ordinary cases; if a set-off or counter-claim be pleaded, and the claim be afterward dismissed, the executor or administrator may nevertheless proceed to trial and judgment on the set-off or counter-claim.

(As amended, Acts 1883, p. 156. Ell. Supp., section 392. In force March 7, 1883.) The parties may take changes of venue as in other civil actions. Lester v. Lester, 70 Ind. 201.

The trial is to be conducted as an ordinary civil action, and the jury may be required to answer interrogatories at the request of the parties. Boots v. Griffith, 89 Ind. 246. A judgment under this section is a mere allowance of a claim to be paid in due course of administration. Maddox v. Maddox, 97 Ind. 537; Boyl v. Simpson, 23 Ind. 393. No judgment can be rendered directing the same to be levied upon the assets of the estate except when specific articles are ordered sold. Johnson v. Meier, 62 Ind. 98. Judgments rendered against administrators or executors are not repleviable. Taylor v. Russell, 75 Ind. 386.

2481. (2326.) Creditors, etc., may resist.-102. In all cases when a claim is filed against the estate of a decedent, and has been allowed by the executor or administrator, any person interested in the estate, upon written petition to the court, shall be allowed at his expense to defend such claim, notwithstanding such allowance; but such petition must be filed with the clerk of the proper court within sixty days after the claim has been by such executor or administrator indorsed allowed on the claim docket and before the final settlement of such estate, and such petition shall be accompanied by a bond with sufficient surety, payable to the executor or administrator, to be approved by the clerk, conditioned for the payment of the costs that shall be adjudged against him; if the amount of the claim be reduced ten per cent. on such trial, the court shall order the cost and all expenses incurred by such persons in contesting said claim, paid out of such estate; but in case of failure to so reduce it, such person contesting the claim shall pay all costs occasioned the estate thereby.

(As amended, Acts 1883, p. 157. Elliott's Supp., section 393. In force March 7, 1883.) This section does not prevent heirs from controverting claims that have been al lowed in proceedings to sell lands to pay debts. Scherer v. Ingerman, 110 Ind. 428. The owner of lands liable to be sold to pay the debts of the decedent may contest claims filed against the estate. Mackey v. Ballou, 112 Ind. 198; O'Haleran v. O'Haleran, 115 Ind. 493.

Section 2327, R. S. 1881, being section 103 of the act of April, 1881, providing for the settlement of decedents' estates, was repealed by section 35 of the act of March 7, 1883, Acts 1883, p. 164, Ell. Supp., section 415.

2482. (2328.) No execution.-104. No execution or other final process shall be issued on any allowance or judgment rendered upon a claim against a decedent's estate for the collection thereof, out of the assets of the estate; but all such claims shall be paid by the executor or administrator, in full or pro rata, in due course of administration. (As amended, Acts 1883, p. 157. Ell. Supp., section 394. In force March 7, 1883.) Execution can only issue on a judgment against the estate of a decedent when some specific article is directed to be sold. Johnson v. Meier, 62 Ind. 98.

2483. (2329.) Entry of allowance.-105. When a claim shall have been allowed or adjudged by the court in favor of the claimant, as herein before provided, the clerk of the court shall enter the amount of the claim and date of allowance or judgment, under the proper heading in the allowance docket, and immediately opposite the entry of the claim on the claim docket.

Section 2330, R. S. 1881, being section 106 of the act of April, 1881, providing for the settlement of decedents' estates, was repealed by section 35 of the act of March 7, 1883. Acts 1883, p. 164; Ell. Supp., section 415.

2484. (2331.) Proceedings to enforce liens, suspended.-151. No proceedings shall be instituted before the end of one year from the death of the decedent, to enforce the lien of any judgment rendered against the decedent in his lifetime, upon real estate, or any decree, specifically directing the sale of such real estate, to discharge any lien or liability created or suffered by the decedent; nor shall any suit be brought before that time against the heirs or devisees of the deceased, to foreclose any mortgage or other lien thereon, for the payment of which his personal estate shall be liable; and in case of suit to foreclose any mortgage or other lien thereon, the executor or administrator shall be made a party defendant thereto; and if the executor or administrator shall be diligently prosecuting his proceedings to sell the real estate of the deceased, for the purpose of making assets to discharge such liens, further proceedings for the sale thereof, by the holders of liens thereon, shall be stayed upon the application of the executor or administrator. This section shall not apply to cases where, before the end of the year, the real estate shall have been sold by the executor or administrator subject to liens thereon, nor to mortgages and judgments in favor of the state.

(As amended, Aets 1883, p. 158. Ell. Supp., section 397. In force March 7, 1883.)

A complaint to enforce a mortgage or lien against the lands of a decedent must show that the right of foreclosure exists under the provisions of this section. Lovering v. King, 97 Ind. 130.

