An administrator may transfer notes belonging to the estate so as to vest the title in the assignee, except when the transfer is made for the private use of the administrator to a person having notice thereof. Thomas v. Reister, 3 Ind. 369; Thomasson v. Brown, 43 Ind. 203; Krutz v. Stewart, 76 Ind. 9; Rogers v. Zook, 86 Ind. 237; Nugent v. Laduke, 87 Ind. 482.

2437. (2282.) Assignment of contract.-58. When any such contract is sold, the executor or administrator shall assign and deliver the same to the purchaser thereof without recourse.

2438. (2283.) Effect of assignment.-59. Such assignment and delivery shall invest all the rights to enforce or dispose of such contract or agreement in such purchaser which would have vested in him if the deceased had made such assignment.

The administrator of a deceased tenant, by selling and assigning the lease, does not relieve the estate from the obligation to pay the rent accruing thereon subsequent to the death of the intestate. Carley v. Lewis, 24 Ind. 23.

2439. (2284.) Sale of contract for land.-60. If any such contract was for the purchase of land, and there are payments due or to become due thereon, and the court is satisfied, upon such executor or administrator filing his petition therefor, verified by affidavit, that it would be more to the advantage of the persons interested in such estate, that the interests of the deceased therein, under such contract, should be sold, than that the assets in the hands of the executor or administrator should be applied to the payment of such purchase-money, or that the assets are insufficient to pay the same, the court shall order the executor or administrator to dispose of the interest of the deceased therein at public or private sale.

2440. (2285.) Sale and report.-61. If such sale be ordered to be made by public outcry, notice thereof shall be given as in case of public sale of the personal property; but if it be ordered to be private, no such notice shall be necessary; and, in such case, such contract shall not be sold for less than its appraised value; and a return of such sale, whether public or private, shall be made at the next term of such court, when it shall be confirmed, unless it shall appear to have been fraudulently made or that a sum exceeding ten per cent. on the amount bid can be obtained, in which case it shall be vacated and a new sale ordered.

2441. (2286.) Bond of purchaser.-62. Such sale shall be made subject to all payments due or to become due, and shall not be confirmed by the court until the purchaser shall execute a bond to such executor or administrator, for his indemnity and the indemnity of the persons entitled to the interest of the deceased in such land, in a penalty of double the whole amount of such payments, with condition that such purchaser will make all payments subject to which such sale has been made, and will fully indemnify the executors and administrators of the deceased and the persons so entitled, against all demands by reason of any covenant or agreement contained in such contract so sold, or by reason of any other liability of the deceased, on account of

the purchase of such land, and against all the covenants and agreements of the deceased with the vendor of such land, in relation thereto. 2442. (2287.) Assignment of contract.-63. When such sale shall be confirmed, the court shall direct the executor or administrator to execute an assignment of such contract to the purchaser; which assignment shall vest in such purchaser all the title of the persons having the right to the interest of the deceased in the land, thus sold, at the time of sale; and such purchaser shall have the same remedies against the vendor of such land as the deceased would have had if he were living.

2443. (2288.) Sale of part.-64. If, in the opinion of the court, a part of such land may be sold advantageously to the estate of the deceased, so that the moneys arising from such part will pay the amount of the purchase-money due or to become due therefor, such court may order a part only of such land to be sold; and, in that case, the purchaser need not execute bond as hereinbefore required.

2444. (2289.) Private sale of personalty.-65. Whenever the circuit court shall be satisfied that it would be for the advantage of such estate to sell any part of the personal property thereof at private. sale, such court may authorize the executor or administrator to thus sell the same; but such property shall in no case be sold for less than its appraised value, nor shall such executor or administrator become the purchaser thereof; and a return of such sale shall be made within the time prescribed by the court, not to extend beyond three months; and cash or notes shall be taken for the purchase-money as in case of public sale of the personal property of the deceased: Provided, however, That if the court shall find upon inquiry that in any particular case it is to the interest of the estate to make such sale upon a credit of more than twelve months it shall so direct and order and fix such terms of credit as to it shall seem fit and proper.

(As amended, Acts 1891, p. 14. In force February 4, 1891.)

If a bidder for property at a public sale does not complete his purchase, the property may be sold at private sale and such bidder held liable for the difference between his bid and the amount the property sells for. Meek v. Spencer, 8 Ind. 118.

