IN RE: MESNER'S ESTATE. (1951)

The executor of the above-entitled estate made his return of sale of real property on a bid of $79,500. At the probate hearing Joseph P. Singer raised the bid returned, and offered in open court $83,975 for the property. The Court stated that the bid was accepted, and directed the executor to convey the property to Mr. Singer upon receipt of the purchase price in cash. Mr. Singer then signed a written bid, which was filed with the Clerk. At that time he gave counsel for the executor checks totalling $8,500 as a deposit. He requested counsel for the executor to have the order of sale direct that the executor's deed convey title to him and his wife as joint tenants. This was done.

The next day Mr. Singer opened an escrow in a bank, with instructions to vest title in him and his wife as joint tenants. The executor put into the escrow his deed and demand. The escrow holder forwarded the muniments of title to a title company for a report. When the report came in, the escrow holder advised Mr. Singer that the title was good, and that he should pay into escrow the balance of the purchase price.

But Mr. Singer failed to pay the balance of the purchase price. Subsequently he served upon the executor a notice of rescision, and petitioned the Probate Court to order return of the deposit to him.

He alleged that the first bidders had rescinded their offer to purchase before the hearing on the return of sale, and that he was not aware of this fact when he made his bid. He also alleged fraudulent representations by the executor inducing his bid.

The Probate Court found that the executor had not consented to the withdrawal of the offer by the first purchasers; that the return of sale was duly and regularly heard; that the property was duly sold to Mr. Singer in accordance with his bid; and that no fraud was practiced or perpetrated upon him.

The Court made two orders: (1) Vacating the sale to Mr. Singer, and ordering the property resold; and (2) denying Mr. Singer's petition for a refund. From these orders Mr. Singer appeals.

Appellant does not seriously contend that the order vacating the sale was erroneous. Nor could he, because it is without dispute that he did fail to complete the purchase.

The balance of the purchase price was not paid, the order was made, and the court had jurisdiction. Probate Code, sec. 788. Therefore, no further attention will be paid to the appeal from that order.

With reference to the order denying return of the deposit, appellant argues that:

(1) The evidence does not support the order, and in particular the trial court disregarded appellant's evidence of fraud.

(2) The court was without jurisdiction to hear the return of sale, because the original bidders had rescinded and withdrawn their offer prior to the hearing.

(3) The sale was not legally made because the court failed to ‘examine * * * witnesses in relation to the sale’ as directed by Section 785 of the Probate Code.

(4) The first bid was not accepted by the executor by notifying the bidders that their bid had been accepted.

(5) Error in sustaining objection to the admission of the reporter's transcript of proceedings upon the sale.

(6) The order is erroneous because it forfeits the deposit of $8,500, contrary to the direction of Section 788 of the Probate Code.

The record abundantly supports the findings of the trial court. As was said in Re Estate of Isaman, 68 Cal.App.2d 755, 157 P.2d 872, 873: ‘Appellant's argument proceeds upon the assumption that the evidence most favorable to him constitutes the record on appeal. This is false logic. The facts before this court are those determined by the court below, and they are attended by a presumption of their correctness. Successfully to attack the findings is possible only by showing that there was no substantial evidence received on behalf of the respondents.’

Appellant's suggestion that the probate court was without jurisdiction to hear the return because the first bid was not accepted by the executor is answered by the finding of the court to the contrary. The verified return of sale by the executor is sufficient evidence of the acceptance of the first bid. Probate Code, sec. 1233.

No error appears in the exclusion of the reporter's transcript of proceedings upon the hearing on the return of sale. The was objected that the transcript offered did not correctly set forth what happened on the hearing, or all that happened. What was sought to be put in evidence was what was said and done upon the hearing. While a certified report of the official reporter is prima facie evidence of testimony and proceedings, Code Civ.Proc., sec. 273, when objection is made in the trial of an issue of fact, a transcription of the reporter's notes, without foundation, may not be received in evidence. The proper way to elicit such evidence is to call the reporter and have him testify to what happened at the time in question, using his notes to refresh his memory. Code Civ.Proc., sec. 2002; In re Estate of Benton, 131 Cal. 472, 63 P. 775.

Appellant's contention that the court was without jurisdiction to hear the return of sale, because the first bidders had rescinded their bid, is without merit. It is elementary in the law of contracts that a notice of rescission in and of itself does not and cannot terminate a contract.

The bid returned to the probate court for confirmation was a binding contract on the part of the bidders to purchase the property, if no higher bid was made and accepted on the hearing on the return of sale. Baldwin v. Stewart, 218 Cal. 364, 23 P.2d 283; Barnes v. Morrison, 102 Cal.App. 152, 282 P.2d 986.

Appellant's next contention, that the order is void because the probate court failed to examine witnesses, is likewise without merit. It is not mandatory to examine witnesses in every probate sale. To require it would clog the business of probate courts, and present an unrealistic approach to the necessity for dispatch of judicial matters.

While it is the duty of the court to ascertain that the discretion of the representative in selling has been exercised properly, In re Estate of George, 123 Cal.App. 733, 12 P.2d 86, and that the sale was legally made and fairly conducted, Probate Code, sec. 785, the law does not require that witnesses must be sworn and examined at every probate sale.

Appellant argues that if the court had examined witnesses on the hearing the fact that the first bidders had attempted to rescind their contract would have appeared. This does not necessarily follow. Under the facts in this case, if the court had been advised of the attempted rescission by the first bidders, confirmation of the sale to the second bidder would not have been an abuse of discretion.

Appellant's last argument—in fact his only argument with any substantial merit—is that it is inequitable to forfeit his entire deposit of $8,500. His position is supported by the concluding sentence of Probate Code, sec. 788: ‘If the amount realized on such resale does not cover the bid and the expenses of the previous sale, the defaulting purchaser at such previous sale is liable to the estate for the deficiency.’ And his position is supported by the general policy of the law which does not favor forfeitures.

However, the case of Barnes v. Morrison, supra, specifically holds that when the purchaser breaches his contract in a probate sale the administrator has a right to retain the deposit. Also see Baldwin v. Stewart, supra.

Said orders, and each of them, are affirmed.

DRAPEAU, Justice.

WHITE, P. J., and DORAN, J., concur.