Vance's Heirs v. Maroney
| Decision Date | 01 December 1877 |
| Citation | 4 Colo. 47 |
| Parties | VANCE'S HEIRS v. MARONEY, Ad'r. |
| Court | Colorado Supreme Court |
Error to Probate Court of Gilpin County.
THE case is stated in the opinion.
Messrs BELFORD & REED, for plaintiff in error.
Mr. L C. ROCKWELL, for defendant in error.
The sole question for our determination is as to the validity of the decree of the probate court for the sale of the lands of David C. Vance, the decedent.
In such determination, the first question to be examined is, did the court at the time of rendering the decree have jurisdiction?
If not then we need not determine that other question upon which the learned counsel on both sides have cited very numerous authorities, whether this court can go back to an investigation of the appointment of the administrator, the character of the claims against the estate, and whether they were properly allowed as debts, for the discharge of which the sale of property of the estate was decreed.
Section one hundred and four of the chapter relating to wills, executors, and administrators (R. S., p. 671) provides, that the mode of proceeding upon a petition of an administrator to sell the lands of his decedent for the payment of debts allowed against the estate, shall, as nearly as practicable, conform to the proceedings of courts of chancery in like cases.
By the record of the case at bar, it appears that an attempt was made by the administrator to conform to such practice, but it is evident that in several particulars the proceedings fell short of the requirements of law.
It is well settled as a general rule, that executors, administrators and others, acting in a like fiduciary capacity, in making sale of property, must comply strictly with the requisites of all statutory provisions relating to the subject, before those whose interests are to be affected by the proceedings will be held concluded thereby. Ventres v. Smith, 10 Pet. 161.
To enable the court below to decree such sale, jurisdiction must have been acquired by certain essential preliminary steps, among which are the filing of the proper petition setting out cause, and due notice of the hearing thereupon, to the parties defendant, by personal service or by publication coupled with attempted personal service as required by law.
Touching the sufficiency of the petition in this case, no question has been raised that we need discuss. In the matter of notice however, the record...
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