Baldwin, J. delivered the opinion of the Court
Field C. J. and Cope, J. concurring.
This action involves the title to a tract of land in Sonoma county. Charles White died, in this State, in 1853, seized of this tract. He left a widow and three infant children. One of the children died after the proceedings hereafter mentioned, upon the validity and effect of which the questions made by this record are dependent. Mrs. White—now Allen—administered on the estate of the decedent. She made a power of attorney to one Crosby, by which she empowered him to make a contract, upon the best terms he could, for the sale of this tract of land. Crosby, accordingly, on her behalf, agreed with Stuart that Mrs. White should procure an order of the Probate Court for the sale of the premises, and convey them to Stuart, on the payment of $3,000. The administratrix then reported to the Probate Court that she had made the trade with Stuart, and also filed a petition, praying the Court to confirm the sale; and further, that if the Court should conclude not to confirm the contract she had made with Stuart, then an order for sale be made. Upon the filing of this petition, the Court made an order, appointing Frederick Hall guardian for the absent and minor heirs of the estate. The petition, after setting out the debts, proceeds, “ that the personal property of said estate, which will appear by reference to the inventory now on file, is not more than is sufficient for the use and support of the family of said decedent, and is wholly insufficient to pay said indebtedness, and that it is necessary to sell real estate to pay the same.” The petition, after giving some further matter, concludes in this wise: “Petitioner further alleges, that the inventory heretofore filed gives a description of all the real estate of which the said intestate died seized, and the condition and value thereof, which said inventory is made a part of this petition.” Then follow the names of the heirs. [498]*498The inventory is in the record. It shows some $1,200 or $1,500 of personal assets, and contains a brief account of the real estate—among other things, this: “ Interest in the rancho called Petaluma, in the county of Sonoma, value uncertain, $5,000.”
After the filing of the petition, and the order to show cause, the Court appointed Frederick Hall as guardian for the absent and minor heirs of the estate. The guardian, on the same day, consented to the decree. No service seems to have been made of any order to show cause, upon the heirs. The Court rendered a decree for the sale of the premises. This first decree is inconsistent in this, that it confirms the contract between Mrs. Allen and Stuart, and afterwards proceeds to order a rule to the heirs, to show cause why a sale of the premises, at public auction, should not be made. Afterwards, a decree of sale was made, in the usual form. Several objections to these proceedings are urged by the respondents. We propose to consider them in their order.
1. It is urged, that this contract by Mrs. Allen was contrary to public policy, and void, and that the decree entered in execution of it, and to give it effect, partakes of the same infirmity. The general argument in support of this proposition is, that it is the duty of the administrator to protect the property of the estate; that the sale is required to be public; that this was an arrangement for a private sale; and that, by the contract, the administratrix placed herself in an antagonistical relation to her duty to the estate—her interest being one way and that of the estate another. Unquestionably, the administratrix could make no such bargain as this, so as to be binding upon the estate, whatever the effect upon herself, individually. But the question is not as to the effect of this agreement, as such, upon the estate; but whether, because of the fact of the agreement, the subsequent decree is a nullity. We do not see how this is so. It is not every unauthorized agreement that is void, as against public policy; much less is it true that every such agreement would destroy the power of the Court to make an order otherwise legal, though that order was in accordance with the agreement. To make the agreement void, on this ground, the necessary effect must be to contravene some declared right or positive duty. But the duty of the administratrix is not, necessarily, inconsistent with an agreement to ask an order of sale, upon consideration that a purchaser will give an agreed sum at the sale. This did not amount to a private sale, for the very agreement contemplates that the sale shall be public, and the Court had no power to make or authorize any other sale, or a [499]*499sale in any other mode. So far as her own interest was concerned, we see no objection to such an arrangement; and if the sale was to be public, probably no good reason exists for holding that the administratrix should not provide or assure herself in this way, that, if sold, the property would bring a reasonable price, before proceeding to take steps to have the sale ordered. The propriety of ordering the sale, and of confirming it afterwards, was still left to the Court, uninfluenced by any such agreement; and it was not thereby deprived of any of its discretion in the matter. If we were to hold that such an agreement deprived the Court of its authority, the consequence would be, that the estate might not be sold or disposed of at all, and the interest of creditors be sacrificed or greatly postponed; and it would thus result that the jurisdiction of a Court of unquestioned general authority might be defeated by the mere act of the administratrix.
