such estate; but in case c failure to so reduce it, such person contesting the claim shall pay all costs occasioned the estate thereby. [As amended by act in force March 7, 1883. S., p. 157.

2327. Offer to allow.

S., p. 164.

103. Repealed by act in force March 7, 1883.

2328. No execution. 104. No execution or other final process shall be issued on any allowance or judgment rendered upon a claim against a decedent's estate, for the collection thereof out of the assets of the estate; but all such claims shall be paid by the executor or administrator, in full or pro rata, in due course of administration. [As amended by act in force March 7, 1883. S., p. 157.

1. Assets to be administered are not ordinarily liable to levy and execution, even upon a judgment against the administrator as such, except when such judgment directs the sale of certain specific articles.- Johnson v. Meier, 62 Ind. 98.

2329. Entry of allowance. 105. When a claim shall have been allowed or adjudged by the Court in favor of the claimant, as herein before provided, the Clerk of the Court shall enter the amount of the claim and date of allowance or judgment, under the proper heading in the allowance docket, and immediately opposite the entry of the claim on the claim docket.

2330. When to pay claims. 106. Repealed by act in force March 7, 1883. S., p. 164.

2331. Proceedings to enforce liens, suspended. 151. No proceeding shall be instituted before the end of one year from the death of the decedent, to enforce the lien of any judgment rendered against the decedent in his life time, upon real estate, or any decree specifically directing the sale of such real estate, to discharge any lien or liability created or suffered by the decedent; nor shall any suit be brought before that time, against the heirs or devisees of the deceased, to foreclose any mortgage or other lien thereon, for the payment of which his personal estate shall be liable; and in case of suit to foreclose any mortgage or other lien thereon, the executor or administrator shall be made a party defendant thereto; and if the executor or administrator shall be diligently prosecuting his proceedings to sell the real estate of the deceased, for the purpose of making assets to discharge such liens, further proceedings for the sale thereof, by the holders of liens thereon, shall be stayed upon the application of the executor or administrator. This section shall not apply to cases where, before the end of the year, the real estate shall have been sold by the executor or administrator subject to liens thereon, nor to mortgages and judgments in favor of the State. [As amended by act in force March; 1883. S., p. 164.

SEC.

ARTICLE 9-SALE, ETC., OF REAL ESTATE, TO PAY DEBTS.

[1881 S., p. 423. In force September 19, 1881.]

2332. When allowed. 107. If the personal estate of a decedent shall be insufficient for the payment of the liabilities thereof, the real estate of the deceased, if any, shall be sold to make assets for the payment of such liabilities.

2333. What liable. 108. The real estate liable to be sold for the payment of debts, when the personal estate shall be insufficient therefor, shall include

First. All the real estate held or possessed by the deceased at the time of his death by legal or equitable title (except such as was held upon a contract for the purchase of land), and all interests in real estate which would descend to his heirs.

Second. All school or other lands held on a certificate of purchase of the General Government or the State of Indiana.

Third. All lands, and any interest therein, which the deceased, in his life-time, may have transferred, with intent to defraud his creditors.

2334. Fraudulent conveyances. 109. But the lands thus fraudulently conveyed shall not be taken from any one who may have purchased them for a valuable consideration, and without knowledge of the fraud, but such lands shall be liable to be sold only in cases in which they would have been liable to attachment and execution by a creditor of the deceased in his life-time; and no proceeding by any executor or administrator, to sell any lands so fraudulently conveyed, shall be maintained, unless the same shall be instituted within five years after the death of the testator or intestate.

1. The administrator may take proceedings to set aside a fraudulent conveyance by the decedent before he has obtained an order to sell the same, if he show that the proceeds of the lands in question are necessary to pay the debts of the estate.― Love v. Mikals, 11 Ind. 227; Tyler v. Wilkerson, 27 id. 450.

2335. Fraudulent conveyances. 110. If the executor or administrator shall be authorized to sell any lands thus fraudulently conveyed, he may, before sale, obtain possession by an action for the possession thereof, or may file a petition to avoid the fraudulent conveyance.

2336. Petition to sell. III. Whenever an executor or administrator

shall discover that the personal estate of a decedent is insufficient to satisfy the liabilities thereof, he shall, without delay, file his petition in the Circuit Court issuing his letters, for the sale of the real estate of the deceased, to make assets for the payment of such liabilities.

