¶1dissenting.
¶2I cannot concur in the view that the Probate Court had no power, while granting authority to the executor to make sale of the lands, to fix the time when such sale should take place.
¶3My opinion is that when that court, during the period of its existence, had once acquired jurisdiction over the lands of a. decedent, by the concurrence of those circumstances which, invested it by law with the right to convert them into assets, they became- a fund for the payment of debts- in the hands of the executor or administrator, and that officer, in making the conversion, was bound to observe all the requirements of the decree authorizing it, not inconsistent with the written law. The jurisdiction of the Probate Court over realty properly condemned to be sold was, in my opinion, as ample as that over personalty, and I cannot doubt that, in ordering a sale of the latter, the court might prescribe the-period of sale.
¶4It is well known that, in a purely agricultural country like-ours, there is nothing which exerts a greater influence in the price obtained for lands at public auction than the season of the year at which the sale takes place ; and I think that the court, might well require it to be made at such time as would most, likely result in producing a full price. If no time was fixed by the court, as was usually the case, then the administrator-selected his own time; but if the time was prescribed, he must observe it, or obtain from the court an alteration or ex*198tension of it, after notice to the parties in interest. It will not do to say that the same end could be accomplished by a refusal to confirm where an inadequate price had been obtained. The power to withhold confirmation exists in all courts which have the right to order sales, but I am not aware that any of them have ever been denied the power of designating in advance the time of sale by them deemed most .suitable. If, as held in the majority opinion, the Probate •Court had by law no control over the time of sale, but this was a matter left wholly to the executor or administrator, it would seem that that officer could not be in any manner controlled or restrained in selecting his time.
¶5If, despite repeated refusals by the court to confirm his .sales, he persisted in malting them' at a season of the year when there was no market for lands, what would be the xemedy? If it be answered that such conduct would warrant his removal, this amounts at last to an assertion of jurisdiction in the court over the time of sale, and subverts the idea of an unlimited and illimitable authority on the part of the .administrator. It would seem more consonant with reason to .admit the power of the court to fix the time in advance.
¶6I think the Probate Court of Washington County had the xight, by requiring the report of sale to be made to its April term, to fix thereby the time of sale at some period antecedent to that term ; that this being" a material part of the decree, it could not be subsequently changed without notice to the heirs, and that the fourth assignment of error is, therefore, well taken.
¶7It will be borne in mind that this is not a collateral attack upon the title of the purchaser, but a direct appeal from the •decree confirming the sale.