(HortipU ICaiu Bc\^aa\ IGtbrary Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022805414 THE PROCEDURE AND LAW OF SURROGATES' COURTS OF THE STATE OF NEW YORK TWO VOLUMES BY WILLIS E. HEATON Surrogate of Rensselaer Countjr VOLUME ONE *****" the lawless science of our law, That codeless myriad of precedent, That wilderness of single instances.*' TENNYSON ALBANY, N. Y. MATTHEW BENDER & CO. 1907 f5if^f1 Copyright, 1907 By WILLIS E. HEATON INTRODUCTION. When I took up the duties of surrogate of Rensselaer county January 1, 1902, I began the practice of making a thorough ex- amination of all questions of law and procedure as each was raised in proceedings before me. It was soon apparent that I was being called upon to examine the same subject, or different phases of the same subject, again and again. I then began to preserve memoranda of the cases examined, which I classified for convenient reference. In such manner has this book been' the outgrowth of the practical work of transacting the large amount of business which comes to the Surrogate's Court of Rensselaer county, and it is hoped that it will be as useful to the practitioner as the material in it has been to me. The citations from the cases have been used quite generally in their detached form, with the result that the text may have lost smoothness; but that is better than that the busy lawyer should lose time. Most of the text consists of literal extracts from opinions them- selves which have been gathered by a careful examination of every volume of the Court of Appeals' reports and many others, and then put together as the body of the work. Where a reported case states the principle of law, or outlines the procedure, it has been used without comment, and thereby brevity and exactness have been gained. Many cases are followed in the citations from the lower to the highest court so that the history of the case may be known and all the opinions consulted without loss of time. The procedure in the settlement of an estate is of the nature to admit of an orderly and logical treatment. The plan of this work adopts such treatment vdth one subject foUoAving another in the order in which each arises or may arise, so that it is but necessary to turn the pages of the book to take one from the first step to the last in the settlement of an estate. It explains what ought to be done next in court and out of court, and how to do it. This method prevents the complete discussion of a subject in all its bearings under one head, but its different phases will [iii] iv IwTEODUCTIOir. be found in their appropriate places with reference to the par- ticular proceeding desired. It is believed that the use of the book will demonstrate the advantage of this plan. This work is not intended to be so much a general exposi- tion of the principles of the law and procedure applicable to Surrogates' Courts as it is a brief upon each subject ready for instant use by the busy practitioner. Hoping that all who have occasion to use this book may find it a guide and helper in the important and interesting work arising in Surrogate's Court, I give the result of my labor to the profession. WILLIS E. HEATOK HoosicK Falls, JS". Y,, August 31, 1907. TABLE OF CONTENTS. PAGE. Index of rorma 1353 Index, Greneral 1359 Index of Contents of Chapters xxiii Introduction iii Table of Cases Cited xlix Table of Chapters vii Table of Contents v Table of Miscellaneous Statutes Cited xiii Banking Law xiii Code of Civil Procedure xiv Constitution of New York xiv Domestic Relations Law xiii Insanity Law xiii Membership Corporations Law xiv Kegotiable Instruments Law xiv Personal Property Law xiv Public Lands Law xiv Real Property Law xix Revised Statutes xx Session Laws xiii Statutory Construction Law xiv Supreme Court Rules xxi Surrogates' Court Rules xxi Treaties xiv [V] TABLE OF CHAPTERS. (References are to pages. Volume 1 ends with page 715.), CHAPTER I. Page. The Surrogate and the Officers of His Court 1 CHAPTER II. Powers of the Surrogate and of the Surrogate's Court 13 CHAPTER III. Jurisdiction of the Surrogate and of the Surrogate's Court 46 CHAPTER IV. Rights, Powers, and Duties of Executors and Other Persons Before Probate or Issue of Letters of Administration 61 CHAPTER V. A Valid Will — Its Proper Execution and Its Effectual Revocation .... 80 CHAPTER VI. What Wills May be Proved in This State, Who May Make the Applica- tion and in What County the Application May be Made Ill CHAPTER VII. Petition for Probate — Petitions, Objections, and Answers Generally... 120 CHAPTER VIII. Citation for Probate — Who Should be Cited and Contents of Citation — Citation and Other Process of Surrogate's Court 135 CHAPTER IX. Appearance of Parties in Person or by Attorney — Waiver of Issue and Service of Citation — Appointment of Special Guardian 156 CHAPTER X. Taking Deposition of Witnesses Where Will is Not Contested — Filing Objections to Probate — Examination of Witnesses 166 CHAPTER XI. Sufficiency of Proof — Due Execution — Mental Competency — Freedom from Restraint and Undue Influence 193 CHAPTER XII. Construction of Will on Probate 213 CHAPTER XIII. Decree Generally — Decision and Decree on Probate 218 [vii] viii Table of Chaptees. CHAPTER XIV. Page. Force and Effect of the Decree of Probate and of Its Kecord — Exem- plified Ckjpies May be Recorded and Received in Evidence 232 CHAPTER XV. Confirming, Vacating, or Revoking Probate 241 CHAPTER XVI. Proof of Will by Action in Supreme Court — Action for Construction of Will 249 CHAPTER XVII. Letters Testamentary, of Administration, and of Guardianship — Their Requisites, Effect, and Priority 256 CHAPTER XVIII. Issue of Letters Testamentary and of Administration with the Will Annexed ; 262 CHAPTER XIX. Issue of Letters of Administration 279 CHAPTER XX. Bonds and Undertakings 305 CHAPTER XXL Public Administrator 315 CHAPTER XXII. Temporary Administrators 325 CHAPTER XXIII. Ancillary Letters 337 CHAPTER XXIV. Rights and Duties of Public Administrators of New York County as Provided by Chapter 230, Laws of 1898 347 CHAPTER XXV. Revocation of Letters 365 CHAPTER XXVI. General Rights, Powers, and Duties of Executors and Administrators . . . 