ON BEHEABING.
Bissell, O.The judgment is clearly right, and there can be found in the statute a perfect answer to all the contentions of counsel. While this opinion is probably not indispensable to a clear expression of the general law determining the rights of the parties, it will serve to construe the various statutory provisions on this subject, and demonstrate the correctness of the judgment thereunder.
’ The law in .this country seems to be that upon the death of the ancestor the title to real property immediately vests in the heir who inherits under the statutes of the state where the property is situate; that the heir takes an absolute title, unincumbered by any claims of the administrator or of creditors, in the sense that the rights and claims of either are liens upon the property. In other words, in the absence of affirmative action by either the administrator to subject the property to the payment of debts, or similar action by the creditor to enforce his claim, the heir has a good title, which he may dispose of by contract, or which may be taken by his creditors. It is undoubtedly true that this title, whether it be that of the heir or the derivative title of the vendee, or of his creditor, may be divested in the manner designated by statute. 2 Washb. Real Prop. 414; Wilson v. Wilson, 13 Barb. 252-264; Chubb v. Johnson, 11 Tex. 470.
This general doctrine is not understood to be controverted by the appellant. According to the positions assumed upon the argument, the claim is that the heir succeeded to the estate, which thereupon became immediately subject to the judgment against him and available to process, and only liable to a defeasance if the representative or creditor should proceed in the authorized way to appro*155priate it. Conceding, ex gratia, that the heir took a legal estate, there can certainly be no question but that it was subject to execution, and might be levied upon by the judgment creditor. Pitts v. Hendrix, 6 Ga. 452; Black v. Steel, 1 Bailey, 307.
It is entirely unimportant to discuss or adjudicate this proposition, since the vital question is whether what was done by the administrator was a sufficiently substantial compliance with the statute to be operative to divest the heir’s title. The answer to this inquiry will dispose of the controversy. That there is ample statutory authority to subject real property to the payment of debts admits of no question. In the absence of a power conferred by will, action may be taken by the representative under the provision of section 3577, etc., of the General Statutes of 1883.
This section 3577 commences: “ Whenever, after inventory and appraisement therein, as herein provided, it shall appear that the personal estate of any decedent is insufficient to discharge the just debts, * * * resort may be had to the real estate.” This section evidently refers to an antecedent statutory provision for the making of an inventory of the personal property, and its appraisement by individuals designated by order of the court for the purpose. All this is to be done within thirty days after the administrator’s appointment, and, together with one or two similar duties, is among the earlier things to be done by him in the settlement of the estate. Since the petition in this case fails to show the making of an inventory, and does not state that there was an appraisement, and the record affirmatively shows that nothing of the sort was done, it is contended that it could not serve as a basis for proceedings to sell real estate. This can only be contended for on the hypothesis that the making of the inventory and the appraisement are conditions precedent to the exercise of the right by the administrator to resort to the real estate for satisfaction of the debts. This contention cannot be supported by the phraseology of the statute, for it does not provide *156that it shall appear by the inventory and appraisement that the personal estate is insufficient, but the right to resort to the realty is given whenever it appears that the personalty is insufficient for the purpose. The words “ after inventory and appraisement ” can properly be taken only as a designation of the time at which, or before which, the administrator may not make his application. It is simply a statutory method of fixing the order of the proceedings, and in no sense can be so held to be a condition precedent as to make a failure to observe that statutory provision necessarily fatal to the proceedings. The reasoning of the principal opinion on the lack of the necessity for an inventory and appraisement under the facts existing in this case is entirely satisfactory and conclusive.
