§ 2701 Petition for sale of realty to pay decedent's debts; notice.
(a) When the personal estate of a decedent is not sufficient to pay the decedent's debts, the decedent's executor or administrator may present to the Court of Chancery of the county in which there is any real estate of the decedent a petition outlining such facts, and praying for an order for sale of the whole, or such part thereof, if the personal estate is not sufficient for that purpose.
(b) Written notice of intention to present such petition, and of the day and place of doing so, shall be given by the executor or administrator at least 10 days in advance to the parties interested or, if any of the parties be minors and have guardians, to such guardians if such parties and guardians reside in the State, and also to the tenants in possession of the premises intended to be sold. If any of the parties or guardians do not reside in the State, there shall, in such case, be such publication or service of notice in respect to them as shall be prescribed by the Court of Chancery, by general rule, or specially directed in any case.
(c) Where the decedent has real estate in more than 1 of the counties of this State the petition may be presented to the Court of Chancery of any of the counties wherein such real estate is located. The Court may, in such action, make an order in relation to any real estate of the decedent located within this State. The Court shall order the part of the proceedings which relates to real estate in a county, other than that where the petition is presented, to be certified and recorded in the Court of Chancery in that county; and the record shall have all the effect of an original record. The sale of any such real estate shall be conducted only in the county wherein such real estate is located.
§ 2702 Application by creditor to compel sale of realty; procedure.
A creditor of the decedent may apply to the Court of Chancery of the county wherein the letters were granted to issue a citation to an executor or administrator to appear before it, on a day to be therein mentioned, to show cause why the creditor shall not present a petition to the Court for the purpose mentioned in § 2701 of this title. The citation shall be served at least 10 days before its return. If upon a hearing it appears that there is a deficiency of assets for the payment of the decedent's debts, and that the creditor will be remediless without the sale of the real estate, or part thereof, then the Court may order the executor or administrator to present such petition to it on or before such date to be fixed by the Court as will enable the notice required by § 2701 of this title to be given.
§ 2703 Proof in action to compel sale of realty.
In cases of a petition for an order for sale of realty, the executor or administrator shall exhibit to the Court of Chancery, on oath, a true account of all the personal estate of the decedent, and of all debts outstanding against the estate of the decedent which shall have come to the executor's or administrator's knowledge, stating therein the amount of the inventory and appraisal, the amount of the debts due to the decedent and all other property, rights and credits belonging to the decedent's personal estate of which the executor or administrator has knowledge; and the executor or administrator shall also exhibit the inventory, list and statement filed pursuant to § 1905 of this title, or certified copies thereof.
§ 2704 Order of sale; realty to be sold.
The Court of Chancery may, if it appears that there is a deficiency of personal estate for the payment of the decedent's debts, order that the executor or administrator shall sell the real estate, or a part thereof to be specified in the order, for the purpose of supplying the deficiency. No more shall be sold than the Court deems sufficient for that purpose, unless the Court considers that the condition of any premises is such that a part thereof, merely sufficient, could not be laid off and sold without injury to the whole, in which case the Court may order the whole or any part of such premises to be sold, as may be deemed best for the parties interested.
Code 1852, §§ 1881, 1882; Code 1915, § 3419; Code 1935, § 3879; 12 Del. C. 1953, § 2704; 59 Del. Laws, c. 384, § 1.;
§ 2705 Partition no bar to sale.
The fact that partition has been made of the real estate shall be no bar to an order for sale.
Code 1852, §§ 1881, 1882; Code 1915, § 3419; Code 1935, § 3879; 12 Del. C. 1953, § 2705; 59 Del. Laws, c. 384, § 1.;
§ 2706 Manner of sale; notice and adjournment in case of public auction.
Every sale under this chapter shall be by public auction or by private sale with the approval of the Court of Chancery. If the sale is by public auction, the Court shall direct the executor or administrator to give notice thereof by advertisements made and signed by the Clerk, describing the land to be sold and appointing the day, hour and place of such sale, posted, at least 10 days before the day of sale, at such places in the county as the order specifies, and also in such other manner as may be deemed proper in a particular case. The executor or administrator may adjourn the sale.
§ 2707 Effect of contribution in advance of sale to payment of debts; contribution to equalize burden after sale.
If any devisee, or person holding any part of the real estate, contributes so much as the Court of Chancery adjudges to be devisee's or other person's proportionable part towards payment of the outstanding debts, no order shall be made for the sale of the premises owned or held by the devisee or other person. A devisee or other owner of premises which shall be sold pursuant to an order under this chapter may compel contribution to equalize the burden from any other owner if more than devisee's or other person's proportionate share towards payment of the debts is raised by the sale.