378 CHAPTER XXVII. Rules Governing Actions by and Against Executors, Administrators, etc. 419 CHAPTER XXVIII. Proceeding to Require New Surety or New Bond — Actions upon Official Bonds 435 CHAPTER XXIX. Issuing Execution Against a Representative — Against the Property of a Deceased Person and Enforcing Decrees by Execution 445 Table of Chaptees. ix CHAPTER XXX. Page, Assets of an Estate — Obtaining Possession Thereof — What Property Constitutes 458 CHAPTER XXXI. The Inventory, Its Contents — Proceedings to Require Further or Amended Inventory 487 CHAPTER XXXII. Ascertaining Debts Ihie from the Deceased — Presenting and Rejecting Claims 506 CHAPTER XXXIII. Disputing a Claim — Reference Thereon — Judgment — Coats 514 CHAPTER XXXIV. Consent that Surrogate Try Claim upon Judicial Settlement — Limita- tion of Action if Consent Not Filed 524 CHAPTER XXXV. Procuring Funds veith Which to Pay Funeral Expenses and Debts — Payment of Funeral Expenses 535 CHAPTER XXXVI. Payment of Debts, Priority, Preference, and Classes Thereof 545 CHAPTER XXXVII. Actions by Creditors Against Surviving Husband or Widow, Next of Kin, Legatees, Heirs, and Devisees to Recover Unpaid Debts 564 CHAPTER XXXVIII. Collection of Debts, Funeral Expenses, and Judgment Liens by Mortgage, Lease, or Sale of Real Estate of Deceased 573 CHAPTER XXXIX. Legacies and Bequests — Their Validity, Payment, and Classification... 616 CHAPTER XL. Legacies and Bequests — Continued — Devise and Bequest to Widow in Lieu of Dower — Abatement of Legacies 627 CHAPTER XLI. Legacies and Bequests — Continued — Restrictions upon Certain Cor- porations as to Taking — Legacies to Creditors and to Next of Kin . . 634 CHAPTER XLII. Legacies and Bequests — Continued — Bequests for Funeral Expenses, Monuments, Cemetery Lots, Masses, and Religious Societies — Interest on Legacies 641 CHAPTER XLIII. Legacies and Bequests — Continued — Absolute and Limited Legacies — Right to Deduct Debt Due from Legatee — Vested and Lapsed Legacies 651 X Table of Chaptees. CHAPTER XLIV. Page Void and Lapsed Legacies — Disposition Thereof — Legacies Charged upon Real Estate or upon Devisee • 661 CHAPTER XLV. Annuities 674 CHAPTER XLVI. Proceedings to Compel Payment of a Debt, Legacy, or Distributive Share C80 CHAPTER XLVII. Devises 690 CHAPTER XLVIII. Curtesy of Husband in Lands of Wife — Dower of Wife in Lands of Husband - 702 CHAPTER XLIX. Rights and duties of Life Tenant and Remainderman — Probate of Heir- ship — Escheat 707 CHAPTER L. Accounting by Representative of Deceased Executor, Administrator, Guardian, or Testamentary Trustee 717 CHAPTER LI. Intermediate Accounting and Compulsory Judicial Settlement 735 CHAPTER LII. Voluntary Judicial Settlement — Petition — Citation and Account..... 753 CHAPTER LIII. Voluntary Judicial Settlement — Continued — Filing and Trying Objec- tions 766 CHAPTER LIV. Voluntary Judicial Settlement — Continued — With What Property the Representative Should be Charged 776 CHAPTER LV. Voluntary Judicial Settlement — Continued — With What Payments and Property the Representative Should be Credited 792 CHAPTER LVI. Voluntary Judicial Settlement — Continued — Determination of Adverse Claims to Personal Property in the Hands of the Representative Claimed by Him to Belong to the Estate 803 CHAPTER LVII. Voluntary Judicial Settlement — Continued — Trial of Claims Against the Estate 815 CHAPTER LVIII. Voluntary Judicial Settlement — Continued — Proof of Notes as Debts — Trial of Claim of Representative Against the Estate 824 Table of Chaptees. xi CHAPTER LIX. Page. Voluntary Judicial Settlement — Continued — Fees of Referees, Wit- nesses, Surrogates, and Printers — Commissions and Expenses of Representative 836 CHAPTER LX. Voluntary Judicial Settlement — Continued — Decree on Judicial Set- tlement 857 CHAPTER LXI. Decree on Judicial Settlement — Continued — Order of Distribution in Case of Intestacy 878 CHAPTER LXII. Decree on Judicial Settlement — Continued — Distribution of Damages Recovered for Negligently Causing Death — Distribution to Adopted Children — Distribution of Estates of Married Women — Distribution of Estates of Nonresidents 888 CHAPTER LXIII. Decree on Judicial Settlement — Continued - — Rights Affected by Divorce — Death in Common Disaster — Contesting Will — Legatee Being a Necessary Witness to Will — Birth of Child After Making Will 899 CHAPTER LXIV. Decree of Judicial Settlement — Continued — Decree Where Legatee Must Elect Under Will — Decree in Case of Partial Intestacy — Con- tents of Decrees Generally — Decree Settling Estates of Italian Sub- jects — Decree as to Custody of Fund for Life Beneficiary 907 CHAPTER LXV. Decree of Distribution — Deposit of !?,Ioneys and Securities in Court. . . . 922 CHAPTER LXVI. Decree of Judicial Settlement — Continued — Force, Effect, and Con- clusiveness of Decree — Recording Assignments, Releases, and Settle- ments iJ^S CHAPTER LXVII. Costs and Allowances 946 CHAPTER LXVIII. Proceedings on Appeal — Making Case and Exceptions — To What Court Appeal Taken and Who Should be Made Parties 961 CHAPTER LXIX. Proceedings on Appeal — Continued — Filing Notice of Appeal and Undertaking — Effect of Appeal 973 CHAPTER LXX. Proceedings on Appeal — Continued — Proceedings in the Appellate Court and After Decision 982 CHAPTER LXXI. Guardianship cf Infants — General Duties and Liabilities of All Guardians — Guardianship in Socage 995 xii Table of Ohaptees, CHAPTER LXXII. Page. Guardianship by Will or Deed 1005 CHAPTER LXXIII. Guardian by Judicial Appointment — Appointment and Qualification of Temporary and General Guardians — Revocation of Letters and Resignation of Guardian — Ancillary Guardianship 1014 CHAPTER LXXIV. Guardians' Annual and Final Accountings 1033 CHAPTER LXXV. Testamentary Trustees and Testamentary Trusts 1047 CHAPTER LXXVI. Testamentary Trustees and Testamentary Trusts — Continued 1072 CHAPTER LXXVII. Administration of Trust Estate — Rights, Powers, and Duties of Trustees 1086 CHAPTER LXXVIII. Trustees' Intermediate, Compulsory, and Voluntary Accounting 1107 CHAPTER LXXIX. Decree upon Trustees' Accounting — Resignation and Removal of Trustee and Appointment of Successor 1123 CHAPTER LXXX. Definition of Expressions and Terms Used in Relation to Executors, Administrators, Guardians, and Trustees 1139 MISCELLANEOUS STATUTES. Section. 