PLATT GREGORY v. TABER, 19 Cal. 397

Baldwin, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring. ■ This case involves most of the facts and principles embraced in the case of (Gregory v. McPherson, reported in 13 Cal. 562. The action is ejectment, the plaintiff claiming the tract of land sued for by virtue of an executor’s sale of the property as that of the estate of Juana Sanchez de Pacheco. The defendant resisted the suit, upon the ground that the proceedings for the sale were fatally defective, and the sale void. The defects insisted on are, as in the case of Gregory v.

McPherson, mainly: 1st, that two executors qualified upon-Mrs. Pacheco’s will, and that the proceedings were instituted and. conducted by only one of them; 2d, that the petition for the sale neither sets forth the amount of the personal property which had come to the hands of the executors, nor the condition or the value of the respective portions or lots of the real estate of which the testatrix died seized, nor the ages of the heirs or devisees. It is said that this case differs from that of Gregory v.

McPherson in this, that here an account of the personal estate, fulfilling the requirements of the statute, was proved to have been filed at or about the date of filing the petition. But the answer is, that no such account was filed with, or as a part of, the petition. The mere fact that an account was filed, or was found among the papers of the probate proceedings, is not sufficient. It must have been referred to in the petition so as to become a part of it for the purpose of the reference. The statute is peremptory, that the facts prescribed shall be stated in the petition.

By a liberal construction of this requirement, we held in Stuart v. Allen that if the petition referred to another paper on file, for the purpose of a more full and explicit statement of facts, that paper might be considered in connection with the petition, and both be taken together as a statement, of all the required facts. But it is apparent that no such result could be attained, unless the petition itself made the reference» The case of Bloom v.

Burdick is not opposed to this conclusion.. (See 1 Hill, 185.) It seems that the Hew York statute of 1813 required the administrator “ to accompany his petition with an-account,” etc. But our statute in this respect is different. It requires the petition to state particular facts as to the condition of the estate, and these are essential facts going to the jurisdiction. It is not sufficient that the administrator files a separate paper, not a part of or referred to in the petition, though this paper should state part of the facts which the statute requires the petition to state.

If this were so, the consequence would be that a large number of.' separate papers might be filed, each containing but a single averment, and it be contended that the whole, taken together, constituted a sufficient petition within the meaning of the statute.

It is enough to say that, whatever the intention of filing this paper might be, it was not made a part of the petition, and that, as the parties interested are not presumed to have had knowledge of the filing of it, or any reason to suspect that it was filed, their notice or that of the Court would not probably be drawn to it on the hearing of the petition; nor could its statements be answered, or in any wise drawn in issue.

In no way did it become part of the proceedings in the case of application for the sale of the estate ; and therefore, cannot be considered as curing the defects, or supplying the place of the averments of the petition. We have attentively considered the authorities and arguments on the question of probate sales, and have reluctantly reached the conclusion announced in the principal opinion in Gregory v. McPherson—that, to maintain a sale of a decedent’s real estate, under the order of the Probate Court, it is necessary that the petition should state the facts required by the one hundred and fifty-fifth

section of the act. It has been urged that the statute, in the one hunded and seventy-first-and one hundred and seventy-second sections, in effect confirms these sales in cases where the report of the administrator is made, and the Probate Judge confirms the sale and orders a deed to be executed to the purchaser. But the answer is, that the sole authority and jurisdiction of the Probate .Court come from the petition with the averments required in the one hundred and fifty-fifth section, and that, without this jurisdiction, the Probate Court has no power to confirm the sale or impart validity to it.

If this be not so, it would follow that the whole estate might pass without any petition, or perhaps, even any proceedings, except an order of sale and the order of confirmation. No such effect was designed to be given by the one hundred and seventy-first and one hundred and seventy-second sections, but they refer only to sales made under orders which the Probate Court had jurisdiction to make. It is unnecessary to consider other points, or whether the statute of 1858 makes a different rule for cases of sales occurring after that act. Judgment affirmed.