1146. 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.

1147. If the judge of the district court shall be 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 the payment of valid claims against the deceased, and charges of administration, or if such sale be 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 shall judge necessary or beneficial.

1148. The order shall specify the lands to be sold, and the judge of the district court may therein direct the order in which several tracts, lots, or parcels shall be sold; and 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 district judge shall order that part descended to heirs to 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 in their hands remaining unsold shall be ordered to be first sold.

1149. Upon the making of such order, and the filing with the judge of the district court of such bond as is required by the provisions of this subdivision, a certified copy of the order of sale shall be delivered by the judge to the executor or administrator, who shall thereupon be authorized to sell the real estate as therein directed, within one year after the making of the order, but not after that period.

1150. License to sell real estate, as provided in this subdivision, may extend to the reversion of the dower of the widow of a deceased person; and if such reversion be not sold with the other real estate, it may be sold after the expiration of the widow's term.

1151. When a sale is ordered, notice of the time and place of holding the same shall be posted up in three of the most public places in the county in which the land is situated, and shall be published in a newspaper if there be one printed in the same county, and if there be none, then in such paper as the court may direct, for three weeks successively next before such sale, in which notice the lands and tenements to be sold shall be described with common certainty.

1152. Such sale shall be in the county where the lands are situated, at public vendue, between the hours of nine in the morning and the setting of the sun the same day, and said sale shall be held open for one hour within said specified time, which hour shall be stated in the notice of sale provided for in the preceding section.

1153. The executor or administrator making the sale and the guardian of any minor heir of the deceased shall not directly or indirectly purchase, or be interested in the purchase of any part of the real estate so sold; and all sales made contrary 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.

1154. On such sale, the executor or administrator may give such length of credit, not exceeding three years, and 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 judge of the district court, and shall secure the moneys for which credit is given, by a bond of the purchaser and by a mortgage of the premises sold.

1155. The executor or administrator making any sale shall immediately make a return of his proceedings upon the order of sale in pursuance of which it is made, to the judge of the district court granting the same, who shall examine the pro

ceedings, and may also examine such executor, or administrator, 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 another to be had, of which notice shall be given; and the sale shall be in all respects as if no previous sale had taken place.

1156. If it shall appear to the district judge that the sale was 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 than above specified cannot be obtained, he shall make an order confirming such sale, and directing conveyances to be executed.

Court should confirm sale. 19, 492 (26 N. W., 385).

1157. Every executor or administrator authorized to sell real estate, as provided in this subdivision, shall, before making such sale, take and subscribe an oath before the judge of the district court, or some other officer authorized to administer oaths, that in disposing of the real estate which he is licensed to sell he will exert his best endeavors to dispose of the same in such manner as will be most for the advantage of all persons interested, which oath shall be filed with the judge of the district court before the confirmation of the sale.

1158. An affidavit of the executor or administrator, or of some other person having knowledge of the fact, that notice of any such sale was given as provided in this subdivision, being made before the judge of the district court or some other officer authorized to administer oaths, and filed and recorded in the district court, together with a copy of the notice, shall be admitted as evidence of the time, place, and manner of giving the notice.

1159. If, at the time appointed for any such sale, the executor or administrator shall deem it for the interest of all persons concerned therein that the sale shall be postponed, he may adjourn the same from time to time, not exceeding, in all, three months.

1160. In case of such adjournment, notice thereof shall be given by a public declaration at the time and place first appointed for the sale, and if the adjournment shall be more than one day, further notice shall be given by posting or publishing the same, or both, as the time and circumstances may admit.

1161. When a testator shall have given any legacy by will, that is effectual to pass or charge real estate, and his goods and chattels, rights and credits shall be insufficient to pay such legacy, together with his debts and the charges of administration, 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 subdivision, in the case of a sale for the payment of debts.

1162. 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 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 subdivision in respect to lands of which he died seized, except as hereinafter provided.

This does not apply to leases of state school lands. 26, 316 (41 N. W., 1117).

