Sale of part or issued by the probate judge, in the same manner, and with like effect as in other causes. § 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 whole of estate. 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. Order of sale. § 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. [Forms No. 99, 111, 114 and 116, Appendix.] See Sec. 73, ante, and see form No. 38, Appendix. § 163. The order shall specify the lands to be sold and To specify lands the terms of sale, which may be either for cash or on a credit to be sold. Lands devised. Application by 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. § 164. If the executor or administrator shall neglect to apply for an order of sale whenever it may be necessary, person interested 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. [Form No. 111, Appendix.] Proceedings to compel sale of real estate for payment of debts, cannot be instituted by a creditor until the executor or administrator has accounted. Skidmore v. Romaine, 2 Bradford's R., 122. $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. § 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. [Form No. 108, Appendix.] Time and place § 167. Such sale shall be in the county where the lands of sale. are situated, at public auction, between the hours of nine o'clock in the morning and the setting of the sun the same day. $ 168. The executor or administrator shall, when the sale is made upon a credit, take the note or notes of the pur- If on credit. chaser for the purchase money, with a mortgage on the property to secure their payments. [Forms No. 111, 114 and 116, Appendix.] etc. § 169. The executor or administrator making any sale of Return of sale, any real estate, shall, at the next term of the court thereafter, make a return 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 Re-sale, when 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. [Forms No. 100, 104, 108, 102 and 103, Appendix.] $170. When the return of the sale is made, any person interested in the estate may file written objections to the confirmation of the sale, and may be heard, and may produce witnesses in support of his objections. [Forms No. 105 and 106, Appendix.] ordered. Objections. Effect of order. § 171. If it appear to the court that the sale was legally Confirmation. made 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, and a certified copy of the order authorizing the sale, and of the order confirming the same and directing conveyances to be execuTo be recorded. ted, shall be recorded in the office of the recorder of the county within which the land sold is situated. (a.) [Forms No. 101, 106, 107, 115, 118 and 96, Appendix.] See sections 186, 187, and compare section 183. From the language of this section, it would seem that the sale is complete upon the order of confirmation being made. Whether the purchaser would be entitled to the rents and profits of the real estate from the time of confirmation, and before the execution and delivery of the deed, in case of such execution and delivery being for any cause delayed-Quaere. § 172. Such conveyances shall thereupon be executed to the purchaser by the executor or administrator. They shall Conveyance. refer to the orders of the probate court, authorizing and Effect of. confirming the sale of the property of the testator or intestate, and directing conveyances thereof to be executed, and to the record of such orders in the office of the county recorder, and such reference shall have the same effect as if the said orders were at large inserted in the conveyance. The conveyances so made, shall be deemed to convey all the right, title, interest, and estate of the testator or intestate, in the premises at the time of his death. (b.) [Form No. 119, Appendix.] § 172. A. (Sec. 3.) This act shall take effect from and after its passage, and shall also apply to all cases wherein either an order of sale or an order confirming a sale, and (a.) Amended Feb. 1, 1856. Statutes 1856, p. 20, sec. 1. The amendment added all that portion of the present section after the words "confirmed and valid." Original section, Statute 1851, p. 470; Compiled Laws, p. 401. (b.) Amended Feb. 1, 1856. Statutes 1856, p. 20, sec. 2. The original section was as follows:-"Sec. 172. Such conveyances shall thereupon be executed to the purchaser by the executor or administrator. 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, at the time of his death." Statute 1851, p. 470; Compiled Laws, p. 401; and Statute 1850, p. 391. directing a conveyance to be executed, or both, may have been heretofore made, and wherein the conveyance has not been executed, at the date of the passage of this act. (a.) Sales by executors and administrators, under our probate system, are judicial; and the contract need not be in writing subscribed by the parties. The statute of frauds does not apply to such a case, the sale being made by the court. Halleck et al., v. Guy, Jan. term, 1858. The only effect of an administrator's deed, is to convey to the purchaser the title of the deceased. Such a deed can contain no warranty of the title. The bidder is bound to examine the title for himself; and the rule of caveat emptor applies to these sales. Ib. required. § 173. Before any order is entered confirming the sale, it shall be proved to the satisfaction of the court, that notice, Proof of notice was given of the sale as herein prescribed, and the order of confirmation shall state that such proof was made. [Forms No. 108, 101, 107, and 118, Appendix.] Compare sections 63 and 238. Adjournment § 174. If at the time appointed for the same, the executor or administrator shall deem it for the interest of all persons of sale. concerned therein, that the sale shall be postponed, he may adjourn the same from time to time, not exceeding in all three months. journment. § 175. In case of the adjournments, notice thereof shall be given by a public declaration at the time and place first Notice of adappointed for the sale, and if the adjournment be for more than one day, further notice shall be given, by printing, [posting?] or publishing the same, or both, as the time and circumstances may admit. tate to pay lega cy. 176. When a testator shall have given any legacy by will that is effectual to pass or charge real estate, and his Sale of real esgoods, 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 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. (a.) Sec. 3, of the act of February 1, 1856, Statute 1856, p. 21, sections 1 and 2, amend the 171st and 172d sections of the probate act respectively; and Sec. 3, declares when those sections as amended shall take effect, etc. ed. § 177. If the testator shall make provision by his will, or Provisions of designate the estate to be appropriated for the payment of will to be follow 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 executor, without order of court. 178. When such provision has been made, or any propetc., may sell erty directed by the will to be sold, the executor or administrator with 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. [Form No. 96, Appendix.] If provision sufficient. § 179. If the provision made by the will, or the estate apmade by will, in- propriated, 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. ed liable pay 180. The estate, real and personal, given by will to any Estate bequeath-legatees or devisees, shall be held liable to the payment of ment of debts. 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. among legatees, etc. See sections 151, 176 and 177. § 181. When the estate given by any will has been sold Contribution 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 |