114 . . 158a . (References are to Paragraphs — Vol. I. ends with 1948.) Banking Law. Par. 1057 1057 Section. 158b Par. 1057 Domestic Relations Law. 22 692 23 1120 24 778, 1120, 1143 50 1155, 1163 51 1173, 1264 52 53 54 62 64 1266 1254 1279 86 1142 60 Insanitt Law. 85 I Laws (Session Laws). Year. 1786 c. 1813 c. 1813 c. 1819 i>. 1823 c. 1837 c. 1847 c. 1848 c. 1849 c. 1853 c. 1858 c. 314. 1860 e. 360. c. 90. 1865 e. 1867 c. 1869 e. 1870 c. c. 27. 60. 129. 167. 70. 460. 80. 319. 375. 238. 1871 1875 1876 1877 368. 782. 22. 146. 359. 394. 21. 267. 448. 416. 466. .126, 423, 424, 1149, .330, 1879 c. 316 84, 1880 c. 178 1882 c. 399 1889 c. 487 1891 c. 381 1892 c. 514 677 Par. 925 854 1 1 1 925 748 854 149 84 597 855 777 862 704 1150 854 335 671 854 862 297 297 297 414 743 743 597 297 297 233 Year. 1893 c. C. C. 87. c. c. i;. 1894 c. c. c. 1895 c. c. 1896 c. 1897 c. c. 1898 c. c. 1899 c. c. c. 1901 c. c. 1902 c. u. C. 1903 c. 1904 0. c. c. 1907 c. 100. 175. 295. 452. 686. Par. 1324 1332 748 1173 297 1332 .748, 1077, 1136 701 865, 1305, 1313, 1327 331 297 731 175 740 597 595 743' 559 100, 854 547 847, 900, 903 417 903, 1324 593 918 230 491, 520 319 1136 53 297 61 39 715 100 291 865, 1327, 1328 409. 349. 289. 295. 623. 755. 692. 331. 199. 961 961 777 1337 854 1362 1193 297 .1328 [xiii] XIV Miscellaneous Statutes. (References are to paragraphs. Vol. 1 ends with U 948.) Laws of N. Y. (Jones & Varick, Ed.). Par. Par. Vol. 2, p. 71 1 Webster's Laws of N. Y., vol. 1, pp. 317, 325 1 Vol. 3, pp. 158, 316 1 Vol. 5, p. 138 1 Greenleaf's Laws of N. Y., vol. 1, p. 238 1 Vol. 3, p. 391 1 -Section. 51 . . Membekship Cokpoeations Law. I Section. 100 147 854 50 Negotiable Insteuments Law. 1070 I New Yobk State Constitution. 10 Art. I 938 I 15 Art. VI. 9 Art. VI 1225 20 Art. VI. 39 10 Pebsonal Pkopebty Law. ■3 1324, 1330, 1332 i 5 . . . . 4 1312 , 7 . . . . Public Lands Law. ■60 61 62 63. .940, 945 946 946 946 64 66 1296 .597, 598 947 948 948 16 Statutobt Consteuction Law. 652 I 27 233 22 Treaty with Italy. Teeaties. 1159 I 22 Treaty with Argentine I Republic 420 Code op Civil Pboceduee. 2 Bubd. 14 4 7 8 14 15 34, 665 .39, 16 17 22 23 24 25 26 43 50 66 105 121 190 ■317 382 910, 977 .10, 39 386 2.5 388 75 391 27 392 32 396 33 399 665 401 35 402 43 403 217 405 217 406 217 408 8 409 40 412 3 413 12 414 39 426 44 431 596 432 1225 433 732 434 629 630 626 627 .402, 403, 628 80 744 626 403 626, 783 .744, 957 .795, 796 .628, 744 628 954 976 .... no .... 222 222 222 433 79, 221 231 436 '.'...'.'.'.'. 223 Code Civil Peocedueij. XV- (Eeferences are to paragraphs. Vol. 1 ends with K 948.) . 1023, .52, .1172, Section. 437 444 452 449 50 J 506 523 524 525 526 720 721 722 723 724 727 729 730 744 746 747 1172, 1180, 749 751 755 756 757 758 759 766 779 787 796 232, 797 232, 23.5, 798 232, 799 232, 800 232, 801 802 803 809 810 811 293, 476, 477, 1007, 1064, 1065, 1078, 812 478, 483, 477, 647, .596, .618, .617, 813 814 815 816 825 826 834 835 836 841 855 887 893 894 895 913 992 .298, .350, Par. 223 231 728 1189 616 610 210 210 210 210 213 53 53 994 54 214 482 482 1258 1172 1258 1182 1183 617 618 618 781 619 820 666 233 234 680 236 237 238 239 240 280 280 475 1063 1081 1230 479 648 480 481 209 227 297 677 299 927 55 279 279 279 279 279 1220 Section. 993 . . 994 . . 995 . . 997 998 999 1000 1001 1002 1003 1004 1005 1006 1007 330, 1023 1005, 1210 1282 1290 30, 1295 1297 1298 1299 1303 1305 1306 1307 1308 , 1230, 1309 1319 1320 1321 1322 1323 1371 659, 1376 1377 1378 1379 1380 1381 662, 1390 1393 800, 1395 1396 1397 667, 1398 1399 668, 1400 668, 1404 1538 805, 1581 1080, 1674 1731 1759 931, 1760 931, 1780 1814 580, 612, 1815 1816 614, 1817 615, Par. 350' 350 350 350 350 350 350 350 350 350 350- 350 350. 350 1220 1220 769 31 31 1251 1250 1250 1250 1253 1234 1235 1235 1236 1252 1244 1244 1245 1245 1246 663 660 664 664 660 661 949 801 801 801 801 801 667 801 801 800 831 1258 805 653 1145 1145 594 1023 614 657 657 XVI Code Civil Pboceduke. (References are to paragraphs. Vol. 1 ends with H i.) Section. Par. 1818 615 1819 631, 910, 973, 980 1820 631 1821 632 1822 723, 736, 743 1823 621 1824 620 1825 653, 6G3, 665 1826 653, 663, 665, 949 1827 656, 665 1828 617, 820 1829 658 1830 615 1831 620 1832 1013 1833 1028 1835 732, 735, 1197 1836 732, 735, 736, 747, 1198 1837 790, 1185 1838 791, 1839 792 1840 . ; 792 1841 : . 793 1842 793, 794 1843 794, 814 1844 795, 796 1845 796, 817 1846 925 1847 925 1848 797 1849 797 1852 795 1853 795 1854 798 1855 799 1856 925 1859 799 1861 174, 409 1862 410 1863 411 1864 380, 412, 444 1865 323, 413 1866 414 1868 148, 637 1869 415 1886 647 1888 647 1890 647 1902 469 1903 456, 1137, 1139 1909 648, 1189 1910 648, 1189 1915 647 1916 622 1977 940 1978 941 1979 942 1980 943 1981 944 1932 781 2008 87 Section. Par. 2014 59 2067 648 2153 593 2200 88 2201 88 2434 45 2284 36 2286 988 2302 936 2346 623 2359 691 2410 1258 2463 1345 2472 1, 76, 709, 743, 1115 2473 77, 357 2474 52, 78, 351 2475 81 2476 93, 176, 383, 456, 462 2477 81, 94, 176, 183, 456, 462 2478 95, 181 2479 96 2480 97 2481 1, 8, 28, 30, 32, 401, 811 1242, 1362, 1378 2483 2 2484 7 2485 7 2486 .