CHAPTER LVII. SALES OF LANDS BY EXECUTORS, ADMINISTRATORS AND GUARDIANS. SALES BY EXECUTORS AND ADMINISTRATORS. SECTION. 1-5. To pay debts-license-petition-order to 6. Sale of whole estate. 7-8. License refused, if bond to pay debts is given-prosecution of bond. 9-11. Order of sale-contents thereof-sale of reversion of dower. PROVISIONS COMMON TO SALES BY EXECUTORS, 37-45. 46-48. 12. Sale to pay legacies. GUARDIANS. 19. Foreign executors, etc., may sell-proceed- 54-59. 20-22 Foreign executors, etc., and guardians may BY GUARDIANS. 23-24. For payment of debts-sale of whole estate. Bond in all cases-order-sale to be made resale-confirmation. Oath to be taken in all cases-proof of no- of sale. Surplus proceeds to be considered real estate. BALE Irregular or defective sale-confirmation- Fraudulent sale by executor, etc.-penalty. AND CONVEYANCE OF REAL ESTAte of LUNATICS. Application to probate court-bond of Effect of sale-application of proceeds- ings. SALES BY EXECUTORS AND ADMINISTRATORS. § 1. Sale of real estate to pay debts. When the personal estate of a deceased person is insufficient to pay his debts, with the charges of administration, his executor or administrator may sell his real estate for that purpose, upon obtaining a license therefor, and proceeding as herein provided. § 2. License to sell, how obtained-petition. To obtain such license, the executor or administrator shall present a petition to the probate court from which he received his appointment, setting forth the personal estate that has come into his hands, the disposition thereof, and how much, 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; the condition and value of the respective portions or lots, the persons interested in said estate, with their residences if known, and, if unknown, that fact shall be stated; which petition shall be verified by the oath of the party presenting the same. 19 M. 117, 338. § 3. Order to show cause, on petition. If it appears by such petition that there 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 aud place therein to be specified, not less than six weeks nor 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. § 4. Order, how published and served. Every such order shall be published at least four successive weeks in such newspaper as the court directs, the last of which publications shall be at least fourteen days before the day of hearing; and a copy of such order shall be served personally on all persons interested in the estate residing in the county where the application is made, at least fourteen days before the day of hearing, and on all other persons interested by depositing forthwith a copy of such order in the post-office, with postage prepaid, directed to them respectively at their place of residence, unless it appears that their residence is unknown: provided, that if all persons interested in the estate signify in writing their assent to such sale, the notice may be dispensed with. § 5. Proceedings on hearing. The judge of probate, at the time and place appointed in such order, or at such other time as the hearing is 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 is not filed, shall hear and examine the allegations and proofs of the petitioner, and of all persons interested in the estate who oppose the application. § 6. Whole estate may be sold, when. If it appears 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, said court may license a sale of the whole estate, or of such part thereof as may be judged necessary, and most for the interest of all concerned. § 7. License to be refused, if bond to pay debts is given. License shall not be granted, if any of the persons interested in the estate gives bond to the judge of probate, in such sum and in such sureties as he directs and approves, 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 are insufficient therefor, within such time as the judge of probate directs. § 8. Bond, how prosecuted. The bond mentioned in the preceding section shall be for the security, and may be prosecuted for the benefit, of the creditors, as well as the executor or administrator. § 9. Judge shall make order of sale, when. If the judge of probate is satisfied, after a full hearing upon the petition, and an examination of the proof 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 is 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 deems necessary or beneficial. § 10. Contents of order. The order shall specify the lands to be sold; and the judge of probate may therein direct the order in which several tracts, lots or parcels, shall be sold; and 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 judge of probate shall order that part descended to heirs to be sold before that so devised; and if it appears 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. § 11. License to sell extends to reversion of dower. License to sell real estate, as pro'vided in this chapter, may extend to the reversion of the dower of the widow of a deceased person; and if such reversion is not sold with the other real estate, it may be sold after the expiration of the widow's term. § 12. Sale of real estate to pay legacies. When a testator has given a legacy which, with his debts and the charges of administration, his goods, chattels, rights and credits are insufficient to pay, 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. 