ON PETITION FOR RE-I IE A RING.
Scott, J.An opinion was filed in this cause on December 13th last, affirming the judgment of the lower court. A petition for re-hearing having been filed, we deem it advisable to say something further in answer to the able argument therein presented.
It is contended that the order of sale made by the probate court was void, and that the court had no jurisdiction in the premises in consequence of the failure to give the notice required by law of the hearing upon the petition to sell the real estate in question; and as such order was void, that the whole proceedings relating to the sale were void for want of jurisdiction, and could not be validated by the curative act passed March 28, 1890 (§3066, Gen. Stat.).
It becomes important, therefore, to inquire when and how the probate court acquired jurisdiction of the estate. Sec. 1444 of the 1881 Code provided that the administrator, upon his qualification, should have a right to the immediate possession of the estate of the deceased, both real and personal, and we are of the opinion that, upon the appointment and qualification of the administrator, the probate court acquired jurisdiction of the estate for the purposes of administration. It follows that the court did have jurisdiction of the estate, and its action could not be void for want of jurisdiction.
It is true the law then provided, in relation to sales of *382real estate, that a petition should first be presented to obtain an order therefor, and a citation issued thereon notifying parties interested to appear at the time set for the hearing. But could not the legislature have dispensed with this petition i It seems to us, unquestionably, the legislature had such power, as the court acquired jurisdiction of the estate by the appointment and qualification of the administrator; and the administration of an estate being a proceeding in rem, the legislature could have provided for a sale of the lands without any petition or notice whatever. If this" is true, the legislature could thereafter pass the statute in question validating sales where no petition had been filed, when the particular things therein specified appear.
It is, therefore, immaterial, whether this petition in question and the citation to appear at the hearing thereon were void in consequence of the failure to give the prescribed notice, or for any reason. The respondents’ title can safely rest on the subsequent proceedings, and the curative act aforesaid, under the conceded facts in the case; therefore, the petition for a re-hearing is denied.
Dunbar, C. J., and Hoyt, Stiles and Anders, JJ., concur.