of administration: Provided, however, that if the execution shall have been levied upon any property of the deceased, the same may be sold for the satisfaction thereof, and the officer making the sale shall account to the executor or administrator for any surplus in his hands.

be referred.

SEC. 142. If the executor or administrator doubt the correctness Claims may of any claim presented to him, he may enter into an agreement in writing with the claimant to refer the matter in controversy to some disinterested person to be approved by the probate judge. Upon filing the agreement and approval of the probate judge in the office of the clerk of the district court, for the county in which the letters testamentary, or of administration were granted, the clerk shall, either in vacation or in term, enter a rule referring the matter in controversy to the person so selected.

reference and

SEC. 143. The referee shall thereupon proceed to hear and deter- Proceedings on mine the matter, and make his report thereon, to the court in which power of referee. the rule for his appointment shall have been entered. The same proceedings shall be had in all respects. The referee shall have the same powers, be entitled to the same compensation, and subject to the same control as if the reference had been made in an action in which such court might by law direct a reference. The court may set aside the referee or appoint another in his place, or may set aside or confirm the report, and adjudge costs as in actions against executors and administrators, and the judgment of the court thereon shall be valid and effectual, in all respects, as if the same had been rendered in a suit commenced by ordinary process.

executor, etc.,

SEC. 144. When a judgment has been recovered with costs against Liability of any executor or administrator, the executor or administrator shall be for costs. individually liable for the costs, but they shall be allowed him in his administration accounts, unless it shall appear that the suit or proceeding, in which the costs were taxed, shall have been prosecuted or resisted without just cause.

SEC. 145. If the executor or administrator is himself a creditor of Claim of executor, etc., the testator or intestate, his claim, duly authenticated by affidavits, against estate. shall be presented for allowance or rejection to the probate judge, and its allowance by the judge shall be sufficient evidence of its cor

rectness.

neglecting to

creditors.

SEC. 146. If any executor or administrator shall neglect for two Executor months after his appointment to give notice to creditors, as prescribed give notice to by this chapter, it shall be the duty of the court to revoke his letters. SEC. 147. At the same term at which he is required to return his inventory, the executor or administrator shall also return a statement Executor to

of claims.

return statement of all claims against the estate, which shall have been presented to him when required by the court, and from term to term thereafter shall present a statement of claims subsequently presented to him. In all such statements he shall designate the names of the creditors, the nature of each claim, when it became due or will become due, and whether it was allowed or rejected by him.

Sales to be by order of the court.

Applications for orders of sale.

The like,

Order of sale

Sale of personal property.

Notice of sale.

CHAPTER VII

SALES OF PROPERTY BY EXECUTORS OR ADMINISTRATORS.

SECTION 148. No sale of any property of an estate shall be valid unless made under order of the probate court.

SEC. 149. All applications for orders of sale shall be by petition in writing, in which shall be set forth the facts showing the sale to be necessary, and upon the hearing any person interested in the estate may file his written objections, which shall be heard and determined.

SEC. 150. At the term of the court to which the inventory is returned, the executor or administrator shall apply for an order to sell the perishable property of the estate, and so much other property as may be necessary to be sold to pay the allowance made to the family of the deceased. If claims against the estate have been allowed, and a sale of property shall be necessary for their payment, or of the expenses of the administration, he shall also apply for an order to sell so much of the personal property as shall be necessary. He shall make a similar application, either in vacation or term, giving five days' previous notice in a newspaper, or by the usual public posting from time to time, so long as any personal property remains in his hands, and a sale is necessary to pay any demands against the es

tate.

SEC. 151. If it appear that a sale is necessary, the court shall order it to be made. In making such sales, the court shall order such articles as are not necessary for the support and subsistence of the family of the deceased, or are not specially bequeathed, to be first sold. Articles so bequeathed shall not be sold until the residue of the personal estate has been applied to the payment of the debts.

SEC. 152. Sale of personal property shall be made at public auction, and after public notice given for at least ten days. The sale may be made either at the court house door, at the residence of the deceased, or at some other public place.

SEC. 153. The notice shall be given by notices posted in the public places in the county, or by publication in a newspaper, if the judge shall so order, in which shall be specified the time and place of the sale.

to be sold.

