can be upon diligent inquiry, and it appears to him that the debts, judgment liens and funeral expenses, or either, cannot be paid, without resorting to the real property, or interest in real property, he must issue a citation according to the prayer of the petition. If, upon the inquiry, it appears to the surrogate, that any heir or devisee, or person claiming an interest in the property under an heir or devisee, is not named in the petition, the citation must also be directed to him. Unless the executor or administrator has caused to be published, as prescribed by law, a notice requiring creditors to present their claims, and the time for the presentation thereof, pursuant to the notice, has elapsed, the citation must be directed, generally to all other creditors of the decedent, as well as the creditors named.

L. 1891, ch. 735.

§ 2755. [Am'd, 1894, 1904.] Hearing.

Upon the return of the citation the surrogate must proceed to hear the allegations and proofs of the parties. A creditor of the decedent, including one whose claim is not yet due, or a person having a claim for unpaid funeral expenses, although not named in the citation, may appear and thus make himself a party to the special proceeding. 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, 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, or to permit the creditor to participate in the fund arising therefrom.

L. 1894, ch. 785; L. 1904, ch. 750. In effect Sept. 1, 1904.

§ 2756. [Am'd, 1904.] 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 xamination 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 personal estate of the decedent is insufficient for he payment of his debts and funeral expenses.

L. 1904, ch. 750. In effect Sept. 1, 1904. Formerly § 2759.

§ 2757. [Am'd, 1904.] Decree to mortgage, lease or se If it shall appear to the satisfaction of the surrogate that personal estate of the decedent is insufficient for the payment his debts and funeral expenses, the surrogate shall make a cree empowering the executor or administrator to mortgage, les or sell the whole or such part of the real property or interest the decedent in real property as the surrogate shall deem nect sary for the payment thereof. The surrogate may limit amount to be sold and afterward extend the power to ot parcels and direct the order of the sale of parcels and may dir whether the same be mortgaged, leased, or sold, for the purp of preserving all the rights and equities of the parties and venting any unnecessary disposition of such real property; a may limit the amount to be raised thereby. The decree m describe the property to be sold with common certainty. If appears that one or more distinct parcel of which the decede died seized has been devised by him or sold by his heirs decree must provide that the several distinct parcels be sold the following order:

1. Property which descended to the decedent's heirs and whi has not been sold by them.

2. Property so descended which has been sold by them. 3. Property which has been devised which has not been se by the devisee.

4. Property so devised which has been sold by the devisee. L. 1904, ch. 750. In effect Sept. 1, 1904. From former §§ 2760, 2761 and 2763.

§ 2758. [Am'd, 1894, 1904.] Duty of executor or admin istrator to execute decree after filing bond.

It shall be the duty of the executor or administrator to execute the power conferred upon him by a decree directing that proper be mortgaged. leased or sold; but he must first execute and with the surrogate his bond, with two or more sureties, to the people of the state in a penalty fixed by the surrogate not les than twice the sum to be raised, or the value of the real pro erty, or interest in real property, directed to be sold. The hon must be conditioned for the faithful performance of the duties inc posed upon the principal by the decree and for the accounting by the principal for all moneys received by him whenever he required so to do by a court of competent jurisdiction. L. 1894, ch. 735; L. 1904, ch. 750. In effect Sept. 1, 1904.

§ 2759. [Am'd. 1894. 1904] execute decree or file bond.

Proceedings upon failure to

Where there are two or more executors or administrators, i either of them fails, within such time as the surrogate deens reasonable, to give, or to join with his coexecutors or coadmin istrators in giving, a bond as prescribed in the last section, the surrogate may direct those who have given the bond to procee to execute the decree. But if a sole executor or administrator or all the executors or administrators, so fail, such failure shal be deemed ground for the revocation of his or their letters and the surrogate shall, upon the application of any person interested. revoke such letters and grant administration to such person en

titled as will execute such decree. He may revoke letters so granted from time to time, as the case requires, to obtain the proper execution of the decree. A person to whom letters are so granted shall have all the powers under the decree which were given to the executor or administrator at the time it was made; and must give the bond required by such decree, as well as the bond required to be given upon issuing letters to him.

L. 1894, ch. 735; L. 1904, ch. 750. In effect Sept. 1, 1904. From former § 2767.

§ 2760. [Am'd, 1885, 1904.] fected by death, et cetera.

Execution of decree not af

The death, removal, or disqualification, before the complete execution of a decree, of all the executors or administrators does not suspend or affect the execution thereof; but the successor of the person who has died, been removed, or become disqualified, must proceed to complete all unfinished matters, as his predecessors might have completed the same; and he must give such security for the due performance of his duties as the surrogate prescribes.

L. 1885, ch. 213; L. 1904, ch. 750. In effect Sept. 1, 1904 From former § 2770.

§ 2761. [Am'd, 1894, 1904.] Effect of decree; manner of executing same, applying proceeds of sale and accounting

for same.

The executor or administrator must proceed to execute the decree in the same manner, and the execution thereof shall have the same effect, as if he were acting as executor of the decedent under a like power contained in a will of said decedent duly executed and proved. He shall apply the proceeds of the real property mortgaged, leased or sold in the same manner as if he had acted under such a power of sale contained in a will and all persons interested in the execution of the decree shall have the same remedies for the enforcement of the decree and the application of the proceeds that they would have had if the executor or administrator were acting under such a power. The executor or administrator may account for such proceeds and may be compelled to account there for and for his acts under such decree and shall be entitled to commissions upon the settlement of his accounts as if he had acted under such a power.