2. The next point is, that the decree is void, because the petition is fatally defective in this: that it does not simply pray for a decree of sale—but this prayer is in the alternative—the main object of the petition being to obtain from the Court a confirmation of the private agreement. There is some plausibility in this argument. We do not, however, think it sound. It is true, that the petition is defective in the respect mentioned; but this does not render the paper a nullity. It would be demurrable for this cause. It asked what the Court had no authority to grant; but this did not destroy the power of the Court to grant what it was empowered to give. So far, the petition presented all the facts necessary to give the Court jurisdiction of the matter of the sale; and this was enough, whatever else was inserted, to support its action when attacked collaterally.
3. Again: it is said that the decree and proceedings are void, because inconsistent in this, that the first order confirms the agreement, and then requires the parties to show cause why the land should not be sold. The second decree orders the property to be sold, as usual in such cases. This course of procedure was, certainly, very irregular, and calculated to embarrass the sale; but we do not see that it made the whole proceedings nullities. It was an irregular and improper exercise of jurisdiction ; but these irregularities and defects must be corrected on appeal. They cannot be indirectly attacked. The Court had no power to confirm this private sale. The statute denies it all jurisdiction to make such an order. The order, therefore, was void; but this act did not take from the Court any of its powers. It was not divested of its [500]*500rightful powers merely because it assumed powers it did not possess. It did have power to order the sale of the land, and this power is exercised by its final decree.
4. It is next objected, that the petition does not set forth facts essential to give jurisdiction to the Probate Court.
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Baldwin, J. delivered the opinion of the Court
Field C. J. and Cope, J. concurring.
This action involves the title to a tract of land in Sonoma county. Charles White died, in this State, in 1853, seized of this tract. He left a widow and three infant children. One of the children died after the proceedings hereafter mentioned, upon the validity and effect of which the questions made by this record are dependent. Mrs. White—now Allen—administered on the estate of the decedent. She made a power of attorney to one Crosby, by which she empowered him to make a contract, upon the best terms he could, for the sale of this tract of land. Crosby, accordingly, on her behalf, agreed with Stuart that Mrs. White should procure an order of the Probate Court for the sale of the premises, and convey them to Stuart, on the payment of $3,000. The administratrix then reported to the Probate Court that she had made the trade with Stuart, and also filed a petition, praying the Court to confirm the sale; and further, that if the Court should conclude not to confirm the contract she had made with Stuart, then an order for sale be made. Upon the filing of this petition, the Court made an order, appointing Frederick Hall guardian for the absent and minor heirs of the estate. The petition, after setting out the debts, proceeds, “ that the personal property of said estate, which will appear by reference to the inventory now on file, is not more than is sufficient for the use and support of the family of said decedent, and is wholly insufficient to pay said indebtedness, and that it is necessary to sell real estate to pay the same.” The petition, after giving some further matter, concludes in this wise: “Petitioner further alleges, that the inventory heretofore filed gives a description of all the real estate of which the said intestate died seized, and the condition and value thereof, which said inventory is made a part of this petition.” Then follow the names of the heirs. [498]*498The inventory is in the record. It shows some $1,200 or $1,500 of personal assets, and contains a brief account of the real estate—among other things, this: “ Interest in the rancho called Petaluma, in the county of Sonoma, value uncertain, $5,000.”
After the filing of the petition, and the order to show cause, the Court appointed Frederick Hall as guardian for the absent and minor heirs of the estate. The guardian, on the same day, consented to the decree. No service seems to have been made of any order to show cause, upon the heirs. The Court rendered a decree for the sale of the premises. This first decree is inconsistent in this, that it confirms the contract between Mrs. Allen and Stuart, and afterwards proceeds to order a rule to the heirs, to show cause why a sale of the premises, at public auction, should not be made. Afterwards, a decree of sale was made, in the usual form. Several objections to these proceedings are urged by the respondents. We propose to consider them in their order.
