Field, C. J. delivered the opinion of the Court—Cope, J. and Norton, J. concurring.
This is an action to recover the possession of certain real estate situated in the city of San Francisco. Both parties deraign title from the same source—from one George Harlan, who died in the county of Santa Clara in July, 1850. It is admitted that Harlan was possessed of a good title to the premises at the time of his death. The plaintiff claims by a conveyance from Aspinwall, who is alleged to have been at the time administrator of Harlan’s estate, executed upon a sale ordered by the Probate Court in November, 1855 ; the defendant claims by a previous conveyance from Harlan’s heirs, executed in April, 1854.
Soon after the death of Harlan, one Henry C. Smith was appointed administrator of the estate, and immediately qualified and entered upon the discharge of his duties. Whilst he was acting as administrator, real property belonging to the estate was sold by order of the Probate Court, upon his petition, to pay the debts of the estate and the expenses of the administration. Funds were thus received by him sufficient, with other funds previously in his hands, to pay all the debts and expenses, and leave a balance of nearly $2,000. Among the debts was one to Aspinwall, and upon it the latter instituted suit, and in July, 1853, recovered judgment for upwards of $8,000. Upon this judgment only the sum of $3,500 was ever received from the administrator. On the thirty-[309]*309first of December following, Smith filed a paper, in which he declared that he resigned his appointment as administrator, and requested that the resignation be received. The Court thereupon ordered him to turn over the papers and effects of the estate in his hands to the Public Administrator of Santa Clara county, and to make with him a full settlement before the first day of the following term; declaring that when he had made such settlement, he and his sureties should be released from further liability; and (Erecting that the estate be placed in the hands of the Public Administrator for the purposes of general administration. At the next term—in January, 1854—Smith presented an exhibit purporting to be a final report of the condition of the estate, and of his proceedings therein, and showing a balance of funds in his hands more than sufficient to pay all outstanding claims. The Court approved of his accounts in part, and ordered him to pay immediately all the debts of the estate, and to make a final settlement at the next term; and revoked the order of December 31st, by which he was directed to turn over the estate to the Public Administrator, and the latter was authorized to take charge of it for general administration.
In May, 1855, not having obtained payment of the balance of his judgment, Aspinwall apphed to be appointed administrator of what was alleged in his petition to be the unadministered part of the estate, and' in June following the appointment was made, and he gave the usual bond and qualified. In November, 1855, he obtained from the Court an order directing him to sell two parcels of land situated in the city of San Francisco. At the sale which followed, the plaintiff became the purchaser of the premises described in the complaint. The sale was duly reported and confirmed, and a conveyance by Aspinwall, as administrator, executed. It is under this conveyance that the plaintiff claims.
The questions presented for consideration relate to the vahdity of the appointment of Aspinwall as administrator, and to the jurisdiction of the Court to order the sale which was made by him. To the appointment of Aspimvall it is objected that Smith, the original administrator, was still in office—his resignation not having been accepted, nor his letters revoked. To the jurisdiction of the Court, it is objected that there were sufficient funds in the hands of Smith, [310]*310the original administrator, to pay ail the debts and charges against the estate; and that the petition of Aspinwall for the sale was fatally defective in its averments.
