JOHN HENRY TOWNSEND, an Infant, by Samuel J. Hensley, Guardian ad litem v. GEORGE GORDON et als., 19 Cal. 188

Baldwin, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring. Ejectment for a lot in San Francisco. This case involves several important questions, affecting the validity and effect of sales of an infant, through proceedings of the Probate Court. The case has been fully and ably argued by the respective counsel. John Townsend, the father of the infant plaintiff, died in Santa Clara county on the eighth of December, 1850, possessed of considerable real and personal estate.

Two days afterwards, Elizabeth, widow of John, died, possessed of a large estate, and leaving a will, in which she disposed of a portion of her estate, and nominated one Moses Schallenberger her sole executor, and also guardian at law of her infant son, the plaintiff here, the only child of John and Elizabeth —then being two or three years of age. Schallenberger, on the seventeenth of December, 1850, filed his petition, addressed as follows: “To the Plonorable the Judge of the Probate Court of the county of Santa Clara, State of California. The petition of Moses Schallenberger, of Monterey, etc. That Dr.

John Townsend, late a resident of the county aforesaid, died in said county,” etc. The petition recites the facts as stated before, and prays that the will of Mrs. Townsend may be admitted to probate, and letters testamentary thereon be issued to the petitioner; that he be appointed guardian in law and in fact of said infant, and that letters of administration be issued to him on all the estate of Mrs. Townsend left undisposed of by her will, which, as your petitioner is informed and believes, is of large amount; and also that letters of administration be issued to him on the estate of John Townsend.

The County Judge, in vacation, on the same day—seventeenth of December, 1850—made an order that petitioner be appointed guardian at law. and in fact of said infant; also that he be appointed Curator of the estate of said John Townsend, and of the estate of said Elizabeth; and also that public notice be given according to law, of his application for letters testamentary and of administration as above specified.

On the eighteenth of December, 1850, the Clerk of the Probate Court gave notice that at the next general term of the Court, to be held, etc., on the first Monday of January next after, the application of the petitioner would be heard for letters óf administration upon the estate of John Tqwnsend, etc.

On the eleventh of January, 1851, an entry appears in the books of the Court, reciting that Moses Schallenberger came, and it appearing to the satisfaction of the Court that public notice of his application having been' given as required by law, and he having filed his affidavit and his bond, etc., whereupon the Court ordered letters of administration to issue to said Schallenberger on said estate, and appraisers were appointed. Bond was given and approved; and inventory and appraisement filed February 18th, 1851.

On the twenty-fifth of August, 1851, an order appears appointing certain persons guardian for the absent and minor heirs of the estate. On the twenty-fifth of November, 1857, Schallenberger, administrator, etc., filed his petition as follows: “ Estate of John Townsend, deceased. Probate Court, county of Santa Clara. The petition of Moses Schallenberger, administrator, shows to this Court that the above estate is largely indebted for various claims outstanding against the deceased, charges and incumbrances upon real estate, and that the personal property is insufficient to pay the sáme.

That the personal property consists of rents arising from a portion of the real estate in San Francisco, which have become greatly reduced in consequence of the destruction of the buildings by the fire of May last, and the furniture and other goods and chattels mentioned in the inventory.

That the amount of said rents which has been collected is about §12,000, which has been applied to the payment of various municipal charges, necessary expenses for the preservation of the property, the support and maintenance of the infant heir, funeral and administration expenses, leaving still undisposed of the goods and chattels above mentioned, amounting in value to about five hundred dollars. * * And your petitioner further shows that the only heir to said estate is John Henry Townsend, infant son of deceased and Elizabeth L.

Townsend, also deceased, who is about three years of age. “ In conclusion, petitioner prays that an order be granted directing all persons interested in said estate to appear before the Probate Judge, at the next term of this Court, to be held on the fourth Monday of December next, at the Court House in the city of San José, to show cause why an order should not be granted to your petitioner as administrator, to sell so much of the real estate of the ■deceased as shall be necessary to pay such debts.” In this petition the property sued for was omitted; other real estate inserted.