13. Sale of interest of deceased under contract of purchase. If a deceased person, at the time of his 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, in the same manner, and upon like terms and conditions, as are prescribed in respect to land of which he died seized, except as hereinafter provided. § 14. Same-sale, how made-purchaser to give bond. Such sale shall be made subject to all payments that may thereafter become due on such contract; and if there are any such payments thereafter to become due, such sale shall not be confirmed by the judge of probate until the purchaser executes 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 approves. § 15. Same-bond, how conditioned. The 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 fully indemnify the 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 is no payment thereafter to become due on such contract, no bond shall be required of the purchaser § 16. Same-assignment of contract to be made. Upon the confirmation of such sale, the executor or administrator shall execute to the purchaser an assignment of such contract, which shall invest in the purchaser, his heirs and assigns, all the right, interest and title of the persons entitled to the interest of the deceased in the land sold, at the time of the sale; and such purchaser shall have the same rights and remedies against the vendor of such land as the deceased would have had, if living. § 17. Same proceeds of sale, how disposed of. The proceeds of every such sale of the interest of the deceased persons in the lands under contract, as herein before mentioned, shall be disposed of in all respects in the same manner as the proceeds of the sale of lands of which the deceased died seized, according to the provisions of this chapter. §18. Sales and conveyances subject to all charges, etc. All sales and conveyances of land made by executors or administrators, pursuant to the provisions of this chapter, shall be subject to all charges thereon, by mortgage or otherwise, existing at the time of the death of the testator or intestate; and in case the estate of the deceased is in any way liable for the amount secured by any such mortgage, or for any such charge, the sale shall not be confirmed by the judge of probate, until the purchaser executes a bond to the executor or administrator, as required in the case of a sale of a contract for the purchase of lands on which payments are to become due. SALES BY FOREIGN EXECUTORS. $19. Filing of copy of appointment-license to sell-power of attorney. An executor or administrator appointed in another state, upon whose estate there is no executor or administrator appointed in this state, may file an authenticated copy of his appointment in the probate court for any county in which there is real estate of the deceased; after which he may be licensed by the same probate court to sell real estate for the payment of debts, legacies, and charges of administration, in the same manner, and upon the same terms and conditions, as are prescribed in the case of an executor or administrator appointed in this state, except as hereinafter provided. And such foreign executor or administrator may act by his attorney in fact, thereto by him duly appointed under his hand and seal, and executed and acknowledged in the same manner as is required for the conveyance of real estate, which power of attorney shall be recorded in the office of the register of deeds for the county in which the real estate is situated. (As amended 1868, c. 65, § 1.) See post, §§ 20-22. * FOREIGN EXECUTORS, ADMINISTRATORS AND GUARDIANS.* *§ 20. Foreign executors, etc., may file exemplification of appointment-evidence. That an exemplification of the record of the appointinent of any executor, administrator or guardian, in another state or in a foreign country, may be filed and recorded in the office of the register of deeds of any county in this state; and such record in the register's office, or a transcript thereof duly certified, shall in all cases be prima facie evidence of such appointment. (1869, c. 63, § 1.) *§ 21. Discharge of mortgages, etc., by such executor, etc. That any such executor, administrator or guardian, may release, and fully discharge of record, any judgment or mortgage of land in this state belonging to the estate, or to the minor children represented by him; and may also release and fully discharge any land in this state from the lien of such judgment or mortgage. (Id. § 2.) *§ 22. Such executor, etc., may act by attorney. That any such executor, administrator or guardian may act by his attorney in fact, thereto by him duly appointed, by a power or attorney, executed and acknowledged in the sanie manner as is required for a conveyance of real estate, and recorded in the office of the register of deeds of the county in this state in which such act may be performed (Id. § 3.) See ante, 19; post, § 32; c. 59, § 31. SALES BY GUARDIANS, FOR THE PAYMENT OF DEBTS. $23. (SEC. 20.) License to sell real estate of ward. When the goods, chattels, rights and credits, in the hands of a guardian, are insufficient to pay all the debts of the ward, with the charges of managing the estate, the guardian may be licensed to sell his real estate, in like manner, and upon like terms and conditions, as are