11,531. Order to show cause, how made and on what notice. SEC. 1531. Upon the presentation of such petition the probate judge must make an order directing all persons interested to appear before him at a time and place specified, not less than four nor more than ten weeks from the time of making such order, to show cause why an order should not be granted to the executor or administrator to sell such mines, mining interests, shares, or stocks, as are set forth in the petition and belonging to the estate. A copy of the order to show cause must be personally served on all persons interested in the estate, at least ten days before the time appointed for hearing the petition, or published at least four successive weeks in such newspaper as the court shall specify. If all persons interested in the estate signify in writing their assent to such sale, the notice may be dispensed with. 11,532. Order of sale, when and how made. SEC. 1532. If, upon hearing the petition, it appears to the satisfaction of the probate judge that it is to the interest of the estate that such mining property or interests of the estate should be sold, or if it appears to his satisfaction that an immediate sale is necessary in order to secure the just rights or interests of the mining partners, or tenants in common, in which such shares or property are held, such probate judge must make an order authorizing the executor or administrator to sell such mining interests, mines, or shares, as hereinafter provided. 11,533. Further proceedings to conform to Articles II and IV. SEC. 1533. After the order of sale is made, all further proceedings for the sale of such mining property, and for the notice, report, and confirmation thereof, must be in conformity with the provisions of Article IV of this chapter. ARTICLE IV. THE SALE OF REAL ESTATE, INTERESTS THEREIN, AND CONFIRMATION THEREOF. 11,536. Executor to sell real estate, when. SEC. 1536. When a sale of property of the estate is necessary to pay the allowance of the family or the debts outstanding against the decedent, or the debts, expenses, or charges of administration, or legacies, the executor or administrator may also sell any real as well as personal property of the estate, for that purpose, upon the order of the probate court; and an application for the sale of real property may also embrace the sale of personal property. [Amendment, approved March 24, 1874; Amendments 1873-4, 369; took effect July 1, 1874. (a) 11,537. Verified petition for sale, what to contain, and to what it may refer. SEC. 1537. To obtain an order for the sale of real property, he must present a verified petition to the probate court, or to the judge at chambers, setting forth the amount of personal property that has come to his hands, and how much thereof, if any, remains undisposed of; the debts outstanding against the decedent, as far as can be ascertained or estimated; the amount due upon the family allowance, or that will be due after the same has been in force for one year; the debts, expenses, and charges of administration already accrued, and an estimate of what will or may accrue during the administration; a general description of all the real property of which the decedent died seized, or in which he had any interest, or in which the estate has acquired any interest, and the condition and value thereof, and whether the same be community or sepa (a) Original section: SEC. 1536. When the personal estate in the hands of the executor or administrator is exhausted or insufficient to pay the allowance of the family, the debts out standing against the decedent, and the debts, expenses, 95 rate property; the names of the legatees and devisees, if any, and of the heirs of the decedent, so far as known to the petitioner. If any of the matters here enumerated cannot be ascertained, it must be so stated in the petition; but a failure to set forth the facts showing the sale to be necessary, will not invalidate the subsequent proceedings, if the defect be supplied by the proofs at the hearing, and the general facts showing such necessity be stated in the decree. [Amendment, approved March 24, 1874; Amendments 1873–4, 370; took effect July 1, 1874.() 11,538. Order to persons interested to appear. SEC. 1538. If it appears to the court or judge, from such petition, that it is necessary to sell the whole or some portion of the real estate for the purposes and reasons mentioned in the preceding section, or any of them, such petition must be filed and an order thereupon made, directing all persons interested in the estate to appear before the court, at a time and place specified, not less than four nor more than ten weeks from the time of making such order, to show cause why an order should not be granted to the executor or administrator to sell so much of the real estate of the decedent as is necessary. 11,539. Copy to be served-Assent in writing to dispense with notice. SEC. 1539. A copy of the order to show cause must be personally served on all persons interested in the estate, any general guardian of a minor so interested, and any legatee, or devisee, or heir of the decedent, provided they are residents of the county at least ten days before the time appointed for hearing the petition, or be published four successive weeks in such newspaper in the county as the court or judge shall direct. If all persons interested in the estate join in the petition for the sale, or signify in writing their assent thereto, the notice may be dispensed with, and the hearing may be had at any time. [Amendment, approved March 24, 1874; Amendments 1873-4, 370; took effect July 1, 1874.(b) 11,540. Hearing after proof of service. SEC. 1540. The probate court, at the time and place appointed in such order, or at such other time to which the hearing may be postponed, upon satisfactory proof of personal service or publication of a copy of the order, by affidavit or otherwise, if the consent, in writing, to such sale of all parties interested is not filed, must proceed to hear the petition, and hear and examine the allegations and proofs of the petitioners, and of all persons interested in the estate who may oppose the application. All claims against the decedent not before presented, if the period of presentation has not elapsed, may be presented and passed upon at the hearing. 