Sec. 219. No sale can be made except by order of court-One

petition for whole estate.

No sale of any property of an estate of a decedent is valid unless made under order of the county court, except as otherwise hereinafter provided. All sales must be reported under oath, and confirmed by the county court, before title to the property sold passes.3 However, when the estate is insolvent but one petition need be filed. This is provided by special statute as follows:

When it appears to the court that the estate is insolvent, or that it will require a sale of all the property of the estate of every character, chargeable therewith, to pay the family allowance, expenses of administration and debts, there need be but one petition filed, but one order of sale made, and but one sale had, except in case of sale of perishable property. The county court, when a petition for the sale of any property for the purposes herein named, is presented, must inquire fully into the probable amount required to make all such payments, and if there be no more estate chargeable therewith than is sufficient to pay the same, may require but one proceeding for the sale of the entire available estate. In such case the petition must set forth all the facts required by the sections relating to the sale of real estate.*

Sec. 220. The petition must be in writing-Objections thereto must be in writing.

All petitions for orders of sale must be in writing, setting forth the facts showing the sale to be necessary, and upon the hearing, any person interested in the estate may file his written objections, which must be heard and determined. A failure to set forth the facts showing the sale to be necessary will not invalidate the subsequent proceedings, if the defects be supplied by the proofs at the hearing, and the general

3 Snyder, 5,300; Wilson, 1,642; Dakota Code, 5,813 (1887); California, 1,517 (Kerr), similar.

4 Snyder, 5,301; Wilson, 1,644; Dakota Code (1887), 5,815.

facts showing the necessity be stated in the order directing the sale.5

Sec. 221. An executor or administrator may sell real estate, when.

When a sale of property of an estate is necessary to pay the allowance of the family, or debts outstanding against the decedent, or debts, expenses or charges of administration, or legacies, the executor or administrator may also sell any real, as well as personal property of the estate in his hands, and chargeable for that purpose, upon order of the county court, and an application for the sale of real estate may also embrace the sale of personal property."

Sec. 222. The allegations of the petition-The petition must be verified.

To obtain an order for the sale of real property, he must present a verified petition in the county court, or to the judge thereof, setting forth the amount of personal property that has come into his hands as assets, and how much thereof, if any, remains undisposed of; the debts outstanding against the decedent, as far as can be ascertained or estimated; and the amount due on family allowance, or that will be due after the same has been in force for one year; the debts, expenses and charges of administration already accrued, and an estimate of what will or may accrue during the administration; a general description of all the real property, except the homestead, of which the decedent died seized, or in which he had any interest, or in which the estate has acquired any interest, and the condition and value thereof; the names of the legatees and devisees, if any, and the heirs of the decedent, so far as known to petitioner. If any of the matters herein enumerated cannot be ascertained, it must

Snyder, 5,301; Wilson, 1,643; Dakota Code, 5,814 (1887); California, 118, identical.

• Snyder, 5,308; Wilson, 1652; Dakota Code, 5,821 (1887); California, 1,537, similar.

be so stated in the petition; but a failure to set forth the facts showing the sale to be necessary will not invalidate the subsequent proceedings if the defects be supplied by the proofs at the hearing, and the general facts showing such necessity be stated in the decree."

Sec. 223. The order upon the hearing of the petition must contain what.

If it appears to the court, or judge, from such petition, that it is necessary to sell the whole or some portion of such real estate for the purposes and reasons mentioned in the preceding section, or any of them, such petition must be filed, and an order thereupon made, directing all persons interested in the estate to appear before the court, at a time and place specified, not less than four, nor more than ten weeks from the time of making such order, to show cause why an order should not be granted to the executor or administrator to sell so much of the real estate of the decedent as is necessary."

Sec. 224. The order to be posted in three public places-The order to be mailed-The publication of the order.

The county judge is required to cause copies of the order to show cause to be posted up in three public places in the county, one of which must be at the courthouse where the hearing is to be held, and a copy personally served on or mailed to all persons interested in the estate, any general guardian of a minor so interested, and any legatee or devisee or heir of the deceased: Provided, they are residents of the county, at least ten days before the time set for said hearing. He must cause copies of said order to be mailed to all such persons who are not residents of the county, with

7 Snyder, 5,309; Wilson, 1,653; Dakota Code, 5,822 (1887); California, 1,537, similar. See Section 271 for proceding in sale of real estate by administrator.

8 Snyder, 5,310; Wilson, 1,654; Dakota Code, 5,823 (1887); California, 1,538, similar. See Section 272 for form for order for the hearing.

the postage thereon prepaid. If the postoffice of any such person is unknown, a copy of such order to show cause must be published for two successive weeks in some newspaper published in said county, and said hearing shall not be less than fifteen days from the date of the first publication of such notice. Provided, that, if all persons interested in the estate join in the petition for the sale, or signify in writing their assent thereto, no notice thereof shall be given, and the court must proceed at once to hear the same."

Sec. 225. The hearing of the petition by the court-The proof in such cases.

If all persons interested in said estate do not file in court their written consent to such sale, the county court, at the time and place appointed in such order, or at such other time. to which the hearing may be postponed, upon satisfactory proof of service, or publication of a copy of the order to show cause, and by posting the same as provided in this act, by affidavit or otherwise, must proceed to hear the petition and hear and examine the allegations and proofs of the petitioners and of all persons interested in the estate who may oppose the application.10

Sec. 226. Who may be examined as witnesses at the hearing. The executor, administrator and witnesses may be examined on oath, by either party, and process to compel them to attend and testify may be issued by the judge of the county court, in the same manner and with like effect as in other cases.11

9 Snyder, 5,311, amended March 17, 1910; Sec. 5, Chap. 65, S. L. 1910; California, 1539, similar. See Section 273 for forms of notice, proof of posting and mailing.

10 Snyder, 5,312, amended March 17, 1910; Sec. 6, Chap. 65, S. L.

1910; California, 1,540, similar. See Section 274 for form for proof of publication of notice and mailing.

11 Snyder, 5,313; Wilson, 1,657; Dakota Code, 5,826 (1887).

Sec. 227. When all the real estate may be sold.

If it appear necessary to sell a part of the real estate, and that by a sale thereof the residue of the estate, real or personal, or some specific part thereof, would be greatly injured or diminished in value, or subjected to expense, or rendered unprofitable, or that after such sale the residue would be so small in quantity or value, or would be of such a character with reference to its future disposition among the heirs or devisees, as clearly to render it for the best interests of all concerned that the same should be sold, the court may authorize the sale of the whole estate, or of any part thereof, necessary and for the best interest of all concerned.12

Sec. 228. The court may order the whole or part of the estate sold.

If the court be satisfied, after a full hearing upon the petition and the examination of the proofs and allegations of the parties interested, that a sale of the whole or some portion of the real estate is necessary, for any of the causes mentioned in this chapter, or if such sale be assented to by all persons 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.13

Sec. 229. The order must describe the real estate to be sold and also the terms of sale Sale may be made for cash or credit.

The order of sale must describe the lands to be sold and the terms of sale, which may be for cash, or may be for onethird cash and the balance on a credit not exceeding two years, payable in gross or installments within that time, with

12 Snyder, 5,314; Wilson, 1,658; Dakota Code, 5,827 (1887); California, 1,542 (Kerr), similar.

13 Snyder, 5,315; Wilson, 1,629; Dakota Code, 5,828 (1887); California, 1,543 (Kerr), similar.