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. NOTE.-Stats. 1861, p. 642, Sec. 58. See notes to Secs. 1538, 1539, 1540, particularly Subd. Note 4. The order of sale.-Secs. 1541, 1542, 1543, ante. The order of sale is in the nature of a decree in chancery-an adjudication.-See Spriggs' Estate, and Haynes vs. Meeks, quoted at some length, Subd. Note 4 to Sec. 1510; see, also, Fallon vs. Butler, 21 Cal., p. 30; Boyd vs. Blankman, in note preceding. So may an order of sale be made, to pay expenses of administration, though the amount is not ascertained, if it is shown to be necessary.-Abila vs. Burnett, 33 Cal., p. 658. order of sale must contain. 1544. (§ 163.) The order of sale must describe What the 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 May be at auction, unless, in the opinion of the Court, it would privato 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, public or salo. Interested persons made on motion, after due notice, by any party interested. NOTE.-Stats. 1861, p. 642, Sec. 59. See Spriggs' Estate, 20 Cal., p. 124; Estate of Woodworth, 31 Cal., p. 605; and Brenham vs. Story, 39 Cal., p. 185, cited in notes, ante, in this Article. A sale upon insufficient notice, is at least voidable, if not absolutely void.Haynes vs. Meeks, 10 Cal., p. 119; Halleck vs. Moss, 17 Cal., p. 344. 1545. (§ 164.) If the executor, or administrator may apply neglects to apply for an order of sale when it is neces for order of sale. Form of petition. To deliver copy of order to executor. sary, 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. NOTE.-Stats. 1861, p. 642, Sec. 60. This order must be obtained in the same manner, after the same proceedings, as in other cases under this Article. 1546. (§ 165.) 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. NOTE.-Stats. 1861, p. 643, Sec. 61. See Halleck vs. Gray, 9 Cal., p. 195; Haynes vs. Meeks, 10 Cal., p. 119. It is held in this case "that there was a fatal defect in the notice under which the sale was made. Without order of the Probate Court, notice was published in a newspaper. No posting of notices was attempted to be shown, and this was the only notice authorized to be given. A sale upon an insufficient notice is at least voidable, if not absolutely void." An order obtained for the sale of personal property, under an application for the sale of real property, it being shown that all the personal property had not been sold, and was on this hearing ordered to be sold, is a valid order. The real estate could not be sold until the personal property had been disposed of, and the showing in the petition for sale of the realty sale. 1547. (§ 166.) When a sale is ordered, and is to Notice of 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 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. NOTE.-Stats. 1865-6, p. 766, Sec. 6; see note to the preceding section; see, also, McCoy vs. Crawford, 9 Texas, p. 353; Hardy vs. DeLeon, 5 Texas, p. 212. A sale made twelve years after the order was held void.Willman vs. Lawrence, 15 Mass., p. 326. When the directions of the Code are not pursued, the sale is void. This seems to have been held in Wiley vs. White, 3 Stew. & Port, Ala., p. 355. place. 1548. (§ 167.) Sales at public auction must be Time and 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. NOTE.-Stats. 1861, p. 643, Sec. 62; 1864, p. 370, Sec. 13; 1865-6, p. 766, Sec. 7; see note to Sec. 1546, ante. Private sale of real made, and notice. 1549. ($167.) When a sale of real estate is ordered estate, how 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 Bids, when 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. and how received. Ninety per cent of appraised value must be offered. NOTE.-Stats. 1865-6, p. 766, Sec. 8. 1550. (§ 167.) 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 13 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. NOTE.-Stats. 1865-6, p. 767, Sec. 9. Estate of Lewis, 39 Cal., p. 307, presents a case of a sale to one holding an allowed claim against the estate, which was a prior lien, the Court held it to be unnecessary to pay to the administrator the purchase money, which must be im-. mediately returned to the purchaser. money on credit, how 1551. (§ 168.) The executor or administrator Purchase 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. sale on secured. and setting aside sale, and when be ordered. 1552. (§ 169.) The executor or administrator, Hearing after making any sale of real estate, must make a return of his proceedings to the Probate Court, which resale may 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. If the sale be not made at public auction, or if made at public auction a hearing upon the return of proceedings be asked for in the return, or is brought on for a hearing upon a day before the first day of the next term. thereafter, or upon any other day than the first day of the next term after such sale, the Court or Judge must fix the day for the hearing, of which notice of at least ten days must be given by the Clerk, by notices posted in three public places in the county, or by publication in a newspaper, or both, as the Court or Judge 33-VOL. II. |