• 7 2487 7 2488 7 2489 7 2490 7 2491 7 2492 7 2493 7 2494 7 2495 10 2496 4 2497 5 2500 483 2501 1086 2502 1087, 1194 2503 514 2504 26 2505 6, 56 2506 26, 1242 2509 11, 12 2510 11 2514 201, 804, 966, 970,1224 1303, 1354, 1382, 1384 1388, 1389, 1394, 1395 1396, 1398, 1400, 1402 1404, 1403 2515 55, 220 2516 46, 78, 79, 81 2517 80, 404 2518 215, 219, 807, 808 2519 218 2520 218, 221, 808 2521 223 2522 224 Code Civil PAoceduee. xvn (References are to paragraphs. Section. 2523 225, 463, 2524 226, 2525 2526 2527 230, 2528 2530 2531 253, 2532 2533 210, 2534 2535 226, 227, 2537 828, 1172, 2538 232, 279, 503, 2539 2540 47, 2544 2545 350, 352, 1219, 1220, 2546 47, 48, 556, 740, 2547 291, 2548 812, 2549 2550 350 2552.! .'. .'.38, 653, 655, 953, 964,' 2553 2554 45, 663, 2555 36, 38, 2556 2557 1177, 2558 2559 1179, 2560 1206, 2561 662, 747, 1179, 1208, 2562 2563 2564 2565 2566 2567 2568 2569 2570 2571 2572 2573 2574 2575 2576 2577 2578 2579 2580 2581 2582 2583 2584 . 2585 2586. 2587 1179, .817, . 817, . 682, 1083, 1230, 1219, 1230, 1232, 1230, . 469, 1233, . 291, 1242, Par. 808 808 228 222 252 250 251 809 231 288 210 832 1181 1185 277 278 296 1221 809 812 1248 812 1391 1191 1190 665 665 1399 1207 1203 1206 1249 1214 1215 1214 821 821 1084 1085 1086 1222 1224 1225 1226 1227 1228 1229 1251 1221 1233 1233 1233 1233 1234 1237 1239 1240 1241 1242 1243 Vol. 1 ends with H 948.) Section. Par. 2588 359, 1247 2589 1249 2590 425 2591 426 2592 428 2593 429, 550, 984, 993 2594 446, 448, 483, 1268 2595 469, 485 2596 427 2597 640, 642, 1230 2598 640, 1231 2599 641 2600 642, 818 2601 643 2602 46, 79 2603 560, 960, 1284 2604 561, 1284 2605 565 2606 645, 648, 655, 729, 953 954, 961 2607 645, 648 2608 650 2609 651 2610 651 2611 175 2612 440, 444, 451 2613 109, 110, 442, 444, 448 449, 600 2614 184, 200 2615 215 2616 216 2617 185, 254, 289, 366 2618 275, 292 2619 281 2620 105, 279, 283 2621 323 2622 275, 290 2623 310, 353, 359, 361 380 2624 330, 361 2625 354 2626 375 2627 360, 376 2628 917 2629 382 2630 381 2631 382 2632 382 2633 380, 670 2634 380, 1087 2635 105 2636 358, 439 2637 441 2638 445, 448, 597, 1373 2639 447, 448 2640 437 2641 438 2642 224, 443, 448, 505, 585, 604 2643 451, 505, 1376 2644 440, 452 2645 446, 453 XVlll Code Civil Peoceduee. (Eeferences are to paragraphs. Vol. 1 ends with U 948.) Section. 2647 2648 401, 2649 402, 2650 2651 402, 2652 402, 2653 402, 2653a 359, 416, 417, 951, 1218, 2654 495, 2655 2656 2657 2658 2659 2800 451, 457, 778, 2661 461, 2662 100, 2663 463, 2664 446, 453, 469, 483, 487, 490, 2665 2666 2667 2668 2669 2670 2671 2672 2673 499, 2674 2675 2676 2677 2678 2679 2680 2681 497, 495, 2882 429, 430, 2683 2684 358, 407, 2685 554, 2686 555, 597, 2687 555, 597, 2688 2689 2690 2691 2692 563, 2693 471, 504, 585, 2694 835, 2695 2696 2697 2698 182, 2699 182, 2700 182, 510, 2701 182, 513, 2702 511, 2703 380, 2704 384, Par. Section. Par. 402 2706 . . 109, 964 402 2707 . . 486, 671, 672 404 2708 . . 672, 1084 405 2709 . . 671, 675 406 2710 . . 671, 678 407 2711 . . 680, 681, 682 408 2712 . . 684, 1016, 1079 1200 2713 . 694,695,696,700, 701 1247 2714 . . 681, 684, 693, 705, 842, 1079 937 2715 . . 707, 710 9.S7 2716 . . 708, 709, 836, 970 937 2717 . . 757, 837 937 2718... ..47, 499, 713, 720, 723, 726 937 728, 729, 732, 733, 734 937 788, 1185, 1272 1143 2718a. . 718, 1388 463 2719... .496, 748, 757, 764, 767, 769 462 798, 1076, 1077 465 2720 .. 905, 933 484 2721 . . 836, 866, 868 495 2722 . . 836, 906, 949, 970, 1355 486 2723 . . 836, 914 487 2724 . . 703, 1157 488 2725... 654, 663, 906, 949, 966 489 970 490 2726.. . 503, 821, 910, 950, 968 495 970, 975 493 2727... 949, 950, 966, 970, 975 496 1360 713 2728... .513, 949, 951, 966, 970, 974 499 990, 998, 1005, 1360 1303 2729 . . 758, 1000, 1271, 1368 498 2730... .1042, 1047, 1088, 1095, 1097 498 1098, 1100, 1271 500 2731 . . 1016, 1050, 1076, 1079 501 2732 . . . . . 201, 457, 1130, 1132, 1136 501 2733 . . 1125,1126, 1385 502 2734 . . 1143 499 2736 . . 1098 502 2742 . . 1185 550 2743 . . . 743, 1110, 1111, 1189, 1368 597 2744 . . 951,1170, 1180 1284 2745 . . 951, 1171 1234 2746 . . 951, 1172, 1293, 1301 562 2747 . . 951, 1175 552 2748 . . 951, 1176 553 2749... G35, 795, 800, 804, 815 551 821, 1391 585 2750 . . 635,795,804,811,815, 1133 600 2751 . . 804, 805 916 2752 . . 806 505 2753 . . 807 506 2754 . 808 507 2755 . . 809,811, 814 508 2756 . 2757 . . 813 500 814, 817 511 2758 . 2759 . . 818 514 819 512 2760 . 820 384 2761 . . 817, 821 1287 2763 . 822 Real Pkopeety Law. XJX (References are to paragraphs. Vol. 1 ends with 1 948.) Section. Par. 2764 824 2765 825 2771 817 2774 825 2777 795-826 2798 828 2799 828, 830, 832 2782 826 2783 826 2785 827 2800 833 2802 1333, 1354 2803 1355 2804 1356 2805 1357 2806 1358 2807 1353, 1359 2808 1359 2809 1360 2810 1361 2811 1368 2812 1333, 1369 2813 1371 2814 552, 1372 2815 1373, 1374 2816 1373 2817 1374 2818 1376, 1377 2819 1381 2820 1383 2821 1276, 1277, 1278 2822 1265, 1278 2823 1278, 1279 2824 1278, 1279 2825 1278, 1280 2826 1278, 1279 2827 1265, 1281 2828 1281 2829 1283 2830 1280, 1282 2831 1282, 1283 2832 1284 1284, 1284, 1286, 1287, 1287, 1284, Section. 2833 2834 2835 2836 2837 2838 2839 2840 2841 2842 2843 2844 2845 2846 2847 1271, 1297, 2848 1298, 1299, 2849 1298, 2850 1170, 2851 2852 2853 2854 2855 1270, 2856 2857 2858 2859 2860 3228 1200, 3229 631, 3230 1200, 1212, 3240 1202, 3246 3248 3251 3271 3278 3296 3317 3318 1084, 3319 3320 . 1042, 1088, 1108, 1361, Par. 1285 1285 1286 1283 1297 1287 1288 1289 1289 1290 1291 1292 1292 1294 1299 1392 1299 1299 1267 1268 1269 1269 1294 1271 1271 1272 1272 1273 1212 1212 1249 1249 1200 732 1249 624 1177 1083 1087 1206 1084 1362 Real Propeety Law. 30 1331 32 1324, 1326 47 1331 49 1332 51 1312 53 1312 56 585, 882 58 1324 71 1331 72 1307, 1331 73 1306, 1326, 1331 76 607, 903 77 603, 1306 78 1342, 1345 83 1330 91 1377 92 93 HI 129 138 158 170 171 172 173 174 176 177 1374, 1377 835 1265 1331 875 1324 930 930 930 930 833, 930 931 930 178 847, 930 179 930 180 847, 850 XX Revised Statutes. (References are to paragraphs. Vol. 1 ends with H 948.) Section. 