tate, then that the remedies of the creditor by virtue of such mortgage or charge, have been exhausted.

3. That the personal estate of the deceased is insufficient for the payment of such debts; and that the whole of such estate, which could have been applied to the payment of the debts of the deceased, has been duly applied for that purpose.

The surrogate, when so satisfied, shall in the first place enquire and ascertain whether sufficient monies for the payment of such debts can be raised, by mortgaging, or leasing the real property of the deceased, or any part thereof; and if it shall appear that such monies can be so raised, advantageously, to the interest of such estate, he shall direct such mortgage or lease, to be made for that purpose.

No such lease shall be for a longer time, than until the youngest person, interested in the real estate leased, shall become twenty-one years of age.

A lease or mortgage executed under the authority of the surrogate as aforesaid, shall be as valid and effectual, as if executed by the testator or intestate immediately previous to his death.

If it shall appear to the surrogate that the monies required cannot be raised by mortgage or lease, advantageously to the estate, he shall from time to time order a sale of so much of the real estate, whereof the testator or intestate died seized, as shall be sufficient to pay the debts, which the surrogate shall have entered in his books, as valid and subsisting.

If such real estate consist of houses or lots, or of a farm, so situated, that a part thereof cannot be sold without manifest prejudice to the heirs or devisees, then the whole or a part thereof, although more than may be necessary to pay such debts, may be ordered to be sold; and if a sale of the whole real estate, shall appear necessary, to pay such debts, it may be ordered accordingly.

The order shall specify the lands to be sold; and the surregate may therein direct the order in which several tracts, lots, or pieces, shall be sold. If it appear that any part of

such real estate has been devised, and not charged in such devise with the payment of debts, the surrogate shall order that the part descended to heirs, be sold before that so devised; and if it appear that any lands devised or descended, have been sold by the heirs or devisees, then the lands remaining in their hands unsold, shall be ordered to be first sold, and in no case shall land devised, expressly charged with the payment of debts, be sold under any order of a surrogate.

Before granting any order for the mortgaging or leasing any real estate, the surrogate shall require from the executor or administrator applying for the same, a bond to the people of this state, with sufficient sureties, to be approved by the surrogate, in a penalty double the amount to be raised by such mortgage or lease, conditioned for the faithful application of the monies arising from such mortgage or lease, to the payment of the debts established before the surrogate on granting the order, and for the accounting for such monies, whenever required by such surrogate, or by any court of competent authority.

Before granting any order for the sale of any real estate, the surrogate shall require a bond in like manner, and with sureties as above directed, in a penalty double the value of the real estate ordered to be sold, conditioned that such executors or administrators will pay all the monies arising from such sale, after deducting the expenses thereof, and will deliver all securities taken by them on such sale, to the surrogate, within twenty days after the same shall have been received and taken by them.

In case of the refusal or neglect of the executors or administrators, applying for such order, to execute, within a reasonable time, any bond required by the two last sections, the surrogate shall appoint a disinterested freeholder, to execute such mortgage or lease, or to make such sales, who shall execute a bond similar, in all respects, to that required of the executors or administrators, in whose place he shall be appointed, and in making such appointment he shall give preference

to any person who shall have been nominated by the creditors of the deceased.

Upon executing and filing with the surrogate such bond, the surrogate shall order the mortgage, lease, or sale to be made by the person so appointed, who shall possess all the power and authority by law conferred on executors and administrators, in relation to the mortgaging, leasing, or sale of the real estate of the deceased, mentioned in the order of the surrogate; and shall, in like manner, be liable to account for his proceedings, and may, in the same manner, be compelled to satisfy debts, to pay over monies, and to deliver securities.

The executors or administrators shall immediately make a return of their proceedings, upon such order of sale, to the surrogate granting the same, who shall examine the proceedings, and may also examine such executors or administrators, or any other person on oath, touching the same; and if he shall be of opinion that the proceedings were unfair, or that the sum bid is disproportionate to the value, and that a sum exceeding such bid, at least ten per cent, exclusive of the expenses of a new sale may be obtained, he shall vacate such sale, and direct that another be had; of which notice shall be given, and the sale shall be in all respects conducted as the sale on the first order.

