Cory v. Hyde , 49 Cal. 469 ( 1875 )

By the Court, McKinstry, J.:

This is an appeal from a decree of the Probate Court ordering an administrator to execute a conveyance of real estate alleged by petitioner to have been purchased from the decedent. The petition does not set forth that the contract between the decedent and petitioner was in writing. If the statute gives power to the Probate Court to decree specific performance only of written contracts, an averment of the writing is necessary to give that Court jurisdiction. Such averment is not simply analogous to that of a contract in a complaint filed in the District Court, when the contract must be in writing to be valid under the Statute of Frauds. In the latter case an allegation of the terms of the contract has been held to be sufficient, because there can be no such contract except in writing. But if the Probate Court has no jurisdiction to decree a conveyance, except when the contract is in writing, the jurisdictional fact must appear on the face of the petition.

Section 1,597 of the Code of Civil Procedure provides:

“When a person, who is bound by contract in writing to convey any real estate, dies before making the conveyance, and in all cases where such decedent, if living, might be compelled to make such conveyance, the Probate Court may make a decree authorizing and directing his executor or administrator to convey such real estate to the person entitled thereto.”

This section is the same as 295 of the former Probate Act, with the words interjected—“and in all cases where such decedent, if living, might be compelled to make such conveyance.”

An argument in favor of the proposition that the section of the Code gives an enlarged jurisdiction to the Probate Court, may be based on the supposition that the words last quoted were inserted ex industria, and would be unnecessary if it was intended that the Court should simply retain the jurisdiction it possessed before the amendment.

But if the words of the amendment enlarge the jurisdiction they cannot be limited to conferring a power to decree specific performance in cases of oral contracts for the sale or purchase of lands, where there has been such part performance as destroyed the status quo, but must be held to transfer to that Court a vast equitable jurisdiction in respect to trust estates and matters of fraud, much of which cannot be said to be auxiliary to the settlement of estates. We cannot suppose that it was the purpose of the Legislature to confer these powers on the Probate Court by the use of language which does not distinctly avow such purpose, and which may fairly be construed to indicate a different intention.

The note to section 1,597 of the Annotated Code contains no intimation that the Commissioners contemplated so important a change as would be wrought by extending the powers of the Probate Court to the authorization of a decree in every case in which the decedent, if living, might have been compelled to convey.

There may be cases in which a person is “bound by contract, in writing, to convey real estate ” contingently—that is to say, on performance by the other contracting party of the conditions by him to be performed. Under the former statute a Court of Probate would not decree specific performance simply because a decedent had “bound” himself by a written contract, when something remained to be done by the petitioner. The amendment was probably unnecessary, but the words may have been inserted to indicate clearly that the power should be exercised only when the petitioner should prove that he had fully performed on his part. This suggestion being borne in mind, the section as amended provides, in effect, that when a person bound by a contract in writing to make a conveyance of real estate, shall die before making the conveyance, in a case where, if the decedent were living, a Court of Equity would compel him to make such conveyance, the Probate Court may decree it.

It is not necessary here to question the extent of equitable jurisdiction which may be conferred upon the Probate Court as collateral to the main object for which that Court is created.

Order and decree reversed, and cause remanded for further proceedings.