SEC. 154. When the personal estate in the hands of the executor or When real estate administrator shall be insufficient to pay the allowance to the family and all the debts and charges of the administration, the executor or administrator may sell the real estate for that purpose upon the order of the county judge.

order of sale of

SEC. 155. To obtain such order, he shall present a petition to the Application for probate court, setting forth the amount of personal estate that has real estate. come to his hands, and how much thereof, if any, remains undisposed of, the debts outstanding against the deceased as far as the same can be ascertained, a description of all the real estate of which the testator or intestate died seized, and the condition and value of the respective portions and lots, the names and ages of the devisees, if any, and of the heirs of the deceased, which petition shall be verified by the oath of the party presenting the same.

sale of real

SEC. 156. If it shall appear by such petition that there is not suf- Order nisi for ficient personal estate in the hands of the executor or administrator estate. to pay the allowance to the family, 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 probate judge shall thereupon make an order directing all persons interested to appear before him at a time and place specified, not less than four, nor more than ten weeks from the time of making such order, to show cause why an order should not be granted to the executor or administrator to sell so much of the real estate of the deceased as shall be necessary to pay such debts. SEC. 157. A copy of such order to show cause shall be personally Order to be served on all persons interested in the estate at least ten 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.

served.

application.

SEC. 158. The probate judge at the time and place appointed in Hearing of such order, or at such other time as the hearing may 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 parties 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 petitioners, and of all persons interested in the estate who may oppose the application.

or heirs.

SEC. 159. If any of the devisees or heirs of the deceased are mi- Infant devisees nors, and have a general guardian in the county, the copy of the order shall be served upon the guardian. If they have no such guard

Executor and witnesses may be examined.

Order for sale of part of real estate.

Order for sale of all the real estate.

Order, what to specify.

Who may apply

for order to sell real estate.

Authority to

executor to sell.

Notice of sale.

ian, the court shall, before proceeding to act upon the petition, appoint some disinterested person their guardian, for the sole purpose of appearing for them and taking care of their interests in the proceedings.

to

SEC. 160. The executor or administrator may be examined on oath, and witnesses may be examined by either party, and process compel their attendance, and testimony may be issued by the probate judge, in the same manner and with like effect as in other causes.

SEC. 161. If it shall appear to the court that it is 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, the court may authorize the sale of the whole estate, or of such part thereof as may be judged necessary, and most for the interests of all concerned.

SEC. 162. If the probate judge shall be satisfied, 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 the allowance of the family and all valid claims against the deceased, and charges of administration, or if such sale be assented to by all the persons interested, he shall make an order of sale, authorizing the executor or administrator to sell the whole, or so much and such parts of the real estate described in the petition, as he shall judge necessary or beneficial.

SEC. 163. The order shall specify the lands to be sold and the terms of sale, which may be either for cash or on a credit not exceeding six months, as the court may direct. If it appears that any part of such real estate has been devised, and not charged in such devise with the payment of debts, the court shall order that part descended to heirs to be sold, before that so devised.

SEC. 164. If the executor or administrator shall neglect to apply for an order of sale whenever it may be necessary, any person interested in the estate may make application therefor, in the same manner as the executor or administrator, and notice thereof shall be given to the executor or administrator before the hearing.

SEC. 165. Upon the making of such order a certified copy of the order of sale shall be delivered by the court to the executor or administrator, who shall be thereupon authorized to sell the real estate as directed.

SEC. 166. 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 county 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 three weeks successively next before such sale, in which notice the lands and tenements to be sold shall be described with common certainty.

etc., of sale

SEC. 167. Such sale shall be in the county where the lands are Place and time, situated, at public auction, between the hours of nine o'clock in the morning, and the setting of the sun the same day.

SEC. 168. The executor or administrator shall, when the sale is Sale on credit. made upon a credit, take the note or notes of the purchaser for the purchase money, with a mortgage on the property to secure their payments.

SEC. 169. The executor or administrator making any sale of any When a resale real estate, shall, at the next term of the court thereafter, make a re- may be ordered. turn of his proceedings to the probate judge, who shall examine 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.

confirmation

SEC. 170. When the return of the sale is made, any person in- Objections to terested in the estate may file written objections to the confirmation of sale. of the sale, and may be heard and may produce witnesses in support of his objections.

sale.

SEC. 171. If it appear to the court that the sale was legally made Order confirming and fairly conducted, and that the sum bid was not disproportionate to the value of the property sold, or if disproportionate, that a greater sum as above specified cannot be obtained, the court shall make an order confirming the sale and directing conveyances to be executed, and such sale from that time shall be confirmed and valid. SEC. 172. Such conveyances shall thereupon be executed to the Executor, etc., purchaser by the executor or administrators. They shall contain and set forth at large the original order authorizing a sale, and the order confirming the same, and directing the conveyance, and they shall be deemed to convey all the estate, rights, and interest in the premises of the testator or intestate, and at the time of his death.

to execute conveyance.

confirmation,

SEC. 173. Before any order is entered confirming the sale, it shall Order of be proved to the satisfaction of the court that notice was given of the what to state. sale as herein prescribed, and the order of confirmation shall state

that such proof was made.

SEC. 174. If, at the time appointed for the same, the executor or Sale may be administrator shall deem it for the interest of all persons concerned

postponed.