
    [S. F. No. 8469.
    Department One.
    January 28, 1918.]
    In the Matter of the Estate of MAGGIE PAVERT, Deceased. F. D. LOVE, Appellant, v. R. J. PAVERT, as Administrator, Respondent.
    .Estates of Deceased Persons—Sale of Beal Property—Existence of Personal Property.—The mere fact that there is personal property belonging to the estate of a decedent does not preclude a sale of the realty.
    Id.—Sale of Beal or Personal Property—Discretion of Court as to Order of Besort.—Whether a court shall order a sale of the real property or the personal property of an estate, is a question committed to the sound discretion of the court.
    Id.—Sale of Bealty — Disputed Claim Against Administrator— Abuse of Discretion.—Where the personal property of an estate consisted of a promissory note of the administrator who denied his liability on it, it was not an abuse of discretion by the court to order a sale of the real property for the purpose of paying debts.
    APPEAL from an order of the Superior Court of Alameda County. Vm. S. Wells, Judge.
    The facts are stated in the opinion of the court.
    F. R. Wall, and Latourette & Latourette, for Appellant.
    Mortimer Smith, for Respondent.
   SLOSS, J.

Maggie Pavert died intestate, and R. J. Pavert, her surviving husband, was appointed administrator of her estate by the superior court of Alameda County. Upon his petition, the court made an order directing a sale of the real estate of said decedent, dent, and one of her heirs. F. D. Love, the father of the deceappeals from this order.

The petition asked for ; sale of the real estate was debts of the decedent, ar of administration, and, se benefit, and best intereste therein that said real estap the existence of both gro sale upon the grounds, first, that a necessary to pay the outstanding d the debts, expenses, and charges ond, that it was for the advantage, of the estate and those interested e be sold. The order of sale found itnds.

The appellant does not tion. His sole contentioi rant the making of the or question the sufficiency of the petiis that the evidence did not warier.

t) the The property ordered land, both of which were the estate, consisting of to five thousand seven hujr crued and estimated, of petition alleged, and the $59 in cash on hand, anc. property belonging to th; that the evidence showed property belonging to the administrator had, during lected rents of $37.50 per His testimony was that a by him for expenses, and, three hundred dollars on At any rate, the amount mained on hand, was not finding that a sale was m of administration. be sold consisted of two pieces of subject to mortgage. The debts of mortgage obligations, amounted dred dollars, and the expenses, ac-administration came to $977. The idministrator testified, that he had that there was no other personal estate. The appellant’s claim is ijhat there was considerable personal estate and not accounted for. The a period of several months, col-month on one of the pieces of land. 1 of this money had been paid out , in particular, for a payment of account of one of the mortgages, thus collected, even if it had re-large enough to affect the ultimate <cessary to.pay debts and expenses

The principal controver appellant that the adminiu estate of his wife in the account of a promissory administrator testified '■ evidence on the subject of edness was very confused cede that, if the issue wt this proceeding, the cou: should have, concluded indebted to the estate on that it :y arises over the contention of the ¡trator himself was indebted to the iium of eleven thousand dollars, on note executed by him to her. The this claim had been settled. The the eleven thousand dollars indebt- and unsatisfactory. We may eon-re one requiring determination in below might well, and perhaps at the administrator, in fact, was iceount of the note. But the fact tl remains that the liability was disputed. Not only this, but there was no showing that the demand against the administrator, granting its validity, could be collected. The claim was, therefore, at best a doubtful one.

The mere fact that there is personal property belonging to the estate does not preclude a sale of realty. Section 1358 of the Civil Code provides that all of the property of a person dying intestate, real and personal, “without any distinction between them,” is chargeable with the payment of his debts. Similarly, section 1516 of the Code of Civil Procedure declares that all of the property of a decedent shall be chargeable with the payment of his debts, of expenses of administration and family allowance, and that the property, real and personal, may be sold under the direction of the court, as prescribed by the code. “There shall be,” the section adds, “no priority as between personal and real property for the above purposes.” In harmony with the rule thus enacted, section 1536 of the Code of Civil Procedure, as it now reads, does not make a deficiency of personal estate one of the prerequisites to an order for a sale of realty. Property, real or personal, may be sold “when a sale of property of the estate is necessary” to pay family allowance, debts, or expenses of administration. Under the probate act, which was followed in the original enactment of the codes, resort for payment of debts and expenses was first had to personalty, and a sale of real estate could be ordered only when the personal estate in the hands of the executor was exhausted or insufficient. But the contrary rule, now in force, was enacted in 1874. (Code amdts. 1873-74, pp. 234, 367, 369; see Richardson v. Butler, 82 Cal. 174, 176, [16 Am. St. Rep. 101, 23 Pac. 9].)

In the present state of the law, then, the court is authorized to order a sale of real or of personal property whenever such sale is necessary for any of the purposes enumerated in section 1536 of the Code of Civil Procedure. Whether it shall order a sale of the one or the other is a' question committed to its sound discretion. So long, at least, as the cash on hand or readily collectible is not sufficient to pay debts or expenses, the court has authority to order a sale of real property. There may be circumstances under which it would be an abuse of discretion to direct such a sale, instead of resorting to the personal estate. But certainly this could not be said in a case where, as here, the personal property consists of a disputed claim of doubtful value.

It must, therefore, be held that the court below was justified in finding that the sale was necessary to pay debts and expenses of administration. We need not inquire whether the showing was sufficient to support the sale upon the further ground that it would be for the advantage, benefit, and best interests of the estate and those interested therein.

The order is affirmed.

Shaw, J., and Richards, J., pro tern,., concurred.  