Personal property must be sold at public sale unless a private sale is ordered by the court. Weyer v. Bank, 57 Ind. 198; Citizens', etc., Co. v. Robbins, 128 Ind. 449. Private sales must be made in substantial compliance with the order of the court or the same will be invalid. Citizens', etc., Co. v. Robbins, 128 Ind. 449.

If the order of sale requires a confirmation of the sale by the court, no title passes until such confirmation. Williams v. Perrin, 73 Ind. 57.

Unless the order directing the sale requires a confirmation thereof by the court, no confirmation is necessary to complete the sale. Citizens', etc., Co. v. Robbins, 128 Ind. 449.

Courts have the same power to set aside private sales of personal property as they have to set aside sales of real estate. Williams v. Perrin, 73 Ind. 57.

If purchasers at such sales by any improper means prevent persons from attending the sale and bidding on the property, the sale will be set aside. Anderson v. Pedigo, 126 Ind. 564.

2445. (2290.) Clerk of public sale.-66. An executor or adminis trator making a public sale of personal property shall select a clerk

to keep an account thereof, who shall not be related to him or interested in the estate; he shall be furnished, by the executor or administrator, with a copy of the inventory of the property to be sold, and shall keep a minute of each article sold, the number thereof on the inventory, to whom and for how much sold, the amount of cash paid by each purchaser, and names of sureties taken on notes; he shall, on completion of the sale, make out on printed blanks prepared for that purpose, a sale bill thereof, which shall specify the time, place and terms of sale, the different articles sold, prices thereof, amount of cash paid, and names of purchasers and sureties; the articles shall be arranged in the sale-bill, [in] numerical order, in which they appear on the inventory, and opposite each article on the margin shall be noted the number it bears on the inventory; if any of the articles named in the inventory, and subject to sale, remain unsold, the clerk of the sale shall subjoin to the sale-bill a list thereof, in the order in which the[y] appear on the inventory, noting in the proper columns opposite each article the number and appraisement thereof, as shown on the inventory; the sale-bill and subjoined list shall be correctly added up and the footings noted on each; the clerk of the sale shall thereupon take and subscribe an oath, to be indorsed upon or attached to the sale-bill, that the sale-bill and subjoined list, if any, contained a true and complete account of the sale of the personal property of the deceased, by the executor or administrator, and of the articles remaining unsold, as shown by the inventory, the sale-bill and subjoined list shall be returned to the clerk of the court in which the estate is pending, whereupon like proceedings shall be had as upon the return of an inventory and appraisement.

(As amended, Acts 1883, p. 152. Ell. Supp., section 384. In force March 7, 1883.)

SEC.

ARTICLE 7.-SUITS BY EXECUTORS AND ADMINISTRATORS.

2446. Suits, what for.

2447. Profert of letters.

2448. No abatement.

2449. Appeal-Execution.

2450. Executor of executor.

2451. Foreign executor or trustee.

2452. Foreign executor, etc.

2453. Foreign executor-Right to sue. 2454. Collecting-Compounding-Buying

and selling.

SEC.

2455. Concealing goods.

2456. Compounding desperate debts.
2457. Filing desperate claims.

2458. Worthless sale-notes.

2459. Suit on worthless notes.

2460. Proceeds, how applied.

2461. Compensation of party suing.
2462. Party suing must give bond.
2463. Suit, how brought.

2464. Liability of party suing.

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

2446. (2291.) Suits, what for.-67. Every executor or administrator shall have full power to maintain any suit in any court of competent jurisdiction, in his name as such executor or administrator, for any demand of whatever nature due the decedent in his lifetime, for the recovery of possession of any property of the estate, and for trespass or waste committed on the estate of the decedent in his lifetime; but he shall not be liable, in his individual capacity, for any costs in

such suit, and shall have power, at his option, to examine the opposite party, under oath, touching such demand; but evidence, thus obtained, shall not afterward be used in any prosecution against such party.

Executors and administrators may sue before justices of the peace. Arnold v. Fleming, 14 Ind. 10.

The right of a person to sue as executor or administrator must be raised by a plea in abatement. Nolte v. Libbert, 34 Ind. 163; Kelley v. Love, 35 Ind. 106; Hansford r. Van Auken, 79 Ind. 157.

If it appears that the plaintiff sues in his representative capacity, his appointment nor death of the decedent need not be alleged in the complaint. Kelley v. Love, 35 Ind. 106.

An administrator may sue on a contract payable to him as such, in his individual capacity. Barnes v. Modisett, 3 Blkf. 253.

An administrator may sue on the bond of a former administrator. Myers v. State, ex rel., 47 Ind. 293.