181 182 185 . . 186 . . 187 . . 192 193 . . 2i5 248 . 249 249a . 250 251 252 253 254 . . 255 256 . . 257 . . Par. 848, 850 849 684 .... 932 .... 932 933 .... 773 925 112 113 . . . . 114 .... 115 .... lie .... 117 .... 118 .... 118 .... 118 119 120 Section. Par. 258 121 259 122 260 123 261 124 281 188 282 189 283 190 284 191 285 192 286 193 287 194 287 194, 1136 288 195 289 196 290 197 290a 198 295 1126, 1386 296 1125, 1986 Revised 1 R. S. 723, § 13 879, 1331 1 R. S. 725, § 32 1331 1 R. S. 725, § 33 1331 1 R. S. 727 1331 1 R. S. 728, § 47 1307 1 R. S. 729, § 60 1305 1 R. S. 730 1332 1 R. S. 730, § 63 903 2 R. S. 66, § 52 361 2 R. S. 66, § 56 1230 2 R. S. 94, § 65 1185 2 R. S. 220, § 1 1 2 R. S. 450 925 2 R. S. 453, § 39 925 2 R. S. 453, § 40 925 2 R. S. 454, § 47 925 2 R. S. 455, § 52 925 2 R. S. 455, § 53 925 2 R. S. 610, § 108 1230 2 R. S. 734, § 96 635 3 R. S. 5tli Ed. § 93 (70) 1150 3 R. S. 6th Ed. p. 671, § 119. . . 297 3 R. S. 600 925 R. S. Pt. II., Chap, v.. Tit. I., Art. III., § 43 148 R. S. Pt. II., Chap. VI., Tit. I., Art. I., § 1 127 R. ,S. Pt. II., Chap. VI., Tit. I., Art. I., § 2 918 R. S. Pt. II., Chap. VI., Tit. I., Art. I., § 3 918 R. S. Pt. II., Chap. VI., Tit. I., Art. I., § 4 918 R. S. Pt. II., Chap. VI., Tit. I., Art. I., § 5 924 R. S. Pt. 11., Chap. VI., Tit. I., Art. II., § 21 126 Statutes. R. S. Pt. II., Chap. VI., Tit. I., Art. 11., § 22 154 R. ,S. Pt. II., Chap. VI., Tit. I., Art. III., § 40 128 R. S. Pt. II., Chap. VI., Tit. I., Art. III., § 41 129 R. S. Pt. II., Chap. VI., Tit. I., Art. III., § 43 148 R. S. Pt. II., Chap. VI., Tit. I., Art. III., § 44 149 R. S. Pt. II., Chap. VI., Tit. I., Art. III., § 45 926 R. S. Pt. II., Chap. VI., Tit. I., Art. III., § 46 926 R. S. Pt. II., Chap. VI., Tit. I., Art. III., § 47 926 R. S. Pt. II., Cliap. VI., Tit. I., Art. III., § 48 926 R. S. Pt. II., Chap. VI., Tit. I., Art. III., § 49 638,1149, 1150 R. S. Pt. II., Chap. Vi., Tit. I., Art. III., § 50 1148 R. S. Pt. II., Chap. VI., Tit. I., Art. III., § 51 639, 1148 R. ,S. Pt. II., Chap. VI., Tit. I., Art. in., § 52 881 R. S. Pt. II., Chap. VI., Tit. I., Art. III., § 53 150 R. .S. Pt. II., Chap. VI., Tit. I., Art. III., § 71 154 R. S. Pt. II., Chap. VI., Tit. III., § 35 729 R. S. Pt. II., Chap. VI., Tit. III., § 36 729 R. S. Pt. II., Chap. VI., Tit. III., § 37 729 COUET EULES. XXI (References are to paragraphs. Vol. 1 ends with H 948.) Par. E. S. Pt. II., Chap. VI., Tit. IV., § 55 599 E. S. Pt. II., Chap. VI., Tit. IV., § 58 611 E. S. Pt. II., Chap. VI., Tit. v., § 1 610 E. S. Pt. 11., Chap. VI., Tit. v., § 2 610 E. S. Pt. II., Chap. VI., Tit. v., § 3 610 E. S. Pt. II., Chap. VI., Tit. v., § 4 610 E. S. Pt. II., Chap. VI., Tit. v., § 5 610 K. S. Pt. II., Chap. Vr., Tit. v., § 6 610 Par. E. S. Pt. II., Chap. VII., Tit. III., § 67 104 E. S. Pt. II., Chap. VII., Tit. III., § 68 104 E. S. Pt. II., Chap. VII., Tit. III., § 69 104 E. S. Pt. II., Chap. VII., Tit. III., § 70 104 E. S. Pt. II., Chap. VIII., Tit. III., § 1 1173 E. S. Pt. III., Chap. VIII., Tit. III., § 11 574 E. S. Pt. IV., Chap. I, Tit. VII., § 31 461 SUPKEME COUBT EUEES. Number. 2 . . . 10 . . . 32 . . . 52 . . . Par. ... 364 39, 43 ... 1220 ... 1274 Number. 53 . . . 54 . . . 59 . . . 69 . .. Par 1274 1274 1262 1184 SUBEOQATES' COUBT EULES. Engs County 155 | Suffolk County 170 New York County 161 INDEX TO CONTENTS OF CHAPTERS. [Vol. 1 ends with page 715 and with 11948.] Pago. CHAPTEK I. The Surrogate and the Officers of His Court 1 If 1. The surrogate is a judge of a court of record and has certain powers of such a judge. 2. Surrogate and acting surrogate, their official designation. 3. General disqualification as a judge. 4. General disqualification as surrogate. 5. Objection that surrogate is disqualified. 6. ^-^Tien surrogate must hold court. 7. Filling vacancy. 8. EflFect of vacancy in oflice. 9. Effect of vacancy in counties of New York and Kings. 10. Surrogate, when not to be counsel or practice law. 11. Clerk of Surrogate's Court — His powers. 12. Who shall not practice before surrogate. 13. Vacancy or disability; who to act as surrogate. 14. Surrogate disqualified — Who to act. 15. Proceedings in New York comity where surrogate is disquali- fied. 19. Proceedings in New York county and Kings county regulated. 20. Proceedings in New York county and Kings county, transfer of. 21. Temporary surrogate, appointment of. 22. Temporary surrogate, compensation. 23. Temporary surrogate, recording acts of. 24. Recording papers and bonds. CHAPTER II. Powers of the Surrogate and of the Surrogate's Court 13 T 25. Surrogate's Court a court of record. 26. Terms of court. 27. Its general powers. 28. Incidental powers of surrogate. 29. Void order or decree may be vacated on motion. 30. Time in which motion to vacate may be made. 31. Interested person not cited may institute new proceeding. 32. Power to punish for contempt. 36. Enforcement of decree. 39. Power to enforce attorney's lien. 43. Power to direct substitution of attorneys. 44. Power to fine sheriff or other officer for neglect to execute process. 45. Power to entertain proceedings supplementary to execution. 46. Power to direct as to custody of property. 47. Power to refer certain questions. 49. Powers and duties of referee. 50. Power to issue subpoenas. 52. Power to cure defects and allow amendments. 55. Power to issue warrant of attachment. 56. Power to sign certain papers during vacation. 57. Power to order distribution to unknown person. 58. Power to determine validity of a marriage. 59. Power to determine validity of a divorce. [■vxiji] xxiv Index to Contents of Ohaptees. [Vol. I ends with p. 715 and with If 948.] CHAPTER II — Continued. Page. H 60. Power to determine legitimacy of children. 