SEC.

ARTICLE 9.-SALE, ETC., OF REAL ESTATE, TO PAY DEBTS.

2485. When allowed.

2486. What liable.

2487. Fraudulent conveyances.

2488. Fraudulent conveyances. 2489. Petition to sell.

2490. Liens.

2491. Requisites of petition-Parties.

2492. Hearing.

2493. Notice of petition.

2494. Notice of petition.

2495. Pending notices.

2496. Waiver of notice.

2497. Creditor may require petition. 2498. Who may be admitted as parties.

SEC.

2499. Guardian ad litem.

2500. Inventory and appraisement.

2501. Hearing and orders.

2502. Widow's rights saved.

2503. Partition with widow.

2504. Lien on widow's interest.
2505. Liens.

2506. Terms of sale.

2507. Platting.

2508. Real estate bond.

2509. Sale.

2510. Notice of sale.

2511. Purchaser's notes - Certificate of

sale.

SEC.

2512. Report-Confirmation - Convey

ance.

2513. Sale, when vacated-Re-sale.

2514. Sales under will.

2515. Sales under will.

2516. Sales under will.

2517. Commissioners' sales legalized.

2518. Form of deed.

2519. Sales by foreign executor.

2520. Sale, when not avoided for defects.

SEC.

2521. When successor may execute order. 2622. Bond of foreign executor.

2523. Jurisdiction in proceedings by foreign executor or administrator.

2524. Mortgage and lease.

2525. Mortgage or lease-Bond.
2526. Accounting.

2527. Bond to prevent sale, etc.

2528. Possession of real estate.
2529. Accounting for rents.

[1881 S., p. 423. In force September 19, 1881.]

2485. (2332.) When allowed.-107. If the personal estate of a decedent shall be insufficient for the payment of the liabilities thereof, the real estate of the deceased, if any, shall be sold to make assets for the payment of such liabilities.

Real estate can only be sold to pay debts when the personal estate is insufficient therefor. Newcomer v. Wallace, 30 Ind. 216; Edwards v. Haverstick, 47 Ind. 138. Lands may be sold for the purpose of obtaining means to pay the expenses of administration. Falley v. Gribling, 128 Ind. 110; Dunning v. Driver, 25 Ind. 269. When necessary to do so lands must be sold to pay specific bequests. American Co v. Clemens, 132 Ind. 163.

2486. (2333.) What liable.-108. The real estate liable to be sold for the payment of debts, when the personal estate shall be insufficient therefor, shall include

First. All the real estate held or possessed by the deceased at the time of his death by legal or equitable title (except such as was held upon a contract for the purchase of land), and all interests in real estate which would descend to his heirs.

Second. All school or other lands held on a certificate of purchase of the general government or the state of Indiana.

Third. All lands, and any interest therein, which the deceased, in his life-time, may have transferred, with intent to defraud his creditors. Lands of a decedent sold by his heirs before final settlement of the estate are liable to be sold to pay debts. Weakly v. Conradt, 56 Ind. 430; Moncrief v. Moncrief, 73 Ind. 587; Baker v. Griffitt, 83 Ind. 411; Scherer v. Ingerman, 110 Ind. 428.

The real estate of a member of the Ma-to-sin-ia band of Indians, derived by act of Congress of 1872, may be sold to pay his debts, except such as the act of congress provides shall not be enforced again such land. Taylor v. Vandegrift, 126 Ind. 325.

The interest in lands of a decedent inherited by a second and childless wife, and which at her death descends to the children of a former marriage, is not liable to be sold to pay the debts of the decedent. Windell v. Trotter, 127 Ind. 332; Armstrong . Cavitt, 78 Ind. 476.

Lands conveyed as a gift, and which may revert to the grantor on the death of the grantee without issue, may be sold to pay the debts of the grantee. Wingate v. James, 121 Ind. 69.

2487. (2334.) Fraudulent conveyances.-109. But the lands thus fraudulently conveyed shall not be taken from any one who may have purchased them for a valuable consideration, and without knowl

edge of the fraud, but such lands shall be liable to be sold only in cases in which they would have been liable to attachment and execution by a creditor of the deceased in his life-time; and no proceeding by any executor or administrator, to sell any lands so fraudulently conveyed, shall be maintained, unless the same shall be instituted within five years after the death of the testator or intestate.

An administrator may have a fraudulent conveyance set aside before applying for an order to sell the same when he shows that he will be entitled to such order on the conveyance being set aside. Love v. Mikals, 11 Ind. 227.

The complaint to set aside a fraudulent conveyance must allege that at the time of the conveyance and death of the decedent, and commencement of the action, there was no other property of the decedent with which to pay his debts. Cox v. Hunter, 79 Ind. 590.