1. It is urged, that this contract by Mrs. Allen was contrary to public policy, and void, and that the decree entered in execution of it, and to give it effect, partakes of the same infirmity. The general argument in support of this proposition is, that it is the duty of the administrator to protect the property of the estate; that the sale is required to be public; that this was an arrangement for a private sale; and that, by the contract, the administratrix placed herself in an antagonistical relation to her duty to the estate—her interest being one way and that of the estate another. Unquestionably, the administratrix could make no such bargain as this, so as to be binding upon the estate, whatever the effect upon herself, individually. But the question is not as to the effect of this agreement, as such, upon the estate; but whether, because of the fact of the agreement, the subsequent decree is a nullity. We do not see how this is so. It is not every unauthorized agreement that is void, as against public policy; much less is it true that every such agreement would destroy the power of the Court to make an order otherwise legal, though that order was in accordance with the agreement. To make the agreement void, on this ground, the necessary effect must be to contravene some declared right or positive duty. But the duty of the administratrix is not, necessarily, inconsistent with an agreement to ask an order of sale, upon consideration that a purchaser will give an agreed sum at the sale. This did not amount to a private sale, for the very agreement contemplates that the sale shall be public, and the Court had no power to make or authorize any other sale, or a [499]*499sale in any other mode. So far as her own interest was concerned, we see no objection to such an arrangement; and if the sale was to be public, probably no good reason exists for holding that the administratrix should not provide or assure herself in this way, that, if sold, the property would bring a reasonable price, before proceeding to take steps to have the sale ordered. The propriety of ordering the sale, and of confirming it afterwards, was still left to the Court, uninfluenced by any such agreement; and it was not thereby deprived of any of its discretion in the matter. If we were to hold that such an agreement deprived the Court of its authority, the consequence would be, that the estate might not be sold or disposed of at all, and the interest of creditors be sacrificed or greatly postponed; and it would thus result that the jurisdiction of a Court of unquestioned general authority might be defeated by the mere act of the administratrix.
2. The next point is, that the decree is void, because the petition is fatally defective in this: that it does not simply pray for a decree of sale—but this prayer is in the alternative—the main object of the petition being to obtain from the Court a confirmation of the private agreement. There is some plausibility in this argument. We do not, however, think it sound. It is true, that the petition is defective in the respect mentioned; but this does not render the paper a nullity. It would be demurrable for this cause. It asked what the Court had no authority to grant; but this did not destroy the power of the Court to grant what it was empowered to give. So far, the petition presented all the facts necessary to give the Court jurisdiction of the matter of the sale; and this was enough, whatever else was inserted, to support its action when attacked collaterally.
3. Again: it is said that the decree and proceedings are void, because inconsistent in this, that the first order confirms the agreement, and then requires the parties to show cause why the land should not be sold. The second decree orders the property to be sold, as usual in such cases. This course of procedure was, certainly, very irregular, and calculated to embarrass the sale; but we do not see that it made the whole proceedings nullities. It was an irregular and improper exercise of jurisdiction ; but these irregularities and defects must be corrected on appeal. They cannot be indirectly attacked. The Court had no power to confirm this private sale. The statute denies it all jurisdiction to make such an order. The order, therefore, was void; but this act did not take from the Court any of its powers. It was not divested of its [500]*500rightful powers merely because it assumed powers it did not possess. It did have power to order the sale of the land, and this power is exercised by its final decree.
4. It is next objected, that the petition does not set forth facts essential to give jurisdiction to the Probate Court. The alleged defect is, that the petition does not set forth the amount of personal estate that had come to the hands of the administratrix, and how much thereof remains undisposed of. The language of the petition has been already given. We do not understand that language to be or mean that the personal property was, at the time of the filing of the inventory, suflicient to pay the indebtedness, but that the property was so insufficient at the time of this petition. The inventory is referred to for the purpose of identifying the property. The statute provides as follows:
“ Section 154. When the personal estate in the hands of the executor or administrator shall be insufficient to pay the allowance to the family, and all debts and charges of the administration, the executor or administrator may sell the real estate for that purpose, upon the order of the County Judge.
