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The petition need only state that the decedent died seized in fee simple of the lands. Jackson v. Weaver, 98 Ind. 307.

If persons are made parties to a petition as the heirs of the decedent only, their interest as such heirs is all that will be affected by the proceedings. Elliott v. Frakes, 71 Ind. 412; Bumb v. Gard, 107 Ind. 575.

The petition must clearly show that there is a necessity for selling the land. Renner v. Ross, 111 Ind. 269.

The widow of the decedent is a proper party to a petition to sell lands to pay debts. Smock v. Reichwine, 117 Ind. 194.

2492. (2339.) Hearing.-114. Such petition shall stand for hearing on the first day of the next term after giving notice as provided in the next section, unless the executor or administrator shall fix a different day during the term for such hearing, by indorsement on the petition at or before the time of filing thereof. If there be not time sufficient for the giving of such notice before the close of said term, the defendants shall be notified to appear and answer the petition on the first day of the next ensuing term.

2493. (2340.) Notice of petition.-115. Notice of the time and place of hearing such petition shall be given by three successive publications in a weekly newspaper printed in the county, or if there be none printed therein, in a newspaper nearest thereto in the state, thirty days before the hearing of such petition, and by posting up written or printed notices thereof in three public places, in the township where such real estate is situated.

(As amended, Acts 1883, p. 157. Ell. Supp., section 395. In force March 7, 1883.) See next succeeding section.

It will be presumed that the proper notice was given when the record does not show the contrary. Doe v. Harvey, 3 Ind. 104; Gerrard v. Johnson, 12 Ind. 636; Hawkins v. Ragan, 20 Ind. 193; Hawkins v. Hawkins, 28 Ind. 66.

If notice is not given the sale will be void. A guardian ad litem for minors can not waive the service of notice on them. Martin v. Starr, 7 Ind. 224; Guy v. Pierson, 21 Ind. 18; Hawkins v. Hawkins, 28 Ind. 66.

The notice need only be published in the county where the administration is pending. Gavin v. Graydon, 41 Ind. 559.

A publication for three consecutive weeks is a publication for twenty-one days, and not simply three insertions in a newspaper. Loughridge v. City, 56 Ind. 253; Security Co. v. Arbuckle. 123 Ind. 518; Horn v. Bank, 125 Ind. 381.

[Acts 1891, p. 367. In force March 9, 1891.]

2494. Notice of petition.-1. Whenever any executor or administrator of any decedent's estate shall have filed in the proper court a petition for the purpose of procuring an order for the sale of real estate, for the purpose of paying the debts of such decedent's estate, that notice of the pendency of the petition and of the time and place of hearing the same shall be served upon the defendants personally at least ten days before the time set for hearing the same, unless it appear from the petition or affidavit filed therewith that the names of the residences of any of them are unknown, or that any of them are non-residents of this state, in which case such notice shall be given

by publication for three weeks successively in some public newspaper published in the county in which the administration of the estate is pending, if any be published therein, and if not, then in some public newspaper published nearest thereto in this state, at least ten days before the time set for hearing the said petition. The notices herein provided for shall be issued by the clerk of the court, and attested by his signature and the seal of the court.

2495. Pending notices.-2. All notices pending at the time of the taking effect of this act, that have been given under existing laws of the pendency and hearing of petitions by executors and administrators to sell real estate for the payment of debts of decedents' estates shall have as full force and effect and not to be in any way affected by the passage of this act.

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

2496. (2341.) Waiver of notice.-116. Whenever any of the defendants to such petition are of lawful age, and shall signify in writing their assent to such sale, the notice required by section 115 of the above entitled act as amended by the act of March 7, 1883, may be dispensed with as to such persons, and if such persons be minors, and their guardians shall give such assent, such notice shall not be required, but should said guardian be the administrator or executor of the estate and also guardian of the heirs of the decedent, such guardian shall not give his assent to such sale, and in all such cases notice must be given to such minors as by law now provided, and after notice the court shall appoint a guardian ad litem for such minors as provided in section 119 of said above described act, and if their interests require active opposition the court may allow attorney's fees to such guardian.

(As amended, Acts 1885, p. 237. Ell. Supp., section 418. In force July 18, 1885.) Where the administrator, who was also guardian of the minor heirs, filed his assent as such guardian to the sale without notice, it was held that the sale was not void. Jones v. Levi, 72 Ind. 586.