On the twenty-sixth of November, 1851, the following order was made:— “ In the matter of the estate of John Townsend, deceased. “ Wednesday, November 26th, 1851. “ Now comes M.

Schallenberger, administrator, by his attorney, and files his petition praying for the sale of a portion of the following described real estate, to wit: One half of lot nineteen, (19) homestead lot fifty, (50) unimproved lot fifty-three, (63) doubtful lots six, seven, eight, nine and ten, block fifty of Millner’s and White’s survey, south-west half of lot two, (2) block three, (3) range two (2) south, lot eight, (8) block three, (3) range three, (3) south, tract of land on Sacramento river, lease of lot corner of Washington and Kearny streets, San Francisco, one-third interest improved, a portion of South San Francisco, worthless lot in Monterey, to pay the debts of said estate.

It is therefore ordered by the Court, that public notice be given in the San José Weekly Visitor, in pursuance of law, to all persons interested in said estate, to appear at the next term of this Court, to show cause, if any they can, why said order should not be made.” Also the following order: “ Probate Court of Santa Clara county. State of California : In the matter of the estate of John Townsend, deceased.

Whereas, Moses Schallenberger, administrator of said estate, has filed a petition in said Court, praying for an order of sale of all or so much of the real estate of said deceased as may be necessary to pay the debts thereof, and costs and charges of administration, etc.; notice is hereby given that the hearing of said petition will be had at the December term of said Court, to be held at the Court House in the city of San José, on the fourth Monday of December, A.

D. 1851, when and where all persons interested in said estate may appear and show cause why the order prayed for in said petition should not be made. “ Witness: Hon. J. W. Redman, Probate-of Santa Clara county, with my private seal (there being no seal yet provided) at office, this twenty-sixth day of November, A. D. 1851. “ By order of the Court. [l. s. “ H. C. Melone, County Clerk.” The following affidavits are appended to a copy of the last order: “ County of Santa Clara, ss. A.

Jones, printer of the San José Visitor, being duly sworn, says that the annexed notice in the estate of John Townsend, deceased, was published three weeks successively, commencing with November 26th, 1851, and discontinued because said newspaper stopped its issue. “A. Jones, Jr. “ Sworn before me, December 16th, 1851. “ D. P. Belknap, Notary Public. “ Filed December 23d, 1851. “ H. C. Melone, Clerk.” “ County of San Francisco, ss. C. O.

Gerberding, printer and agent of the California Courier newspaper, being duly sworn, says that the foregoing notice was duly published in said newspaper, in its regular daily edition, on the eighteenth day of December, 1851, in the city of San Francisco. “ C. O. GERBERDING. “ Sworn before me, December 20th, 1851. “ A. G. Randall, Notary Public. “Filed December 23d, 1851. “ H. C.

Melone, Clerk.” On the twenty-third of December, 1851, the following order was made : “ In' the matter of the estate of John Townsend, deceased, Probate Court, Santa Clara county, December 23d, 1851. “ At a general term of the Probate Court in and for the county of Santa Clara, held at the Court House, in the city of San José. Present—J. W.

Redman, Probate Judge. “ On reading the petition of Moses Schallenberger, administrator of the above estate, said petition having been heretofore filed in the office of the Clerk of this Court, on the twenty-sixth day of November, 1851, setting forth in substance that the above estate is largely indebted for various claims and incumbrances upon the real estate, and that the personal property is insufficient to pay said debts, together with the just and necessary expenses of said administration, and the support of the infant heir; and on reading and filing the statement and consent of the attorney for the infant and absent heirs of said estate heretofore appointed by this Court, and on giving proof of due publication of notice of this application as required by law, and on filing of said proof: “ It is hereby ordered, adjudged and decreed, that Moses Schallenberger, said administrator of said estate, have leave and authority to sell and convey, according to law, the following described real estate belonging to the said estate of John Townsend, deceased, and situate in the counties of Santa Clara, San Francisco, Sutter and Butte, in this State.