prescribed in this chapter in the case of a sale by executors or administrators, except as hereinafter provided. Montour v. Purdy, 11 M. (384.) § 24. (SEC. 21.) Whole estate to be sold, when. If it is represented in the petition and appears necessary to sell some part of the real estate of the ward, and that, by such partial sale, the residue of the estate, or of some specific piece or part thereof, would be greatly injured, the court may license a sale of the whole of the estate, or of such part thereof as it deems necessary, and most for the interest of all concerned. FOR MAINTENANCE AND INVESTMENT. § 25. (SEC. 22.) Bale of real estate for support of ward. When the income of the estate of a ward is insufficient to maintain him and his family, or to educate the ward, when a minor, or the children of any ward, or when it appears that it would be for the benefit of a ward that his real estate, or any part thereof, should be sold, and the proceeds thereof put out on interest, or invested in some productive stock, his guardian may sell the same, upon obtaining a license therefor, and proceding therein as hereinafter provided. § 26. (SEC. 23.) Proceeds of sale, how applied or invested. If the estate is sold for any purpose mentioned in the preceding section, the guardian shall apply the proceeds of the sale to such purpose, so far as necessary, and shall put out the residue, if any, on interest, or invest it in the best manner in his power, until As to foreclosure of mortgages by foreign executors, see post c. 81 § 25 the capital shall be wanted for the maintenance of the ward and his family, or for the education of the ward, when a minor, or the children of any ward; in which case the capital may be used for that purpose, as far as may be necessary, in like manner as if it had been personal estate. $27. (SEC. 24.) Investment, how made. If the estate is sold in order to invest the proceeds, the guardian shall make the investment according to his best judgment, or in pursuance of any order that may be made by the probate court. § 28. (SEC. 25.) Petition for sale, to show what. To obtain a license for such sale, the guardian shall present to the probate court a petition, setting forth the estate of his ward, real and personal, its condition, and the facts and circumstances on which the petition is founded, tending to show the necessity or expediency of a sale; which petition shall be verified by the oath of the petitioner. $29. (SEC. 26.) Notice of hearing to be given. If it appears to the court, from such petition, that it is necessary, or would be beneficial to the ward, that such real estate, or some part of it, be sold, the court shall thereupon make an order directing the next of kin of the ward, and all persons interested in the estate, to appear before such court, at a time and place therein to be specified, not less than four nor more than eight weeks from the time of making such order, to show cause why a license should not be granted for the sale of such estate. $30. (SEC. 27.) Proceedings on hearing. 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 of the order, and upon filing the certificate of approbation of the commissioners of the county, when necessary, shall hear and examine the proofs and allegations of the petitioner and of the next of kin, and of all other persons interested in the estate who oppose the application. § 31. (SEC. 28.) License to sell its contents. If, after a full examination, it appears to the court, either that it is necessary, or that it would be for the benefit of the ward, that the real estate, or any part of it, be sold, such court may grant a license therefor, specifying therein whether the sale is to be made for the maintenance of the ward and his family, or for the education of the ward or his children, or in order that the proceeds may be invested as aforesaid. BY FOREIGN GUARDIANS. $32. (SEC. 29.) Duty and power of foreign guardians. When a minor, or other person, residing out of this state, is under guardianship in the state or county in which he resides, and has no guardian appointed in this state, the foreign guardian may file an authenticated copy of his appointment in the probate court for any county in which there is real estate of the ward; after which he may be licensed to sell real estate of the ward in any county, in the same manner, and upon the same terms and conditions, as are prescribed in this chapter in the case of a guardian appointed in this state, except as hereinafter provided. And such foreign guardian may act by his attorney in fact, thereto by him duly appointed under his hand and seal, and executed and acknowledged in the same manner as is required for the conveyance of real estate, which power of attorney shall be recorded in the office of the register of deeds for the county in which the real estate is situated. (As amended 1870, c. 63, § 1.) See ante, §§ 20-22; post, c. 59, § 31. PROVISIONS COMMON TO SALES BY GUARDIANS. § 33. (SEO. 30.) Condition of granting license. No license shall be granted to any guardian to sell real estate of his ward, except in case of minors, unless the commissioners of the county of which the ward is an inhabitant, or in which he resides, certify to the judge of probate, in writing, their approbation of such proposed sale, and that they deem it necessary. |