IN RE: BOTHWELL'S ESTATE.

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District Court of Appeal, Second District, Division 3, California.

IN RE: BOTHWELL'S ESTATE. WHEELER ET AL. v. FISHER ET AL.

Civ. 14215.

Decided: September 29, 1944

C. C. Pease, of San Diego, and William J. Currer, Jr., of Los Angeles, for appellants. H. Sidney Laughlin, of Los Angeles, for respondent.

Upon application for rehearing it is asceedings in the administration that the Colserted that it was developed in earlier proorado land was under lease at the time of the testator's death and at the time of distribution, for a rental consisting of one–half of the calves produced on the ranch throughout the term of the lease. Evidence of that fact would present a question for the trial court which was not presented to this court upon the appeal. We think it would be proper for the court to consider the terms of the lease and the interests of the estate thereunder in fixing the time when the duty to sell arose. If the circumstances were such as to indicate that it was the intention of the testator that the land be held until the lease expired it would be proper to fix that date, or any earlier termination of the lease, as the one when the trustee should have made a sale. If the court should find that the testator did not intend that a sale of the land be postponed until the termination of the lease, the date when the duty to sell arose should be taken as the date when distribution was made, which we understand was by final decree of distribution, although the South American bonds were distributed on a partial distribution.

The petition for rehearing is denied.

PER CURIAM.