Upon the first question presented, we are concluded by the previous decision of this Court when the case was here at the July term, 1858, (10 Cal. 110). It was then held upon substantially the same evidence, that the resignation of the first administrator, Smith, was accepted by the Probate Court; that the acceptance of the resignation, before Smith had settled his accounts, was only an irregularity—or, as the Court termed it, an error “ merely voidable ”—one, in other words, which might have been corrected by appeal, or direct proceedings for its correction, but which could not be set up collaterally in impeachment of the action of the Probate Court. We confess that we are by no means satisfied with the conclusions at which the Court arrived in this respect. We do not perceive in the act of Smith, the former administrator, anything more than an offer to resign. A resignation is not a matter absolutely in the power of an administrator, to he made at any time he may choose. The statute only confers upon him a conditional right to resign. Its language is that he may resign, “provided he shall first settle his accounts and deliver up all the estate to such person as may be appointed by the Court.” Smith never complied with this condition, and it nowhere appears that the Court ever dispensed with it. The Court did, it is true, on the thirty-first of December, 1853, order him to turn over the estate to the Public Administrator of Santa Clara county; but in the following month it vacated the order, and directed him to apply the moneys in his hands to the payment of the outstanding claims. And the subsequent proceedings show a recognition by the Court of his continued existence as administrator of the estate. Admitting, as contended, that the Court, having the power to remove an administrator for failure to account, could accept of his resignation without such account being rendered, it does not appear that any such course was ever pursued. The appointment, therefore, of Aspinwall—a new administrator—the former administrator not having been removed, nor his resignation accepted, was a proceeding which the Court had no jurisdiction to take. The appointment of a new administrator can no more be [311]*311made whilst a former administrator is in office, than an appointment can he made in the first instance until the death of an intestate. The allegation of the death of a person in a petition for letters would not confer any jurisdiction, if such person were still living. The assumption of the fact of the party’s death, however regular the proceedings in other respects, would not support the issuance of letters against the proof of such party being still alive. So, too, the allegation by Aspinwall in the petition for his appointment, that the “ administration of Smith had fully ceased and determined,” is without force against the record evidence to the contrary. Nor can it be said that there was a removal of Smith by force of the subsequent appointment of Aspinwall. There is no such thing as a removal of an existing administrator simply by force of the appointment of another person. The office must first become vacant before a scond appointment can be made. A vacancy may arise by operation of law upon the happening of certain events, as by lunacy of the administrator established by judicial decree, or by his conviction of an infamous crime. (Secs. 95, 96 and 101.) In such case, the event, when established or brought to the notice of the Probate Court, is equivalent to an order of the Court revoking the letters.
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Field, C. J. delivered the opinion of the Court—Cope, J. and Norton, J. concurring.
This is an action to recover the possession of certain real estate situated in the city of San Francisco. Both parties deraign title from the same source—from one George Harlan, who died in the county of Santa Clara in July, 1850. It is admitted that Harlan was possessed of a good title to the premises at the time of his death. The plaintiff claims by a conveyance from Aspinwall, who is alleged to have been at the time administrator of Harlan’s estate, executed upon a sale ordered by the Probate Court in November, 1855 ; the defendant claims by a previous conveyance from Harlan’s heirs, executed in April, 1854.
Soon after the death of Harlan, one Henry C. Smith was appointed administrator of the estate, and immediately qualified and entered upon the discharge of his duties. Whilst he was acting as administrator, real property belonging to the estate was sold by order of the Probate Court, upon his petition, to pay the debts of the estate and the expenses of the administration. Funds were thus received by him sufficient, with other funds previously in his hands, to pay all the debts and expenses, and leave a balance of nearly $2,000. Among the debts was one to Aspinwall, and upon it the latter instituted suit, and in July, 1853, recovered judgment for upwards of $8,000. Upon this judgment only the sum of $3,500 was ever received from the administrator. On the thirty-[309]*309first of December following, Smith filed a paper, in which he declared that he resigned his appointment as administrator, and requested that the resignation be received. The Court thereupon ordered him to turn over the papers and effects of the estate in his hands to the Public Administrator of Santa Clara county, and to make with him a full settlement before the first day of the following term; declaring that when he had made such settlement, he and his sureties should be released from further liability; and (Erecting that the estate be placed in the hands of the Public Administrator for the purposes of general administration. At the next term—in January, 1854—Smith presented an exhibit purporting to be a final report of the condition of the estate, and of his proceedings therein, and showing a balance of funds in his hands more than sufficient to pay all outstanding claims. The Court approved of his accounts in part, and ordered him to pay immediately all the debts of the estate, and to make a final settlement at the next term; and revoked the order of December 31st, by which he was directed to turn over the estate to the Public Administrator, and the latter was authorized to take charge of it for general administration.