1163. 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 shall not be confirmed by the judge of the district court until

the purchaser shall execute a bond to the executor or administrator for the benefit and indemnity of the person entitled to the interest of the deceased in the land so contracted for, in double the whole amount of payments thereafter to become due on such contract, with such sureties as the judge of the district court shall approve. 1164. Such bond shall be conditioned that such purchaser will make all payments for such land as shall become due after the date of such sale, and will fully indemnify the executor or administrator, and the person 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 payment thereafter to become due on such contract, no bond shall be required of the purchaser.

1165. Upon the confirmation of such sale, the executor or administrator shall execute to the purchaser an assignment of such contract, which assignment shall vest in the purchaser, his heirs and assigns, all the right, interest, and title of the person 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 he were living.

1166. The proceeds of every such sale of the interest of the deceased person in lands under contract, as hereinbefore mentioned, shall be disposed of, in 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 subdivisian.

all

1167. All sales and conveyances of land made by executors or administrators, pursuant to the provisions of this subdivision, 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 shall be in any way liable for the amount secured by any such mortgage, or for any such charge, such sale shall not be confirmed by the judge until the purchaser shall execute a bond to the executor or administrator, as required in this subdivision in the case of the sale of a contract for the purchase of lands on which payments are to become due.

1168. When an executor or administrator shall be appointed in any state or territory, or in any foreign country, on the estate of any person dying out of this state, and no executor or administrator thereon shall be appointed in this state, the foreign executor or administrator may file an authenticated copy of his appointment, in the district court in any county in which there may be any real estate of the deceased.

See 16, 420 (20 N. W., 266).

1169. Upon filing such authenticated copy of his appointment, such foreign executor or administrator may be licensed by the same court to sell real estate for the payment of debts or 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, excepting in the particulars in which a different provision is hereinafter made.

1170. When it shall appear to the court granting the license that such foreign executor or administrator is bound by sufficient surety or sureties, in the state or country in which he was appointed, to account for the proceeds of such sale for the payment of debts, or legacies, and charges of administration, and a copy of such bond, duly authenticated, shall be filed in such court, no further bond for that purpose shall be required of him by the court.

1171. If an authenticated copy of such bond shall not be filed, as mentioned in the preceding section, such foreign executor or administrator, before making such sale, shall give bond, with sufficient sureties, to the judge of the district court, with condition to account for and dispose of the proceeds of such sale for the pay

ment of the debts or legacies of the deceased, and the charges of administration, according to the law of the state or country in which he was appointed.

1172. When such foreign executor or administrator is licensed to sell more than is necessary for the payment of debts, legacies, and charges of administration, as before provided for in this subdivision, he shall, before making the sale, give bond with sufficient sureties to the judge of the district court, with condition to account to him for all proceeds of the sale that shall remain after payment of the said debts, legacies, and charges, and to dispose of the same according to law.

Secs. 1173 to 1378 formed secs. 114 to 335, ch. 14, R. S. 1866, p. 79 (16 sec. repealed). 1173. In all cases of sale by an executor, administrator, or guardian of part or the whole of the real estate of his testator, intestate, or ward, under a license granted by any district court, by virtue of the provisions of this subdivision, whether such executor, administrator, or guardian was appointed in this state or elsewhere, the surplus of the proceeds of the sale remaining on the final settlement of the accounts shall be considered as real estate and disposed of among the persons, and in the same proportion, as the real estate would have been by the laws of this state if it had not been sold.

1174. Every guardian, whether appointed in this state or elsewhere, when licensed to sell real estate, as provided in this subdivision, shall, before making such sale, take and subscribe an oath like that required in the same case of an executor or administrator; and notice shall be given and the proceedings shall be conducted in the like manner as is prescribed in the case of an executor or administrator, and the evidence of giving such notice may be perpetuated in the same manner.

1175. If any person shall appear and object to the granting of any license prayed for under the provisions of this subdivision by the executor, administrator, or guardian, and if it shall appear to the court that either the petition or objection thereto is unreasonable, the court may, in its discretion, award costs to the party prevailing, and may enforce the payment thereof.