The guardian of minors may waive notice and assent to a sale of the lands. Helms v. Love, 41 Ind. 210; Seward v. Clark, 67 Ind. 289.

2497. (2342.) Creditor may require petition.-117. Any creditor of the decedent whose claim shall have been filed and allowed by the court may file his petition showing the insufficiency of the personal estate of the decedent to pay the liabilities thereof, and that the decedent died owning real estate liable to be made assets for the payment of his debts, and praying an order requiring the executor or administrator to proceed to sell such real estate for the payment of such debts. The executor or administrator shall be entitled to five days' written notice of the petition, and the time when it will be presented for hearing. If, upon such hearing, the petition be found by the court to be true, and no cause be shown to the contrary, the court shall order the executor or administrator, within a reasonable time, to be fixed by the court, to prepare and file his petition for the sale of

such real estate; and in default of his so doing, the court shall remove him from his trust and appoint a successor, unless good cause be shown for the delay, when further time may be granted, with like. consequence upon default.

The petition of a creditor under this section need not allege that the executor or administrator has refused to act in the matter. Whisnand v. Small, 65 Ind. 120.

This section does not apply to lands conveyed by the decedent to defraud his creditors. Bottorff v. Covert, 90 Ind. 508.

If a sale is ordered it must be made by the executor or administrator. Small, 65 Ind. 120.

Whisnand v.

2498. (2343.) Who may be admitted as parties.-118. Any person not a party to such petition may, upon proper petition, be admitted as a party to the proceedings, and set up any interest in or lien upon the land, and have the same heard and determined.

2499. (2344.) Guardian ad litem.-119. If it shall appear that any of the heirs or devisees of the deceased are minors, the court, before hearing the petition, shall appoint a guardian ad litem for such minors; and if their interests require active opposition, the court may allow attorney's fees to such guardian.

If a guardian ad litem is not appointed for minors, the order of sale will be erroneous. Timmons v. Timmons, 6 Ind. 8.

A guardian ad litem can not waive the service of notice on minors of the pendency of the petition. Martin v. Starr, 7 Ind. 224.

The appointment and appearance of a guardian ad litem for minors will not cure a defect caused by want of notice to them. Guy v. Pierson, 21 Ind. 18.

If there is no guardian ad litem appointed for minor heirs, they may, after arrival of age, bring an action to review and set aside the order of sale. Seward v. Clark, 67 Ind. 289.

A guardian ad litem can not consent to an order of sale of lands without proof. Martin v. Starr, 7 Ind. 224.

2500. (2345.) Inventory and appraisement.-120. The executor or administrator shall make a correct inventory of the real estate of the decedent, and cause the same to be appraised by two persons competent to appraise the personal estate of the decedent. If the lands lie in more than one county, appraisers residing in each county may be appointed to appraise the lands therein situate. Such appraisers shall take and subscribe an oath that they will honestly appraise the real estate of the decedent at its fair cash value: Provided, however, That nothing in this act shall be so construed as to prevent the appraisers of one county from appraising the lands of a decedent situate in an adjoining county, where it is convenient to do so. The real estate shall be appraised in as small parcels as practicable; and if specified portions of the real estate be incumbered with special liens, the executor or administrator shall cause such specified portions to be appraised in a body, if necessary to show the value thereof. Such appraisement, when completed, shall be attested by the appraisers, and the inventory, appraisement, and oaths of the appraisers filed in court, on or before the hearing of the petition. Re-appraisement of the real

estate may be afterward made under the order of the court, when it shall be shown to the court that the appraisement is too high or too low.

Errors in description of lands in the appraisement may be corrected. Lasure r. Carter, 5 Ind. 498.

2501. (2346.) Hearing and orders.-121. Upon the hearing of such petition, witnesses may be compelled to attend, and depositions, taken under the usual regulations of law, may be read, and the parties to the petition may be examined under oath as in other cases. If, upon such hearing, the court shall find the material allegations of the petition to be true, it shall enter a decree, declaring the real estate liable to be sold to make assets for the payment of the debts and liabilities of the estate, and empowering the executor or administrator to sell so much thereof as may be found necessary to discharge said debts and liabilities. If it be shown on the hearing that the real estate, or any portion thereof, is incumbered by liens, the court shall, in its finding, fix the amount and extent of each lien and the priorities of the several liens. If any debt secured by lien be not due, the court shall fix the amount thereof at its present worth, rebating interest for the unexpired time, unless the real estate be sold subject to the lien. The petition shall remain pending on the docket, until the real estate, or so much as may be necessary, be sold for the payment of said debts and liabilities; and further sales may be ordered by the court, from time to time, without further petition or notice, upon proof that the sales already made are insufficient for that purpose.