11,541. Administrator, executor, and witnesses may be examined. SEC. 1541. The executor, administrator, and witnesses may be examined on oath by either party, and process to compel them to attend and testify may be issued by the probate judge, in the same manner and with like effect as in other cases. (a) Original section: SEC. 1537. To obtain such order he must present a verified petition to the probate court, or to the judge at chambers, setting forth the amount of personal estate that has come to his hands, and how much thereof, if any, remains undisposed of; the debts outstanding against the decedent, as far as can be ascertained or estimated; the amount due upon the family allowance, or that will be due after the same has been in force for one year; the debts, expenses, and charges of adminis tration already accrued, and an estimate of what will or may accrue during the administration; a description of all the real estate of which the decedent died seized, or in which he had any interest, or in which the estate has acquired any interest, and the condition and value of the respective portions and lots thereof, and whether the same be community or sepa rate property; the names and ages of the devisees, if any, and of the heirs of the decedent. If all the matters above enumerated cannot be ascertained, it must be so stated in the petition. (b) Original section: SEC. 1539. A copy of the order to show cause must be personally served on all persons interested in the estate, and on any general guardian of any minor, devisee, or heir of the decedent resident in the county, at least ten days before the time appointed for hearing the petition, or must be published at least four successive weeks in such newspaper as the court or judge shall direct. The notice is served if the publication is completed ten days before the day set for hearing. If all persons interested in the estate join in the petition for the sale, or signify in writing their assent thereto, the notice may be dispensed with. 11,542, To sell real estate or any part, when. SEC. 1542. If it appears necessary to sell a part of the real estate, and that by a sale thereof the residue of the estate, real or personal, or some specific part thereof, would be greatly injured or diminished in value, or subjected to expense, or rendered unprofitable, or that after any such sale the residue would be so small in quantity or value, or would be of such a character with reference to its future disposition among the heirs or devisees, as clearly to render it for the best interests of all concerned that the same should be sold, the court may authorize the sale of the whole estate, or of any part thereof, necessary and for the best interest of all concerned. 11,543. Order of sale, when to be made. SEC. 1543. If the court is 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 any of the causes mentioned in this article, or if such sale be assented to by all the persons interested, an order must be made to sell the whole, or so much and such parts of the real estate described in the petition, as the court shall judge necessary or beneficial. 11,544. What the order of sale must contain-Public or private sale. SEC. 1544. The order of sale must describe the lands to be sold and the terms of sale, which may be for cash, or on a credit not exceeding one year, payable in gross or in installments, and in such kind of money, with interest, as the court may direct. The land may be sold in one parcel or in subdivisions, as the executor or administrator shall judge most beneficial to the estate, unless the court otherwise specially directs. If it appears that any part of such real estate has been devised and not charged in such devise with the payment of debts or legacies, the court must order the remainder to be sold before that so devised. Every such sale must be ordered to be made at public auction, unless, in the opinion of the court, it would benefit the estate to sell the whole or some part of such real estate at private sale; the court may, if the same is asked for in the petition, order or direct such real estate or any part thereof to be sold at either public or private sale, as the executor or administrator shall judge to be most beneficial for the estate. If the executor or administrator neglects or refuses to make a sale under the order and as directed therein, he may be compelled to sell, by order of the court, made on motion, after due notice, by any party interested. 11,545. Interested persons may apply for order of sale. SEC. 1545. If the executor or administrator neglects to apply for an order of sale when it is necessary, any person may make application therefor, in the same manner as the executor or administrator, and notice thereof must be given to the executor or administrator, before the hearing. The petition of such applicant must contain as many of the matters set forth in section 1537 as he can ascertain, and the decree of sale must fix the period of time within which the executor or administrator must make the sale. 11,546 [SEC. 1546(a) was repealed by act approved March 24, 1874; Amendments 1873-4, 371; took effect July 1, 1874.] 11,547. Notice of sale. SEC. 1547. When a sale is ordered, and is to be made at public auction, notice of the time and place of sale must be posted in three of the most public places in the county in which the land is situated, and published in a newspaper, if (a) Repealed section: SEC. 1546. Upon making the order mentioned in the last section, a certified copy of the order of sale must be delivered by the court or the clerk to the executor or administrator, who is thereupon authorized and required to sell the real estate as directed. there be one printed in the same county, but if none, then in such paper as the court may direct, for three weeks successively next before the sale. The lands and tenements to be sold must be described with common certainty in the notice. 