1. A petition by an administrator, for an order to sell lands to pay debts, is not a civil action.- Seward v. Clark, 67 Ind. 289.

2337. Liens. 112. Before filing such petition, he shall carefully examine the offices of the Clerk, Auditor, Treasurer, and Recorder in each county in which real estate of the deceased may be situate, and ascertain the exact character and extent of each lien thereon created or suffered by the deceased in his life-time, and remaining unsatisfied of record.

2338. Requisites of petition - Parties. 113. Such petition shall be entitled with the names of the parties, petitioner and defendants, and the Court in which pending. If the deceased died intestate, his widow, if any, and his other heirs, shall be made defendants; if he died testate, his widow, if any, and his devisees, shall be made defendants; provided that if he died intestate as to any portion of his real estate, his heirs shall also be made defendants. The holder of every lien on the real estate which the executor or administrator shall have reason to deem invalid or discharged, in whole or in part (except taxes and judgments and mortgages in favor of the State of Indiana), shall be made defendants to every such petition; and may be proceeded against by the name or style by which he or they may be designated in the record or instrument constituting such lien. Any person claiming an interest in or lien upon any of the real estate, may also be made a defendant. If the names of any of the heirs or devisees of the deceased be unknown to the petitioner, such fact shall be stated in the petition; and they may be proceeded against as the unknown heirs or devisees of the deceased. The petition shall set forth a description of the real estate of the deceased liable to be made assets for the payment of his debts; the title of the decedent therein at his death, and the probable value thereof, exclusive of liens; the amount of the personal estate of the decedent which has come to the possession or knowledge of the executor or administrator; the amount of the claims filed and allowed against the estate; the amount of claims filed and pending against the estate; the particulars of each lien, whether general or special, including taxes accrued at the death of the decedent, and judgments and mortgages, due or owing to the State, upon all or any of the decedent's real estate, appearing and remaining unsatisfied of record; with the amount and date of lien and names of the holders, as the same appears of record. If the decedent shall have died testate, and his will shall contain any provision for the disposition of his estate for the payment different from the manner which the law prescribes in case of intestacy, such provision shall be set forth in the petition. Such petition shall be verified by the oath of the executor or administrator filing the same.

1. The description of the lands in the petition should be reasonably certain, and name the county and State in which they lie.- Weed v. Edmonds, 4 Ind. 468.

2. An administrator can only sell lands where the personal assets are insufficient to pay debts.- Dunning c. Driver, 25 Ind. 269; Matlock v. Nave, 28 id. 35; Newcomer v. Wallace, 30 id. 216.

2339. Hearing. 114. Such petition shall stand for hearing on the first day of the next term after the giving of notice as provided in the next section, unless the executor or administrator shall fix a different day during the

term for such hearing, by indorsement on the petition at or before the time of filing thereof. If there be not time sufficient for the giving of such notice before the close of said term, the defendants shall be notified to appear and answer the petition on the first day of the next ensuing term.

2340. Notice of petition. 115. Notice of the time and place of hearing such petition shall be given by three successive publications in a weekly newspaper printed in the county, or if there be none printed therein, in a newspaper nearest thereto in the State, thirty days before the hearing of such petition, and by posting up written or printed notices thereof in three public places, in the township where such real estate is situated. [As amended by act in force March 7, 1883. S., p. 157. See $6683.

1. This section is superseded by section 6683 [1891 S., p. 367], and is given place here only on account of its explanatory relation to other sections of the act yet in force.

2341. Waiver of notice. 116. Whenever any of the defendants to such petition are of lawful age, and shall signify in writing their assent to such sale, the notice required by section one hundred and fifteen of the above entitled act, as amended by the act of March 7, 1883, may be dispensed with as to such persons, and if such persons be minors, and their guardians shall give such assent, such notice shall not be required, but should said guardian be the administrator or executor of the estate and also guardian of the heirs of the decedent, such guardian shall not give his assent to such sale, and in all such cases notice must be given to such minors as by law now provided, and after notice the Court shall appoint a guardian ad litem for such minors, as provided in section one hundred and nineteen of said above described act, and, if their interests require active opposition, the Court may allow attorney's fees to such guardian. [As amended by act approved April 13, 1885. S., p. 237.

