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proceedings. An heir or devisee, or a person claiming under an heir or devisee, of the property in question, although not named in the citation, may contest the necessity of applying the property to the payment of debts, judgment liens or funeral expenses, or the validity of a debt, due or unpaid, or of any judgment lien, represented as existing against the decedent, or the reasonableness of the funeral expenses ; may interpose any defense to the whole or any part thereof; and, for that purpose, may make himself a party to the special proceeding. The admission or allowance by the executor or administrator of a claim or debt of any creditor against the decedent shall, for the purpose of such proceeding, be deemed an establishment thereof, unless objection be made thereto by a party to the special proceeding. Where such a defense arises under the statute of limitation, an act or admission by the executor or administrator does not prevent the running of the statute, or revive the debt, so as to affect, in any manner, the real property or interest in real property in question. In effect, as amended, May 21, 1894; Laws 1834, ch. 735.
$ 2756. Proof of debt upon which judgment, etc., has been rendered.- Where a judgment or decree has been rendered against an executor administrator, for a debt due from the decedent, the debt is, nevertheless, deemed a debt of the decedent, to the same extent, and to be established in the same manner, and, except as prescribed in the next section, subject to the same defences, as if an action had not been brought thereon. But a judgment or decree, rendered upon a trial upon the merits, is presumptive evidence of the debt upon the hearing before the surrogate.
$ 2757. The last section qualified.-- The last section is subject to the following exceptions :
1. The debt, for which the judgment was rendered, cannot be allowed, as against the property in question, at any greater sum than the amount recovered, exclusive of costs.
2. An heir or devisee of any of the property in question, or a party claiming under an heir or devisee, may interpose, in reduction of the amount claimed to be due upon a judgment or decree against the decedent, or
against the executor or administrator, any payment or counterclaim which might be allowed to him or to the person under whom he claims, in an action founded upon the debt.
$ 2758. [Amended, 1894.] Decree to recite debt and liens. — The decree must determine and specify the amount of each debt established before the surrogate, as a valid and subsisting debt against the decedent's estate, or as a just and reasonable charge for funeral expenses, and must determine and specify the amount of each judgment lien established before the surrogate as a valid and subsisting lien existing upon the decedent's land, or some part thereof, at the time of his death. And the decree may also determine the amount due or remaining unpaid upon any mortgage or mortgages, existing at decedent's death upon his real property, or any portion thereof; and the decree must, in like manner, specify what demands presented have been rejected. The vouchers presented before the surrogate, in support of each debt or lien established, must be filed and remain in the surrogate's office. In effect, as amended, May 21, 1894 ; Laws 1894, ch. 735.
$ 2759. [Amended, 1894.) What proof necessary for a decree.- A decree directing the disposition of real property, or of an interest in real property, can be made only where, after due examination, the following facts have been established to the satisfaction of the surrogate:
1. That the proceedings have been in conformity to this title.
2. That the debts, or liens, or both, for the payment of which the decree is made, are the debts of the decedent, or are just and reasonable charges for his funeral expenses, or are liens by judgment existing at his death upon his real property, or upon some portion thereof; and are justly due.
3. That they are not secured by a mortgage, or expressly charged by the will upon the decedent's real property, or interest in real property ; or, if a debt is so secured or charged upon a portion of the real property, or interest in real property, that the remedies of the creditor, by virtue of that charge or security, have been exhausted.
4. That the property directed to be disposed of was not effectually devised, expressly charged with the payment of debts or funeral expenses, and is not subject to a valid power of sale for the payment thereof; or, if so devised or subject, that it is not practicable to enforce the charge, or to execute the power, and that the creditor has effectually relinquished the same.
5. That all the personal property of the decedent, which could have been applied to payment of the decedent's debts and funeral expenses, has been so applied ; or that the executor or administrators have proceeded with reasonable diligence in converting the personal property into money, and applying it to the payment of those debts and funeral expenses; and that it is insufficient for the payment of the same, as established by the decree. In effect, as amended, May 21, 1894 : Laws 1894, ch. 735.
