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the representatives of deceased persons, in the same manner as other claims against such deceased persons.




302. When Court may Decree Conveyance by

Executor, etc. 27. Notice of petition and Hearing. 2. Examination of Petition, etc. 32. When Decree for Conveyance to be made. 330. Appeal from Decree. 31. When Petition to be dismissed. $122. Bills in Chancery for Specific Performance.

3033. Decree thereon.
3034. Who to be authorized to make Conveyance.
3035. Effect of Conveyance.
3036. Certified copy of Decree may be recorded;

effect of Record.
3037. Decree may be enforced by process.
3038. In case of death of person entitled, his

heirs, etc., may prosecute proceeding.

Chapter Seventy-Six of Revised Statutes of 1846. (@)

(3026.) SECTION 1. When any person who is bound by a When Court may contract in writing to convey any real estate, shall die before decree convey making the conveyance, the Probate Court may make a decree 1 Kernan, 62. authorizing and directing the executor or Administrator to convey such real estate to the person entitled thereto, in all 1844, p. 113. cases where such deceased person, if living, might be compelled to execute such conveyance.

(3027.) Sec. 2. On the presentation of a petition by any Notice of petition person claiming to be entitled to such conveyance from any executor or Administrator, setting forth the facts upon which such claim is predicated, the Judge of Probate shall appoint a time and place for hearing such petition, and shall order notice of the pendency thereof, and of the time and place of hearing, to be published at least six successive weeks before such hearing, in such newspaper or newspapers in this State as he may deem necessary.

and hearing

(a) For prior Statutes relating to the same subject, see Code of 1820, p. 30; Rev. of 1827, 80; Rev. el 1833, 293; Laws of 1837, 164; R. S., 1838, 307 ; Lawa of 1840, 140, 1844, 118.

When decree for conveyance to be made.


Examination of

(3028.) Sec. 3. At the time and place appointed for such petitioner, etc.

hearing, or at such other time as the same may be adjourned to, upon proof by affidavit of the due publication of the notice, the Court shall proceed to a hearing, and all persons interested in the estate may appear before the Probate Court, and defend against such petition; and the Court may examine on oath the petitioner, and all others who may be produced before him for that purpose.

(3029.) Sec. 4. After a full hearing upon such petition, and examination of the facts and circumstances of such claim, if the Judge of Probate shall be satisfied that the petitioner is entitled to a conveyance of the real estate described in his petition, according to the provisions of this chapter, he shall thereupon make a decree, authorizing and directing the executor or Administrator to make and execute a conveyance

thereof to such petitioner. Appeal from

(3030.) Sec. 5. Any person interested may appeal from such decree to the Circuit Court for the same county, as in other cases; but if no appeal be taken from such decree within the time limited therefor by law, or if such decree be affirmed on appeal, it shall be the duty of the executor or Administrator to execute the conveyance according to the direction contained in such decree, and a certified copy of the decree shall be recorded with the deed, in the office of the Register of Deeds in the county where the lands lie, and shall be evidence of the correctness of the proceedings, and of the authority of the executor or Administrator to make the conveyance.

(3031.) Sec. 6. If, upon a hearing in the Probate Court as hereinbefore provided, the Judge of Probate shall doubt the right of the petitioner to have a specific performance of the contract, he shall dismiss the petition without prejudice to the rights of the petitioner, who may at any time thereafter have a bill in Chancery to enforce a specific performance of the

contract, as hereinafter provided. Bills in Chancery (3032.) Sec. 7. Whenever any person who is bound by a

contract in writing to convey any real estate shall die before making the conveyance, the person entitled thereto may have a bill in the Court of Chancery, to enforce a specific performance of the contract by his heirs, devisees, or the executor or Administrator of the deceased party who made such

contract. Decreo in Chan

(3033.) Sec. 8. The Court of Chancery shall hear and determine every such case brought in said Court, according to

When petition to be dismissed.



ized to make con


of record.

the course of proceedings in Chancery, and shall make such decree therein as justice and equity shall require.

(3034.) Sec. 9. If it shall appear that the complainant is Who to be authorentitled to have a conveyance, the Court may authorize and veyance. require the executor or Administrator of the deceased party to convey the estate in like manner as the deceased party might and ought to have done if living; and if the heirs or devisees of such deceased person, or any of them, shall be within this State, and competent to act, the Court may require them, or either of them, instead of the executor or Administrator, to convey the estate in the manner before mentioned, or may require them, or either of them, to join in such conveyance with the executor or Administrator.

(3035.) Sec. 10. Every conveyance made in pursuance of a Efect of convey. decree of the Probate Court or the Court of Chancery, as provided in this chapter, shall be effectual to pass the estate contracted for, as fully as if the contracting party himself was still living, and then executed the conveyance.

(3036.) Sec 11. A copy of the decree for a conveyance made Certified copy of by the Probate Court, and duly certified and recorded in the recorded effect Registry of Deeds in the county where the lands lie, or a copy of the decree of the Court of Chancery for that purpose, duly certified by the Register of said Court and recorded as aforesaid, shall give the person entitled to such conveyance a right to the possession of the lands contracted for, and to hold the same according to the terms of the intended conveyance, in like manner as if they had been conveyed in pursuance of the decree.