“ Section 155. 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, so far as 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.
“ Section 156. If it shall appear, by such petition, 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 administration, 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 thereupon make an order directing all persons interested to appear before him at a time and place specified, not less than four nor more than ten weeks from the time of making such order, 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.”
It thus appears that the power of the Court to order the sale results [501]*501from the fact that the personal estate in the hands of the administrator is insufficient, etc., and to obtain the order, the act directs the administrator to present a petition, setting forth the amount of personal estate that has come to his hands, and how much, if any, remains undisposed of. Now, in order to the exercise of jurisdiction, it is not necessary that there should be a literal compliance with the directions of the statute. A substantial compliance is enough. Nor is it essential that there should be in the petition itself, and without reference to any other paper or thing, a statement of these facts. The main fact required, is the averment of the insufficiency of personal assets, and mere formal defects in the mode of statement would not affect the jurisdiction. The reference to the inventory makes, for all purposes of the reference, the inventory a part of the petition; the amount of the personal estate is shown by the inventory, as is also the value. Whether the word amount has reference to quantity or value, therefore, is not material; nor will it do to say that this petition did not show that no other property except that in the inventory came to the hands of the administratrix; for the averment, though indirect, is that the inventory shows the amount, or, in other words, the inventory is referred to, to show what property belongs to the estate, and then follows the averment that it is insufficient. It is true, the petition does not expressly show how much, if any, remains undisposed of; but when reference is made to the inventory, as showing the property of the estate, the natural meaning of the language is, that, at the time of the reference, it is the property of the estate. In other • words, the statement is, in effect, that this property has not been disposed of—for it is spoken of, in the present tense, as the property of the estate. In cases like this, it is very apparent that many evils and hardships, affecting titles injuriously, will result from holding Probate Courts to great strictness of procedure; and it is better, as it is more reasonable, whenever it can legally be done, to give a fair and liberal construction to their acts. We think the views we have presented are in harmony with the rules of law and the dictates of justice and policy. They do not contravene anything said by either of the Justices sitting in the case of Gregory v. McPherson, (13 Cal. 562) though that case is not authority—the Judges not concurring in the grounds of the judgment. The question there argued in the principal opinion may still be considered open in this Court. It will be remarked that it is immaterial, so far as this question of jurisdiction is concerned, whether the statements of the petition are true or not; the jurisdiction resting upon the averments of the petition, not upon proof of them.
[502]*5025. Another objection is, that the petition only prays a sale in a given event—that is to say, in the event the contract is not confirmed. Perhaps, if this were the right construction of this paper, it would not affect the jurisdiction ; but we do not think it is the true construction. The prayer seems to be in the alternative, and therefore the petition, as a pleading, was defective; but this defect does not go to the jurisdiction of the Court.
6. It is argued that, taking the petition and inventory together, it is not shown by either or both of these papers how much of the personal estate has been disposed of; and it is argued that this statement is a jurisdictional fact, without which all the proceedings are void. About $2,500 worth of personal estate came to the hands of the administratrix ; $1,000 seems appropriated for the support of the family. This would leave about $1,500 to be applied to the payment of the debts. There is no showing how this property was applied, nor can we presume that it was applied at all. The presumption is, if any, that it was still in the hands of the administratrix. The statute does not require an absolute exhaustion of all the personal property, before an order can be made for the sale of the realty. The one hundred and fifty-fourth section provides, that when the personal estate shall be insufficient to pay the allowance to the family, debts, etc., the executor, etc., may sell on the order, etc. And then the next section proceeds to declare, that to obtain such an order, the petition shall be presented, setting forth the amount, and how much of the estate remains undisposed of, etc. Section one hundred and fifty-six then provides, that if it appears by the petition that there is not sufficient personal estate in the hands of the executor or administrator to pay the allowance, the debts, etc., then the Judge shall order the sale.
