Kirman v. Powning

• Court: Nevada Supreme Court
• Writing for the Court: MASSEY, J.
• Citation: Kirman v. Powning, 25 Nev. 378, 61 P. 1090 (Nev. 1900)
• Decision Date: 07 August 1900
• Docket Number: 1,575
• Parties: KIRMAN v. POWNING.

61 P. 1090

25 Nev. 378

KIRMAN v. POWNING.

No. 1,575

Supreme Court of Nevada

August 7, 1900

On petition for rehearing. Denied.

For former opinion, see 60 P. 834.

MASSEY J.

The respondent urges in her petition for rehearing, in effect that, having adopted the provisions of the probate act of California as it existed prior to 1876, we must, under the settled rule of construction, also adopt the construction placed upon those provisions by the court of that state, and cites authorities in which the supreme court of California has held contrary to the rule announced by this court. We considered the California cases cited, but did not deem it necessary to discuss them, as our act of 1897 (chapter 106) and the subsequent amendments thereto contain provisions, not found in the California act, which we believe warranted us in holding as we did. An examination of the California act reveals the fact that it contains no direct statutory rule of construction, as is found in our probate act. It will also be observed that section 148 of the California act forbade the sale of any property of the estate of a deceased person unless made under an order of a probate court, and under the provision of the act, while section 124 of our act (Comp Laws 1900, § 2909), which corresponds with the said section 148 of the California act, not only makes valid sales of such property under the provisions of the act, but "other acts," also. A marked difference exists between the provisions of section 157 of our act (Comp. Laws 1900, § 2943), cited in the opinion, and the provisions of the corresponding section of the California act relating to the sale of lands by the executor or administrator subject to mortgage or other lien, the application of the proceeds arising therefrom, and the...