ten weeks, from the time of making such order, to show cause why authority should not be given to the executors or administrators applying therefor, to mortgage, lease or sell so much of the real estate of their testator or intestate, as shall be necessary to pay such debts. 1 R. L., 454, § 23 & 26; 5 N. Y., 394, 497; 14 B., 29. TITLE 4 lished and $6. Every such order to show cause, shall be published for How pubfour weeks in a newspaper printed in the county, and a copy served. thereof shall be served personally, on every person in the occupation of the premises, of which a sale is desired, wherever the same may be situated, and on the widow and heirs and devisees of the deceased, residing in the county of the surrogate, at least fourteen days before the day therein appointed for showing cause. 5 N. Y., 394, 497. $ 7. If such personal service cannot be made, or if such Ib. widow, heirs or devisees, do not reside in such county, but reside in the state, then a copy of such order may be served personally, forty days before the day of showing cause, or by publishing the same once in each week, for four weeks in succession, in the state paper. If such heirs or devisees do not reside within this state, or cannot be found therein, the order shall be published once in each week, for six weeks successively, in the state paper, or a copy thereof may be personally served on them, at least forty days before the time appointed therein, for showing cause. ings. $8. The surrogate, at the time and place appointed in the Proceedorder, and at such other times and places as the hearing shall be adjourned to, upon due proof of the service and publication above required, shall proceed to hear and examine the allegations and proofs, of the executors or administrators applying for such authority, and of all persons interested in the estate, who shall think proper to oppose the application. 5 N. Y., 394; 31 B., 546. 59. The executors or administrators may be examined on Ib. oath, and witnesses may be produced and examined by either party; and process to compel their attendance and testimony, may be issued by the surrogate, in the same manner, and with the like effect, as in cases of proving wills before him. 31.B., 546. $10. On such hearing, it shall be competent to any heir or Ib. devisee of the real estate in question, and to any person claiming under them, to show, that the whole of the personal estate of the deceased has not been duly applied by the executors or administrators, to the payment of his debts; to contest the validity and legality of any debts, demands or claims, which may be represented as existing against the testator or intestate; and to set up the statute of limitations in bar to such claims; and the admission of any such claims so barred, by any executor or administrator, shall not be deemed to revive [102] TITLE 4. Feigned issue when awarded. Costs thereof. Debts established to be entered, &c. Order for sale, &e. Lease or mortgage. [103] the same, so as in any way to affect the real estate of the deceased. 5 N. Y., 394; 2 Brad., 80, 122; 1 Brad., 10, 234. 11. If, upon such hearing, any question of fact shall arise, which, in the opinion of the surrogate, cannot be satisfactorily determined without a trial by jury, he shall have authority to award a feigned issue, to be made up in such form, as to present the question in dispute, and to order the same to be tried at the next circuit court to be held in such county. New trials may be granted therein by the supreme court, as in personal actions pending in that court. The final determination of such issue shall be conclusive as to the facts therein controverted, in the proceedings before the surrogate. 31 B., 546; 6 W., 518; 2 Brad., 80. $ 12. The costs of such issue shall be paid by the party failing, on the order of the surrogate, and such payment may be enforced by him in the same manner as other orders and decrees. $ 13. The demands which the surrogate shall, upon such hearing, adjudge valid and subsisting against the estate of the deceased; or which shall have been determined to be valid, on the trial of such issue; or which shall have been recovered against the executors or administrators, by the judgment of a court of law, upon a trial on the merits; shall be by him entered in the book of proceedings, fully and at large; and the vouchers supporting the same, shall be filed in his office. 2 B. Ch., 163, 390; 29 B., 351; 8 Ab., 425. S 14. The surrogate shall make no order for the mortgaging, leasing, or sale of the real property of the deceased, until upon due examination he shall be satisfied, 1. That the executors or administrators making such application, have fully complied with the preceding provisions of this Title: 2. That the debts, for the purpose of satisfying which the application is made, are justly due and owing, and that they are not secured by judgment or mortgage upon, or expressly charged on, the real estate of the deceased; or if such debts be secured by a mortgage or charge, on a portion of such estate, then that the remedies of the creditor by virtue of such mortgage or charge, have been exhausted: 3. That the personal estate of the deceased is insufficient for the payment of such debts; and that the whole of such estate, which could have been applied to the payment of the debts of the deceased, has been duly applied for that purpose. 31 B., 546; 12 B., 392; 4 W., 441. 15. The surrogate, when so satisfied, shall in the first place inquire and ascertain whether sufficient moneys for the payment of such debts can be raised, by mortgaging, or leasing the real property of the deceased, or any part thereof; and if it shall appear that such monies can be so raised, 1 R. L., 450 to 454, § 23, 26, 28, 29; 16 N. Y., 185; 30 B., 496; see TITLE 4 $ 16. No such lease shall be for a longer time, than until Lease. the youngest person, interested in the real estate leased, shall become twenty-one years of age. 29 B., 351. lease or $ 17. A lease or mortgage executed under the authority of Effect of the surrogate as aforesaid, shall be as valid and effectual, as mortgage. if executed by the testator or intestate immediately previous to his death. 4 Ab., 273. $18. If it shall appear to the surrogate that the monies Sale. required cannot be raised by mortgage or lease, advantageously to the estate, he shall from time to time order a sale of so much of the real estate, whereof the testator or intestate died seized, as shall be sufficient to pay the debts, which the surrogate shall have entered in his books, as valid and subsisting. 5 N. Y., 513; 2 B. Ch., 164; 3 Brad., 265. $ 19. If such real estate consist of houses or lots, or of a Ib. farm so situated, that a part thereof cannot be sold without manifest prejudice to the heirs or devisees, then the whole or a part thereof, although more than may be necessary to pay such debts, may be ordered to be sold; and if a sale of the whole real estate, shall appear necessary, to pay such debts, it may be ordered accordingly. 