Bowdry v. Stitzel-Weller Distillery

CORN, J. John M. Geissler and Alma E. Geissler, executors of the estate of Arthur H. Geissler, deceased, on March 18, 1946, secured an order from the county court of Oklahoma county authorizing the sale of certain whiskey warehouse receipts belonging to the estate. Other personal property not involved in this appeal was included in the order. The order authorized private sale without notice and directed the executors to make due return under oath. The whiskey covered by the warehouse receipts was stored in a warehouse of the appellee, Stitzel-Weller Distillery, from whom the executors received an offer of $7,605, which they accepted by attaching the receipts to a draft for that amount, drawn on the distillery company. Before the executors made any return or report to the county court of their action, the appellant, L. B. Bowdry, submitted a formal bid of $8,500 for the property. The executors refused to consider such bid, stating they had perfected a sale. Bowdry then filed in the county court his offer of $8,500 and a hearing was had. The county court directed acceptance of the Bowdry bid and delivery of the property. The executors and the distillery company appealed to the dis [214] trict court. The district court reversed the judgment of the county court. From such action Bowdry appealed to this court. The cause was tried upon an agreed statement of facts which, insofar as they affect the issues here presented, are: That the executors accepted the distillery company’s offer of $7,605, and without securing approval of the sale, forwarded the stock certificates, with draft attached, for the amount of the bid. Soon thereafter appellant’s bid of $8,500 was submitted, which was rejected upon the theory that the executors had perfected a complete and final transfer of title to the property. It was shown that charges of $1.82 taxes, 10c storage, and $1.74 insurance premium per barrel, were running on this property. The district court reversed the judgment of the county court holding that title passed to the distillery company on acceptance of its bid. The appellant contends that the executors could not pass title to this property or make a valid final sale until the same had been approved or confirmed by the county court. Const, art. 7, sec. 13, provides that the county court shall “transact all business appertaining to the estate of deceased persons . . . including the sale, settlement, partition and distribution of the estate thereof.” See Shawnee Nat. Bank v. Marler, 106 Okla. 71, 233 P. 207. The county court may, by order, grant to executors only such power or authority as the statute permits. The several sections of the statutes governing probate procedure were enacted to protect and conserve the estates of deceased persons and to that end must be liberally construed. Sections 382 and 387 of 58 O. S. 1941, when construed together, clearly require that all sales of property had thereunder must be reported under oath and approved by the county court before title to the property sold passes. This particular sale was had under the provisions of section 387. 58 O.S. 1941 §382, is applicable to the sale of any and all property of an estate of a decedent not specifically excepted by the specific terms of some other statute. This section provides that “all sales must be reported under oáth and confirmed by the county court before the title to the property sold passes.” Section 387, under which the proceedings in this case were had, contains no language indicating that confirmation is not required, but, on the contrary, expressly continues the personal responsibility of the executor or administrator, “for the property,” until the court has approved the sale. The concluding sentence of the section reads: “The order for the sale may be made without notice; but the executor, administrator or special administrator is responsible for the property, unless after making a sworn return, and on proper showing, the court shall approve the sale.” These sections were adopted from California; they are, in substance, Civil Procedure, sections 1516 and 1517, and were construed by the Supreme Court of that state in Bovard v. Dickenson, 131 Cal. 162, 63 P. 162, and held to require approval, which is in fact confirmation by the county court before title could pass. In the case of Jones v. Wheeler, 23 Okla. 771, 101 P. 1112, we held: “Under St. Okla. 1893, sections 1334, 1335, no sale of any of the personal property of a deceased will pass a good title without an order of the court. Said sections provide: section 1334: “ ‘All property of a decedent, except as otherwise provided for homestead and personal property set apart for the surviving wife and husband and minor children shall be chargeable with the payment of debts of the deceased, the expenses of the administration, and the allowance to the family. And the property,- personal and real, may be sold as [215] the court may direct, in the manner herein prescribed.’ “Section 1335: “ ‘No sale of any property of an estate of a decedent is valid unless made under order of the probate court, except as otherwise provided. All sales must be reported under oath, and confirmed by the probate court before the title to the property sold passes.’ “Our probate system being modeled after, it is probable that these sections were adopted from California. They are, in substance, Code Civ. Prod, sections 1516, 1517, which were construed by the Supreme Court of that state in Bovard v. Dickenson, 131 Cal. 162, 63 P. 162.” Title to the property involved in this action did not and could not pass until the sale attempted thereunder had been reported to and approved and confirmed by the county court. Estate of Flaherty, 69 Cal. App. 429, 231 P. 591; Farmers Nat. Bank v. Cravens, 93 Okla. 58, 219 P. 138. Defendants in error assert in their brief that the jurisdiction of the county court must be exercised in the manner prescribed by statutes, citing In re Johnson, 72 Okla. 174, 179 P. 605, and other cases, and that there being no provision in the Oklahoma statutes authorizing or permitting the county judge to accept an increased bid on the sale of personal property, or to confirm a sale to the person making such increased bid, the action of the county court in sustaining the objection of Bowdry to the confirmation of the sale, and the sale of the property to Bowdry, were beyond the jurisdiction and power of the court, and therefore void. We are unable to agree with this assertion. 58 O. S. 1941 §1, defining the jurisdiction of the county court, authorizes the court to order the sale of property of estates belonging to minors, and (subdivision 10) “to make such orders as may be necessary to the exercise of the powers conferred upon it.” Obviously, the requirement made in both sections 382 and 387, for the making of a return and confirmation of sale where personal property is sold, is for the purpose of enabling the county court to satisfy itself that the sale of such property was fairly conducted, and that the price received by the executors therefor was the best price which could be obtained. If the county court finds that the sale was not fairly made, or that the property could be sold for a higher price, so that a new sale would be more profitable to the estate, it had the power to refuse to confirm the sale and to require a new sale to be made. It had already found, when it made the order of sale, that a sale would be for the best interest of the estate. If it found, upon the hearing had upon the return of sale, that a substantially greater sum could be obtained by reselling the property, certainly, under the power conferred upon it by the 10th subdivision of section 1, hereinabove quoted, it could refuse to confirm and order the executors to resell. Therefore, when at the hearing on the return of sale, it appears that a responsible person has made a written bid for the property at a substantially higher purchase price than the one reported by the executors, we can perceive no valid reason why the county court, in the absence of any showing that a greater sum than that so bid may be obtained, may not require the executors to accept such increased bid and sell the property to such bidder. This would accomplish the same purpose as would a resale of the property, without putting the estate to the trouble and expense of initiating new sale proceedings. While such authority is not expressly conferred by the Probate Code, we think it necessarily inheres in the power and discretion of the probate court in order to enable it to carry out the purpose and intent of the statutes. We hold that the rejection of the sale made by the executors and the sale and confirmation of the same to Bow216 dry, was within the authority granted by section 1, subdivision 10, to make such orders as may be necessary to the exercise of its powers. The executors and the distillery company had the statutory right to appeal from the order of the county court to the district court and the appellant had the right to appeal from the order of the trial court. 58 O. S. 1941 §721, subd. 8, authorizes an appeal: “From any other judgment, decree or order of the county court in a probate cause, or of the judge thereof, affecting a substantial right.” This court, in the case of In re Bohanan, 37 Okla. 560, 133 P. 44, held: “Under section 5451, Comp. Laws 1909, authorizing an appeal from a judgment order, or decree of the county court against or in favor of directing the sale or conveyance of real property to any party aggrieved thereby, the highest responsible bidder at a guardian’s sale, whose timely bid in writing is rejected by the county court, may appeal from an order confirming a sale and directing the issuance of a deed to a lower bidder made over his objections.” The judgment of the trial court is reversed and the cause remanded, with directions that the decree vacating the order of the county court be set aside and the sale of the property to the appellant be consummated. BAYLESS, WELCH, and LUTTRELL, JJ., concur. RILEY, J., concurs specially. HURST, C.J., DAVISON, V.C.J., and GIBSON and ARNOLD, JJ., dissent.