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Notice of postponement.

Sale of real estate to pay legacies.

Where payment
of debts, etc.,
provided for
by will.

SEC. 177. If the testator shall make provision by his will, or designate the estate to be appropriated for the payment of his debts, the expenses of administration or family expenses, they shall be paid according to the provisions of the will and out of the estate thus appropriated, so far as the same may be sufficient.

When real estate may be sold

SEC. 178. When such provision has been made, or any property without an order directed by the will to be sold, the executor or administrator, with

of the court.

the will annexed, may proceed to sell without the order of the probate court, but he shall be bound as an administrator to give notice of the sale, and to return accounts thereof to the court, and to proceed in making the sale in all respects as if it were made under the order of the court, unless there are special directions given in the will, in which case he shall be governed by such directions.

SEC. 179. If the provision made by the will, or the estate appropriated be not sufficient to pay the debts and expenses of administration and family expenses, such part of the estate as shall not have been disposed of by the will, if any, shall be appropriated for that purpose according to the provisions of this act.

SEC. 180. The estate, real and personal, given by will to any legatees or devisees, shall be held liable to the payment of debts, expenses of administration, and family expenses, in proportion to the value or amount of the several devises or legacies, except that specific devises or legacies may be exempted, if it shall appear to the court necessary to carry into effect the intention of the testator, if there shall be other sufficient estate.

When provision by will insufficient.

Estate subject to debts, etc.

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

SEC 175. In case of the adjournments notice thereof shall be given by a public declaration at the time and place first appointed for the sale, and if the adjournment be for more than one day, further notice shall be given by printing or publishing the same or both, as the time and circumstances may admit.

SEC. 176. When a testator shall have given any legacy by will that is effectual to pass or charge real estate, and his goods, chattels, rights, and credits shall be insufficient to pay a legacy, together with his debts and the charges of administration, the executor or administrator, with the will annexed, may obtain an order 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 case of a sale for the payment of debts.

Contribution among legatees.

SEC. 181. When the estate given by any will has been sold for the payment of debts and expenses, all the devisees and legatees shall be

liable to contribute according to their respective interests, to any devisee or legatee from whom the estate devised to him may have been taken for the payment of debts or expenses, and the probate court when distribution is made, shall, by decree for that purpose, settle the amount of the several liabilities, and decree how much each person shall contribute.

the purchase

may be sold.'

SEC. 182. If a deceased person at the time of his death was pos- Contract for sessed of a contract for the purchase of lands, his interest in such of lands, etc., land, and under such contracts, may be sold on the application of his executor or administrator, 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.

of sale.

SEC. 183. Such sale shall be made subject to all payments that Conditions may thereafter become due on such contracts, and if there be any such payments thereafter to become due, such sale shall not be confirmed by the probate judge, until the purchasers shall execute a bond to the executor and 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 probate judge shall approve.

give bond.

SEC. 184. Such bond shall be conditioned that the purchaser will Purchaser to make all payments for such land that shall become due after the date of such sale, and will fully indemnify the executor or administrator, and the person so entitled, against all demands, costs, charges, and expenses, by reason of any covenant or agreement contained in such contract; but if there be no payments thereafter to become due on such contract, no bond shall be required by the purchaser.

SEC. 185. Upon the confirmation of such sale, the executor or administrator shall execute to the purchaser an assignment of the contract, which assignment shall vest in the purchaser, his heirs and assigns, all the right, title, and interest of the persons entitled to the interest of the deceased in the lands sold at the time of the sale, and such purchaser shall have the same rights and remedies against the vender of such land as the deceased would have had if he were living.

SEC. 186. When any sale is made by an executor or administrator, Application of pursuant to the provisions of this chapter, of land subject to any where land sold mortgage or lien, which is a valid claim against the estate of the de- subject to ceased, the purchase money shall be applied, after paying the necessary expenses of the sale, first to the payment and satisfaction of the mortgage, and the residue in due course of administration.

mortgage.

Executor to assign contract.

Expenses of sale.

Misconduct in sale.

Fraudulent sales.

Limitation of actions.

To what cases preceding section not to apply.

Account of sales to be returned.

Executor, etc., not to be purchaser.

Executor, etc., to
take possession
of estates.

SEC. 187. In all cases in which land is sold by an executor or ad ministrator, the necessary expenses of the sale shall be first paid out of the proceeds.

SEC. 188. If there shall be any neglect or misconduct in the proceedings of the executor in relation to any sale by which any person interested in the estate shall suffer damages, the party aggrieved may recover the same in a suit upon the bond of the executor or administrator, or otherwise, as the case may require.

SEC. 189. Any executor or administrator who shall fraudulently sell any real estate of his testator or intestate, contrary to the provisions of this chapter, shall be liable in double the value of the land sold, as damages, to be recovered in an action by the person having an estate of inheritance therein.

SEC. 190. No action for the recovery of any estate, sold by an executor or administrator under the provisions of this chapter, shall be maintained by any heir or other person claiming under the deceased testator or intestate, unless it be commenced within three years next after the sale.

SEC. 191. The preceding section shall not apply to minors or others under any legal disability to sue at the time when the right of action shall first accrue; but all such persons may commence such action at any time within three years after the removal of the disability.