Code 1852, § 1886; Code 1915, § 3424; Code 1935, § 3884; 12 Del. C. 1953, § 2712; 59 Del. Laws, c. 384, § 1; 70 Del Laws, c. 186, § 1.;
§ 2708 Return of sale; deed.
(a) An executor or administrator shall return the proceedings to any adjourned or regular term of the Court of Chancery after the making or renewing of an order of sale; and if the return is approved, the executor or administrator shall make a deed to the purchaser for the premises sold.
(b) If an order is made to several executors or administrators, upon the death of any, it shall survive.
(c) A successor administrator may return a sale made by a former executor or administrator and make a deed to the purchaser, if the Court of Chancery approves the sale and orders the successor to make a deed. The successor may, under order of the Court, make a deed pursuant to a sale returned by such former executor or administrator and duly approved.
(d) A deed may also be made, by order of the Court of Chancery, to the heirs or to the assigns of a deceased purchaser.
(e) The Court of Chancery shall not order a deed to be made in any case, unless the purchase money is first paid.
§ 2709 Title of purchaser.
The grantee in any deed made in pursuance of this chapter shall take all the estate, title and claim which the decedent, at the time of the decedent's death, had to the real estate thereby conveyed, either at law or in equity, with the benefit of all acts and matters done after the decedent's death for perfecting or securing the title, and shall hold the same paramount to all encumbrances created or suffered by, and all right and title of the devisees or heirs of the decedent, and all persons claiming through them, and also discharged from the lien of all judgments against decedent, or the decedent's executors or administrators, and also of all the mortgages and recognizances entered into or executed by the decedent for the payment of money or interest, absolutely and not dependent on a contingency. But neither the sale nor the deed shall impair or affect the lien of any recognizance or obligation entered into or executed by the decedent with condition for the performance of any official duties, or of any recognizance or mortgage entered into or executed by the decedent with any other condition than for the absolute payment of money, or interest.
Code 1852, § 1892; Code 1915, § 3426; Code 1935, § 3886; 12 Del. C. 1953, § 2714; 59 Del. Laws, c. 384, § 1; 70 Del Laws, c. 186, § 1.;
§ 2710 Application of proceeds of sale; order of payment of debts.
The purchase money of a sale, made by authority of this chapter (all just charges to be allowed by the Court of Chancery, being first deducted), shall be applied to outstanding debts against the decedent in the following order:
(1) First Class. — To judgments against the decedent, which, before the sale, were liens on the premises sold, and to recognizances and mortgages entered into or executed by the decedent with condition for the payment of money or interest, absolutely, and not dependent on a contingency, and which, before the sale, were liens on the premises sold; such judgments, recognizances and mortgages shall be of equal grade, but shall be preferred in payment according to the legal priority of their lien respectively; and if in an action or proceeding upon a recognizance, obligation or mortgage entered into or executed by the decedent with other condition than for the absolute payment of money or interest (but which was by its own force or legal effect, without judgment thereon, a lien on the premises sold), a sum shall have been assessed or ascertained as payable or recoverable by virtue thereof, and judgment or decree, at the time of the sale, has been thereupon given or pronounced, the sum so assessed or ascertained with the costs shall stand in priority, according to the date of the obligation or recognizance, or of the depositing of the mortgage duly acknowledged or proved in the proper recorder's office to be recorded, and shall be preferred in payment according to such priority; but in no other case shall the proceeds of such sale be applied or retained for the purpose of being applied to any recognizance, obligation or mortgage entered into or executed by the decedent with other condition than for the absolute payment of money or interest, in preference to, or to the postponement of, any debt outstanding against the decedent.
But no debt shall be regarded as within this class unless it was before the sale a lien on the premises sold; a sum assessed or ascertained, as mentioned, under this class, being here understood to be demandable by virtue of the mortgage, recognizance or obligation upon which the action or proceeding was instituted.
(2) Second Class. — To other debts outstanding against the decedent, observing the same rule of priority as prescribed by § 2105 of this title.
§ 2711 Disposition of surplus after paying debts.
If there is any surplus of the sale, after paying all the debts, it shall belong to the person to whom the premises sold belonged at the time of the sale, who shall have the same proportion, quantity and manner of interest in the surplus, as the person had in the premises sold; and an executor or administrator shall not detain the surplus, or any part of it, on account of any mortgage, obligation or recognizance entered into or executed by the decedent with other condition than for the absolute payment of money or interest and which was a lien on the premises sold.
