and it appear to the Court that it would be to the interest of the estate that her share in the real estate of the decedent be set off to her in severalty, and the residue subjected to sale, the Court shall cause such partition to be made in said proceeding in like manner as is provided by law for the partition of real estate among tenants in common. If the commissioners report that such partition can not be made without damage to the owners, then the Court may direct the whole of the real estate, including the widow's interest, to be sold by the executor or administrator, and the full share of the widow in the gross proceeds of the sale paid to her on confirmation of the sale.

2349. Lien on widow's interest. 124. If the interest of the widow in the real estate of the decedent be liable to sale to satisfy a lien on such real estate, the Court shall have power, in proceedings for the sale of said real estate for the payment of debts, to direct the sale of the whole thereof, including the widow's interest, to discharge such lien, and to order the payment to her of her share of the gross proceeds of the sale after satisfying such lien.

2350. Liens. 125. If the real estate, or any part thereof, ordered to be sold, shall be incumbered with liens, the Court shall, in the order of sale, direct the sale of the real estate to discharge all or any of the liens or subject to all or any of the liens thereon. If sale be made to discharge such liens, the purchaser shall take and hold the real estate freed from such lien, and the lien shall attach to the fund arising from the sale. If the sale be made subject to such lien, the purchaser shall execute his bond, payable to such executor or administrator, with penalty and surety to the acceptance of the latter, conditioned that he will pay and discharge the lien, and hold the executor or administrator, and all others interested in the estate, harmless from all damages by reason of such lien and the claims secured thereby. Upon confirmation of such sale, and assignment by the executor or administrator of such bond, without recourse, to the holder of the lien, the estate shall be discharged from the payment of the debt secured by such lien.

2351. Terms of sale. 126. The Court ordering the sale shall specify the terms of sale; but no credits shall be directed to be given for a longer period than eighteen months, except that when the appraisement of the real estate is over five thousand dollars, a credit may be given for a period of not more than three years. If it appear to the Court that a private sale of the real estate would be advantageous to the estate of the decedent, the Court may so order, and shall, in such case, prescribe, in the order, notice to be given of the sale: Provided, That if the appraised value of the real estate ordered to be sold shall not exceed one thousand dollars, the Court may order such sale to be made without giving notice thereof. [As amended by act in force March 7, 1883. S., p. 158.

2352. Platting. 127. The Court ordering the sale may, upon the application of the executor or administrator, authorize him, previous to the sale, to lay out all or any portion of the lands into town lots, streets, alleys and squares, and make the necessary dedication to public use of the streets, alleys, and squares. An accurate plat thereof shall be reported to the Court for approval, and, if approved, shall thereupon be acknowledged by the executor or administrator, and recorded in like manner and with like effect as in case of private individuals; whereupon, he shall proceed to sell the lots upon the terms provided in the order of sale.

2353. Real estate bond. 128. Previous to making an order for any such sale, the executor or administrator shall file in the office of the Clerk

of such Court a bond, payable to the State of Indiana in a penalty not less than double the appraised value of the real estate to be sold, with sufficient freehold sureties to be approved by the Court, and conditioned for the faithful discharge of his trusts according to law.

1. The additional bond given hereunder, only covers defalcations occurring in administering the proceeds of the lands sold.-Worgang v. Clipp, 21 Ind. 119; Reno ↑. Tyson, 24 id. 56; Colburn v. State, 47 id. 310.

2. The failure to give a bond will not invalidate a sale where the proceeds thereof have been faithfully applied and accounted for. Foster v. Burch, 14 Ind. 445.

2354. Sale. 129. Every such sale of real estate shall be at public auction, unless otherwise provided in the order of sale. Lands shall not be sold at public vendue for less than two-thirds of their appraised value, unless ordered to be sold subject to liens; in which case, they shall not be sold for less than two-thirds of the appraised value after deducting the liens. Sales of lands at private vendue shall not be for less than their appraised value, except in cases of sale subject to liens; wherein the sale shall not be for less than the appraised value, after deducting the amount of the liens.

1. A sale of a decedent's lands by the administrator to himself, either directly or indirectly, can not be supported.-Morgan e. Wattles, 69 Ind. 260.

2355. Notice of sale. 130. In case of sale of real estate at public auction, the executor or administrator shall give four weeks' notice of the time, place, and terms of sale, by publication in some public newspaper, if any, published in the county in which the real estate is situate, and by posting up notices thereof in at least five public places in such county, three of which shall be in each township in which real estate to be sold may be situate. If the real estate or any part therof shall be ordered to be sold subject to any lien, such fact and the particulars of the lien shall be stated in the notice.

I. A record of an administrator's sale of lands is not bad for not showing that notice was given; notice will be presumed.- Doe v. Harvey, 3 Ind. 104; Doe v. Anderson, 5 id. 33; Gerrard v. Johnson, 12 id. 636.