In the county of Santa Clara, all the following real estate and property, to wit:" Here follows the property, including that sued for. The consent and representation of the attorney of the infant and absent heirs appear in the record. The administrator, on the twenty-fourth of February, 1852, made his report of sales of real estate in San Francisco. In February, 1852, sales and report confirmed.

The defendant claims title through the sale made under the proceedings set out; and the plaintiff contends that they vest no title, the ground being that the Probate Court had no jurisdiction to make the orders on which the administrator’s sale is based. It is too late to dispute the first general proposition of respondent’s counsel, that the Courts of Probate, in the construction of their proceedings had before the passage of the Act of 1858, are to be regarded as Courts of limited and inferior jurisdiction. Such has been the construction given by this Court in many cases. (See Smith v.

Andrews, 6 Cal. 652 ; 7 Id. 215 ; 10 Id. 110 ; 5 Id. 60 ; and many other cases, have affirmed or recognized the same doctrine.) The argument of the appellant is that this is not the true rule, for the reason that Courts of Probate are constitutional Courts of general exclusive jurisdiction in matters testamentary and of probate, and therefore as much Courts of general jurisdiction in respect to such matters as the District Courts in respect to matters of common law litigation; both Courts looking to the same constitutional grant for their powers, and both limited and restrained by that instrument.

The Supreme Court of Georgia (13 Ga. R.) in a very able opinion, takes this view, and one or more of the other States, having the same constitutional provisions in this respect, sanction it; but however forcible the argument, we think we are precluded by this long recognition of a principle having such intimate relation to titles to real estate from disturbing these cases. The Act of 1858, changing the rule of construction of the proceedings of these Courts, has no application to proceedings taken before its passage. So the act expressly provides in the first section. (Statutes of 1858, 95.) 1.

The first objection to the record of proceedings already set out is, that the petition does not show that John Toxynsend xvas, at the time of his death, a resident of Santa Clara county. But this point is not sustained by the record. The petition in the address or direction mentions the county of Santa Clara.

This is a part of the petition; the word “ Monterey ” occurs in connection with the name of Schallenberger—but this name, though that of a county, is also that of a town, and the “ aforesaid,” following “ county,” was designed to denote the county, and the only county mentioned before—which was Santa Clara. 2. That the petition embraces matters pertaining to another estate than that of John Townsend. This, though irregular, does not affect the jurisdiction. It is sufficient if the petition contains the requisite averments to justify the action of the Court had in pursuance of the prayer or of the matter set out.

If it goes beyond, and includes irrelevant and redundant matter, this furnishes a good objection for the rejection of this irrelevant matter, or probably constitutes a good exception for want of form or for defective pleading; but it does not affect the jurisdiction of the Court. (See Stuart v. Allen, 16 Cal.) 3. The more serious objection is, that this petition fails to specify the one hundred vara lot in question as a part of the real estate of the deceased. The one hundred and fifty-fourth and one hundred and fifty-fifth sections of the Act concerning the estates of decedents, are as follows : “

Section 154. When the personal estate in the hands of the executor or administrator shall be insufficient to pay the allowance to the family, and all debts and charges of the administration, the executor or administrator may sell the real estate for that purpose, upon the order of the County Judge.” “

Section 155.

To obtain such order, he shall present a petition to the Probate Court, setting forth the amount of personal estate that has come to his hands, and how much thereof, if any, remains undisposed of; the debts outstanding against the deceased, so far as can be ascertained ; a description of all the real estate of which the testator or intestate died seized, and the condition and value of the respective portions and lots ; the names and ages of the devisees, if any, and of the heirs of the deceased; which petition shall be verified by the oath of the party presenting the same.” It is said, that the petition in this case refers to the inventory, and that the inventory sets forth this lot as a part of the real estate of the deceased.

It is required by the one hundred and fifty-fifth section, that the petition shall set forth “ all the real estate ; ” but we held in Stuart v. Allen that if reference were made to the inventory in such way as “ to make the inventory a part of the petition, the inventory and petition might be read together as one paper, and the defects or omissions of the petition could in this way be corrected by means of this reference.” But the difficulty here is in the fact that no reference is made to the inventory for any such purpose.