10 W., 441. 20. The order shall specify the lands to be sold; and the Ib. surrogate may therein direct the order in which several tracts, lots, or pieces, shall be sold. If it appear that any part of such real estate has been devised, and not charged in such devise with the payment of debts, the surrogate shall order that the part descended to heirs, be sold before that so devised; and if it appear that any lands devised or descended, have been sold by the heirs or devisees, then the lands remaining in their hands unsold, shall be ordered to be first sold, and in no case shall land devised, expressly charged with the payment of debts, be sold under any order of a surrogate. 10 How. P. R, 191. executor, 21. Before granting any order for the mortgaging or Bond of leasing any real estate, the surrogate shall require from the &c., on executor or administrator applying for the same, a bond to order to lease, &c. the people of this state, with sufficient sureties, to be approved by the surrogate, in a penalty double the amount to be raised by such mortgage or lease, conditioned for the faithful application of the monies arising from such mortgage or lease, to the payment of the debts established before the surrogate on TITLE 4. [104] to sell. granting the order, and for the accounting for such monies, whenever required by such surrogate, or by any court of competent authority. 24 W., 168. S22. Before granting any order for the sale of any real Ib. on order estate, the surrogate shall require a bond in like manner, and with sureties as above directed, in a penalty double the value of the real estate ordered to be sold, conditioned that such executors or administrators will pay all the monies arising from such sale, after deducting the expenses thereof, and will deliver all securities taken by them on such sale, to the surrogate, within twenty days after the same shall have been received and taken by them. Conse quence of neglect to $ 23. In case of the refusal or neglect of the executors or administrators, applying for such order, to execute, within a give bond. reasonable time, any bond required by the two last sections, the surrogate shall appoint a disinterested freeholder, to execute such mortgage or lease, or to make such sales, who shall execute a bond similar, in all respects, to that required of the executors or administrators, in whose place he shall be appointed; and in making such appointment he shall give preference to any person who shall have been nominated by the creditors of the deceased. Authority of person $24. Upon executing and filing with the surrogate such appointed. bond, the surrogate shall order the mortgage, lease, or sale to be made by the person so appointed, who shall possess all the power and authority by this Title conferred on executors and administrators, in relation to the mortgaging, leasing, or sale of the real estate of the deceased, mentioned in the order of the surrogate; and shall, in like manner, be liable to account for his proceedings, and may, in the same manner, be compelled to satisfy debts, to pay over monies, and to deliver securities. Notice of Place of sale. $ 25. Whenever a sale is ordered, notice of the time and place of holding the same, shall be posted, for six weeks, at three of the most public places in the town or ward where the sale shall be had, and shall be published in a newspaper, if there be one printed in the same county, and if there be none, then in the state paper, for six weeks successively; in which notice, the lands and tenements to be sold, shall be described with common certainty, by setting forth the number of the lots, and the name or number of the township or towns in which they are situated; if the premises cannot be so described, they shall be described in some other appropriate manner, and in all cases the improvements thereon, if any, shall be stated. 1 R. L., 451, $ 25. $26. Such sales shall be in the county where the premises are situated, at public vendue, between the hour of nine in the morning, and the setting of the sun of the same day. TITLE 4. $27. The executors or administrators making the sale, and who not to the guardians of any minor heirs of the deceased, shall not purchase. directly or indirectly purchase, or be interested in the purchase of any part of the real estate so sold. All sales made con- [105] trary to the provisions of this section, shall be void; but this section shall not prohibit any such purchase by a guardian for the benefit of his ward. sale. $28. On such sales, the executors or administrators may Credit on give such length of credit, not exceeding three years, for not more than three-fourths of the purchase money, as shall seem best calculated to produce the highest price, and shall have been directed, or shall be approved, by the surrogate; and shall secure the monies for which credit is given, by a bond of the purchaser, and by a mortgage of the premises sold. 1 R. L., 452, § 25. may be $29. The executors or administrators shall immediately When sale make a return of their proceedings, upon such order of sale, vacated. to the surrogate granting the same, who shall examine the proceedings, and may also examine such executors or administrators, or any other person on oath, touching 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 that another be had; of which notice shall be given, and the sale shall be in all respects conducted as the sale on the first order. confirmed. Laws of 1819, 215, § 3; 16 N. Y., 174; 3 N.Y., 303; 13 W., 469; 2 Brad., 200. $ 30. If it shall appear to the surrogate, that such sale was When to be legally 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, can not be obtained, he shall make an order confirming such sale, and directing conveyances to be executed. 16 N. Y., 174; 3 N. Y., 303; 10 Pai., 602; 2 Brad., 200. ances. $31. Such conveyances shall thereupon be executed to the Conveypurchasers, by the executors or administrators, or by the person so appointed by the surrogate to make the sale. They shall contain and set forth at large the original order authorising a sale, and the order confirming the same, and directing the conveyance; and they shall be deemed to convey all the estate, right and interest in the premises, of the testator or intestate, at the time of his death, free and discharged from all claim for dower, of the widow of such testator or intestate. 2 N. Y., 245; 4 B., 139; 3 B., 342; 1 S. S. C., 540; 3 B. Ch., 611; 2 Brad., 394. ces. S32. Every sale and conveyance made pursuant to the Incumbran provisions of this Title, shall be subject to all charges by judgment, mortgage or otherwise, upon the lands so sold, existing at the time of the death of the testator or intestate. 8 Pai., 19; Laws of 1850, ch. 82, ch. 162. |