The subsequent section relates to the form and contents of the petition which the petitioner must present to the court. It specifies the court in which it shall be filed, and directs that the petition must set forth the amount and value of the personal estate “ according to the inventory and appraisement.” This phraseology, the appellee contends, necessitates a statement in the petition that the inventory and appraisement were had. Ho such construction is at all necessary, but in this regard the section as a whole simply requires the' petition to show the amount and value of the personal estate. The primary purpose of the limitation is that, if there be an inventory and appraisement, the petition shall be in accord with its terms. If it be adjudged that an inventory and appraisement are not necessary, then the purpose of the statute is accomplished when the amount and the value of the personal estate are shown by the petition. The section further continues to prescribe what shall be done in case any sale has been made ,of a portion of the estate; requires the amount of debts and claims allowed and disallowed, and the amount of the legacies, if any, to be stated; and likewise requires it to contain a description of the whole of the real estate of which the decedent died seized, the nature of the title, the nature and value of the *157several parcels, and the nature and amount of the incumbrance. This is the substantial phraseology of the section under consideration. In the case at bar the petition set forth the amount and value of the estate and the debts and claims, described the property in controversy as that of which the ancestor died seized, stated her estate to be that of a fee-simple, set out the incumbrance and prayed the aid of the court. It did not state in so many words that this was all the real property, nor did it attempt to specify the value of the realty described. These defects, it is claimed, are jurisdictionally fatal. Many cases in California contain much that is apparent authority for the contention; but when this section is construed, as it must be, in connection with the subsequent provisions of the statute, whereby the statutory scheme for subjecting the property of a decedent to the payment of his debts is completed, they cannot be held conclusive of the present controversy. It is not universally true, even in California, that a failure to comply with some of the statutory requirements is absolutely fatal. The doctrine there only goes to the extent of establishing the rule to be that, where there is a total failure to observe them, it is fatal, because those requirements are of necessity jurisdictional in many particulars.
But, as was said in Stuart v. Allen, 16 Cal. 501: “ It is not necessary, in order to exercise jurisdiction, that there shall be a literal compliance with the directions of the statute ; a substantial compliance is sufficient. The main fact required is the averment of the insufficiency of personal assets, and mere formal defects in the mode of statement would not affect the jurisdiction.” Under that rule, the petition in this case is abundantly sufficient. The lack of' assets, the existence of the debts, that the ancestor died seized of real property, the nature of her title, and the fact of the incumbrance, were all set out. These were the fundamental requirements. The failure to state that this was all the real property of which she died seized, and the neglect to set up its value, would be purely formal defects, *158available to the persons who are parties to the proceedings, if they sought to take advantage of them by either demurrer or motion, but entirely ineffectual to deprive the court of jurisdiction in the premises. A principal phase of this question received consideration in California, where the court says, in Townsend v. Gordon, 19 Cal. 208: “It may be that the omission of a portion of the real estate would not affect the proceedings or the sale of another portion described.” The court then proceeded to discuss the question whether the heir could be divested of his title to any property for the sale of which there was no petition, and the necessity for the petition as a jurisdictional foundation for the proceedings; but conceded that the want of a state: ment in the petition that that was all of the estate would not be destructive of the validity of the sale, provided only that thing was sold which the petition described. This is in accordance with reason and sound sense.
This is the only construction consistent with the subsequent statutory provisions. It is evident that the petition is nothing more, so far as its effect and position in the proceedings are concerned, than that of a complaint in an ordinary suit; and, if enough is contained therein to call upon the heirs who are made parties to' respond, it is sufficient, because the action of the court does not rest upon the petition itself. This is a very strong reason for disregarding the binding force of the authorities which hold slight defects fatal to the jurisdiction of the court. By the provisions of sections 3585 and-3588, the court is bound to proceed according to the principles of courts of chancery in like cases, and it is enacted that an issue shall be formed, heard and determined, and that the court must hear proofs touching the matters alleged in the petition. Whether the petition be taken as confessed, or the hearing is had upon an issue framed under the statute, the court must take the testimony and decide the matter upon the proofs. . It is thus evident that under our statute, after service of process, all that is essential to confer upon the court jurisdiction to *159proceed in the premises is a petition which .shall substantially contain what the statute points out. The petition in this case contains everything that the statute specified, with the solitary exception of the words “ the whole,” and a 'statement of value; things hot of the substance, but of the form, which must of necessity have been cured by the hearing which the statute provides for.
There seems to be a strong statutory support for the position taken in the main opinion that the creditor was neither a necessary nor an indispensable party. This is found in sections 3578 and 3587, in the first of which it is provided that the widow or husband, the heirs or devisees, shall be made defendants; and in the second of which it is enacted that any creditor or person interested in the estate may appear; thus, upon the doctrine of exclusion by' expression, making it plain that the creditor'of the heir was in no sense a necessary party to the proper settlement of the controversy.
For the reasons above assigned, as well as those expressed in the main opinion, the exceptions should be overruled and the judgment follow as originally recommended.
Reed and Richmond, 00., concur.
Pee Curiam.For the reasons stated in the foregoing opinion, and in the principal opinion prepared by Mr. Commissioner Reed, the judgment is reversed.
Reversed.