Summary
In Gharky v. Werner, 66 Cal. 388, the petition described ten parcels of real estate, and due notice was given of the hearing, and on the day so fixed the executor moved for leave to amend the petition by adding another parcel, and it was so amended, and thereupon an order of sale was made without further notice, and that order was appealed from.
Summary of this case from Estate of CookOpinion
Appeal from an order of the Superior Court of Santa Cruz County, directing the sale of real estate of a deceased testator.
COUNSEL:
The court had no power to order the petition to be amended. If it had such power, it could not make the order of sale without taking the same steps as upon an original petition.
Charles B. Younger, for Appellant.
W. D. Story, for Respondent.
The court had power to permit the petition to be amended. (Code Civil Proc., §§ 1713, 473.)
JUDGES: In Bank. Myrick, J. Ross, J., Thornton, J., McKee, J., Morrison, C. J., McKinstry, J., and Sharpstein, J., concurred.
OPINION
MYRICK, Judge
Appeal from an order directing the sale of real estate of the testator. The executor described in his petition for the sale ten parcels of real estate, and due notice was given of the day fixed for the hearing. On the day fixed for the hearing, the executor moved the court for leave to amend the petition by adding another parcel of real estate, which motion was granted; the petition was accordingly amended, and as amended, was reverified on that day. Thereupon, without further notice, the court made an order for sale of real estate, which order is appealed from. On the argument in this court it was not contended that the description of the added parcel was not in the inventory of the property of the estate.
It was error to make the order of sale on the petition as amended without further notice. The petition must contain "a general description of all the real property of which the decedent died seized." ( Section 1537, Code of Civil Procedure.) As well might the executor give a description of one parcel, and at the hearing add ten others, as to give ten and at the hearing add one. The court should have treated the petition, when amended, as a new petition, and have proceeded de novo .
Order reversed and cause remanded for further proceedings.