the amount of the several liabilities, and decree how much each person shall contribute. See Sec. 258. [Form No. 175, Appendix.] § 182. If a deceased person, at the time of his death was possessed of a contract for the purchase of lands, his interest in such 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. Sale of interest in lands. payments, etc. § 183. Such sale shall be made subject to all payments that may thereafter become due on such contracts; and if there be any such payments thereafter to become due, such Sale subject to sale shall not be confirmed by the probate judge, until the purchasers shall execute a bond to the executor and [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 probate judge shall approve. [Form No. 120, Appendix.] Bonds by pur chaser. Condition of § 184. Such bond shall be conditioned that the purchaser will make all payments for such land, that shall become due after the date of such sale, and will fully indemnify the bond, etc. executor or administrator, and the persons 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. [Forms No. 120, Appendix.] § 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 pur- Assignment of chaser, his heirs and assigns, all the right, title, and in-contract. terest, 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 vendor Effect thereof. of such land, as the deceased would have had if he were living. sold subject to lien, etc. 186. When any sale is made by an executor or administrator, pursuant to the provisions of this chapter, of land Where land subject to any mortgage or lien, which is a valid claim. against the estate of the deceased, the purchase money shall be applied after paying the necessary expenses of the sale, first to the payment and satisfication of the mortgage, and the residue in due course of administration. Expenses of sale first paid. sale. Misconduct in sales. Fraudulent § 187. In all cases in which land is sold by an executor or administrator, the necessary expenses of the sale shall be first paid out of the proceeds. § 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. § 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. $ 190. No action for the recovery of any estate, sold by an executor or administrator under the provisions of this Limitation of 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. action by heir, etc. Preceding sec to minors, etc. § 191. The preceding section shall not apply to minors tion not to apply 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. Executor, etc., of sales. § 192. Whenever a sale has been made by an executor or to return account 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 How enforced. having been first given him, to appear and show cause why such attachment should not issue, or such revocation should not be made. [Forms No. 65 and 66, Appendix.] shall not pur $193. No executor or administrator shall directly, or in- Executor, etc., directly purchase any property of the estate he represented. chase property Where an administrator purchases land at a judicial sale, made to satisfy a claim in favor of the estate which he represents, and causes the purchase money to be credited on the claim, the purchase enures to the benefit of the estate, and after the close of the administration, the heirs may recover the land, notwithstanding the administrator may have accounted for the purchase money in the final settlement of his accounts, and sold the land to a third person having notice of the facts. McCoy v. Crawford, 9 Texas R., 353. A purchase made by an administrator at his own sale, is fraudulent in law, and void, and it is not error so to instruct a jury. Hardy v. De Leon, 5 Texas R., 212. Cases bearing upon the matters treated of in Chapter VII., not noted under the preceding sections. Sales of real estate must be conducted in strict compliance with the law, and the records of the proceedings may be offered to show that the rules of law have not been observed. The purchaser at the sale, may show by the records of the probate court, that the sale was not made according to the statute, to establish a failure of the considertion of the note, given by him on the sale. Laughman v. Thompson, 6 Smedes & Marshall's R., 259. A sale not made in accordance with the statutory directions, is void. Wiley v. White, 3 Stew. & Port., Ala R., 355. The sale being advertised for "Friday the 17th," whereas Friday was the 16th., and the mistake not being corrected till the last publication, made on the day of the sale: Held, that the mistake was sufficient to avoid the sale. Wellman v. Lawrence, 15 Mass. R., 326. A sale made twelve years after license (order of sale) granted, held void, for that cause. Ib. Under a will authorizing "the executors" to sell lands, it was held that a sale by one executor, who alone of three appointed, qualified,—was valid, without showing that the others renounced or refused to join. Wood v. Sparks, 1 Dev. & Bat., N. Carolina R., 389. An administrator, conveying real estate under the order of the court, may make the deed to the assignee of the original purchaser. Ewing v. Higby, 7 Ham., (part 1st.) 198. Upon an application by an administrator after the filing of an inventory for the sale of the real estate of intestate for the payment of debts, the Surrogate