J. P. WHITE et al., Executors, v. MOSES et al. (No. 2.), 21 Cal. 43

Norton, J. delivered the opinion of the Court Cope, J. concurring. This case differs in only one particular from that of E. A. White against the same defendants, which is decided at the same time with this. On the trial of this action, the defendants offered to read in evidence a certified copy of a record of a deed of the premises in question, executed by these plaintiffs as executors to E. A. White, for the purpose, apparently, of showing an outstanding title in a third person, or title out of the plaintiffs.

This evidence was ruled out upon the objection: first, that the loss of the original was not proved, and second, that the deed conveyed no title—the defendant not having shown the necessary preliminary steps to a sale and conveyance of the premises by the plaintiffs as executors. Without considering the sufficiency of the first objection, we think this ruling was correct under the second. By

section one hundred and forty-eight of the “Act to regulate the Settlement of the Estates of Deceased Persons ” it is provided, that “ no sale of any property of an estate shall be valid unless made under order of the Probate Court. In the case of Payne v. Payne (18 Cal. 291) it was decided that a Surrogate’s order was not necessary where a power to sell was given by the will. The deed in the case before us recites, that the executors were authorized by the will “ to sell his (the testator’

s) property in .California as therein mentioned and contained.” It does not appear by this that they had an absolute power to sell. It may have been “ mentioned and contained ” in the will that the sale was to be under the circumstances and in the manner provided by law for sales by executors. In order to show that a sale by the executors without a Surrogate’s order would have been valid to convey the title, it should have appeared by the production of the will that the power to sell was given absolutely.

It is possible that the expression, “ as therein mentioned and contained,” is used as a designation of the lands authorized "to be sold, and not as a designation of the mode and circumstances under which a sale might be made. But in the absence of any other guide to the meaning than the recital in the deed, we are not authorized to give it such a construction.

It is, therefore, ordered that the judgment be affirmed as to the defendants Moses and Wheaton, and reversed' as to the defendants Banks and Winter, and that the Court below render a judgment in favor of Banks and Winter for their costs in the Court below, and that they also have execution for their costs on this appeal.