In proceedings for the sale of lands to pay debts, the heirs or owners of the lands may show that there are no debts enforceable against the estate. Riser v. Snoddy, 7 Ind. 442; Cole v. Lafontaine, 84 Ind. 446; Scherer v. Ingerman, 110 Ind. 428; O'Haleran v. O'Haleran, 115 Ind. 493.

The statute of limitations of fifteen years applies to petitions to sell lands to pay debts, but the statute does not begin to run until it is discovered that the personal estate is not sufficient to pay all debts. Cole v. Lafontaine, 84 Ind. 446; Scherer . Ingerman, 110 Ind. 428; Falley v. Gribling, 128 Ind. 110; Witz v. Dale, 129 Ind. 120.

If it is shown that there are sufficient personal assets to pay the debts, the land should not be ordered sold. Brown v. Rose, 6 Blkf. 69.

Only so much of the land necessary to realize assets to pay the debts should be ordered sold, unless the remainder of the lands would be injured by selling only a portion thereof. Black v. Meek, 1 Ind. 180; Fralich v. Moore, 123 Ind. 75.

Proof of the allegations of the petition must be made as to minors, a guardian ad litem having no authority to consent to a sale. Martin v. Starr, 7 Ind. 224.

If the court has jurisdiction of the subject-matter and the parties, all such parties are bound by the orders of the court. Spaulding v. Baldwin, 31 Ind. 376; Dequindre r. Williams, 31 Ind. 444; Lantz v. Maffett, 102 Ind. 23; Vail v. Rinehart, 105 Ind. 6; Bumb v. Gard, 107 Ind. 575.

When persons are parties only as heirs of a decedent, the order of sale will not affect the interest they may have otherwise acquired in the lands. Elliott v. Frakes 71 Ind. 412; Bumb v. Gard, 107 Ind. 575.

The parties are entitled to a change of judge in proceedings for the sale of real estate. Scherer v. Ingerman, 110 Ind. 428.

2502. (2347.) Widow's right saved.-122. If the decedent leave a widow, and the real estate owned by him at his death shall not exceed ten thousand dollars in value, the court shall direct the sale of the undivided two-third parts thereof for the payment of said debts and liabilities; and if the value thereof exceed ten thousand dollars, and do not exceed twenty thousand dollars, the court shall order the sale of the undivided three-fourths thereof; and, if it exceed in value. twenty-thousand dollars, the undivided four-fifths thereof, for said purpose..

Orders for the sale of lands of decedents to pay debts does not affect the interest of the widow in such lands when she is only a party to such proceedings as such widow. Kent v. Taggart, 68 Ind. 163; Elliott v. Frakes, 71 Ind. 412; Compton v. Pruitt, 88 Ind. 171; Pepper v. Zahnsinger, 94 Ind. 88; Clark v. Deutsch, 101 Ind. 491; Hutchinson v. Lemcke, 107 Ind. 121.

If a widow claims to own all the land as a tenant by entirety with her husband, and being a party to the proceeding fails to set up her claim, she will be bound by the order of sale. Hutchinson v. Lemcke, 107 Ind. 121.

If a widow holds a life-estate in lands, the fee of which descends at her death to the children of the decedent, such fee can not be sold to pay the debts of such decedent. Windell v. Trotter, 127 Ind. 332; Armstrong v. Cavitt, 78 Ind. 476.

When a widow elects to take under a will instead of under the law, lands devised to her will be liable to be sold to pay the debts of the decedent. Kayser v. Hodopp, 116 Ind. 428.

If a widow consents to the sale of her interest and afterwards receives her share of the purchase-money, she will be estopped from disputing the validity of the sale. Pepper v. Zahnsinger, 94 Ind. 88.

The mere signing of a writing by a widow, waiving the notice required by statute and consenting that her interest in the land may be sold, will not confer jurisdiction on the court to order the sale of such interest. Roberts v. Lindley, 121 Ind. 56.

The guardian of an insane widow may assent to the sale of the interest of such widow in the lands of the decedent, in proceedings to sell lands to pay the debts of the decedent. Smock v. Reichwine, 117 Ind. 194.

2503. (2348.) Partition with widow.-123. If the decedent leave a widow, 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.

2504. (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.