ESTATE OF MATTHEW DELANY

ESTATE OF MATTHEW DELANY.

No. 2170 -- May 31, 1872

SALE OF REAL ESTATE BY EXECUTOR, WHO IS ALSO A DEVISEE THEREOF IN TRUST UNDER THE WILL.----A sale does not require to be reported to the court for confirmation, when made by such devisee.

GRANTEE UNDER SUCH SALE may apply to the court for distribution to him, directly, of his purchase property.

BENEFICIARIES ENTITLED TO RESIDUE under such devise in trust may apply to the court, at their option, to have such remainder distributed to them in kind for may take proceeds of a sale thereof.

Construing section, C. C. P., 1561; affirmed, 49 Cal., 76.

Finn & Whittemore.

McAllisters & Bergin and E. B. Mastick.

A will devising property to an executor in trust to sell and apply the proceeds, passes the title, subject to the power of the Probate Court to order sale for the purposes of administration. If the executor, as the owner of the legal title, but not as executor, sells and makes a deed of real estate, the legal title passes to the grantee, subject to the necessity for a sale for purposes of administration, and such sale does not require to be reported to and confirmed by the Probate Court. In such case, the grantee is entitled, upon distribution of the estate, to have the property so conveyed distributed to him.

Where real property is so devised in trust to sell and pay certain sums, the balance to be paid to certain persons, and sufficient be sold to pay those sums and the debts and expenses of administration, and real estate remains unsold, those persons entitled to the balance may elect to have the real estate so unsold distributed to them, instead of the proceeds.

Transcribed by Patricia Seabolt & Sue Wood.

SAN FRANCISCO'S CASES REPORTED INDEX