Page:Federal Reporter, 1st Series, Volume 8.djvu/232

 218 F2DEBAL BBFO&TEH. �a sale;" citing Stuart -v. Allen, 16 Cal. 474; Fitch v. Miller, 20 Cal. 352; The Estate ofSmith,'51 Cal. 563. �In the latter of these cases the question as to the sufficieney of the petition to sell arose upon demarrer, and was decided upon an appea' and thefefore it is not in point. �The first case (Stuart v. Allen) involved the validity of a sale by an administrator npoii an order of the probate court, which was alleged to be void because the petition therefor did not state facts sufficient to give the court jurisdiction ; that is, did not state the amount of the how much thereof reinained undisposed of . The petition referred to the inventory of the personal property on file, and stated that "it was wholly insufficient to pay the indebtedness." The court held that the petition was sufficient to give the court jurisdiction, and that the sale was valid; saying, (page 501 :) �" 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 substatitial com- pliance is enough. Nor is it essential that thore 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 insufflciency of the per- sonal assets, and mere formai defects ill; the mode of statement would not aiiect the jurisdiction. The reference to the inventory makes, l'or all pur- poses 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." �It is also to be reniembered that the application for liceuse to sell, by an administrator, is unlike the application by a guardian, and is a proceeding adverse to the interests of others than the applicant, or those represented by him. In such case the heirs to whom the real property belongs are interested adversely to the application, as their land cannot be subjected to the payment of debts until the personalty is exhausted, and therefore there is reason for requiring a statement of facts in the petition in the one case that are unnecessary in the other. And therefore the California statute, (section 155,) substan- tially like the Oregon one, (Or. Civ. Code, § 1114,) provided that "the petition of the administrator should state the amount of the personal estate that bas come to his hands, and how much thereof, if any, remains undisposed of, the debts outstanding agaiiist the deceased," etc. �The second case (Fitch v. Miller) involved the validity of a guard- ian's sale that was contested on the ground, among others, that the facts stated in the petition therefor were insufficient to give the court jurisdiction. The statute prescribing what the petition should con- ��� �
 * personal estate that had corne to the hands of the administratrix, and