Code 1852, § 1898; Code 1915, § 3428; Code 1935, § 3888; 12 Del. C. 1953, § 2716; 59 Del. Laws, c. 384, § 1; 70 Del Laws, c. 186, § 1.;
§ 2712 Order for disposition of surplus.
The Court of Chancery, upon the petition of an executor or administrator, shall give direction for the payment or disposal of the surplus.
§ 2713 Bond to be given by executor or administrator before executing order of sale.
Every executor or administrator before proceeding to execute an order of sale shall, in the Court of Chancery, with 1 or more sufficient sureties to be approved by the Court, enter into bond to the State in a penal sum to be determined by the Court, with condition, in substance to account truly for all money to arise from the sale, and (the just charges to be allowed by the Court being first deducted) to apply all the balance thereof to the payment of the outstanding debts against the decedent, according to their legal priority, and to pay the surplus, if any, according to law, and to perform the executor's or administrator's duty in the premises with fidelity.
§ 2714 Purchase money payable to a successor administrator.
If a sale, made by an executor or former administrator, shall be returned by a successor administrator, the purchase money shall be payable to the latter, but such payment shall not be made nor the sale approved until the successor administrator gives bond in the Court of Chancery as prescribed in § 2713 of this title; and in that case, the Court may discharge the bond of the executor or former administrator upon such terms as may be deemed proper.
§ 2715 Refund of purchase money when sale not returned or not approved.
If the purchase money arising from any sale under this chapter shall be paid to the executor or administrator before the sale is approved, the executor or administrator shall refund the same without delay if such sale is not returned or shall not be approved. If the executor or administrator does not refund the money, it shall be a breach of the condition of the bond prescribed in § 2713 of this title, although the executor or administrator shall have died before the time for returning such sale, for such death shall not excuse the executor or administrator from the strict performance of the executor's or administrator's duty.
Code 1852, § 1902; Code 1915, § 3431; Code 1935, § 3891; 12 Del. C. 1953, § 2720; 59 Del. Laws, c. 384, § 1; 70 Del Laws, c. 186, § 1.;
§ 2716 Charges of sale; taxing and payment.
All the charges of any sale under this chapter, whether under the name of commissions or otherwise, shall be taxed by the Court of Chancery and paid to the Clerk before approving the sale; and no other charges shall be allowed on account of the sale, or of receiving or paying the purchase money, but the account shall be passed before the Register of Wills, as other accounts.
§ 2717 Power to refuse order for sale or to approve a sale.
The Court of Chancery may refuse an order for sale of real estate or may refuse to approve a sale, if under the circumstances it is considered improper that such sale should be made, although it should sufficiently appear that the personal estate is not sufficient for the payment of the debts, or that the sale was regularly conducted.
§ 2718 Appeal to Supreme Court.
Any person aggrieved by an order or decree of the Court of Chancery made in any proceeding under this chapter may appeal therefrom to the Supreme Court, and no such order or decree shall be drawn in question except upon appeal.
§ 2719 Power of sale in will; execution; liability of purchaser for application of purchase money.
(a) If, by any will, authority is given to several executors, or other persons, to sell real estate, and, if 1 or more of them die before the complete execution of the authority, such authority shall survive.
(b) If, by any will, real estate is devised to be sold, and no person is authorized to make the sale, the person, or persons, having the execution of the will, or the survivor or survivors of them, if several, may sell the real estate in execution of the devise.
(c) If, by any will, real estate is devised to a person or persons for life and after the death of such life tenant or life tenants to be sold, and no person is authorized to make the sale, the person or persons who have the execution of said will at the period when such sale is directed to be made, or the survivor or survivors of them, if several, may sell the real estate in execution of the devise.
(d) If, by any will, authority is given to an executor to sell real estate, and the person so named as executor therein dies, or is removed or discharged from the office of executor before the execution of the authority, or refuses or neglects to give bond, or renounces, or is incapable, the person or persons having the execution of the will, or the survivor or survivors of them, if several, may sell the real estate in execution of the devise.
(e) Whenever real estate is sold and conveyed in any such case as mentioned and provided for in this section, the purchaser or purchasers thereof shall take the same free and discharged from any liability as to the application, misapplication or nonapplication of the purchase money or any part thereof. Nothing in this section shall contravene any express direction contained in any will.
Code 1852, § 1906; 14 Del. Laws, c. 79, § 1; 24 Del. Laws, c. 235, § 1; Code 1915, § 3435; 30 Del. Laws, c. 211, § 1; Code 1935, § 3895; 12 Del. C. 1953, § 2724; 59 Del. Laws, c. 384, § 1; 70 Del Laws, c. 186, § 1.;