In May, 1855, not having obtained payment of the balance of his judgment, Aspinwall apphed to be appointed administrator of what was alleged in his petition to be the unadministered part of the estate, and' in June following the appointment was made, and he gave the usual bond and qualified. In November, 1855, he obtained from the Court an order directing him to sell two parcels of land situated in the city of San Francisco. At the sale which followed, the plaintiff became the purchaser of the premises described in the complaint. The sale was duly reported and confirmed, and a conveyance by Aspinwall, as administrator, executed. It is under this conveyance that the plaintiff claims.
The questions presented for consideration relate to the vahdity of the appointment of Aspinwall as administrator, and to the jurisdiction of the Court to order the sale which was made by him. To the appointment of Aspimvall it is objected that Smith, the original administrator, was still in office—his resignation not having been accepted, nor his letters revoked. To the jurisdiction of the Court, it is objected that there were sufficient funds in the hands of Smith, [310]*310the original administrator, to pay ail the debts and charges against the estate; and that the petition of Aspinwall for the sale was fatally defective in its averments.
Upon the first question presented, we are concluded by the previous decision of this Court when the case was here at the July term, 1858, (10 Cal. 110). It was then held upon substantially the same evidence, that the resignation of the first administrator, Smith, was accepted by the Probate Court; that the acceptance of the resignation, before Smith had settled his accounts, was only an irregularity—or, as the Court termed it, an error “ merely voidable ”—one, in other words, which might have been corrected by appeal, or direct proceedings for its correction, but which could not be set up collaterally in impeachment of the action of the Probate Court. We confess that we are by no means satisfied with the conclusions at which the Court arrived in this respect. We do not perceive in the act of Smith, the former administrator, anything more than an offer to resign. A resignation is not a matter absolutely in the power of an administrator, to he made at any time he may choose. The statute only confers upon him a conditional right to resign. Its language is that he may resign, “provided he shall first settle his accounts and deliver up all the estate to such person as may be appointed by the Court.” Smith never complied with this condition, and it nowhere appears that the Court ever dispensed with it. The Court did, it is true, on the thirty-first of December, 1853, order him to turn over the estate to the Public Administrator of Santa Clara county; but in the following month it vacated the order, and directed him to apply the moneys in his hands to the payment of the outstanding claims. And the subsequent proceedings show a recognition by the Court of his continued existence as administrator of the estate. Admitting, as contended, that the Court, having the power to remove an administrator for failure to account, could accept of his resignation without such account being rendered, it does not appear that any such course was ever pursued. The appointment, therefore, of Aspinwall—a new administrator—the former administrator not having been removed, nor his resignation accepted, was a proceeding which the Court had no jurisdiction to take. The appointment of a new administrator can no more be [311]*311made whilst a former administrator is in office, than an appointment can he made in the first instance until the death of an intestate. The allegation of the death of a person in a petition for letters would not confer any jurisdiction, if such person were still living. The assumption of the fact of the party’s death, however regular the proceedings in other respects, would not support the issuance of letters against the proof of such party being still alive. So, too, the allegation by Aspinwall in the petition for his appointment, that the “ administration of Smith had fully ceased and determined,” is without force against the record evidence to the contrary. Nor can it be said that there was a removal of Smith by force of the subsequent appointment of Aspinwall. There is no such thing as a removal of an existing administrator simply by force of the appointment of another person. The office must first become vacant before a scond appointment can be made. A vacancy may arise by operation of law upon the happening of certain events, as by lunacy of the administrator established by judicial decree, or by his conviction of an infamous crime. (Secs. 95, 96 and 101.) In such case, the event, when established or brought to the notice of the Probate Court, is equivalent to an order of the Court revoking the letters. But where the law does not declare the vacancy as a consequence flowing from a particular event, a revocation of the letters of the first administrator, he being still living, is as essential to the appointment of another person to succeed him, as was the death of the intestate to the original appointment; and the only competent proof of a revocation of letters in such case is an order of the Court directing it. But upon the question of the acceptance of the resignation of Smith, and the validity, so far as any collateral attack is concerned, of the appointment of Aspinwall, we are concluded, as we have stated, by the previous decision of this Court. That decision constitutes the law of the case, and controls upon the present appeal. (Davidson v. Dallas, 15 Cal. 75; Phelan v. San Francisco, 20 Id. 39.) We have expressed our views upon the question in order to obviate the idea of an implied approval of the decision, and to leave us unembarrassed by it if similar questions are presented in other cases for consideration. It may be observed here, that the decision which appears in the report in 10 Cal. 120, [312]*312remanding the cause, with directions to the Court below to enter judgment for the plaintiff, was subsequently modified on petition for rehearing by directions for a new trial.