gains jurisdiction, by the presentation of the petition, as against all parties regularly brought into court. Farrington v. King, 1 Bradford's R., 182. And after jurisdiction has been thus obtained of the subject matter and the parties, errors or irregularities in its exercise, cannot be impeached collaterally, but only by appeal; and after the Surrogate has made an order for the sale of the property, it will be presumed that he had sufficient evidence of the facts necessary to be ascertained, before making such judicial determination. Ib. of estate. The administrator having made application for the sale of real estate and proceedings had, and the order made, he cannot at his option discontinue proceedings; but the creditors may assist on his proceeding, and may apply to revive or expedite his proceedings. Ib. But see Sec. 164, supra. Upon an application to sell real estate of an intestate for the payment of his debts, equitable as well as legal demands may be proved and established against the estate. Renwick v. Renwick, 1 Bradford's R., 234. And see Campbell v. Renwick, 2 Bradford's R., 80; Treat v. Fortune, 2 Bradford's R., 116. In proceedings to sell real estate for the payment of debts, it is competent for the heirs or devisees to show that the personal estate has not been applied to the payment of the debts. But the sale may be ordered by the Surrogate upon satisfactory evidence that reasonable diligence has been had, in making such application. Skidmore v. Romaine, 2 Bradford's R., 122. An executor will not be required to sell lease-hold premises, on which the testator built a private vault in which he was interred, before the real estate can be sold for the payment of the debts. Ib. Where the resignation of an administrator has been improperly accepted, and the acceptance is voidable for error, but not void; the successor of the administrator so resigning having sold land under the order of the probate court: Held, that the purchaser could maintain ejectment against a grantee of the heir; as, whether the sale be void or voidable, the purchaser who has paid the debts of the estate, should have a lien upon the estate, for his purchase money. Haynes v. Meeks, Jan. term, 1858. CHAPTER VIII. OF THE POWERS AND DUTIES OF THE EXECUTOR AND ADMINIS- § 194. The executor or administrator shall take into his Executor, etc. possession all the estate of the deceased, real and personal, sion of estates. and shall collect all debts due to the deceased. to take posses Compare Sec. 114, supra. "At common law, the real estate of the intestate vested in the heir, and the personal estate in the administrator. But under our system, the true theory would seem to be, that both the real and personal estate of the intestate vest in the heir, subject to the lien of the administrator for the payment of debts, (a.) See cases noted at the end of the chapter. 1 and the expenses of administration, and with the right in the administrator of See opinion, in Beckett et al., v. Selover, 7 Cal. R., 215; also, Harwood v. An executor has no authority until the will is proved. Tucker v. Starks, Actions by and tors, etc., when § 195. Actions for the recovery of any property, real or personal, or for the possession thereof, and all actions against execu founded upon contracts, may be maintained, by and against maintainable. executors and administrators, in all cases in which the same might have been maintained, by or against their respective testators or intestates. See Sec. 131, and cases noted. As to actions against executors and administrators, see sections 136 to 144, inclusive; section 200, and cases noted at the end of this chapter. Actions against an estate cannot be sustained, until the appointment of an administrator; and the complaint must show a presentation to him for payment. Harwood v. Marye et al, Oct. term, 1857. The administrator, being entitled to the possession of the real property, must be made a party to all suits affecting it. And in an action to foreclose a mortgage, the complaint setting out the note and mortgage sued on, and alleging that Smith, one of the mortgagors, was dead, the administrator of Smith not being made a party, and it not appearing that any administrator had been appointed: Held, that the complaint was defective for want of proper parties. Ib. Mortgages, and liens of record, form no exception to the rule, requiring a presentation of the claim to the administrator, etc., before suit brought. Ellisen v. Halleck, 6 Cal. R., 386. But see Cole v. Robertson, noted under section 131, ante. Actions by ex $196. Executors and administrators may maintain actions against any person who shall have wasted, destroyed, taken, or carried away, or converted to his own use, the goods of ecutor, (tc., for their testator or intestate, in his life time. They may maintain actions for trespass, committed on the real estate of the deceased in his life time. also waste, etc. Action for waste or trespass §197. Any person, or his personal representatives, shall have an action against the executor or administrator of any testator. testator or intestate, who in his life time 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. § 198. When there was any partnership existing between the testator or intestate, at the time of his death, and any |