61. Power to construe ante-nuptial agreements. 62. Power to declare presumptive death. 63. Power to determine domicile. 64. Power to determine validity of adoption of infant. 65. Power to determine relationship of persons. 66. Power to determine amount to be allowed for support of infant. 67. Power to allow for support of infant on judicial settlement. 68. Power to allow set-off on judicial settlement. 69. Power to determine whether trust has been created. 70. Power to determine validity of alleged gifts. 71. Power to appoint temporary administrator. 72. Power to grant limited letters of administration. 73. Power to allow compromise of cause of action. 74. Power to grant limited letters of guardianship. CHAPTER III. Jurisdiction op the Sureogate and of the Surro- gate's Court 46 IT 75. General jurisdiction as court of record. 76. General jurisdiction of surrogate and Surrogate's Court. 77. Jurisdiction — Not subject to collateral attack. 78. Jurisdiction — Obtained by filing petition and issuing citation. 80. Jurisdiction — Must be obtained by service of citation to stop the running of the Statute of Limitation. 81. Jurisdiction — ^ First acquired is exclusive. 83. Concurrent jurisdiction of Supreme and Surrogate's Courts. 84. Jurisdiction of Supreme Court to try validity of will. 85. Jurisdiction to commit insane persons. 86. Jurisdiction to permit adoption of minors. 87. Jurisdiction to issue habeas corpus. 88. Jurisdiction to discharge from imprisonment. 89. Jurisdiction to cause discovery of books and papers. 90. Jurisdiction to take deposition. 92. Jurisdiction to consolidate proceedings. 93. Jurisdiction, exclusive. 94. Jurisdiction, concurrent. 95. Jurisdiction affected by locality of debts. 96. Jurisdiction — New or altered county. 98. Jurisdiction to probate heirship. 99. Jurisdiction concerning support of poor. CHAPTER IV. Rights, Powers, and Duties of Executors and Other Persons Before Probate or Issue of Letters of Admin- istration 61 H 100. Right to possession of dead body for purpose of burial. 101. Duty to furnish proper burial. 102. Right to protect graves, headstones, and burial lots. 103. Obtaining possession of the will. 105. Disposition of will after probate. 107. Opening and reading will. 108. Preparing to offer will for probate. 109. Rights, powers, and duties of executors and other persons be- fore probate as to preservation and care of property. 111-124. Requirements for due execution, acknowledgment and Certi- fication of papers. CHAPTER V. A Valid Will — Its Proper Execution and Its Effectual Revocation — Rules of Practice 80 U 125. Will defined. 126. Who may make a will of personal estate. Ii^DEx TO Contents of Chaptees. xxv [Vol. I ends with p. 715 and with H 948.] CHAPTER V — Continued. Page. IF 127. Who may make a will of real estate. 128. Requirements for valid execution of a will. 130. Must be subscribed by testator at the end. 132. Signature by mark. 133. Signature must be made in the presence of the witnesses or must be acknowledged to the witnesses. 135. Publication to the witnesses. 136. Request to the witnesses to act. 137. Subscription by the witnesses. 138. Wills executed in duplicate. 139. Mutual and reciprocal wills. 140. Holographic will. Revoking Wills. If 141. By cancellation, burning, and destroying. 142. By writing. 144. By codicil. 145. By later will. 146. By nonproduetion. 148. By marriage and birth of issue. 149. By subsequent marriage of unmarried woman. Reviving and Republishing. IT 150. By revocation of later will. 151. By codicil. 152. By republication. 153. Nuncupative will. 154. " Wills " include codicils. Rules op Pbaouce: 1[ 155. Kings county. 161. New York county. 170. Suffolk county. CHAPTER VT. What Wills May be Pboved in this State, Who Mat Make the Application and in What Oountt the Application Mat be Made Ill IT 171. Probate of wills of Indians. 172. Probate of will probated in foreign jurisdiction. 173. Probate in Supreme Court. 175. What wills may be proved in this State. 176. In what county the application should be made. 180. Preliminary determination of question of jurisdiction. 181. Jurisdiction — how affected by locality of debts. 183. Concurrent jurisdiction. CHAPTER VII. Petition foe Probate — Petitions, Objections, and Answers Generally 1 20 If 184. Who may propound will. 185. Withdrawing will from probate. 186. Contents of petition for probate. 187. Who are heirs-at-law and next of kin. 199. Petitions, claims, objections, and answers must be in writing and verified when required. 208. Papers lost or withheld, how supplied. 209. Filing papers. 210. Sufficiency of verification. 211. New facts may be presented by aflidavit. 212. Amendment of petition. 213. Disregarding defects. 214. Amending process or pleading. xxvi Index to Contents of Chapteks. [Vol. I ends with p. 715 and with H 948.] Page. CHAPTER VIII. Citation for Pbobate — Who Should be Cited and Contents of Citation — Citation and Other Pbocess of Subrogate's Court 135 If 215. Who should be cited on probate. 216. Contents of citation on probate. 217. General requirements of process generally. 218. Citation — Contents — when returnable. 219. Citation — To a class and persons unknown. 220. Citation — May be served in any county. 221. Citation — How and by whom served within the State. 223. Citation — Substitute for personal service upon resident. 224. Citation — Service without the State or by publication. 226. Citation — Application for order for service without the State or by publication — contents of order. 227. Citation — Publication must be in paper published in county, or in State paper at Albany. 228. Citation — Time in which personal service out of State must be made. 229. Citation — Service upon nonresident within the State. 230. Citation — Order for additional service on infants and incom- petents and appointment of special guardian. 