary support and education. Although not alleged directly, it is apparent that the intention is, by these statements, to present the fact that the income of the estate of the wards was not sufficient for their support and education. Without deciding whether these averments are sufficiently explicit to present a case for the jurisdiction of the Probate Court, on the ground of the insufficiency of the income for the support and education of the wards, we are satisfied that the averments, as to the situation of the Sotoyome ranch, present a case for the exercise of that jurisdiction, upon the ground that it would be for the benefit of the wards that their estate in that ranch should be sold, and the proceeds put out at interest. It is stated that the Sotoyome ranch is unproductive; that the greater part of it is occupied by persons who refuse to pay any rent, and are cutting down and destroying the trees; and that it is subjected to heavy taxes, which will amount to more than the value of the land by the time all the infants come of age. These facts certainly tend to show the expediency of a sale of the wards' estate in this ranch, and the investment of the proceeds at interest. It is not the question whether the Probate Court decided most judiciously in ordering the sale, but whether the facts alleged presented a case for the exercise of its judgment. The Probate Court adjudged that a sale was expedient, and accordingly ordered a sale, as well for the maintenance and education of the wards, as that the proceeds remaining over and above what should be sufficient for such maintenance and education, might be put out and invested. We think the Probate Court had jurisdiction to make that order.

It is further objected, that the real estate of these wards could not be sold by an order of the Probate Court, because its disposition was controlled by the will of Henry D. Fitch, under which they held. The provision of the will is, that the devisees may each " take out" one-half of his share when he comes of age, and the other half not until all the other children come of age. Whatever effect this provision might have in controlling the use of the property until the devisees were entitled to take its control by the terms of the will, the title to the property, the estate of the devisees, undoubtedly vested in the devisees upon the death of the testator. The statute authorizes the sale of the estate of any person under guardianship, when necessary or when for his benefit, in certain cases. The language is sufficiently comprehensive to authorize the sale of this estate; and if legally made, to transfer whatever estate these wards had to the purchasers. The plaintiffs have no title left on which they can maintain this action.

The circumstance that it was not necessary to probate this will, the testator having died before the adoption of the common law, cannot affect the liability of the property of these wards to be sold under the order of the Probate Court. The fact that they were infants residing in this State, and had estates to be taken care of, authorized the appointment of a guardian, and subjected them and their property to the control of the Probate Court.

It is further objected, that the real object of this sale was to effect a partition between these infants and their adult codevisees; and that as the Probate Court has no jurisdiction of such a proceeding, this sale was void. There is no doubt that all the matters appearing in these proceedings relating to the interests of the adults, are foreign to the only object which could be rightfully effected, and their presence has prevented the direct and simple statement in the petition of the facts necessary to give the Court jurisdiction of the proceeding, and has occasioned some directions to be inserted in the order of sale which are inappropriate. But we do not think they defeat the effect of the other allegations, which, in the view we have taken of them, are sufficient to give the Court jurisdiction of the proceeding for the purpose of selling the estate of the minors. The Court had power to order a sale of the estate of the infants, when the facts rendering it necessary or expedient were brought before it by the petition of the guardian. Such facts were so brought before it, and it only ordered their estate to be sold. The fact that the adults joined in the sale wrought no detriment to the infants, and may have benefited them. That a partition may have incidentally resulted, cannot render the sale void, if in other respects it was legal. The same facts existed in the case of Reid v. Allen, (18 Texas, 242) but were not urged or considered as an objection to the validity of the sale.

It is objected that the provision in the order of sale authorizing the adult owners to bid off any of the land to be sold, to the amount that would be coming to them, was a disposition of the land in the nature of an exchange, and not a sale, which must be for cash; and hence the sale is void. But if only the interest of the minors was sold, there would be nothing coming to the adults, and this provision would be a nullity and harmless; or if, as was probably contemplated, the adults joined the sale, their bidding, without paying cash, to the amount of their interest, still left the whole of the minors' interest to be bid and paid for in cash. The result is that the sale of the minors' interest was a cash sale.

There are some other objections which have been alluded to in the briefs, but which only touch the regularity of the proceedings after jurisdiction had been acquired; which, therefore, were only the subjects for correction on an appeal, and cannot be considered when arising collaterally in this action. (Sibley v. Waffle , 16 N.Y. 190-1.)

Judgment affirmed.