withstanding the death, and although the wrongful act, neglect or default, causing the death, amount in law to a felony. The amount recovered in such action is not liable to be applied as assets, in the payment of debts or legacies, but shall be disposed of as provided in this chapter for the distribution of personal property in case of intestacy. Code, ss. 1498, 1500; 1868-9, c. 113, ss. 70, 72, 115; R. C., c. 46, ss. 8, 9. 60. Measure of damages in wrongful death. The plaintiff in such action may recover such damages as are a fair and just compensation for the pecuniary injury resulting from such death. Code, s. 1499; 1868-9, c. 113, s. 71; R. C., c. 1, s. 10. XIII. SALES OF PERSONALTY. 61. By collector, only on order of court. All sales of personal property by collectors shall be made only upon order obtained, by motion, from the clerk of the superior court, who shall specify in his order a descriptive list of the property to be sold. Code, s. 1409; 1868-9, c. 113, s. 17. 62. As soon as practicable. Every executor and administrator shall have power in his discretion and without any order, except as hereinafter provided, to sell, as soon after his qualification as practicable, all the personal estate of his decedent. Code, s. 1408; 1868-9, c. 113, s. 16. 63. Public, how made. All sales of personal estate by an executor, administrator or collector shall be publicly made, on credit or for cash, after twenty days' notification posted at the courthouse and four other public places in the county. When any person interested, either as creditor or legatee, on the day of sale objects to the completion of any sale on account of the insufficiency of the amount bid, title to such property shall not pass until the sale is reported to and confirmed by the clerk. Code, ss. 1410, 1411; 1868-9, c. 113. ss. 18, 19. 64. Private, how made. When personal property shall consist of cotton, tobacco, goods, wares and merchandise; state, national or municipal bonds, or the stocks in incorporated companies, the executor or administrator may, upon application to the clerk of the superior court, obtain an order to sell and may sell such personal property at private sale for the best price that can be obtained, and shall report such sale to the clerk for confirmation. 1893, c. 346. 65. On credit; how proceeds secured. The proceeds of all sales of personal estate and rentings of real property by public auction or privately shall be secured by bond and good personal security; and such proceeds shall be collected as soon as practicable, otherwise the executor, administrator or collector shall be answerable for the same. Code, s. 1413; 1893, c. 346, s. 2; 1868-9, c. 113, s. 21. 66. Public, hours of; penalty. All public sales or rentings provided for in this chapter shall be between the hours of ten o'clock a. m. and four o'clock p. m. of the day on which the sale or renting is to be made, except that in towns or cities of more than five thousand inhabitants public sales of goods, wares and merchandise may be continued until the hour of ten o'clock p. m.; and every executor, administrator or collector who otherwise makes any sale or renting shall forfeit and pay two hundred dollars to any person suing for the same. Code, s. 1414; 1893, c. 346, s. 3; 1868-9, c. 113, s. 22. 67. Evidences of debt, when and how sold. Every executor, adininistrator and collector, at any time after one year from the grant of letters, shall be authorized to sell at public auction, in the manner prescribed in this chapter, all bills, bonds, notes, accounts, or other evidences of debt belonging to the decedent, which he has been unable to collect or which may be deemed insolvent. Before offering such evidences of debt at public sale he shall file with the clerk a descriptive list thereof, and obtain an order of sale therefor from the clerk, and shall make return of the proceeds of such sale as in other cases of assets. Code, s. 1412; 1868-9, c. 113, s. 20. XIV. SALES OF REALTY. 68. To pay debts when personalty insufficient. When the personal estate of a decedent is insufficient to pay all his debts, including the charges of administration, the executor, administrator or collector may, at any time after the grant of letters, apply to the superior court of the county where the land or some part thereof it situated, by petition, to sell the real property for the payment of the debts of such decedent. Code, s. 1436; 1868-9, c. 113, s. 42. 69. Undevised first sold. When any part of the real estate of the testator descends to his heirs by reason of its not being devised or disposed of by the will, such undevised real estate shall be first chargeable with payment of debts, in exoneration, as far as it will go, of the real estate that is devised, unless from the will it appears otherwise to be the wish of the testator. Code, s. 1430; 1868-9, c. 113, s. 39. 70. Conveyances by heir within two years of letters. All conveyances of real property of any decedent made by any devisee or heir at law, within two years from the grant of letters, shall be void as to the creditors, executors, administrators and collectors of such decedent; but such conveyances to bona fide purchasers for value and without notice, if made after two years from the grant of letters, shall be valid even as against creditors. Code, s. 1442; 1868-9, c. 113, s. 105. 71. Conveyed to personal representative; power of successor. Whenever land is conveyed to a personal representative for the benefit of the estate he represents, he may sell and convey same upon such terms as he may deem just and for the advantage of said estate; which sale shall be public, after due advertisement, as for judicial sales, unless the conveyance is made to the party entitled to the proceeds. If such land is not conveyed by such personal representative during his life or term of office his successor may sell and convey such land as if the title had been made to him: Provided, if the predecessor has contracted in writing to sell said lands, but fails to convey same, his successor in office may do so upon payment of the purchase price. 