231. Citation — Proof service — how made. 233. Citation — Method of computing time. 234. Citation — Service of papers. CHAPTER IX. Appeabance of Parties in Person or by Attorney — Watveb of Issue and Service of Citation — Appoint- ment OF Special Guardian 156 IF 249. Party may appear in person or by attorney. 250. Issue and service of citation may be waived. 251. Appointment of special guardian for infant and incompetent persons. 253. Notice of proceeding to appoint special guardian. 254. Persons not cited may appear. 255. Persons interested in a codicil or later will may appear. 256. Surrogate may try issue as to right to appear. 257. Character of interest required. 258. Substitution of representative of deceased party. CHAPTER X. Taking Deposition of Witness Where Will is not Contested — Filing Objections to Probate — Examina- tion of Witnesses 166 If 275. Proof on uncontested probate. 276. Examination of witness. 277. Taking testimony of aged, sick, or infirm witnesses. 279. Taking testimony of absent witnesses by commission. 280. Mseovery of books and papers. 281. Dispensing with testimony of absent or mentally incompetent subscribing witness. 283. Proof where testimony of subscribing witness has been dis- pensed with. 284. Proof where one witness cannot be produced. 285. Proof where neither witness can be produced. 286. Oral examination of witnesses. 287. Who may file objections to probate. 288. Filing objections to probate. 289. Bringing in legatees and devisees 290. Trial of objections. 291. Jury trial in New York county. 292. Requiring the production and examination of ali witnesses, 293. Competency of witnesses and of evidence. Index to Contents of Chapteks. xxvii [Vol. I ends with p. 715 and with H 948.] Page. CHAPTER XI. SurriciENCY or Pboof — Due Execution — Mental Competency — Feeedom from Restraint and Undue Influence 193 T 310. What must be proved. 314. Sound mind. 319. Undue influence. 322. Opening case. 323. Proof of lost or destroyed will. 325. Proof of fraudulent destruction. 326. Proof in partition. CHAPTER XII. Construction of Will on Probate 213 % 330. Validity or construction of provision may be put in issue. 333. General rules of construction. 335. Cannot construe a .provision relating to real property. CHAPTER XIII. Decree Generally — Decisions and Decree on Probate 218 T 350. Final order and decree. 351. Objections to decree. 352. Decision upon trial. 353. Decision and decree on probate. 356. Decree by consent. 357. Decree — Contents of. 363. Effect of alterations on face of will. 364. Filing and satisfying decree. 366. Decree binds whom. CHAPTER XIV. Force and Effect of the Decree of Probate and op Its Record — Exemplified Copies May be Recorded AND Received in Evidence 232 Y 375. Decree — How far conclusive as to personal property. 376. Decree — As to real property. 380. Executor required to record copy in office of county clerk. 381. Recording wills probated in another county of the State. 382. Will duly certified may be received in evidence — Decrees more than thirty years old — Evidence. 383. Recording foreign will in Surrogate's office and its effect. CHAPTER XV. Confirming, Vacating, or Revoking Probate 241 T 400. Proceeding to have probate confirmed as against person not cited. 401. Proceeding to vacate decree on application of person not cited. 402. Petition to revoke probate. 404. Citation. 405. Executor to suspend administration of estate. 408. Hearing and decree. 408. Publication of notice of decree of revocation. CHAPTER XVI. Proof of Will by Action in Supreme Court — Action for Construction of Will 249 t 409. Proof of will which cannot be brought into the State, or which has been lost or destroyed. 409. Proof of will of nonresident. 410. Judgment not to affect the construction or validity of a provision. 411. Letters to issue from the proper Surrogate's Court. 412. Surrogate of proper county must record will and issue letters. 413 Requisites for proof of lost will. 414. Action for construction of a provision in a will. xxviii Index to Contents of Chaptees. [Vol. I ends with p. 715 and with H 948.] CHAPTER XVI — Continued. Page. H 415. Receiver may be appointed to succeed a deceased executor. 416. Action to determine validity of will after probate. 417. Action does not suspend power of executor. CHAPTER XVII. Letters Testamentabt, of Administration, and OF Guardianship — Theie Requisites, Effect, and Pbioeitt 256 If 423. When surrogate may refuse to grant letters. 424. Married women may be granted letters. 425. Requisites of letters. 426. Conclusive evidence of authority. 427. Liability of representative and surety. 428. Priority among different letters. 429. Time, how reckoned upon successive letters. 430. Computing time since issue of letters. 431. Amending letters. 432. Letters of temporary administration. 433. Limited letters of administration. 434. Ancillary letters. CHAPTER XVIII. Issue of Letters Testamentary and of Admin- istration With the Wiii Annexed 262 If 435. What constitutes the appointment of an executor. 436. More than one executor may be named. 437. Power to nominate an executor may be given by will. 438. Objection to person nominated. 437. Method of executing power of nomination. 439. Issue of letters testamentary. 440. How far suspended by appeal. 441. Filing objections to issue of letters, stay thereon, and trial of objection. 442. Subsequent grant of letters. 444. Persons incompetent to receive letters. 445. When letters issued upon giving bond. 446. Oath and bond. 447. Renunciation and retraction thereof. 448. Executor failing to qualify or renounce — How excluded. 449. Issue of supplementary letters upon removal of disability. 450. Affidavit of estimated value of real and personal estate. 451. Letters of administration with the will annexed — When and to whom granted. 452. Petition and citation. 453. Oath and bond of administrator with the will annexed. 