1176. No action for the recovery of any estate sold by an executor or administrator, under the provisions of this subdivision, shall be maintained by any heir or other person claiming under the deceased testator or intestate, unless it be commenced within five years next after the sale, and no action for any estate sold in like manner by a guardian shall be maintained by the ward, or by any person claiming under him, unless it be commenced within five years next after the termination of the guardianship, except as hereinafter provided."

1177. The preceding section shall not apply to persons out of this state, nor to minors or others under any legal disability to sell at the time the right of action shall first accrue; but all such persons may commence such action at any time within five years after the removal of the disability or their return to this state.

1178. In the case of any action relating to any estate sold by an executor, administrator, or guardian, in which an heir or person claiming under him shall contest the validity of the sale, it shall not be avoided on account of any irregularity in the proceedings, provided it shall appear: First-That the executor, administrator, or guardian was licensed to make the sale by the district court having jurisdiction. Second-That he gave a bond, which was approved by the judge of the district court, in case a bond was required upon granting a license. Third-That he took the oath prescribed in this subdivision. Fourth-That he gave notice of the time and place of the sale, as in this subdivision prescribed; and, Fifth-That the premises were sold accordingly, and the sale confirmed by the court, and that they are held by one who purchased them in good faith.

Failure to appoint a guardian ad litem is not available as an objection. 18, 298 (25 N. W., 86).

1179. If there shall be any neglect or misconduct in the proceedings of the executor, administrator, or guardian, in relation to such sale, by which any person interested in the estate shall suffer damages, such aggrieved party may recover the same in a suit on the bond, or otherwise, as the case may require.

1180. If the validity of a sale made by an executor, administrator, or guardian shall be drawn in question by any person claiming adversely to the title of the deceased testator or intestate, or of the ward, or claiming under any title that is not derived from or through the deceased person or the ward, the sale shall not be held void on account of any irregularity of the proceedings, provided it shall appear that the executor, administrator, or guardian was licensed to make the sale by a district court having jurisdiction, and that he did accordingly execute and acknowledge, in legal form, a deed for the conveyance of the premises.

1181. Any executor, administrator, or guardian who shall fraudulently sell any real estate of his testator, intestate, or ward, contrary to the provisions of this subdivision, shall be liable in double the value of the land sold, as damages, to be recovered in a civil action by the person having an estate of inheritance therein.

WILLS.

1182. Every person of full age and sound mind, being seized in his own right of any lands, or any right thereto, or entitled to any interest therein descendable to his heirs, may devise and dispose of the same by his last will and testament in writing; and all such estates not disposed of by will shall descend as the estate of an intestate, being chargeable in both cases with the payment of all debts; and any married woman may devise and dispose of any real or personal property held by her, or to which she is entitled in her own right, by her last will and testament, in writing, and may alter or revoke the same in like manner that a person under no disability may do, and subject to the same restrictions.

Proviso requiring consent of husband omitted 1881, p. 233.

1183. Every devise of land, in any will hereafter made, shall be construed to convey all the estate of the devisor therein, which he could lawfully devise, unless it shall clearly appear, by the will, that the devisor intended to convey a less

estate.

Intention of testator governs. Will construed, and held that under it husband took no estate by curtesy. 24, 216 (38 N. W., 854). Words of inheritance are not necessary as at the common law. 25, 321 (41 N. W., 186).

1184. Any estate, right, or interest acquired by the testator after the making of his will shall pass thereby in like manner as if possessed at the time of making the will, if such shall manifestly appear by the will to have been the intention of the testator.

1185. Every person of full age and sound mind may, by his last will and testament, in writing, bequeath and dispose of all his personal estate remaining at his decease, and all his rights thereto and interest therein, and all such estate not disposed of by the will shall be administered as intestate estate.

1186. No will made within this state, except such nuncupative wills as are mentioned in the following section, shall be effectual to pass any estate, whether real or personal, nor to charge, or in any way affect the same, unless it be in writing, and signed by the testator, or by some person in his presence, and by his express direction, and attested and subscribed in the presence of the testator by two or more competent witnesses; and if the witnesses are competent at the time of attesting the execution of the will, their subsequent incompetency, from whatever cause it may arise, shall not prevent the probate and allowance of the will, if it be otherwise satisfactorily proved.