The present appeal must, therefore, be determined upon the questions presented as to the jurisdiction of the Court to order the sale made by Aspinwall.
The authority of the Probate Court to order a sale of real property of an intestate is derived entirely from the statute. It is a limited, and not a general authority. It may be exercised in certain specially designated cases; it can be exercised in no other. (People v. Corlies, 1 Sandf. 247; Corwin v. Merritt, 3 Barb. 343; Bloom v. Burdick, 1 Hill, 139; Currie v. Stewart, 27 Miss. 55; Laughman v. Thompson, 6 Smedes & Mar. 259; Wiley v. White, 3 Stew. 355; Townsend v. Cordon, 19 Cal. 189.) When, therefore, an order of sale is relied upon, the question is, was the order made in a case provided by the statute ? To determine this, we must, in the first instance, look to the petition for the sale, which is the foundation of the order; assuming, of course, that the Court acquired jurisdiction originally to grant administration upon the estate. The proceeding for the sale, though made in the general course of administration, is a distinct and independent proceeding, in the nature of an action, of which the petition is the commencement, and the order of sale is the judgment. (Estate of Spriggs, 20 Cal. 121.) We must, then, examine the petition, to ascertain whether a case is presented by its averments, within the statute, upon which the Court can act. And the petition must show on its face two things: first, the insufficiency of the personal property to pay the debts and charges against the estate; and second, the necessity of the sale of the real property, or some portion thereof, for that purpose. Both must appear before the Court can take jurisdiction of the proceeding. The truth of the averments—their sufficiency appearing—is a matter which must be determined at the hearing of the petition, and the judgment of the Court thereon, if rendered upon legal notice, cannot be questioned collaterally. It may be reviewed, and if erroneous, corrected by appeal, but not otherwise.
The statute prescribes with particularity what facts must be stated in the petition. After declaring that the personal estate [313]*313shall be first liable for the debts and expenses, and if this is insufficient to pay the same, and the allowance to the family, that the real estate may be sold for that purpose (sec. 115) ; and that the executor or administrator may in such case make the sale upon the order of the Probate Judge, (sec. 154) it provides as follows: “ To obtain such order, he shall present a petition to the Probate Court, setting forth the amount of personal estate that has come to his hands, and how much thereof, if any, remains undisposed of; the debts outstanding against the deceased, as far as the same can be ascertained ; a description of all the real estate of which the testator or intestate died seized, and the condition and value of the respective portions and lots; the names and ages of the devisees, if any, and of the heirs of the deceased, which petition shall be verified by the oath of the party presenting the same.” (Sec. 155.) “ If it shall appear by such petition,” continues the' statute, “ that there is not sufficient personal estate in the hands of the executor or administrator to pay the allowance to the family, the debts outstanding against the deceased, and the expenses of administrar tion, and that it is necessary to sell the whole or some portion of the real estate for the payment of such debts,” the Probate Judge shall make an order directing all persons interested to appear before him, at a specified time and place, “ to show cause why an order should not be granted to the executor or administrator to sell so much of the real estate of the deceased as shall be necessary to pay such debts.” (Sec. 