L. 1894, ch. 735; L. 1904, ch. 750. In effect Sept. 1, 1904.

$ 2762. [Repealed by L. 1904, ch. 750. In effect Sept.' 1, 1904, provided, however, that, in cases where the decree for the disposition of decedent's real property, for the payment of debts and funeral expenses shall have been entered prior to the time this act takes effect, all subsequent proceedings shall be in accordance with the provisions of the statutes then existing; and to tha extent said sections shall be considered as still in force.]

§ 2763. [Am'd, 1904.] certain irregularities.

Purchasers title not affected by

The title of a purchaser in good faith at a sale pursuant to a decree made as prescribed in this title is not, nor is the validity of a mortgage or lease made as prescribed in this title, in any way

affected, where a petition was presented and the proper persons were duly cited and a decree authorizing a mortgage, lease or sale was made as prescribed in this title, by any omission, error, de fect or irregularity occurring between the return of the citation and the making of the decree, except so far as the same would affect the title of a purchaser at a sale made pursuant to the directions contained in a judgment rendered by the supreme court, L. 1904, ch. 750. In effect Sept. 1, 1904. From former § 2784.

$ 2764. [Am'd, 1894, 1904.] purchasing.

Allowance on bid to creditor

If a creditor of the decedent becomes the purchaser of any of the decedent's real property, the surrogate may, upon his appli cation, direct the amount of his claim to be allowed, in the first instance, upon the purchase price; and such purchaser shall only be required to pay the balance at the time of the sale. But, in case the proceeds of the decedent's real property shall be insuffi cient to satisfy the costs and expenses of administration and the debts and funeral expenses of the decedent, the purchasing cred itor shall be allowed and credited, upon the judicial settlement of the accounts of the executor or administrator, only the amount he may be entitled to receive upon his claim and shall then pay the difference between the amount originally allowed and the amount he is entitled to receive. In case any purchaser has credit on his bid, as aforesaid, no deed shall be delivered to him until the judicial settlement of the accounts of the executor or administrator nor until he shall have paid the entire amount required under the provisions of this section.

L. 1894, ch. 735; L. 1904, ch. 750. In effect Sept. 1, 1904.

$ 2765. [Am'd, 1894, 1904.] Sale to be refused if bond be given.

A decree empowering an executor or administrator to mortgage, lease or sell shall not be granted if any of the persons interested in the estate give bonds to the surrogate in such sum and with such sureties as he directs and approves, with condition to pay all the debts, legacies and expenses of administra tion so far as the goods, chattels, rights and credits of the deceased are insufficient therefor, within such time as the surrogate may direct.

L. 1894, ch. 735; L. 1904, ch. 750. In effect Sept. 1, 1904.

§§ 2766-2770. [Repealed by L. 1904, ch. 750. In effect Sept. 1, 1904, provided, however, that, in cases where the decree for the disposition of decedent's real property, for the payment of debts and funeral expenses shall have been entered prior to the time this act takes effect. all subsequent proceedings shall be in accordance with the provisions of the statutes then existing; and to that extent said sections shall be considered as still in force.]

§ 2771. What credit allowed on sale.

The surrogate may, in the order directing the execution of the decree, or in a separate order made before the sale, allow a sale to

be made upon a credit, not exceeding three years, for not more than three-fourths of the purchase-money, co be secured by the purchaser's bond, and his mortgage on the property sold, except where the sale is that of an interest under a contract; in which case, the order may prescribe the security to be given.

§§ 2772-2773. [Repealed by L. 1904, ch. 750. In effect Sept. 1, 1904, provided, however, that, in cases where the decree for the disposition of decedent's real property, for the payment of debts and funeral expenses shall have been entered prior to the time this act takes effect, all subsequent proceedings shall be in accordance with the provisions of the statutes then existing; and to that extent said sections shall be considered as still in force.]

§ 2774. Who not to purchase.

An executor or administrator upon the estate, a freeholder appointed to execute a decree, or a general or special guardian of an infant, who has an interest in any of the real property to be sold, shall not directly, or indirectly, purchase, or be, or at any time before confirmation, become interested in a purchase at the sale; except that a guardian may, when authorized so to do by the order of the surrogate, purchase in his name of office for the benefit of his ward. A violation of this section renders the purchase void.

§§ 2775-2776. [Repealed by L. 1904, ch. 750. In effect Sept. 1, 1904, provided, however, that, in cases where the decree for the disposition of decedent's real property, for the payment of debts and funeral expenses shall have been entered prior to the time this act takes effect, all subsequent proceedings shall be in accordance with the provisions of the statutes then existing; and to that extent said sections shall be considered as still in force. J

§ 2777. When conveyance not to affect purchaser mortgagee from heir, etc.

or

A conveyance of real property, made pursuant to this title, does not affect, in any way, the title of a purchaser or mortgagee, in good faith and for value, from an heir or devisee of the decedent, unless letters testamentary or letters of administration, upon the estate of the decedent, were granted, by a surrogate's court having jurisdiction to grant them, upon a petition therefor, presented within four years after his death.

$82778-2781. [Repealed by L. 1904, ch. 750. In effect Sept. 1, 1904, provided, however, that, in cases where the decree for the disposition of decedent's real property, for the payment of debts and funeral expenses shall have been entered prior to the time this act takes effect, all subsequent proceedings shall be in accordance with the provisions of the statutes then existing: and to that extent said sections shall be considered as still in force.]