11,548. Time and place. SEC. 1548. Sales at public auction must be made in the county where the land is situated; but when the land is situated in two or more counties, it may be sold in either. The sale must be made between the hours of nine o'clock in the morning and the setting of the sun on the same day, and must be made on the day named in the notice of sale, unless the same is postponed. 11,549. Private sale of real estate, how made, and notice. SEC. 1549. When a sale of real estate is ordered to be made at private sale, notice of the same must be posted up in three of the most public places in the county in which the land is situated, and published in a newspaper, if there be one printed in the same county-if none, then in such paper as the court may direct for two weeks successively next before the day on or after which the sale is to be made, in which the lands and tenements to be sold must be described with common certainty. The notice must state a day on or after which the sale will be made, and a place where offers or bids will be received. The day last referred to must be at least fifteen days from the first publication of notice, and the sale must not be made before that day, but must be made within six months thereafter. The bids or offers must be in writing, and may be left at the place designated in the notice, or delivered to the executor or administrator personally, or may be filed in the office of the clerk of the probate court, to which the return of sale must be made, at any time after the first publication of the notice, and before the making of the sale. If it is shown that it will be for the best interest of the estate, the court or judge may, by an order, shorten the time of notice, which shall not, however, be less than one week, and may provide that the sale may be made on or after a day less than fifteen, but not less than eight, days from the first publication of the notice, in which case the notice of sale and the sale may be made to correspond with such order. 11,550. Ninety per cent. of appraised value must be offered. SEC. 1550. No sale of real estate at private sale shall be confirmed by the court, unless the sum offered is at least ninety per cent. of the appraised value thereof, nor unless such real estate has been appraised within one year of the time of such sale. If it has not been so appraised, or if the court is satisfied that the appraisement is too high or too low, appraisers must be appointed, and they must make an appraisement thereof in the same manner as in case of an original appraisement of an estate. This may be done at any time before the sale or the confirmation thereof. 11,551. Purchase-money on sale on credit, how secured. SEC. 1551. The executor or administrator must, when the sale is made upon a credit, take the notes of the purchaser for the purchase-money, with a mortgage on the property to secure their payment. 11,552. Hearing and setting aside sale, and when resale may be ordered. SEC. 1552. The executor or administrator, after making any sale of real estate, must make a return of his proceedings to the probate court, which must be filed in the office of the clerk, at any time subsequent to the sale, either in term or vacation. If the sale is made at public auction, and the return is made and filed on or before the first day of the next term thereafter, no notice is required of such return or of the hearing thereof, but the hearing may be had upon the first day of the term, or any subsequent day to which the same may be postponed. SEC. 1553. When return of the sale is made and filed any person interested in the estate may file written objections to the confirmation thereof, and may be heard thereon, when the return is heard by the court or judge, and may produce witnesses in support of his objections. 11,554. When order of confirmation is to be made, and when not. SEC. 1554. If it appears to the court that the sale was legally made and fairly conducted, and that the sum bid was not disproportionate to the value of the property sold, and that a greater sum, as above specified, cannot be obtained, or if the increased bid mentioned in section 1552 be made and accepted by the court, the court must make an order confirming the sale, and directing conveyances to be executed. The sale, from that time, is confirmed and valid, and a certified copy of the order confirming it and directing conveyances to be executed must be recorded in the office of the recorder of the county within which the land sold is situated. If, after the confirmation, the purchaser neglects or refuses to comply with the terms of sale, the court may, on motion of the executor or administrator, and after notice to the purchaser, order a resale to be made of the property. If the amount realized on such resale does not cover the bid and the expenses of the previous sale, such purchaser is liable for the deficiency to the estate. 11,555. Conveyances. SEC. 1555. Conveyances must thereupon be executed to the purchaser by the executor or administrator, and they must refer to the orders of the probate court authorizing and confirming the sale of the property of the estate, and directing conveyances thereof to be executed, and to the record of the order of confirmation in the office of the county recorder, either by the date of such recording, or by the date, volume, and page of the record, and such reference shall have the same effect as if the orders were, at large, inserted in the conveyance. Conveyances so made convey all the right, title, interest, and estate of the decedent, in the premises, at the time of his death; if, prior to the sale, by operation of law or otherwise, the estate has acquired any right, title, or interest in the premises, other than, or in addition to, that of the decedent at the time of his death, such right, title, or interest also passes by such con veyances. 96 |