2. In distributing the proceeds of a sale of lands free from liens, the liens will be paid in the order of priority. For such order, see Wharton v. Wilson, 60 Ind. 591.

2356. Purchaser's notes-Certificate of sale. 131. Upon such sale being made, such executor or administrator shall take from the purchaser promissory notes for the purchase-money, with sufficient surety, waiving recourse to the valuation or appraisement laws of this State, and shall also execute to such purchaser a certificate of the sale of such real estate. Such notes shall be drawn according to the terms of the sale prescribed by the Court, and shall bear six per cent. interest from date. the real estate be sold subject to liens, the purchaser shall execute bond as hereinbefore provided.

If

2357. Report-Confirmation-Conveyance. 132. Such executor or administrator shall make return, under oath, of his proceedings in the premises, at the next term after such sale, to the Court granting the order; and if such Court be satisfied therewith, it shall confirm the same, and direct such executor or administrator to execute a conveyance to such purchaser of such lands or his assignee; but, upon the delivery of such conveyance to such purchaser or his assignee, the latter shall execute and deliver to such executor or administrator a mortgage upon such premises.

according to the terms of the sale, the expense of making which mortgage and the recording thereof shall be paid by such purchaser or his assignee; which said mortgage, such executor or administrator shall cause to be recorded forthwith in the proper record of deeds of such county; and such certificate of sale, upon the delivery of such conveyance, shall be handed over to such executor or administrator; and such notes shall be retained by him, if the same are approved by the Court.

1. An Act of 1857 (p. 37) legalizes sales by executors and administrators made be-' fore February 19, 1857, under orders of the Circuit or Common Pleas Courts, when the heirs were notified.

2 An administrator's application to sell lands stands upon the same footing as an ordinary adversary judicial proceeding; and it can not, when jurisdiction has been obtained, be attacked collaterally, however erroneous.- Spalding v. Baldwin, 31 Ind. 376.

3. There is no warranty of title in administrator's sales; the purchaser must take notice of, and be liable for, incumbrances.- Martin v. Beasley, 49 Ind. 280.

4. An order for the sale of lands is not a final judgment from which an appeal lies. The order confirming the sale is such.-- Griffin v. Griffin, 10 Ind. 170; Staley v. Dorset, II id. 367; Crews v. Cleghorn, 13 id. 438.

2358. Sale, when vacated - Re-sale. 133. But if such Court shall be satisfied that such proceedings were unfair; or that the sum for which the real estate or any part thereof was sold is greatly disproportioned to the real value thereof; or that a sum exceeding such sum at least ten per cent. exclusive of the expense of such sale, can be obtained therefor, the Court may vacate such sale, in whole or in part. Or if it shall appear that the sureties taken on the notes for the purchase-money are insufficient, such sale shall not be confirmed until additional surety, to the satisfaction of the Court, be given; and if such purchaser fail to give such surety within the time required by the Court, the sale, as to such purchaser, shall be vacated. When any such sale, in whole or in part, shall be vacated, the Court shall direct another sale to be made, under the same regulations governing the first order and sale as to the real estate necessary to reexpose to sale.

2359. Sales under will. 134. When real estate or any interest therein is devised by the will, or directed to be sold for the payment of debts or legacies, the executor shall proceed to dispose of the estate, and apply the same according to the provisions of the will.

1. The authority of an executor has two sources: the will and the law of the place where it was executed.- Lucas . Tucker, 17 Ind. 41.

2360. Sales under will. 135. When real estate shall have been devised, as mentioned in the last preceding section, it shall not be necessary for the executor or administrator with the will annexed to file a petition or procure an order of Court for the sale of the real estate. Unless different provision be made in the will touching the manner of the sale, it shall be governed, as to the inventory and appraisement of the real estate, notice and terms of sale, report and conformation thereof and deed, by the provisions in this Act contained in reference to the sales of real estate by administrators for the payment of debts. Such sale, in the absence of directions in the will, may be at public or private vendue, in the discretion of the executor or administrator with the will annexed; and in case of private sale, notice thereof shall be given as in case of public sale, unless the appraised value of the real estate shall not exceed one thousand dollars, in

which case the sale may be made, in his discretion, without notice; and such sale, if at public vendue, shall not be for less than two-thirds of its appraised value, and, if at private vendue, for not less than the appraised value thereof.

2361. Sales under will. 136. When any real estate or any interest therein is given or devised, by any will legally executed, to the executors therein named, or any of them, to be sold by them, or any of them; or ⚫ where such estate is ordered by any will to be sold by the executors, and any executor or executors shall neglect or refuse to take upon him or them the execution of such will, then all sales made by the executor or executors who shall take upon him or them the execution of such will shall be equally valid as if the other executor or executors had joined in such sale.

1. Mere power to sell land, given in a will, does not vest any title in the land in the executor.-Doe v. Lanius, 3 Ind. 441; Thompson v. Schenck, 16 id. 194.