The only notice of the inventory is in this sentence : “ That the personal property consists of rents arising from a portion of the real estate in San Francisco, which have become greatly reduced in consequence of the destruction of the buildings by the fire of May last, and the furniture and other goods mentioned in the inventory.” This may be considered, under the somewhat liberal view we took in Stuart v.

Allen, as justifying the omission to include in the petition a more particular statement of the personal effects than that made in it; but this statement does not make the inventory a part of the petition for any other purpose.

No one would have thought of looking into the inventory to ascertain the real estate which the deceased left, “ and the condition and value of the respective portions and lots.” It may be that an omission of a portion of the real estate would not affect the proceedings ordering the sale of another portion described; but we are unable to see how the heir could be divested of his title by a sale of property, for which sale there was no petition. This petition is unquestionably the foundation of the jurisdiction. All the other proceedings rest on this.

Not only is a petition made necessary to obtain this order, but the kind of petition is given. A petition substantially different from that required would not do. It is essential that this petition should show the facts required, since not only the judgment of the Court is invoked to determine whether there shall be any sale, but also, if any, what property it is best for the interests of the heir should be sold. The guardian appearing for the heir is not supposed to know that the petitioner will seek to sell other property than that in the petition.

The infant is not able to protect himself, as ordinary litigants are. Unless it be held that this requirement is a jurisdictional fact, we must maintain that the whole of the other required averments of the petition, as given by the one hundred and fifty-fifth section, are directory—that indeed, no petition need be filed at all; for it is difficult to see the difference, as was suggested in Gregory v. McPherson (13 Cal. 562) by one of the Judges, between a petition lacking the substantial averments of the statute, and no petition at all. We would feel bound, then, to hold that the one hundred and fifty-fourth

section conferred the jurisdiction, and the other sections following were merely directory provisions for carrying it out. This point was made by counsel for appellant in Stuart v. Allen, and noticed by the Court; we did not intimate any opinion on the subject, but distinctly left the point open for further discussion. The authorities cited by the counsel for the respondent upon statutes not dissimilar maintain the proposition, that the facts required must appear in the petition, or else that the action of the Court is void. (Bloom v.

Burdick, 1 Hill, 130 ; Bronson’s opinion, 4 Hill, 86 ; 7 Id. 29.) The general reasoning of the principal opinion in Gregory v. McPherson need not be here repeated. It is believed to be correct, and is supported by many authorities. It is true, that this opinion, not having been concurred in by the other Justices, is not itself authority; and when the same point came up in Stuart v. Allen, the question was referred to as open—for it was not necessary in that case to pass upon it. Now it is distinctly presented, and has been fully argued. The authorities are • collected in Wyatts, Administrator, v.

Rambo (29 Ala. 510) ; and in Corwin v. Merritt (3 Barb. S. C. 341) ; and the principle is supported in most of the numerous cases which the industry of the learned counsel of the respondent has collected in his brief.

In the case in Alabama, it is conceded that the Probate Court, under the system prevailing in that State, is a Court of general jurisdiction of testamentary matters, being a Court provided for by 'the Constitution ; but it is held that, as to the proceedings for sales of decedent estates, such Courts exercise a peculiar statutory authority, and therefore, as to such proceedings, are within the rule which prescribes a strict construction to their acts.

This principle, if correct, would seem to be peculiarly applicable to sales of real estate by administrators; such sales being not in the course of the jurisdiction of the English Courts of Ordinary, but in derogation of the rules of the common law. But it is not necessary to express any opinion as to the correctness of this distinction, inasmuch as we have already intimated our unwillingness to disturb the early decisions of this Court holding the rule that these Courts, under the legislation previous to 1858, are to be regarded as Courts of limited and special, jurisdiction.

Nothing in this opinion conflicts with the case of Irwin v. Scriber, recently decided; for that case came under the Act of 1858. It is unnecessary to consider other points, for this is decisive. Judgment affirmed.