156.) As will be seen from the provisions to which we have thus referred, a sale of the real property cannot bo made so long as there is a sufficiency of personal property in the hands of the administrator to pay the outstanding debts and charges against the estate. There must be an insufficiency of such property for that purpose, before the Court has jurisdiction to act upon the petition. And this insufficiency must appear, not by mere averment, but by the statement as to the personal property and the outstanding debts and charges which the statute provides. But this is not all: it must also appear by the petition “ that it is necessary to sell the whole, or some portion of the real estate,” for the payment of the debts and charges. (Sec. 155.) Such necessity does not follow as a matter of course [314]*314from the insufficiency of the personal property. The real estate may be yielding an income sufficient to pay the outstanding debts and charges, for the payment of which the sale is asked, before such sale could be made and confirmed, or if resisted, could be the subject of review on appeal. In such case, there would be no necessity for any sale. And the income, though not sufficient for the payment of the entire amount of these debts and charges, may be sufficient to pay the greater portion of them. In this case, the necessity for the sale would be limited to such portions—supposing there were more than one parcel—as would make up the deficiency. The necessity must appear, before the Court can take any jurisdiction and act upon the petition. And this necessity must appear, not by mere averment, but by an exhibition of the real property of the deceased. The necessity is a conclusion which the Court must draw for itself from the facts stated. It is not a matter for the executor or administrator to determine; it is a matter for the Court, and the petition must, therefore, furnish the materials for its judgment. These consist in the description which the statute provides the petition shall set forth, “ of all the real estate of which the testator or intestate died seized, and the condition and value of the respective portions and lots.” (Sec. 155.) A compliance with the statute in this particular is, then, essential to the jurisdiction of the ■Court, as without it the Court cannot judge of the necessity of the ■sale asked; and in this view, we do not perceive how it can be dispensed with from the petition, any more than the statement as to the personal property and the outstanding debts. (Bloom v. Burdick, 1 Hill, 130; Corwin v. Merritt, 3 Barb. 343; Townsend v. Gordon, 19 Cal. 188; Gregory v. Taber, Id. 397.)
Proceeding now to the examination of the petition of Aspinwall in the light of the views we have expressed, we find it fatally defective in several essential particulars. It sets forth that no personal estate has come to his hands, and that there is none to his knowledge, Smith, the former administrator, having disposed of the whole of it; and that two parcels of land situated in the city of San Francisco belong to the estate, giving the description and value of such parcels. It does not state the amount of the personal property which had come to the hands of the former administrator,, or what disposition had been had of it, or that any effort had been [315]*315made to ascertain the disposition of it, or of its proceeds, or to compel the former administrator to account. It simply avers that the petitioner (Aspinwall) had made every effort in his power to collect from the former administrator and his sureties the amount due to him upon a judgment recovered against the estate, but without success. Uor does it state the extent, condition or value of the real estate of which the intestate died seized, nor the condition of the parcels described.
