What is the test for a probate judge to determine whether a cashier's check is sufficient to establish that a sale is necessary in order to liquidate an estate for distribution?

California, United States of America


The following excerpt is from Weaver's Estate, In re, 158 Cal.App.2d 367, 322 P.2d 522 (Cal. App. 1958):

It has long been the rule that an averment by the representative of the estate to the necessity of a sale is not alone sufficient. Haynes v. Meeks, 20 Cal. 288. It is not a matter for him alone to determine but is a conclusion which the court must draw from the facts. Pryor v. Downey, 50 Cal. 388. Furthermore, unless the representative can bring himself within the mandatory provisions of the applicable section, the duty so cast upon him has not been sustained. Thus where the petition alleged that a sale was necessary in order to liquidate an estate for distribution, the court held that it was not a ground for sale under section 754, and that although the probate court found that it was to the advantage of the estate to sell the property, the reviewing court held that such finding was not supported by the evidence when the only reason shown was to distribute the estate in cash. In re Estate of Canfield, 107 Cal.App.2d 682, 238 P.2d 67. Hence it would appear that where, as here, the record shows that a cashier's check was tendered by appellant's counsel and refused by counsel for the administratrix, which check was in substantially the amount of the ordinary expenses of probate, except the extraordinary fees requested by the administratrix and her attorney, the quoted findings of the court herein are likewise without support in the evidence.

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