$ 2760. [Amended, 1885.] Decree to mortgage or lease. If the facts, specified in the last section, are satisfactorily established, the surrogate must inquire whether sufficient money can be raised, advantageously to the persons interested in the real property, by a mortgage or lease of the real property of which the decedent died seized, or of a part thereof. And to that end he shall appoint three competent disinterested persons to examine and appraise each parcel of such real property, and its rental value at its just and fair market value; they shall forth with so appraise the same, make a report thereof, signed and verified by at least two of them, describing each parcel, and stating its value and rental value, and file the same in the surrogate's office. If he ascertains that the money can be so raised, the decree must direct the execution of one or more mortgages or leases accordingly; but a lease shall not be made for a longer time, than until the youngest person, interested in the property leased, attains full age. A mortgage or lease, executed pursuant to such a decree, has the same effect, as if it had been made by the decedent, immediately before his death.
§ 2761. [Amended, 1894.] Decree to sell. Where it appears to the surrogate, upon the inquiry made as prescribed in the last section, that sufficient money cannot be raised advantageously to the persons
interested in the real property, by mortgage or lease, the decree must direct a sale of the real property, or interest in the real property, or of so much thereof as is necessary, in order to pay the debts, judgment liens thereon, and funeral expenses of the decedent, as established in the decree, at public or private sale. Such decree, however, may provide, if it appear to be for the best interest of all persons interested, that the said sale be made subject to all or any specified liens by judgment existing at decedent's death on said real property or any portion thereof, which shall have been established, and the amount thereof determined by the said decree. Where a sale of all the real property, or interest in real property, is not necessary for that purpose, but enough of either cannot be sold, without manifest prejudice to the persons interested, the decree may direct a sale of all the real property, or all the interest in real property, or both, or of such a part of either as the surrogate thinks proper, at public or private sale. In effect, as amended, May 21, 1894; Laws 1894, ch. 73).
$ 2762. Id. ; when title is in controversy.Where it appears that any of the real property, of which the decedent died seized, cannot be sold, without manifest prejudice to the persons interested therein, by reason of a controversy respecting the decedent's title thereto, or interest therein, the decree may direct that the execution thereof, with respect to that property, bo postponed, until the special direction of the surrogate. In that case, a party may apply at any time afterwards, upon notice to the others who appeared, for an order directing the execution of the decree, with respect to the property so reserved. New. Hewitt v. Hewitt, 3 Bradf. 265.
$ 2763. Id.; order in which different parcels are to be sold. - Where the decree directs the sale of two or more distinct parcels of real property, of which the decedent died seized; or his interest under two or more contracts for the purchase of distinct parcels of real property ; the decree may direct the sale to be made, in the order which the surrogate deems just, un. less it appears that one or more distinct parcels, of which the decedent died seized, have been devised by
him, or sold by his heirs ; in which case, the several distinct parcels must be sold in the following order :
1. Property which descended to the decedent's heirs, and has not been sold by them.
2. Property so descended, which has been sold by them.
3. Property which has been devised, and has not been sold by the devisee.
4. Property so devised, which has been sold by the devisee.
8 2764. [Amended, 1894.] Decree; where undivided interest or precedent estate is created by the will, etc.—Where the decedent's will devises an undivided interest in real property, but not the whole of his estate therein; or creates a precedent estate in real property; or where an heir of the decedent has sold an undivided interest, or created a precedent estate, in real property which descended to him, the entire property, to which the undivided interest or precedent estate attaches, must be sold. But, in applying the proceeds to the payment of debts and funeral expenses, the application of the proportion of the proceeds, belonging to the devisee or grantee of the undivided interest, or of the precedent estate, must be postponed to the application of the residue, in the order prescribed in the last section, in like manner as if that undivided interest or precedent estate was a distinct parcel of the property. In effect, as amended, May 21, 1894 ; Laws 1894, ch.735.
$ 2765. [Amended, 1894.] Form of decree.A decree directing that real property be mortgaged, leased or sold, or that an interest in real property be sold, as prescribed in this title, must describe it with common certainty; and must direct that a mortgage, lease or sale thereof, for the purpose of paying the debts, judgment liens ordered to be paid, or funeral expenses, established by the decree, be made by the executor or administrator, upon his giving the bond prescribed by law; or, in case of his failure so to do, by a freeholder, to be appointed by the surrogate, as prescribed by law; and in case a sale thereof be directed, may authorize the same to be made at private sale, at a price not less than the value