SEC. 192. Whenever a sale has been made by an executor or administrator of any property of the estate, real or personal, it shall be his duty to return to the probate court, at its next term thereafter, an account of sales verified by his affidavit. If he neglects to make such return, he may be punished by attachment, or his letters may be revoked, one day's notice having been first given him to appear and show cause why such attachment should not issue or such revocation should not be made.

SEC. 193. No executor or administrator shall directly or indirectly purchase any property of the estate he represented.

CHAPTER VIII.

OF THE POWERS AND DUTIES OF THE EXECUTOR AND ADMINISTRATOR,
AND OF THE MANAGEMENT OF THE ESTATE.

SECTION 194. The executor or administrator shall take into his possession all the estate of the deceased, real and personal, and shall collect all debts due to the deceased.

Executors may sue and be sued

SEC. 195. Actions for the recovery of any property, real or per

for recovery of sonal, or for the possession thereof, and all actions founded upon con

property.

tracts, may be maintained by and against executors and administrators, in all cases in which the same might have been maintained by or against their respective testators or intestates.

SEC. 196. Executors and administrators may maintain action And for trespass against any person who shall have wasted, destroyed, taken, or carried away, or converted to his own use, the goods of their testator or intestate in his lifetime. They may also maintain actions for trespass committed on the real estate of the deceased in his lifetime.

be sued for tres

SEC. 197. Any person, or his personal representatives, shall have Executors may action against the executor or administrator of any testator or intes- pass by testator. tate who in his lifetime shall have wasted, destroyed, taken, or carried away, or conveyed to his own use, the goods or chattels of any such person, or committed any trespass on the real estate of such person.

partnership.

SEC. 198. When there was any partnership existing between the Interest in testator or intestate at the time of his death, and any other person, the surviving partner shall have the right to continue in possession of the effects of the partnership and to settle its business, but the interest of the deceased shall be included in the inventory, and appraised as other property. The surviving partner shall proceed to settle the affairs of the partnership without delay, and shall account with the executor or administrator, and pay over such balances as may from time to time be payable to him in right of his testator or intestate. Upon the application of the executor or administrator, the probate judge may, whenever it may appear necessary, order the surviving partner to render an account, and in case of neglect or refusal, may, after notice, compel it by attachment. And the executors or administrators may maintain against him any action which his testator or intestate could have maintained.

of executor, ete.

SEC. 199. Any administrator may in his own name, for the use and Actions on bond benefit of all parties interested in the estate, maintain actions on the bond of an executor, or of any former administrator of the same estate.

to join in actions.

SEC. 200. In actions brought by or against executors, it shall not what executors be necessary to join those as parties to whom letters shall have been issued, and who have not qualified.

SEC. 201. Whenever a debtor of a deceased person shall be unable to Compounding pay all his debts, the executor or administrator, with the approbation of the probate judge, may compound with him and give him a discharge, upon receiving a fair and just dividend of his effects.

SEC. 202. When there shall be a deficiency of assets in the hands Recovery of of an executor or administrator, and when the deceased shall in his fraudulently lifetime have conveyed any real estate or any rights or interests testator.

disposed of by

When executor to sue as provided in preceding section.

Disposition of estate recovered.

Executor to complete contracts for sale.

Petition for

executor to make conveyance.

therein, with intent to defraud his creditors, or to avoid any right, debt, or duty of any person, or shall have so conveyed such estate, that by law the deeds or conveyances are void as against creditors, the executor or administrator may, and it shall be his duty to commence and prosecute to final judgment any proper action for the recovery of the same; and may recover for the benefit of the creditor all such real estate so fraudulently conveyed, and may also, for the benefit of the creditors, sue and recover all goods, chattels, rights, or credits which may have been so fraudulently conveyed by the deceased in his lifetime, whatever may have been the manner of such fraudulent conveyance.

SEC. 203. No executor or administrator shall be bound to sue for such estate as mentioned in the preceding section, for the benefit of the creditors, unless on application of creditors of the deceased; nor unless the creditors making the application shall pay such part of the costs and expenses, or give such security to the executor or administrator thereof as the probate judge shall direct.

SEC. 204. All real estate so recovered shall be sold for the payment of debts, in the same manner as if the deceased had died seized thereof, upon obtaining an order therefor from the probate court, and the proceeds of all goods, chattels, rights, and credits so recovered shall be appropriated in payment to the debts of the deceased, in the same manner as other property in the hands of the executor or administrator.

CHAPTER IX.

OF THE CONVEYANCE OF REAL ESTATE BY EXECUTORS AND ADMINISTRA
TORS IN CERTAIN CASES.

SECTION 205. When any person who is bound by contract, in writing, to convey any real estate shall die before making the conveyance, the probate court may make a decree authorizing and directing the executor or administrator to convey such real estate to the person entitled thereto in all cases where such deceased person, if living, might be compelled to make such conveyance.

SEC. 206. On the presentation of a petition by any person claiming to be entitled to such conveyance from any executor or administrator setting forth the facts upon which such claim is predicated, the probate judge shall appoint a time and place for hearing such petition, which shall be at a regular term of the court; and shall order notice of the pendency thereof, and of the time and place of hearing, to be published at least four successive weeks before such hearing, in such newspaper in this state as he may designate.

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