of Woodworth, 31 Cal., p. 605; Redf. Wills, Part II, 1560. (§ 177.) If the testator makes provision by his will, or designates the estate to be appropriated for the payment of his debts, the expenses of administration, or family expenses, they must be paid according to such provision or designation, out of the estate thus appropriated, so far as the same is sufficient. NOTE.-See Civil Code, Sec. 1359, et seq., and notes, and cases cited in note preceding. Where debts, etc., payment of provided for by will. without require 1561. (§ 178.) When such provision has been Sale made, or any property directed by the will to be sold, order, may the executor or administrator with the will annexed, security. may sell, without the order of the Probate Court, but he must give notice of the sale, return accounts thereof to the Court, and make the sale in all respects as under order of the Court, unless there are special directions in the will, in which case he must be governed thereby. NOTE.-Stats. 1861, p. 645, Sec. 68. See note to Sec. 1559, ante, and Panaud vs. Jones, 1 Cal., p. 516; Gregory vs. Haynes, 13 id., p. 596; Norris vs. Harris, 15 id., p. 249; Payne vs. Payne, 18 id., p. 302. Where the will contains specific directions as to the disposition of the testator's estate, and empowers the executor to proceed in a particular mode, without any reference to the mode dictated by the Probate Act (the Code), the will so far takes the place of the Act, and becomes the executor's source of power and guide in the premises, under the rule announced in Norris vs. Harris, and Payne vs. Payne, supra; Larco vs. Casaneuava, 30 Cal., p. 567. See, also, Estate of Woodworth, 31 id., p. 606; and Kidwell vs. Brummagim, 32 id., p. 441. The act of the only one of three executors appointed, who qualified, in making the sale as directed, is valid.— Wood vs. Sparks, 1 Dev. & Bat., N. C., p. 389. Where provision by will insufficient. Estate 1562. (§ 179.) If the provision made by the will, or the estate appropriated therefor, is insufficient to pay the debts, expenses of administration, and family expenses, that portion of the estate not devised or disposed of by the will, if any, must be appropriated and disposed of for that purpose, according to the provisions of this Chapter. NOTE.-See Civil Code, Title "Wills," Sec. 1358, et seq., and notes to preceding sections, and cases therein cited, particularly the preceding note. 1563. ($180.) The estate, real and personal, given debts, etc. by will to legatees or devisees, is liable for the debts, subject to Contribu tion among legatees. Contract for expenses of administration, and family expenses, in proportion to the value or amount of the several devises or legacies, but specific devises or legacies are exempt from such liability if it appears to the Court necessary to carry into effect the intention of the tes tator, and there is other sufficient estate. NOTE.-See Civil Code, Title" Wills," Secs. 1357-77, and notes; also, notes to preceding sections, 1559, et seq. 1564. (§ 181.) When an estate given by will has been sold for the payment of debts or expenses, all the devisees and legatees must contribute according to their respective interests to the devisee or legatee whose devise or legacy has been taken therefor, and the Probate Court, when distribution is made, must, by decree for that purpose, settle the amount of the several liabilities, and decree the amount each person shall contribute, and reserve the same from their distributive shares respectively, for the purpose of paying such contribution. NOTE.-See "Abatement," Secs. 1361, 1362, Civil Code, and notes. 1565. (§ 182.) If a decedent, at the time of his purchase of death, was possessed of a contract for the purchase of lands may be old, how. lands, his interest in such land and under such con tracts 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 Chapter for the sale of lands of which he died seized, except as hereinafter provided. of sale. 1566. (§ 183.) The sale must be made subject to Conditions all payments that may thereafter become due on such contracts, and if there are any such, the sale must not be confirmed by the Probate Judge until the purchasers execute a bond to the executor or administrator, for the benefit and indemnity of himself and of the persons entitled to the interest of the decedent in the lands so contracted for, in double the whole amount. of payments thereafter to become due on such contract, with such sureties as the Probate Judge shall approve. to give 1567. ( 184.) The bond must be conditioned Purchaser that the purchaser will make all payments for such bond. land that become due after the date of the sale, and will fully indemnify the executor or administrator and the persons so entitled against all demands, costs, charges, and expenses, by reason of any covenant or agreement contained in such contract. pur to assign contract. 1568. (§ 185.) Upon the confirmation of the sale, Executor the executor or administrator must execute to the chaser an assignment of the contract, which vests in the purchaser, his heirs and assigns, all the right, title, and interest of the estate, or of the persons entitled to the interest of the decedent, in the lands sold at the time of the sale, and the purchaser has the same rights and remedies against the vendor of such land as the decedent would have had if he were living. 34-VOL. II. Sales by executors istrators of lands under mortgage or lien. 1569. (§ 186.) When any sale is made by an or admin- executor or administrator, pursuant to the provisions of this Chapter, of lands subject to any mortgage or other lien, which is a valid claim against the estate of the decedent, and has been presented and allowed, the purchase money must be applied, after paying the necessary expenses of the sale, first to the payment and satisfaction of the mortgage or lien, and the residue, if any, in due course of administration. The application of the purchase money to the satisfaction of the mortgage or lien must be made without delay; and the land is subject to such mortgage or lien until the purchase money has been actually so applied. No claim against any estate which has been presented and allowed is affected by the Statute of Limitations, pending the proceedings for the settlement of the estate. The purchase money, or so much thereof as may be sufficient to pay such mortgage or lien, with interest, and any lawful costs and charges thereon, may be paid into the Probate Court, to be received by the Clerk thereof, whereupon the mortgage or lien upon the land must cease, and the purchase money must be paid over by the Clerk of the Court without delay, in payment of the expenses of the sale, and in satisfaction of the debt, to secure which the mortgage or other lien was taken, and the surplus, if any, at once returned to the executor or administrator, unless for good cause shown, after notice to the executor or administrator, the Court otherwise directs. NOTE.-Stats. 1861, p. 645, Sec. 69; 1863, p. 698, Sec. 1. It is not intended here to do more than to refer to some decisions arising under this section, since the amendments of the Code on the subject are supposed to have obviated many of the difficulties which gave rise to these decisions.-See amendment to Sec. 1500, ante, authorizing action to foreclose mortgage. Cases cited: Ellisson vs. Halleck, 6 Cal., p. 392; Falkner vs. Folsom's Executors, id., p. 412; Belloc vs. Rogers, 9 Cal., p. 128; Est. of Murray, 18 id., p. 687. In this case this section is construed ex- of the The holder mortgage purchase or lien may His receipt to the amount of 1570. (§ 186.) At any sale, under order of the Probate Court, of lands upon which there is a mortgage or lien, the holder thereof may become the purchaser, and his receipt for the amount due him from the proceeds of the sale is a payment pro tanto. the amount for which he purchased the property is payment. insufficient to defray the expenses and discharge his mortgage or lien, he must pay to the Court or the Clerk thereof an amount sufficient to pay such expenses. If his claim NOTE.-See cases and notes cited in preceding note; also, Estate of Murray, 18 Cal., p. 687; Ellis vs. Polhemus, 27 Cal, p. 354; Estate of Lewis, 39 Cal., p. 308. a valid trator and executor misconduct liable for in sale. 1571. (§ 188.) If there is any neglect or miscon- Adminisduct in the proceedings of the executor in relation to any sale, by which any person interested in the estate suffers damage, the party aggrieved may recover the same in an action upon the bond of the executor or administrator, or otherwise. NOTE.-See Haynes vs. Meeks, 20 Cal., p. 317, and |