before them for good cause.

Power by will to

sell lands, to be executed by whom.

Contracts for the purchase of lands

Interest of testa

tor or intestate,

to be sold if assets

to fill contract.

tinue any matter or procceding arising before it under this Act, on such terms as it may consider just.

Of their duties respecting the sale of Real Estate.

SEC. 113. The sale and conveyance of real estate under a will. shall be made by the acting executor or administrator, with the will annexed, if no other person be appointed for that purpose by the will, or if such person fail to perform the trust.

SEC. 114. If any person die, having purchased real estate, and shall not have completed the payment, nor devised such estate, nor provided for the payment by will, and the completion of such payment would be beneficial to the estate and not injurious to creditors, the executor or administrator, by order of the probate court, may complete such payment out of the assets in his hands, and such estate shall be disposed of as other real estate.

SEC. 115. If the court believe that after the payment of debts,

are not sufficient there will not be sufficient to pay for such real estate, the court may order the exccutor or administrator to sell all the right, title and interest of the deceased therein.

Court may order lands to be relinquished, if pur

viduals.

SEC. 116. If such real estate has been purchased from indichased from individuals, the court may, if they believe it advantageous to the estate, order the same to be relinquished to such individual on the most advantageous terms that can be agreed upon.

If purchased from officer authorized to sell school

lands, it may be

relinquished in

the discretion of

the court.

Court may order the redemption of mortgaged property.

Court may ordp the equity of demption to be old.

Reboo

167-106

SEC. 117. If such real estate shall have been purchased from any officer authorized by law to sell school lands, the probate court may, in its discretion, order the same to be relinquished, and in such cases the officer shall be authorized to accept of such relinquishment, and surrender the obligation of the deceased.

Sec. 118. If any person die, having mortgaged any real estate, or mortgaged or pledged any personal property, or owning any equity of redemption, and shall not have devised the same, or provided for the redemption of the same by will, the probate court, upon the application of any person interested, may order the executor or administrator to redeem such estate out of the personal assets, if it would be beneficial to the estate, and not injurious to the creditors.

Suo. 119. If such redemption would injure the estate or creditors, or there would not be assets to redeem such estate after payment of debts, the court shall order all the right, title and interest of the estate to such property to be sold at public sale. Sec. 120. In cases of relinquishment of the interest of the tesistrator coltator or intestate, under the provisions of the one hundred and deed, effect there- seventeenth and one hundred and eighteenth sections of this chap

In all cases of re-
Jinquishment, ex-

tent to make a

of.

ter, and in all cases of the sale of the interest of the testator or intestate, under the one hundred and sixteenth and one hundred and twentieth sections of this chapter, the executor or administrator shall be competent, by deed, to make such relinquishment, or to convey to the purchaser all the right, title and interest the testator or intestate had in and to such real estate at the time of his death.

a

SEO. 121. If any person die and not have personal estate sufficient to pay his debts, the executor or administrator shall file petition to the probate court, stating the facts, and praying for the sale of the real estate, or so much thereof as will pay the debts.

If real estate bound by lien of judgment, to be

SEC. 122. If such real estate be bound by the lien of a judgment, the executor or administrator shall state that fact in his stated in petition. petition, the date and amount of the judgment, and the name of the person in whose favor the same was rendered.

SEC. 123. The proceeds of the sale of such real estate shall be first applied to the payment of such judgment, and the residue, if any, shall become assets in the hands of the executor or administrator, to be administered according to law.

SEC. 124. If such real estate be bound by the lien of several judgments, the executor or administrator shall state that fact in his petition, the dates and amounts of such judgments, and the names of the persons in whose favor the same were rendered. SEC. 125. The proceeds of the sale of such real estate shall be first applied to the payment of such judgments according to their priority of lien.

Proceeds of sale to

be applied to payment of such

ment; remainder

to become assets.

bound by lien of several judgments

to

real estate
be stated in pe-

tition.

Proceeds of such

sale to be applied to the payment of

such judgments.

ceeds to become

SEC. 126. The residue of such proceeds, if any, shall become Residue of proassets in the hands of the executor or administrator, to be ad- assets. ministered according to law. SEC. 127. If the lien of such several judgments be of even If lien of such date, and the proceeds of such sale shall not be sufficient to pay the whole, such proceeds shall be applied to the payment of such several judgments in proportion to their respective amounts.

judgments be even, proceeds

how applied.

Petition to be ac

companied by true account of

&c.

SEC. 128. The petition, to be filed according to the provisions of the one hundred and twenty-first section of this chapter, shall administration, be accompanied by a true account of his administration, a list of the debts due to and by the deceased, and remaining unpaid, and an inventory of the real estate and of the remaining personal estate, with its appraised value, and all the other assets in his hands, the whole to be verified by the affidavit of the executor or adminis

trator.

Executor or ad-
ministrator fail-

ing to make such

ers may.

SEC. 129. If such executor or administrator do not make such

application, oth application, any creditor, or other person interested in the estate, may make such application, giving twenty days' notice to the executor or administrator.

Duty of executor
before making

1866-107

SEC. 130. Every such executor or administrator, on or before such application. the first day of the term of the court at which he is notified that such application will be made, shall file with the clerk of the court perfect accounts, lists and inventories, made out and verified as those required to accompany a petition by himself. If such executor or administrator fail to comply with this Section, the court shall compel him to do so by attachment.

When such peti

tion, accounts,
&c., are filed,

notice to be giv

en.

SEC. 131. When such petition, and such accounts, lists and court shall order inventories shall be filed, the court shall order that all persons interested in the estate be notified thereof, and that unless the contrary be shown, on the first day of the next term of the court an order will be made for the sale of the whole, or so much of such real estate, as will pay the debts of the deceased. Such notice shall be published for six weeks, in some newspaper in the county, or by ten handbills, to be put at ten public places in the county in which the land lies, at least twenty days before the term of the court at which any such order will be made, in the discretion of the probate court.