Suits on account of a breach of covenants in a deed should be brought by the executor or administrator of the grantee. Burnham v. Lasselle, 35 Ind. 425.

An administrator of a deceased tenant is the proper party to sue for an unlawful entry by the landlord into possession of the property. Smith v. Dodds, 35 Ind. 452.

Executors and administrators recovering judgment for any amount in the circuit court will recover all costs. Wheeler v. Calvert, 25 Ind. 365; Hillenberg v. Bennett, 88 Ind. 540.

Executors and administrators are entitled to be reimbursed for expenses incurred in defending suits brought against them. Mackey v. Ballow, 112 Ind. 198.

An action for the conversion of the property of a decedent should be brought by his executor or administrator. Douglass v. McCarer, 80 Ind. 91.

If a personal judgment is rendered against an executor for costs, he will be personally liable therefor. State, ex rel., v. Ritter, 20 Ind. 406.

2447. (2292.) Profert of letters.-68. In any suit contemplated by the preceding section, it shall not be necessary for such executor or administrator to make profert of his letters, nor shall his right to sue as such executor or administrator be questioned, unless the opposite party shall file a plea denying such right, with his affidavit to the truth thereof thereunto attached, in which case a copy of the letters issued to such executor or administrator, duly authenticated, shall be all the evidence necessary to establish such right.

The right of a plaintiff to sue as executor or administrator can not be questioned except by a sworn answer in abatement. Nolte v. Libbert, 34 Ind. 163; Kelley v. Love, 35 Ind. 106.

Profert of letters of an executor or administrator need not be made when they sue. Cromwell v. Barnes, 58 Ind. 20; Hansford v. Van Auken, 79 Ind. 157.

2448. (2293.) No abatement.-69. If, at the time any executor or administrator shall die, resign or be removed, any suit or proceeding be pending in any court in which his name, in his fiduciary capacity, is used, such suit or proceeding shall not abate or be discontinued, but the same shall be prosecuted or defended by the remaining executor or administrator, if there be one, or by his successor, the name of such survivor or successor being substituted in such suit or proceed

ing instead of that of the executor or administrator whose authority has ceased; nor shall such suit or proceeding be continued to another term on account of such death, unless at the option of such survivor

or successor.

2449. (2294.) Appeal-Execution.-70. Any executor or administrator shall have power to prosecute any writ of error or appeal taken by the testator or intestate or by his predecessor, and may have execution and other legal process issued on any judgment obtained by the testator or intestate or by his predecessor in the trust, without reviving the same by scire facias or any other notice to the judgment-defendant.

This section makes it unnecessary to have a judgment revived to obtain execution, but the right of revivor is not taken away. Wyant v. Wyant, 38 Ind. 48; Armstrong v. McLaughlin, 49 Ind. 370; Mavity v. Eastridge, 67 Ind. 211.

2450. (2295.) Executor of executor.-71. An executor of an executor shall have no authority to commence or maintain any action or proceeding relating to the estate or rights of the testator of the first executor, or to take control thereof as such executor.

The administrator of an administrator is not administrator of the first intestate, nor has he a right to administer any of the goods of such intestate. Ray v. Doughty, 4 Blkf. 115.

2451. (2296.) Foreign executor or trustee.-72. When a will is executed in another state or country, and admitted to record in this state, the executor or administrator with the will annexed, and any trustee appointed by such will, or by any court of this state to perform any duty or carry into effect any trust created by such will, shall have all the rights, powers, and authority, and shall be subject to the same liabilities respecting their respective duties and trusts, as executors, administrators with the will annexed, and trustees under wills duly executed and admitted to probate in this state.

2452. (2297.) Foreign executor, etc.-73. The courts of this state shall, in all such cases, have the same jurisdiction and powers over the appointment, filling vacancies, requiring sureties, and enforcing, directing, and restraining the performance and execution of the duties and trusts of such executors, administrators with the will annexed, and trustees, as are given to such courts respecting the same matters arising under wills duly executed and admitted to probate in this state. 2453. (2298.) Foreign executor-Right to sue.-74. A non-resident executor or administrator duly appointed in any other state or country may commence and prosecute any suit in any court of this state, in his capacity of executor or administrator, in like manner and under like restrictions as a resident; and a copy of his letters, duly authenticated in like manner as provided in this act, being produced and filed in the court in which such suit is brought, shall be sufficient evidence of his due appointment: Provided, That he shall give bond for costs under the laws regulating the maintaining of suits by nonresident citizens.