If it shall appear to the surrogate, that such sale was legally made and fairly conducted, and that the sum bid was not disproportionate to the value of the property sold, or if disproportionate, that a greater sum, as above specified, cannot be obtained, he shall make an order confirming such sale, and directing conveyances to be executed.

If the proceeds arising from the mortgage, lease or sale of any lands, made pursuant to the order of any surrogate as herein directed, which shall have been paid over to such surrogate, shall be sufficient to pay all the debts established before the surrogate, on granting the order, the heirs and devisees of the testator or intestate, and all the remaining lands of which he died seized, shall be exonerated from all claim or charge by reason of such debts so established; if such pro

ceeds shall not be sufficient for that purpose, the heirs and devisees and remaining land, shall be exonerated from such debts, in proportion to the sum raised, and paid over.

The surrogate who shall grant any order for the mortgage, lease or sale of real estate, shall possess the same power, to cite and compel any executor or administrator, to account for the proceeds of the sale, mortgage or lease of any real estate, and to compel the payment of debts, and the payment of monies arising from such sales, and the delivery of securities taken thereon, as if such real estate had been originally personal estate, in the hands of such executor or administrator. Where the whole, or any part, of the real estate of any deceased person, shall have been sold by virtue of an order of a surrogate, the monies arising from such sale, shall be brought into the office of the surrogate, granting such order, for the purpose of distribution, and shall be by him retained for that purpose.

The surrogate shall, in the first place, pay out of the said monies the charges and expenses of the sale. He shall next satisfy any claim of dower, which the widow of the testator or intestate may have, upon the lands so sold, by the payment of such sum in gross, as shall be deemed, upon the principles of law applicable to annuities, a reasonable satisfaction for such claim, if the widow shall consent to accept such sum in lieu of her dower, by an instrument under seal, duly acknowledged or proved, in the same manner as deeds entitled to be recorded.

If after reasonable notice for that purpose, no such consent be given, then the surrogate shall set apart one third of the purchase money to satisfy such claim, and shall cause the same to be invested in permanent securities on annual interest, in his name of office, which interest shall be paid to such claimant, during life.

If after the deductions aforesaid, from the proceeds of such sale, there shall not be sufficient remaining to pay all the debts of the testator or intestate, then the balance of such proceeds shall be divided, by the surrogate, among the creditors,

in proportion to their respective debts, without giving any preference to bonds, or other specialties, or to any demands on account of any suit being brought thereon.

Every person to whom the deceased shall have been indebted, on a valuable consideration, for any sum of money not due at the time of such distribution, shall receive his proportion with other creditors, after deducting a rebate of legal interest, upon the sum distributed, for the time unexpired of such credit.

Before any such distribution shall be made, notice of the time and place of making the same, shall be published for six weeks successively, in a newspaper printed in the county where the surrogate resides. He may also publish such notice in such other newspaper, as he may deem most likely to give notice to the creditors.

At the time and place appointed, and at such other times and places, as the surrogate shall appoint for that purpose, he shall proceed to ascertain the valid and subsisting debts against the testator or intestate, and shall hear the allegations and proofs of the claimants of such debts, and of the executors, administrators, heirs, devisees, or any other person interested in the estate of the deceased, or in the application of the proceeds of such sale.

Any debts, which shall have been established by the surrogate, on the application for the sale, shall not again be controverted, unless upon the discovery of some new evidence to impeach the same, and then only, upon due notice given to the claimant. Any other debts or demands which shall be presented, and which were not so established, shall be proved to the satisfaction of the surrogate; and the same proceedings may be had to ascertain the same, as are herein before prescribed, upon the hearing, on the application of any executor or administrator, for authority to sell the real estate.

If, after payment of debts and expenses, there be any overplus of the proceeds of the sale, the same shall be distributed, among the heirs and devisees of the testator or intestate, or