1905, c. 342. 72. Conveyed in fraud of creditors. The real estate subject to sale under this chapter shall include all the deceased may have conveyed with intent to defraud his creditors, and all rights of entry and rights of action and all other rights and interests in lands, tenements and hereditaments which he may devise, or by law would descend to his heirs: Provided, that lands so fraudulently conveyed shall not be taken from any one who purchased them for a valuable consideration and without a knowledge of the fraud. Code, s. 1446; 1868-9, c. 113, s. 51. 73. Fraudulent grantee, selling innocent purchaser, liable. Whenever an executor, administrator or collector shall file his petition to sell land, which may have been fraudulently conveyed, and of which there may have been a subsequent bona fide sale, whereby he can not have a decree of sale of the land, the court may give judgment in favor of such executor, administrator or collector for the value of the land, against all persons who may have fraudulently purchased the same; and if the whole recovery shall not be necessary to pay the debts and charges, the residue shall be restored to the person of whom the recovery was made. Code, s. 1447; 1868-9, c. 113, s. 52. 74. Heirs and devisees necessary parties to proceeding. No order to sell real estate shall be granted till the heirs or devisees of the decedent have been made parties to the proceeding, by service of summons, either personally or by publication, as required by law. Code, s. 1438; 1868-9, c. 113, s. 44. 75. Infants defend by guardian; must answer. Infant defendants must appear by guardian, either general or special, who shall file an answer to the petition, either admitting or denying the allegations thereof, and where such answer is filed by a guardian ad litem the costs and expenses thereof, if any, may be directed to be paid, if the court thinks proper, out of the proceeds of the sale, in case one is ordered. Code, s. 1439; 1868-9, c. 113, s. 45. 76. Adverse claimant may be heard. Whenever the land, which is sought to be sold, is claimed by another person under any pretense whatsoever, such claimant shall be admitted to be heard as a party to the proceeding, upon affidavit of his claim, and if the issue be found for the petitioner he shall have his writ of possession and order of sale accordingly. Code, s. 1441; 1868-9, c. 113, s. 47. 77. What petition for, must show. The petition, which must be verified by the oath of the applicant, shall set forth, as far as can be ascertained: 1. The amount of debts outstanding against the estate. 2. The value of the personal estate, and the application thereof. 3. A description of all the legal and equitable real estate of the decedent, with the estimated value of the respective portions or lots. 4. The names, ages and residences, if known, of the devisees. and heirs at law of the decedent. Code, s. 1437; 1868-9, c. 113, s. 43. 78. Issue joined, cause transferred to term. When an issue of law or fact is joined between the parties, the course of the procedure shall be as prescribed in such cases for other special proceedings. Code, s. 1440; 1868-9, c. 113, s. 46. 79. Petition not denied, order made. As soon as all proper parties are made to the proceeding, the clerk of the superior court before whom it is instituted, if the allegations in the petition are not denied or controverted, shall have power to hear the same summarily, and to decree a sale. Code, s. 1443; 1868-9, c. 113, s. 48. 80. What order contains; what title made. The court may decree a sale of the whole or any specified parcel of the premises, in such a manner as to size of lots, place of sale, terms of credit, and security for payment of purchase money, as may be most advantageous to the estate, and upon the coming in of the report of the sale and the confirmation thereof, title shall be made by such person, and at such time as the court may prescribe, and in all cases where the persons in possession have been made parties to the proceeding, the court may grant an order for possession. Code, s. 1444; 1868-9, c. 113, s. 49. 81. How advertised. Notice of sale under this proceeding shall be the same as for the sale of real estate by sheriffs on execution. Code, s. 1445; 1868-9, c. 113, s. 50. 82. Lands devised to be sold by executor, who may sell. When any or all of the executors of a person making a will of lands to be sold by his executors shall die, fail or for any cause refuse to take upon them the administration; or after having qualified shall die, resign, or for any cause be removed from the position of executor; or when there is no executor named in a will devising lands to be sold, in every such case such executor or executors as survive or retain the burden of administration, or the administrator with the will annexed, or the administrator de bonis non, may sell and convey such lands; and all such conveyances which have been or shall be made by such executors or administrators shall be effectual to convey the title to the purchaser of the estate so devised to be sold. Code, s. 1493; 1889, c. 461. 83. Land sold by decedent, who makes deed. When any deceased person shall have bona fide sold any lands, and shall have given a bond or other written contract to the purchaser to convey the same, and the bond or other written contract hath been duly proved and registered in the county where the lands are situated, if within the state, or, if not in the state, shall be proved before the clerk of the superior court and registered in the county where the obligee lives or obligor died, his executor, administrator or collector may execute a deed to the purchaser conveying such estate as shall be specified in the bond or other written contract; and such deed |