Sec. 1257. The whole tract may be assigned to whom-The

payment by the others.

When any tract of land or tenement is of greater value than any one's share in the estate to be divided, and cannot be divided without injury to the same, it may be set off by the commissioners appointed to make partition, to any one of the parties who will accept it, giving preference as prescribed in the preceding section. The party accepting must pay or secure to the others such sums as the commissioners may award to make the partition equal, and the commissioners must make their award accordingly; but such partition must not be established by the court until the sums awarded are paid to the parties entitled to the same, or secured to their satisfaction."

Sec. 1258. The real estate may be sold-Manner of sale.

When it appears to the court from the commissioners' report that it cannot be otherwise fairly divided, and should be sold, the court may order a sale of the whole or any part of the estate, real or personal, by the executor or administrator or by a commission appointed for that purpose, and the proceeds distributed. The sale must be conducted, reported and confirmed in the same manner, and under the same requirements as provided in sections from 5308 to 5346, Wilson, from 1652 to 1690, inclusive."

Sec. 1259. The notice required-Commissioners may take evidence-Duties of.

Before any partition is made, or any estate is divided as provided in this chapter, notice must be given to all persons interested in the partition, their guardians, agents or attorneys, by the commissioners, of the time and place when

7 Snyder, 5,424; Wilson, 1,766; North Dakota, 8,220 (1905), identical; South Dakota, 314 (1904), identical; California, 1,681 (Kerr), identical.

8 Snyder, 5,425; North Dakota, 8,222 (1905), identical; South Dakota, 1,767 (1904), identical; California, 1,682 (Kerr), identical.

and where they shall proceed to make partition. The commissioners may take testimony, order surveys and take such other steps as may be necessary to enable them to form a judgment upon the matters before them."

Sec. 1260. The report of the commissioners-Other commissioners may be appointed, when-The degree to be recorded and where.

The commissioners must report their proceedings and the partition agreed upon by them to the county court in writing, and the court may, for sufficient reasons, set aside the report and commit the same to the same commissioners or appoint others; and when such report is finally confirmed, a certified copy of the judgment or decree of partition made thereon, attested by the judge under the seal of the court, must be recorded in the office of the register of deeds in the county where the lands lie.10

Sec. 1261. Commissioners need not be appointed, when.

When the county court makes a judgment or decree assigning the residue of any estate to one or more persons entitled to the same, it is not necessary to appoint commissioners to make partition or distribution thereof, unless the parties to whom the assignment is decreed, or some of them request that such partition is made.11

Sec. 1262. The court has power to hear and determine questions of advancements.

All questions as to advancements made, or alleged to have been made by the decedent to his heirs, may be heard and determined by the county court, and must be specified in the

Snyder, 5,426; Wilson, 1,768; North Dakota, 8,218 (1905), identical; South Dakota, 320 (1904), identical; California, 1,683 (Kerr), identical.

10 Snyder, 5,427; Wilson, 1,769; North Dakota, 8,221 (1905), iden

tical; South Dakota, 321 (1904), identical; California, 1,684 (Kerr), identical.

11 Snyder, 5,428; Wilson, 1,770; South Dakota, 322 (1904); California, 1,685 (Kerr), identical.

decree assigning and distributing the estate; and the final judgment or decree of the county court, or in case of an appeal, of the district court or Supreme court, is binding on all parties interested in the estate.12

Sec. 1263. Form for petition for partition, county court.

1. That he is one of the children and one of the heirs at law

2. That the following are the names and residences of all of the persons who are interested in said estate of deceased, and the names and place of residence of all guardians, agents and attorneys residing in this State, who represent any of such persons so interested in said estate, to-wit: (Here set forth names and place of residence of such persons.)

is now performing the duties of such office.

4. That said estate by such

has been duly adminis

tered, and that a petition for such distribution is now filed and

is pending in said estate and in said cause.

5. That the property of said estate will vest in and be assigned for distribution herein to

and

in

common and undivided, and the real estate will not be divided and set off to them by metes and bounds by said decree of distribution.

The premises considered, your petitioner prays for a decree setting off and assigning to each of the persons interested in

12 Snyder, 5,428; Wilson, 1,777; North Dakota, 8,212 (1905); South

Dakota, 323 (1904), identical; California, 1,686 (Kerr), identical.

said estate his share in severalty; that commissioners by order of court be appointed to assign and set off to each party his respective share in severalty, and for such order in the premises as to the court may be proper.

Petitioner.

Sec. 1264. Order for hearing petition for partition.

one of the heirs at law of

WHEREAS, -, deceased, has filed his petition in said cause asking that partition may be made in said estate, and that this court appoint commissioners for that purpose.

It is ordered by this court that on

the

day of

m., of said day, at the court

room, is fixed as the time and place for the hearing of said petition.

It is ordered that the clerk of this court give the time and place of said hearing to the persons to whom the law requires such notice to be given by posting such notices in not less than three public places in the county, the same to be posted for not less than ten days before the time fixed for said hearing.

IN WITNESS WHEREOF, I have hereunto affixed my hand this day of

19-.

Judge of the County Court in and for said County and State.

Sec. 1265. The notice for the hearing of the petition.

of

having filed his petition for the partition of the estate deceased, praying for the partition thereof among the

parties entitled thereto, notice is given that on

the

day, at the courtroom of said court, is fixed as the time and place for the hearing of said petition. All persons interested may appear at said time and place and may be heard on the matters alleged and prayed for in said petition.

Dated this

day of

19-.

Clerk of said Court.

Sec. 1266. Form for order of the court appointing commis

ORDER APPOINTING COMMISSIONERS TO PARTITION.

This day this cause came on to be heard upon the petition for partition of the property in said estate as prayed for in said petition, and petitioner appearing by, his attorney, and the court finds that due notice, as required by law and the orders of this court, was given of the time and hearing hereof, and that all parties interested are now subject to the jurisdiction of this court, and it appearing from the evidence and the records and files in this cause that an order and decree of distribution has been made herein, the court, from the evidence adduced in