tion states no cause of sale, it would not be competent to prove, in support of the sale, that the court in fact received evidence of facts not relied upon by the petition, and that its action was in fact induced by proof of the causes of sale omitted from the petition but specified in the statute." Some of the statutes designate, in general terms, the purposes for which a sale may be licensed, and declare that the application for such license must be in writing and must show the necessity for the sale. Other statutes enumerate with considerable particularity the matters to be inserted in the petition. Even where the statute does not contain any special enumeration of the matters to be stated, it is evident that a petition may be fatally defective: 1st, when it seeks an improper object; as, for instance, the sale of property for a supposed benefit to the estate, when the statute authorizes a sale for no such purpose; and, 2d, when a proper object is sought, but the sale is not shown to be necessary to obtain it, as where a sale is asked to pay debts, but no debts are shown to exist, or the deficiency of personal assets with which to pay the debts is not affirmed. "A long series of decisions in this state-uniformly holding to the same rule-has determined that the application of an executor or administrator for the sale of lands belonging to the estate is a special and independent proceeding; that the jurisdiction of the probate court depends absolutely on the sufficiency of the petition; in other words, on its substantial compliance with the requirements of the probate act. Though the proceeding for the sale occurs in the general course of administration, it is a distinct proceeding in the nature of an action, in which the petition is the commencement and the order of sale is the judgment. The necessity for a sale is not a matter for the administrator or executor to determine, but is a conclusion which the court must draw from the facts stated, and the petition must furnish materials for the judgment.' The policy of

65 Pryor v. Downey, 50 Cal. 389. 66 Pryor V.

66

Downey, 50 Cal. 398; Haynes v. Meeks, 20 Cal. 288; Gregory

the law has always been in favor of preserving the real estate of heirs. Hence, if any necessity arises for the raising of money, resort must first be had to the personal estate of the heir or ward. It is not probable that a petition for the sale of real estate would give jurisdiction to any probate court in the Union, if it failed to show that the personal estate was either exhausted or was insufficient to produce the requisite funds. By a statute of New York, an administrator, suspecting the personal estate of the deceased to be insufficient to pay the debts, was required to make an account of such personal estate and deliver it to the judge of the court of probate, or the surrogate of the county, and request his aid in the premises. Thereupon, an order issued to the persons interested, to show cause why the real estate should not be sold. The account, being essential to showing the deficiency of personal assets, was treated as jurisdictional. A sale, in its absence, was always held void.68 In most states the proceedings for the sale of real estate are adversary proceedings. In such proceedings parties defendant, as well as plaintiff, are essential. As the heirs occupy the position of defending parties, the petition should show who they are, in order that they may be brought into court." The failure to name them has been held fatal. The petitioner can not, at the hearing, abandon

v. McPherson, 13 Cal. 562; Hall v. Chapman, 35 Ala. 553; Jackson v. Robinson, 4 Wend. 436; Fitch v. Miller, 20 Cal. 352. But by section 1518 Code Civil Procedure of California, "a failure to set forth the facts showing the sale to be necessary will not invalidate the subsequent proceedings, if the defect be supplied by the proofs at the hearing, and the general facts showing the necessity be stated in the order directing the sale." See also sec. 1537 Cal. C. C, P.

67 Gregory v. Tabor, 19 Cal. 397; Stuart v. Allen, 16 Cal. 473; Wattles v. Hyde, 9 Conn. 10.

68 Bloom v. Burdick, 1 Hill, 130; Corwin v. Merritt, 3 Barb. 341; Ford v. Walsworth, 15 Wend. 450; Jackson v. Crawfords, 12 Wend. 533; Atkins v. Kinnan, 20 Wend. 241; Wood v. McChesney, 40 Barb. 417. See Forbes v. Halsey, 26 N. Y. 53.

69 Morris v. Hogle, 37 Ill. 150; Hoard v. Hoard, 41 Ala. 590; Turney v. Young, 22 Ill. 253.

70 Guy v. Pierson, 21 Ind. 18. Contra, that the omission of the names

the grounds stated in his petition and obtain a license to sell on some other ground. A court having jurisdiction of a petition for a sale to pay debts, can not thereon grant a valid license to sell to promote the interest of the heirs." The property sought to be sold must generally be described in the petition. No jurisdiction is obtained over that which is not described. A license to sell the whole of the real estate of a decedent, based on a petition to sell a part, is void.72 But a description will not be inadequate to support the order of sale, if it is such as would be sufficient in a conveyance, or as is rendered intelligible by the aid of facts of which the court has judicial knowledge. The petition need not state, in Missouri, that the property belonged to the decedent.74

SEC. 12. Statutes Designating what Petition for Order of Sale must Contain. -Where a statute enumerates the matter to be contained in the petition for the sale of real estate, its object is to compel petitioners to disclose the supposed necessity of the sale, and also to furnish information which will aid the court in determining upon the best course of action in case it finds a sale to be necessary. The statute of California exacts more than any other which has come under our observation. It requires a verified petition setting forth: 1, the amount of personal property that has come into the hands of the administrator and how much remains undisposed of; 2, the debts of the decedent; 3, the

75

of the heirs is an irregularity merely: Gibson v. Roll, 27 Ill. 92; Stow v. Kimball, 28 Ill. 106; Morris v. Hogle, 37 Ill. 150. 71 Williams v. Childress, 25 Miss. 78. 72 Verry v. McClellan, 6 Gray, 535; Tenny v. Poor, 14 Gray, 502. 73 Smitha v. Flournoy, 47 Ala. 345. "Southeast quarter of sect. 19 T. 12:9" is fatally defective as a description. Weed v. Edmonds, 4 Ind. 468. "Section 12 T. 17 R. 21" was held sufficient in Wright v. Ware, 50 Ala. 549.