If we look outside of the petition to other records of the Court respecting the estate, we find, as we have stated, that for the payment of the debts and the expenses of administration real property had already been sold, and proceeds received more than sufficient for that purpose. Even the application of Aspinwall for letters avers that on the twenty-fifth of January, 1854, Smith was adjudged by the Corot to have sufficient funds in his hands to pay all the debts against the estate, and was ordered to pay them. We refer to the possession of funds by the former administrator, not that it can have any effect in determining the sufficiency of the averments in the petition of Aspinwall. If those averments are in themselves sufficient, the jurisdiction of the Corot attached without regard to the funds previously received. A petition may set forth inaccurately the amount of the personal property which has come to the hands of an administrator; it may even omit valuable portions thereof; yet if it purport on its face to set forth the whole of such property, and how much of it, if any, remains undisposed of, the order for the sale which may follow cannot be attacked by reason of the inaccuracies or omissions. The truth of the averments respecting the personal property, so far as they affect the validity of the order, is to be determined at the hearing of the petition. We refer to the possession of funds by the former administrator, to show the necessity of a strict compliance with the statute in the statements of the petition. The statute requires that the petition shall set forth the amount of the personal property which “ has come to the hands of the executor or administratorthat is, the amount which has been received since the administration of the estate commenced. It also requires that the petition shall set forth the amount of such property, if any, remaining undisposed of. A [316]*316statement of these particulars will direct the attention of the Court, on the hearing, to the property which has been disposed of, and lead to inquiries as to the manner of its disposition, and the use made of any proceeds received. A question might then arise whether, if funds had been received by the executor or administrator sufficient to pay the outstanding debts and expenses, a sale of the real estate for such payment could be ordered, even if the funds received had been squandered or illegally disposed of; whether, in other words, if funds properly applicable to the payment of outstanding debts and expenses, and ample for that purpose, have been lost by a fraudulent or an illegal use of them by the executor or administrator, the loss is to fall upon the creditor or the heir. This latter question has been discussed in the present case; but we do not think it properly arises. There is no evidence that the funds received by the former administrator have been squandered, or ever used at all, or that upon proper proceedings before the Probate Court—and none appear to have been taken— their transfer to the new administrator might not be obtained. The inability of Aspinwall to collect the balance due upon his judgment from the former administrator personally, or the sureties on Ms official bond, establishes nothing as to the loss of any funds belonging to the estate.
The administrator, Aspinwall, was not relieved from a compliance, to the extent of his ability, with the statute, as to the statement of the personal property in his petition, from the fact that there had been a previous administrator of the estate. He is designated, it is true, in the order of appointment, “ as administrator de bonis non.” But there is no such officer known to our law. By our law there are only two classes of administrators; special and general. Special administrators are those appointed to take temporary charge of the estate until general letters are issued, or during the suspension of a general administrator, and in like cases. General administrators are those appointed to admimster generally upon the entire estate. Where the authority of a general administrator has terminated by death, the revocation of Ms letters, or otherwise, . and a new administrator is appointed, the latter takes the place of the former. He succeeds to the office, clothed with the same powers [317]*317and subject to the same restrictions; and when he invokes the action of the Court, he must institute the same proceedings, and make, to the extent of his ability, a similar showing. He must set forth, not merely the personal property which has come into his own possession since his appointment, but, so far as he is able, that which has come into the hands of the administrator of the estate—for such is the plain meaning of the statute—whether that administrator was himself or his predecessor. He may not be able to set forth the entire amount, but he must endeavor to do so. The records of the Court, especially the inventory filed, will aid him in this respect, if the previous administrator, he being still alive, or his papers, if dead, do not furnish the requisite information. He can at least state to the Court the imperfection of his knowledge, and thus direct the attention of the Court to the necessity of particular inquiries on the subject at the hearing.
In the petition of Aspinwall there is no attempt to comply with the statute in respect to the personal property. The averment that, no personal estate has ever come to his hands, and that there is none, the former administrator having disposed of the whole of it, leaves the Court in entire ignorance as to the condition of the estate with respect to such property, information in respect to which is essential to the jurisdiction of the Court. And in respect to the real property, the petition is still more glaringly defective. It simply states that two parcels of land, giving them description and value, situated in the city of San Francisco, belong to the estate. It says nothing of the condition of those parcels—whether they were improved or waste lands; whether they were yielding income or burdening the estate with expenses—from which the Court could determine as to the necessity of their sale. ¡Nor does it purport to give a description of all the real estate of which the intestate died seized. So far as appears, several other parcels may also have belonged to the estate, which it would have been more advantageous to the heirs to have sold than the parcels described.
It follows that the petition is fatally defective, and its averments . gave no jurisdiction to the Court. The subsequent action of the Court, therefore, in ordering a sale, and the proceedings based thereon, partake of the original defect, and are void.
Judgment reversed, and cause remanded for new trial.