2. In such case, an executor or administrator can not receive any thing but money. - Chandler v. Schoonover, 4 Ind. 324.

3. Neither an administrator nor an executor can become a purchaser at his own sale.—Brackenridge v. Holland, 2 Blackf. 377; Shaw v. Swift, 1 Ind. 565; Martin . Wyncoop, 12 id. 266; Potter v. Smith, 36 id. 231; Hunsucker v. Smith, 49 id. 114.

2362. Form of deed. 137. Whenever an executor or administrator shall be ordered by the proper Court to execute a conveyance of the real estate of the decedent, a conveyance duly subscribed by him and worded substantially as follows: "A. B., as executor of the last will of C. D." (or "A. B., as administrator of the estate of C. D., by order of theCircuit Court of county, Indiana, entered in volume of the records of said Court, on page -, conveys to E. F. the following real estate [insert description], for the sum of dollars") shall vest in the grantee all the title in the real estate ordered by the Court to be conveyed, as completely as if all the proceedings of the Court preliminary to such conveyance had been fully recited therein. If, by the provisions contained in a will, the executor or administrator with the will annexed, be required or authorized, without the intervention of a Court, to execute a conveyance of any of the real estate of the decedent, such conveyance, duly subscribed by the executor or administrator with the will annexed, and worded substantially in the following form: "A. B., as executor of the last will of C. D." (or "A. B., as administrator with the will annexed of the estate of C. D., by virtue of said will recorded in volume of the record of wills of county, in the State of Indiana, on page —, conveys to E. F. the following real estate [here insert description], for the sum of dollars") shall be sufficient to convey the estate to the grantee as fully as any other form of conveyance.

I. The form of a conveyance by a Commissioner will be found in section 1023.

2363. Sales by foreign executors. 138. When any executor or administrator shall be appointed without, and there shall be no executor or administrator within, this State, the testator or intestate not having been, at the time of his death, an inhabitant thereof, the executor or administrator so appointed may file an authenticated copy of his appointment in the Circuit Court of any county in which there may be real estate of the deceased; after which he may be authorized by such Court to sell real estate for the payment of debts or legacies in the same manner and upon the

same terms as in the case of an executor or administrator appointed in this State, except as hereinafter provided.

1. A foreign executor or administrator may procure a sale of lands in the same manner and upon the same terms as one appointed in this State; and if he show his bond given to be already sufficient, need file no other.-Rapp v. Matthias, 35 Ind. 332; Stafford v. Davidson, 47 id. 319.

2. Neither a foreign nor domestic executor or administrator suing in his representa tive capacity is compelled to prove his appointment or introduce any evidence thereof unless his character, as such, be denied under oath.-Matlock v. Powell, 14 Ind, 378; . Jef., etc., R. R. Co. v. Hendricks, 26 id. 228.

[1881 S., p. 240. In force September 19, 1881.]

2364. Sale, when not avoided for defects. 612. No sale of any real estate, made by an executor, administrator, or guardian, shall be avoided on account of any irregularity or defect in the proceedings, if it shall appearFirst. That the sale was authorized by the Court having jurisdiction of the parties and the subject-matter.

Second. That the executor, administrator, or guardian gave bond, as required by law, or has accounted for the proceeds of such sale.

Third. That notice of the time and place of sale was given in the manner provided by law.

Fourth. That the premises were sold accordingly, and are held by or under one who purchased them in good faith. (538.)

[1855, p. 99. In force August 17, 1855.]

2365. When successor may execute order. 1. In all cases where an order of sale of real estate has heretofore been made, or shall hereafter be made on the application of any executor or administrator in any deced ent's estate, by any of the Courts of this State, and such executor or administrator has or may have died or resigned, or has been or hereafter may be removed, his successor or successors are hereby authorized to make sale and conveyance of any such real estate, upon the same terms and conditions, and subject to the same rules and regulations, as were or hereafter may be applicable to said executor or administrator who obtained such order of sale; but such successor shall give bond to account for the proceeds of such sales in the same manner as he or they should have done if said order had been obtained by them And it shall not, in any case, be necessary to revive said order of sale; but said successor shall carry on and conclude the proceedings upon such order in the same manner as said former administrator or executor should have done.

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

2366. Bond of foreign executor. 139. Whenever it shall appear to the Court that such foreign executor or administrator is bound, with sufficient surety, 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 that, by the laws of such State or country, his sureties are liable for the proper accounting for such proceeds, and a copy of such bond, duly authenticated, shall be filed in such Court, no further bond shall be required of him here. If, however, he be not thus sufficiently bound, he shall give bond in said Court as is required of executors or administrators appointed in this State. 2367. Jurisdiction in proceedings by foreign executor or administrator. 140. All proceedings by a foreign executor or administrator, in respect to the sale of land, shall be had in the Court in which such au