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Order to show

en use why li

be granted.

of the respective portions or lots; which petition shall be verified by the oath of the party presenting the same.

(3041.) SEC. 3. If it shall appear by such petition that there cense should not is not sufficient personal estate in the hands of the executor or Administrator to pay the debts outstanding against the deceased, and the expenses of administration, and that it is necessary to sell the whole or some portion of the real estate for the payment of such debts, the Judge of Probate shall thereupon make an order, directing all persons interested in the estate to appear before him at a time and place therein to be specified, not less than six weeks, and not more than ten weeks from the time of making such order, to show cause why a license should not be granted to the executor or Administrator applying therefor, to sell so much of the real estate of the deceased as shall be necessary to pay such debts.

Copy of order to be served or published.

Hearing.

Petitionor and witnesses may be examined.

Probate Court

may license sale

of Real Estate.

(3042.) SEC. 4. A copy of such order to show cause shall be personally served on all persons interested in the estate, at least fourteen days before the time appointed for hearing the petition, or shall be published at least four successive weeks in such newspaper as the Court shall order: Provided, however, if all persons interested in the estate shall signify, in writing, their assent to such sale, the notice may be dispensed with.

(3043.) SEC. 5. The Judge of Probate, at the time and place appointed in such order, or at such other time as the hearing shall be adjourned to, upon proof of the due service or publication of a copy of the order, or upon filing the consent in writing to such sale of all the persons interested, shall proceed to the hearing of such petition, and if such consent be not filed, shall hear and examine the allegations and proofs of the petitioner, and of all persons interested in the estate, who shall think proper to oppose the application.

(3044.) SEC. 6. The executor or Administrator may be examined on oath, and witnesses may be produced and examined by either party, and process to compel their attendance and testimony may be issued by the Judge of Probate, in the same manner, and with the like effect as in other cases.

(3045.) SEC. 7. If it shall appear to the Court that it is of whole or part necessary to sell a part of the real estate, and that by a sale of such part, the residue of the estate, or some specific part or piece thereof, would be greatly injured, said Court may authorize the sale of the whole estate, or of such part thereof

13 Mass., 162. 15 do 58.

as may be judged necessary, and most for the interest of all concerned.

Bond in cer

3 Greenl., 282.

(3046.) SEC. 8. When the executor or Administrator is Executor, etc., to authorized to sell more than is necessary for the payment oftain cases before debts, he shall, before the sale, give bond to the Judge of Probate with sufficient sureties to account for all the proceeds of the sale that shall remain after payment of the debts and charges, and to dispose of the same according to law; and in all cases where license is granted for the sale of real estate, & Pick., 526. the Judge of Probate may require a further bond from the executor or Administrator, when he shall deem it necessary. (3047.) SEC. 9. The proceeds of any real estate sold for the Proceeds of sale payment of debts, and the charges of administration, as and accounted provided in this chapter, shall be deemed assets in the hands for as such. of the executor or Administrator, in like manner as if the same had been originally part of the goods and chattels of the deceased; and the executor or Administrator, and the sureties in his administration bond, shall be accountable and chargeable therefor.

deemed assets,

be when no license

to be granted on

(3048.) SEC. 10. No license to sell real estate shall granted, if any of the persons interested in the estate shall Bond being given. give bond to the Judge of Probate, in such sum and with such sureties as he shall direct and approve, with condition to pay all the debts, and the expenses of administration, so far as the goods and chattels, rights and credits of the deceased shall be insufficient therefor, within such time as the Judge of Probate shall direct.

fit Bond may be

(3049.) SEC. 11. The bond mentioned in the preceding For whose benesection, shall be for the security, and may be prosecuted for prosecuted. the benefit of the creditors, as well as the executor or Administrator.

order sale.

(3050.) SEC. 12. If the Judge of Probate shall be satisfied, When Court may after a full hearing upon the petition, and an examination of the proofs and allegations of the parties interested, that a sale of the whole or some portion of the real estate is necessary for the payment of valid claims against the deceased, and charges of administration, or if such sale be assented to by all persons interested, he shall thereupon make an order of sale, authorizing the executor or Administrator to sell the whole, or so much, and such part of the real estate described in the petition, as he shall judge necessary or beneficial.

specify lands to

(3051.) SEC. 13. The order shall specify the lands to be sold; Order of sale to and the Judge of Probate may therein direct the order in be sold, and the

order of the sale.

Certified copy of

order to be deliv

etc.

which several tracts, lots or parcels, shall be sold; and if it appear that any part of such real estate has been devised, and not charged in such devise with the payment of debts, the Judge of Probate shall order that part descended to heirs to be sold before that so devised; and if it appear that any lands devised or descended have been sold by the heirs or devisees, then the lands in their hands remaining unsold shall be ordered to be first sold.

(3052.) SEC. 14. Upon the making of such order, and the ered to Executor, filing with the Judge of Probate of such bond as is required 2 Mich. Rep., 226. by the provisions of this chapter, a certified copy of the order of sale shall be delivered by the Judge of Probate to the executor or Administrator, who shall thereupon be authorized to sell the real estate as therein directed, within one year after the making of the order, but not after that period.

Sale of reversion of dower.

Notice of sale.

Where, when, and how sale to be made.

Executor, etc.,

forbidden to pur

chase.

2

2 Gray, 145.

(3053.) SEC. 15. License to sell real estate, as provided in this chapter, may extend to the reversion of the dower of the widow of a deceased person, and if such reversion be not sold with the other real estate, it may be sold after the expiration of the widow's term.