When and how
published.

Upon proof of
publication, court

to hear testimony

order sale.

SEC. 132. Upon proof of publication, the court shall hear the and if necessary testimony, and may, if necessary, examine all parties on oath, touching the application, and make an order for the sale of such real estate, or any part thereof, in this Territory, at public or private sale.

Personal estate
may be reserved,
and real estate
sold.

Real estate to be
appraised before
sale.

Affidavit to be

made by apprais

ers.

SEC. 133. If any executor or administrator, or other person interested in any estate, file a petition, setting forth the facts, and describing the real and personal estate, and praying that the personal estate may be reserved, and real estate be sold for the payment of debts, the same steps shall be taken, and the same proceedings and publication had as above directed, upon a petition to sell real estate for the payment of debts, and the court may order the whole, or any part of the personal estate, to be reserved; and the real estate, or any part of it, may be sold at public or private sale.

SEC. 134. Before any executor or administrator shall sell any real estate, or any interest therein by order of any court, he shall have it appraised by three disinterested householders of the county in which it lies.

SEC. 135. Such appraisers shall make an affidavit that they will, according to the best of their abilities, view and appraise

the estate to them shown, and they shall view and appraise the same, and deliver to the executor or administrator a certificate thereof, under their hands.

Notice of such

to be given. How

SEC. 136. In all sales of real estate made by any executor or sale of real estate administrator, he shall cause a notice, containing a particular de- published. scription of the estate to be sold, and stating the time, place and terms of sale, to be published in some newspaper in the county for four weeks, and shall put up a copy of such notice in ten public places in the county in which the sale is to be made, twenty days before the sale. If the probate court shall think it advisable, and so order, the publication of such notices in the newspaper may be dispensed with.

SEC. 137. All public sales of real estate, made by order of any court for the payment of debts, shall be made at the court house door of the county in which such estate is situated, and shall be conducted openly by auction.

SEC. 138. No real estate, sold for the payment of debts, shall be sold at private sale for less than three-fourths of its appraised value, nor shall the executor or administrator, directly or indirectly, become the purchaser of such real estate.

4-106

where sales of made, and how

real estate shall

be

conducted.

Not to be sold at

private sale, at
less than three-

fourths of its ap-
nor shall executor

praised value;

or administrator purchase.

how made.

SEC. 139. At the next term of the probate court after such Report of sale, sale, the executor or administrator shall make a full report of his proceedings, with the certificate of appraisement and a copy of the advertisement, which report shall be verified by aflidavit, stating that he did not, directly or indirectly, purchase such real estate, or any part thereof, or any interest therein, and that he is not interested in the property sold, except as stated in the report.

Report not ap

proved, new order

to be made.

SEC. 140. If such report and proceedings of the executor or administrator be not approved by the court, his proceedings shall be void, and the court may order a new sale, upon which the same proceedings shall be had as upon the original order. SEC. 141. If such report be approved by the probate court, Deed to be made. such sale shall be valid, and the executor or administrator shall execute, acknowledge and deliver to the purchaser, a deed reciting the order of sale, and the court by which it was made, the certificate of appraisement, the advertisement, the time and place of sale, the report of the proceedings, and the consideration, and conveying to the purchaser all the right, title and interest which the deceased had in the same.

SEC. 142. Such deed shall convey to the purchaser all the Effect of deed. right, title and interest which the deceased had in such real estate

Contract for conveyance of real estate, how enforced.

Affidavit annexed to petition.

Notice served on xecutor.

Court to order the specific performance of contract, except, &c.

Upon such order, executor to execute deed.

Effect of such dood.

Proceedings by

executor, &c., for

specific perform

at the time of his death, discharged from liability for his debts, and shall be evidence of the facts therein recited.

SEC. 143. It any testator or intestate shall have entered into a contract, in writing, for the conveyance of any real estate, and shall not have executed the same in his lifetime, nor given power, by will, to execute the same, the other party, wishing a specific execution of such contract, may file a petition to the probate court, setting forth the facts, and praying that an order may be made that the executor or administrator execute such contract specifically by executing to him a deed for the same.

SEC. 144. Such petitioner shall annex to his petition an affidavit to the truth thereof, and stating that no part of such contract has been satisfied, except as stated in the petition.

SEC. 145. A notice of such application, and a copy of the petition, shall be served on the executor or administrator twenty days before the first day of the term at which it is to be made.

SEC. 146. If the court, after hearing all parties, believe that specific execution of such contract ought to be made, it shall make an order that the executor or administrator execute such contract specifically, saving to infants, married women, persons of unsound mind, and persons absent from the United States, the term of five years after their disabilities are removed, to appear and file their bill in chancery, to set aside such order for fraud or otherwise.

SEC. 147. When any order for the specific execution of a contract shall be made, the executor or administrator shall execute and deliver to the petitioner a deed, and acknowledge it in open court, conveying the estate according to the order, and expressing therein the saving of the rights above named, according to the order, and stating the date of the order, and the court at which it was made.

SEC. 148. Such deed shall be as effectual as if it had been executed by the deceased.

SEC. 149. If any executor or administrator hold a bond, or ance of contract. any other instrument of writing, on the testator or intestate, for the conveyance of any real estate, which shall not have been completed within the lifetime of such testator or intestate, nor power by will given to execute the same, the executor or administrator shall proceed against his co-executor or co-administrator in the same manner as prescribed by this article in other cases; but if there be no such co-executor or co-administrator, he shall file his petition as herein provided, and the court shall appoint some