Such action must be commenced within five years after the death of the decedent. Cox v. Hunter, 79 Ind. 590. Bushnell v. Bushnell, 88 Ind. 403; Cook v. Chambers, 107 Ind. 67.

If a person purchases lands with his own means and causes the same to be conveyed to another for the purpose of defrauding his creditors, such lands may be subjected to the payment of his debts after his death. Bushnell v. Bushnell, 88 Ind. 403.

A creditor of a decedent may maintain an action to have a fraudulent conveyance of the decedent set aside, when the lands may be sold to pay debts. Bottorff v. Covert, 90 Ind. 508.

An action to set aside a conveyance as fraudulent will not lie after a final settlement, so long as such settlement remains in force. Vestal v. Allen, 94 Ind. 268.

2488. (2335.) Fraudulent conveyances.-110. If the executor or administrator shall be authorized to sell any lands thus fraudulently conveyed, he may, before sale, obtain possession by an action for the possession thereof, or may file a petition to avoid the fraudulent conveyance.

2489. (2336.) Petition to sell.-111. Whenever an executor or administrator shall discover that the personal estate of a decedent is insufficient to satisfy the liabilities thereof, he shall, without delay, file his petition in the circuit court issuing his letters, for the sale of the real estate of the deceased, to make assets for the payment of such liabilities.

The court issuing the letters has exclusive jurisdiction of a petition to sell lands to pay debts. Vail v. Rinehart, 105 Ind. 6. See Williamson v. Miles, 25 Ind. 55; Jones r. Levi, 72 Ind. 586.

In the absence of a provision in a will authorizing an executor to sell and convey lands, he can only make such sale upon petition and order of court directing the sale. Duncan v. Gainey, 108 Ind. 579.

Proceedings to sell lands to pay debts are not civil actions. Seward v. Clark, 67 Ind. 289.

But the parties are entitled to a change of judge. Scherer v. Ingerman, 110 Ind. 428.

2490. (2337.) Liens.-112. Before filing such petition he shall carefully examine the offices of the clerk, auditor, treasurer and recorder in each county in which real estate of the deceased may be situate, and ascertain the exact character and extent of each lien thereon

created or suffered by the deceased in his life-time, and remaining unsatisfied of record.

2491. (2338.) Requisites of petition-Parties.-113. Such petition shall be entitled with the names of the parties, petitioner and defendants, and the court in which pending. If the deceased died intestate, his widow, if any, and his other heirs, shall be made defendants; if he died testate, his widow, if any, and his devisees, shall be made defendants, provided that if he died intestate as to any portion of his real estate, his heirs shall also be made defendants. The holder of every lien on the real estate which the executor or administrator shall have reason to deem invalid or discharged, in whole or in part (except taxes and judgments and mortgages in favor of the State of Indiana), shall be made defendants to every such petition, and may be proceeded against by the name or style by which he or they may be designated in the record or instrument constituting such lien. Any person claiming an interest in or lien upon any of the real estate may also be made a defendant. If the names of any of the heirs or devisees of the deceased be unknown to the petitioner, such fact shall be stated in the petition, and they may be proceeded against as the unknown heirs or devisees of the deceased. The petition shall set forth a description of the real estate of the deceased liable to be made assets for the payment of his debts; the title of the decedent therein at his death, and the probable value thereof, exclusive of liens; the amount of the personal estate of the decedent which has come to the possession or knowledge of the executor or administrator; the amount of the claims filed and allowed against the estate; the amount of claims filed and pending against the estate; the particulars of each lien, whether general or special, including taxes accrued at the death of the decedent, and judgments and mortgages, due or owing to the state, upon all or any of the decedent's real estate, appearing and remaining unsatisfied of record, with the amount and date of lien and names of the holders, as the same appears of record. If the decedent shall have died testate, and his will shall contain any provision for the disposition of his estate for the payment different from the manner which the law prescribed in case of intestacy, such provision shall be set forth in the petition. Such petition shall be verified by the oath of the executor or administrator filing the same.

The names of the heirs of the decedent should be named in the petition if they are known, and if not they shouuld be referred to as unknown heirs. Guy . Pierson, 21 Ind. 18; Rapp v. Matthias, 35 Ind. 332.

The petition should contain such a description of the lands sought to be sold as will be sufficient to identify the same. Weed v. Edmonds, 4 Ind. 468.

The petition may be filed with the clerk in vacation. Shepherd v. Fisher, 17 Ind.

229.

It should appear from the petition that the personal assets are insufficient to pay the debts of the estate. Rapp. v. Matthias, 35 Ind. 332.

An averment that the petitioner is the administrator of the estate is sufficient, he not being required to produce his letters or aver his appointment and qualification. Bennett v. Gaddis, 79 Ind. 347.