74 Trent v. Trent, 24 Mo. 307.

75 C. C. P. of Cal., sec. 1537. See also Hurd's Stat. of Ill., pp. 121, 123; Dassler's Stat. of Kans., sec. 2027; Comp. Laws Mich. 1871, p. 1424, sec. 4546; 1 Biss. Stat. of Minn., p. 673, sec. 178; Wag. Stat. Mo., pp. 94, 96, secs. 10, 25.

amount due or to become due on the family allowance; 4, the debts, expenses and charges of administration accrued and to accrue; 5, a general description of all the real property of which the decedent died seized, or in which he had any interest, or in which the estate has acquired any interest, and the condition and value thereof, and whether the same be community or separate property; 6, the names of the heirs, legatees and devisees of the deceased, so far as known to the petitioner. If any of the matters here enumerated can not be ascertained, it must be so stated in the petition.76 Whenever the question has arisen, the Supreme Court of this State has decided that the power of the probate court to order a sale depended upon a petition in substantial compliance with the statute."7 In Missouri, if any person die and his personal estate be insufficient to pay his debts and legacies, his executor or administrator shall present a petition stating the facts.78 The petition shall be accompanied by a true account of his administration; a list of debts due to and by the decedent, and remaining unpaid, and an inventory of the real and personal property, with its appraised value, and all other assets. It seems now to be settled, in that State, that the jurisdiction of the court attaches on the filing of the petition, and that the omission of the accounts and lists, required by statute to accompany it, is not fatal.80 In Wisconsin, and several other states, the statute provides that sales shall not be avoided on account of any irregularity, if it appears:

76 C. C. P. of Cal., sec. 1537.

79

77 Gregory v. McPherson, 13 Cal. 562; Stuart v. Allen, 16 Cal. 473; Townsend v. Gordon, 19 Cal. 188; Gregory v. Taber, 19 Cal. 397; Haynes v. Meeks, 20 Cal. 288; Fitch v. Miller, 20 Cal. 352; also, to same effect, Ackley v. Dygert, 33 Barb. 190; Bree v. Bree, 51 Ill. 367.

781 Wag. Stat. of Mo., p. 94, secs. 10, 11.

791 Wag. Stat. of Mo., p. 94, sec. 22.

80 Overton v. Johnson, 17 Mo. 442; Mount v. Valle, 19 Mo. 621; Grayson v. Weddle, 63 Mo. 523; Pattee v. Thomas, 58 Mo. 163. These cases, we think, are, in principle, directly opposed to the New York casesBloom v. Burdick, 1 Hill, 130; Ford v. Walsworth, 15 Wend. 450: Jackson v. Crawfords, 12 Wend. 533.

1, that the executor, administrator or guardian was licensed to make the sȧle by the probate court having jurisdiction; 2, that he gave a bond on the granting of the license; 3, that he took the oath as prescribed by statute before making the sale; 4, that he gave the notice of the sale; and, 5, that the premises were sold in good faith and the sale confirmed. Under this statute, sales based on defective petitions are held valid.81

SEC. 13. Petitions for Sale liberally Construed— When other Papers may be Referred to.-The rule of law that declares void probate sales based on insufficient petitions, is very harsh in its operation. To avoid the necessity of applying the rule, the courts will construe petitions as liberally as possible. They will not require the use of the exact language of the statute; they will forgive all errors of form; they will regard it as sufficient if the matters stated are substantially those required to be stated; and, in interpreting the language used, they will seek to find in it something to support, rather than to destroy the title based on the probate proceedings.82 In drafting the petition, reference may be had to some other paper on file, and, by such reference, this paper may be made a part of the petition. The petition, for instance, may state that a full description of the real and personal estate can be ascertained from the inventory on file. Where this is done, it will be sufficient that this jurisdictional fact appears from the inventory. But, to justify a reference to the inventory or other paper on file, " it must have been referred to in the

81 Reynolds v. Schmidt, 20 Wis. 374; Mohr v. Tulip, 40 Wis. 66; Mohr v. Manierre 9 C. L. N. 270; 1 Biss. Stat. Minn., p. 680, sec. 223; Coon v. Fry, 6 Mich. 506; Woods v. Monroe, 17 Mich. 238.

82 Morrow v. Weed, 4 Ia. 77; King v. Kent's heirs, 29 Ala. 542; Moffitt v. Moffitt, 69 Ill. 641; De Bardelaben v. Stoundenmire, 48 Ala. 643; Fitch v. Miller, 20 Cal. 382; Haynes v. Meeks, 20 Cal. 315; Wright v. Ware, 50 Ala. 549; Maurr v. Parrish, 26 Oh. Stat. 636; Wing v. Dodge, 80 Ill. 564; Bowen v. Bond, 80 Ill. 351.

83 Bentz's Est., 36 Cal. 687; Stuart v. Allen, 16 Cal. 501; Sheldon v. Wright, 7 Barb. 47.