(3037.) Sec. 12. The recording of any decree, as provided in Decres may be the preceding section, shall not prevent the Court making such cess. decree from enforcing the same by any proper process, according to the course of proceedings therein.

(3038.) Sec. 13. If the person to whom the conveyance was in case of death to be made, shall die before the commencement of proceedings tled, his heirs, according to the provisions of this chapter, or before the con-mence or prose

cute proceedings veyance is completed, any person who would have been entitled to the estate under him as heir, devisee or otherwise, in case the conveyance had been made according to the terms of the contract, or the executor or Administrator of such deceased person, for the benefit of the person so entitled, may commence such proceedings, or may prosecute the same if already commenced ; and the conveyanco shall thereupon be

enforced by pro

80 made as to vest the estate in the same persons who would have been so entitled to it, or in the executor or Administrator for their benefit.




CHAPTER CI. Of the Sale of Lands for the Payment of Debts by Executors, Administrators

and Guardians
CHAPTER CII. or the sale of Lands of Minors and other persons under Guardianship, and

Securing the Proceeds for their use.
CHAPTER CIII. of the Sale of Real Estate on Executions,





3039. When Real Estate may be sold for the

payment of Debts.
3040. Petition for License to sell.
3041. Order to show cause why License should

not be granted. 3042. Copy of Order to be served or published. 3043. Hearing 3044. Petitioner and Witnesses may be exam.

ined. 3045. Probate Court may License Sale of whole

or part of Real Estate. 3046. Executor, etc. to give Bond in certain

cases before Sale.

S047. Proceeds of Sale deemed Assets, and

accounted for as such.
3048. When no License to be granted on Bond

being given. 3049. For whose benefit Bond may be prose

cuted. 6050. When Court may order Sale. 3051. Order to specify Lands to be sold, and the

order of the Sale.
8052. Certified copy of Order to be delivered to

Executor, etc.
3063. Sale of Reversion of Dower.
8064. Notice of Sale.

3055. Where, when, and how Sale to be made.
3066. Esecutor, etc., forbidden to purchase.
3057. Credit on Sale.
3058. Return by Executor, etc., and proceed.

ings of the Court thereupon.
3059. If sale fair, etc., order of confirmation to

be made. 3000. Esecutor, etc., to take oath before sale. 3061. Afidarit of notice of sale. 2002. Post povement of sale. 3063. Xotice of each postponement. 3064. Sale for payment of Legacies may be au

thorized. 3853. Interest in Land held under contract may

be soli. 3060 Sale to be made subject to payments to

become due, and indemnity to be given. 3067. Copiition of Bond of Indemnity. 3003. Assignment of contract and rights of

parchaser, 2009. Proceeds of sale, how disposed of. 3070. Sales to be made subject to incumbrances. 3071. Foreign Executor, etc., may file copy of

his appointment. 3072. May be licensed to sell lands for payment

of Debts and Legacies. 3073. When no further Bond required of such

Execator, etc. 3074. Then Bond required, and what to contain.

3075. When licensed to sell more than necessary

for payment of Debts, Bond to be given.
3076. Guardian when may be licensed to sell

Real Estate of ward.
3077. Court may license sale of whole or part of

ward's estate.
3078. Guardian to give Bond.
3079. When license not to be granted without

approbation of Superintendents of Poor.
3080. Who entitled to notice of hearing.
3081. Foreign Guardian may file copy of his

3082. May be licensed to sell Real Estate of

3083. When Bond required, and when not.
3084. When licensed to sell more than neces-

sary to pay Debts, Bond to be given.
3085. Surplus to be considered Real Estate.
3086. Guardian to take oath before sale,
3087. When Court may award costs.
3088. Limitation of actions to recover Estate sold.
3089. Case of Minors and others under disability,
3090. Sale not to be avoided by heir or ward for

certain irregularities.
3091. Damages recoverable for misconduct in

relation to sale.
3092. Sale not to be avoided by adverse claim-

ant for certain irregularities.
3093. Liability of Executor, etc., for Fraud.

Chapter Seventy-Seven of Revised Statutes of 1846. (a)

(3039.) SECTION 1. When the personal estate of any de- When Real E. ceased person, in the hands of his executor or Administrator, fore payment of shall be insufficient to pay all his debts, with the charges of 13 111. Rep., 171. administering his estate, his executor or Administrator may 1843, p. 172 sell his real estate for that purpose, upon obtaining a license therefor, and proceeding therein in the manner hereinafter provided.

(3040.) Sec. 2. In order to obtain such license, the executor Petition to be or Administrator shall present a petition to the Probate Court to be set forth. from which he received his appointment, setting forth the amount of personal estate that has come to his hands, and how much thereof, if any, remains undisposed of; the debts outstanding against the deceased, as far as the same can be ascertained; a description of all the real estate of which the testator or intestate died seized, and the condition and value o Mass., 149.

(a) For prior laws relative to the Sale of lands by Executors, Administrators and Guardians, see Case Code 61, 77; Code of 1820, 29, 37, 43, 57, 59; Rev. of 1827, 75, 87; Laws of 1828, 4; 1831, 5; Per. 1833, 291, 318; 1835, 115; 1837, 163; R. S. 1838, 311, 319; 1840, 25; 1843, 172; 1844, 113.

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