We have already said that we regard this petition, and inventory referred to therein, as one paper, for all purposes of a statement of facts which they contain; and that when the petition states that the personal property of the estate, which will be shown by the inventory, is insufficient, this averment, though informal and indirect, is equivalent to saying that the personal estate mentioned in the inventory is still on hand, and therefore undisposed of. The statement is of a fact existing at the time of the filing of the petition; and that fact is, that the property of the estate is shown by the inventory, and is insufficient to pay the debts, etc.; if it be the property of the estate, it has not been disposed of, of course. We can make no nice criticism of the mere form of a statement, for the [503]*503purpose of ousting a Court of jurisdiction in cases like this, and holding its proceedings void.
This view renders it unnecessary to consider whether the averment as to how much of the personal estate has been disposed of is an essential averment, when the petition shows that the personal estate, whether disposed of or not, is insufficient to pay the debts. It is argued, with great force, that the power of the Court to order the sale of the realty, by the one hundred and fifty-fourth section, comes from the fact that the personal estate is insufficient; that this is the sole essential required by that section, which imparts the power to the Probate Court, and that the subsequent sections are mere modes to give effect to the substantive power ; and, like other statutory means to carry out a power, are merely directions to the Court in the exercise of its jurisdiction, and not conditions to the existence of the jurisdiction. But it is not essential to the decision of this case to pass upon this point, and we only state it to show that we have not overlooked it, or in any degree touched it by this opinion.
The last objection to the opinion is, that the real estate is not sufficiently described. ■ Taking the whole petition and inventory together, and we think the proceedings not void on this account. It would be holding the rule with great strictness, to hold that the sale is void upon its face, because the petition does not give an exact or accurate description of real estate. #
7. It is objected that the order of sale is void, because there was no service of the order to show cause entered after the filing of the petition upon the minor heirs. Sections one hundred and fifty-six and one hundred and fifty-nine provide:
“ Sec. 156. If it shall appear by such petition 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 the administration, 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 thereupon make an order, directing all persons interested to appear before him at. a time and place specified, not less than four, nor more than ten weeks from the time of making such order, 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. 159. If any of the devisees or heirs of the deceased are minors, and have a general guardian in the county, the copy of the [504]*504order shall be served upon the guardian. If they have no such guardian, the Court shall, before proceeding to act upon the petition, appoint some disinterested person their guardian, for the sole purpose of appearing for them, and taking care of their interests in the proceedings.”
It is urged that the appointment of the guardian ad litem was made on the same day on which the order of sale was entered, and that this vitiates the proceedings. The statute is silent as to the time of the appointment; and we cannot hold the act of the Court and of the guardian void on the ground suggested. It is said again, that the service must be made of a copy of the order before such appointment. But the statute does not so prescribe. It is not perceived what useful purpose would be sub-served by such a service; for the infant could make no use of the information thus offered him, and the guardian would be as well advised by notice of his appointment as if a copy of the order served on the infant were given him. It seems that in this case, the Court, “ before proceeding to act upon the petition,” did appoint a disinterested person to act as guardian ad litem for the infant heirs; and that this guardian appeared for them. We cannot conceive of any principle which, after this appointment and appearance, denied jurisdiction to the Court over this subject and the parties. At what time the Court should act after this, was -Sithin its discretion. But as the guardian did not contest the case of the petitioner, but assented% to the order of sale, one time was, probably, as good as another for the action of the Court. If service of the copy of the order to show cause were necessary to be made on the guardian, to give jurisdiction where no appearance was made, we presume that the appearance of the guardian was sufficient to give jurisdiction, the object of the service being to bring the party into Court, or give him notice of the proceeding.
We have considered this case upon the grounds presented here and in the lower Court. The questions made, are as to the jurisdiction of the Probate Court, and the alleged nullity of the proceedings upon their face. Whether the various circumstances of the case—the irregularities, the price for which the property was sold, its real value, its consideration, the effect of these things upon the sale—entitle the infant heirs to come into a Court of Equity to set aside the sale, is another question which we do not feel called upon to decide. We simply hold that the various objections made to the sale are not good grounds to declare it void upon the face of the proceedings.
Decree reversed and cause remanded.