(3054.) SEC. 16. When a sale is ordered, notice of the time and place of holding the same shall be posted up in three of the most public places in the township or ward in which the land is situated, and shall be published in a newspaper, if there be one printed in the same county, and if there be none, then in such paper as the Court may direct, for six weeks successively next before such sale; in which notice the lands and tenements to be sold shall be described with common certainty.

(3055.) SEC. 17. Such sale shall be in the county where the lands are situated, at public vendue, between the hours of nine o'clock in the morning, and the setting of the sun the same day.

(3056.) SEC. 18. The executor or Administrator making the Mich. Rep.. 330, sale, and the guardian of any minor heir of the deceased, shall 20 Ohio R., 503-not directly or indirectly purchase, or be interested in the purchase of any part of the real estate so sold, and all sales made contrary to the provisions of this section shall be void; but this section shall not prohibit any such purchase by a guardian for the benefit of his ward.

Credit on sale.

(3057.) SEC. 19. On such sale, the executor or Administrator may give such length of credit, not exceeding three years,

and for not more than three-fourths of the purchase money, as shall seem best calculated to produce the highest price, and shall have been directed, or shall be approved by the Judge of Probate, and shall secure the moneys for which credit is given, by a bond of the purchaser, and by a mortgage of the premises sold.

tor, etc., and pro

Court thereupon.

(3058.) SEC. 20. The executor or Administrator making any Return by Execu sale shall immediately make a return of his proceedings, upon ceedings of the the order of sale in pursuance of which it is made, to the Judge of Probate granting the same, who shall examine the 3 Comstock, 301. proceedings, and may also examine such executor or Administrator, or any other person on oath, touching the same; and if he shall be of opinion that the proceedings were unfair, or that the sum bid is disproportionate to the value, and that a sum exceeding such bid, at least ten per cent. exclusive of the expenses of a new sale, may be obtained, he shall vacate such sale and direct another to be had; of which notice shall be given, and the sale shall be in all respects conducted as if no previous sale had taken place.

order of confirm

11 III. Rep., 642.

444, 481.

take oath before

(3059.) SEC. 21. If it shall appear to the Judge of Probate If sale fair, etc., that the sale was legally made and fairly conducted, and that ation to be made. the sum bid was not disproportionate to the value of the pro- 15 do perty sold, or if disproportionate, that a greater sum as above specified cannot be obtained, he shall make an order confirming such sale, and directing conveyances to be executed. (3060.) SEC. 22. Every executor or Administrator authorized Executor, etc., to to sell real estate as provided in this chapter, shall, before sale. making such sale, take and subscribe an oath before the Judge of Probate, or some other officer authorized to administer oaths, that in disposing of the real estate which he is licensed to sell, he will exert his best endeavors to dispose of the same in such manner as will be most for the advantage of all persons interested; which oath shall be filed with the Judge of Probate before confirmation of the sale.

tice of sale.

(3061.) SEC. 23. An affidavit of the executor or Administra- Affidavit of no tor, or of some other person having knowledge of the fact, that notice of any such sale was given as provided in this chapter, being made before the Judge of Probate, or some other officer authorized to administer oaths, and filed and recorded in the Probate Court, together with a copy of the notice, shall be admitted as evidence of the time, place and manner of giving the notice.

Postponement of

sale.

(3062.) SEC. 24. If, at the time appointed for any such sale, 5 Greenl., 240. the executor or Administrator shall deem it for the interest of

Notice of adjournment of

sale.

Sale for payment

of legacies may

all persons concerned therein that the sale should be postponed, he may adjourn the same from time to time, not exceeding in all three months.

(3063.) SEc. 25. In case of such adjournment, notice thereof shall be given by a public declaration at the time and place first appointed for the sale; and if the adjournment shall be for more than one day, further notice shall be given by posting or publishing the same, or both, as the time and circumstances may admit.

(3064.) SEC. 26. When a testator shall have given any be authorized. legacy, by a will that is effectual to pass, or charge real estate, and his goods, chattels, rights and credits, shall be insufficient to pay such legacy, together with his debts and the charges of administration, the executor or Administrator with the will annexed, may be licensed to sell his real estate for that purpose, in the same manner, and upon the same terms and conditions, as are prescribed in this chapter in the case of a sale for the payment of debts.

14 Mass., 421.

Interest in land held under con

sold.

(3065.) SEC. 27. If a deceased person, at the time of his tract may be death, was possessed of a contract for the purchase of land, his interest in such land, and under such contract, may be sold on the application of his executor or Administrator, in the same cases, and in the same manner, as if he had died seized of such land; and the same proceedings may be had for that purpose as are prescribed in this chapter, in respect to lands of which he died seized, except as hereinafter provided.

Sale to be made subject to pay.

due, and indem

(3066.) SEC. 28. Such sale shall be made subject to all payments to become ments that may thereafter become due on such contract; and nity to be given. if there be any such payments thereafter to become due, such sale shall not be confirmed by the Judge of Probate, until the purchaser shall execute a bond to the executor or Administrator, for his benefit and indemnity, and for the benefit and indemnity of the persons entitled to the interest of the deceased in the lands so contracted for, in double the whole amount of payments thereafter to become due on such contract, with such sureties as the Judge of Probate shall approve.

Condition of Bond of indemnity.

(3067.) SEC. 29. Such bond shall be conditioned that such purchaser will make all payments for such land that shall become due after the date of such sale, and will fully indem

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