2342. Creditor may require petition. 117. Any creditor of the decedent whose claim shall have been filed and allowed by the Court may file his petition showing the inefficiency of the personal estate of the decedent to pay the liabilities thereof, and that the decedent died owning real estate liable to be made assets for the payment of his debts, and praying an order requiring the executor or administrator to proceed to sell such real estate for the payment of such debts. The executor or administrator shall be entitled to five days' written notice of the petition, and the time when it will be presented for hearing. If, upon such hearing, the petition be found by the Court to be true, and no cause be shown to the contrary, the Court shall order the executor or administrator, within a reasonable time to be fixed by the Court, to prepare and file his petition for the sale of such real estate; and in default of his so doing, the Court shall remove him from his trust and appoint a successor, unless good cause be shown for the delay, when further time may be granted, with like consequence upon default.

1. A creditor's petition to sell need not state that the administrator has failed or refused to act. In such a case, the order is, that the administrator, not the creditor, make the sale.-Whisnand v. Small, 65 Ind. 120.

2343. Who may be admitted as parties. 118. Any person not a party to such petition may, upon proper petition, be admitted as a party to the proceedings, and set up any interest in or lien upon the land, and have the same heard and determined.

2344. Guardian ad litem. 119. If it shall appear that any of the heirs or devisees of the deceased are ininors, the Court, before hearing the petition, shall appoint a guardian ad litem for such minors; and if their interests require active opposition, the Court may allow attorney's fees to such guardian

I. It is error to order a sale of lands as against infants without the appointment of a

guardian ad litem, or to appoint such guardian unless the heirs are first notified.Timmons v. Timmons, 6 Ind. 8; Guy v. Pierson, 21 id. 18.

2345. Inventory and appraisement. 120. The executor or administrator shall make a correct inventory of the real estate of the decedent, and cause the same to be appraised by two persons competent to appraise the personal estate of the decedent. If the lands lie in more than one county, appraisers residing in each county may be appointed to appraise the lands therein situate. Such appraisers shall take and subscribe an oath that they will honestly appraise the real estate of the decedent at its fair cash value: Provided, however, That nothing in this Act shall be so construed as to prevent the appraisers of one county from appraising the lands of a decedent situate in an adjoining county, where it is convenient to do The real estate shall be appraised in as small parcels as practicable; and if specified portions of the real estate be incumbered with special liens, the executor or administrator shall cause such specified portions to be appraised in a body, if necessary to show the value thereof. Such appraisement, when completed, shall be attested by the appraisers, and the inventory, appraisement, and oaths of the appraisers filed in Court, on or before the hearing of the petition. Re-appraisements of the real estate may be afterward made under the order of the Court, when it shall be shown to the Court that the appraisement is too high or too low.

so.

1. Errors in description of lands in the appraisement may be corrected.- Lasure v. Carter, 5 Ind. 498.

2346. Hearing and orders. 121. Upon the hearing of such petition, witnesses may be compelled to attend, and depositions, taken under the usual regulations of law, may be read, and the parties to the petition may be examined under oath as in other cases. If, upon such hearing, the Court shall find the material allegations of the petition to be true, it shall enter a decree, declaring the real estate liable to be sold to make assets for the payment of the debts and liabilities of the estate, and empowering the executor or administrator to sell so much thereof as may be found necessary to discharge said debts and liabilities. If it be shown on the hearing that the real estate, or any portion thereof, is incumbered by liens, the Court shall, in its finding, fix the amount and extent of each lien and the priorities of the several liens. If any debt secured by lien be not due, the Court shall fix the amount thereof at its present worth, rebating interest for the unexpired time, unless the real estate be sold subject to the lien. The petition shall remain pending on the docket, until the real estate, or so much as may be necessary, be sold for the payment of said debts and liabilities; and further sales may be ordered by the Court, from time to time, without further petition or notice, upon proof that the sales already made are insufficient for that purpose. 2347. Widow's right saved. 122. If the decedent leave a widow, and the real estate owned by him at his death shall not exceed ten thousand dollars in value, the Court shall direct the sale of the undivided two-third parts thereof for the payment of said debts and liabilities; and if the value thereof exceed ten thousand dollars, and do not exceed twenty thousand dollars, the Court shall order the sale of the undivided three-fourths thereof; and, if it exceed in value twenty thousand dollars, the undivided four-fifths thereof, for said purpose.

2348. Partition with widow. 123. If the decedent leave a widow,