454. Authority of such administrator. CHAPTER XIX. Issue op Letters of Administration 279 If 455. Preliminary inquiry. 456. Jurisdiction to issue letters. 457. Who may apply — Order of priority. 458. To public administrator or county treasurer. 459. Italian subjects • — Who entitled. 460. Argentine Republic — Wi-.o entitled. 461. Persons incompetent to receive letters. 462. Application for letters — Petition. 463. Citation. 464. Proceeding on return day. 465. Proof required. 466. Proof of death. 4''7. Proof of domicile. 468 Proof of relationship. 469. Limited letters. 470. ^fli'^avit under Transfer Tax Act. 471. Administration de bonis non. Index to Contents of Chapters. xxix [Vol. I ends with p. 715 and with U 948.] Page. CHAPTER XX. Bonds and Undertakings 305 1 475. Must be acknowledged. 476. Number of sureties — When party need not join. 477. Surety company bonds. 478. Form — Affidavit and approval. 478. How surety may be relieved from liability. 479. Several sureties may be accepted. 480. Not affected by change of parties. 481. Must be filed. 482. Irregular and defective bonds. 483. Administrator's oath and bond. 484. Reduction of penalty by consent. 485. Reduction of penalty by deposit of securities. CHAPTER XXI. Public Administratok i 315 If 486. County treasurer to act as public administrator. 486. Richmond county treasurer to act in certain cases. 487. Bond, letters, etc. 488. When authority of county treasurer superseded. 489. Powers and proceedings. 490. Kings county public administrator. 491. Health officer of port of New York to make inventory. 492. Care and custody of estates of convicts. CHAPTER XXII. Tempoeaby Administrators 325 IT 495. Appointment of temporary administrator. 495. How temporary administrator qualifies. 496. General powers. 496. Nature and extent of authority. 496. Powers of temporary administrator as to personal property. 497. Powers of temporary administrator as to real property. 498. Powers of temporary administrator as to property of absentee. 499. Requiring presentation of claims. 499. Payment of debts. 500. Deposit of money. 502. Notices — How given. 503. Powers — When terminated. 503. Judicial settlement. 504. Computation of time. CHAPTER XXIII Ancillary Letters :.......... 337 1[ 505. Upon foreign probate. 506. Upon foreign administration. 507. To whom granted. 508. Petition and citation. 509. Hearing — Security. 510. Decree. 511. Powers of appointees. 512. Disposition of estate. 514. Notification of Secretary of State. CHAPTER XXIV Rights and Duties ov Public Administrators of New York County as Provided by Chapter 230, Laws OF 1898 347i i If 515. Authority conferred. 518. Subpoenas, 520, Search warrant. 521. Powers before and after grant of letters. 524. Grant of letters. 527. Notice "s to effects. 530. Powers when superseded. XXX Index to Contents of Chaptees. [Vol. I ends with p. 715 and with H 948.] CHAPTER XXIV— Continued. Page. If 533. Settlement and distribution. 542. Commissions and expenses. 544. Reports. CHAPTER XXV. Revocation of Lettesbs 365 IT 550. Upon proof of will or revocation of probate. 554. Revocation for disqualification. 559. When granted. 560. Decree. 563. Rights of remaining representatives. CHAPTER XXVI. General Rights, Poweks, and Dttties of Ex- ECUTOES AND AdMINISTRATOES 378 If 574. When powers cease. 575. Duty as to care of property. 575. Right to incur expense for monument, etc. 576. Title to personal estate vests in. 577. Right to act through attorney or agent. 678. Power to employ agents. 579. Contracts made by. 580. May release a debt. 580. May appear in suit. 580. May bind estate by admissions. 580. May arbitrate. 580. May effect and collect fire insurance. 580. May convey land situated in another State. 580. May accept property or securities. 580. May sue on promise to pay debt. 581. Duty to attempt collection of doubtful debts. 582. Duty to perform covenant to rebuild. 583. Duty in regard to contracts to sell real estate. 584. Rights of one of two or more executors. 585. As to sale of real estate. 585. Rights of one of two or more administrators. 586 Possession and control of partnership property. 591. Right to continue business of deceased. 592. Improper use of estate funds in business. 593. May consent to discharge of insolvent. 594. Rights and duties of foreign representatives. 597. Duty to impeach a sale. 598 Dutj to disaffirm fraudulent acts. 599. Right of qualifying executor to sell real estate. 600. Rights and duties of administrator with the will annexed. 601. Execution of power of sale by 602. Duty to be substituted in pending litigation. Power op Sale; Its Execution and Effect. I 603. Devise without right to receive rents and profits. 604. Sale by sole qualifying executor. 605 Delegation of powei to execute contract. 606. Imperative power of sale. 607 Limited and general power of sale. 608. Equitable conversion. 609. Equitable conversion of personalty into realty. Some Speciai, Statutes as to Rights and Liabilities of Executors and Administrators. f 610 Liability on promi-ses. 610. Actions by and against. Index to Contents of Chaptehs. xxxi [Vol. I ends with p. 715 and with H 948.] CHAPTER XXVI — Continued. Page. IT 610. Actions for trespass. 610. Liability for waste or conversion. 611. Liability for fraudulent sale of real estate. CHAPTER XXVII. Rules G}ovebning Actions by and Against Ex- ecutors, Administrators, etc 419 If 612. Actions must be brought in representative capacity. 612. Party to be benefited need not be joined. 613. Action for funeral expenses. 614. Joining causes of action. 615. Two or more representatives considered as one person. 616. As to counterclaims. 617. Effect of death of party or representative. 619. Effect on judgment of foreclosure. 620. Pleadings. 621. Effect of judgment against representative. 622. Action for reimbursement for cost and expenses. 623. Action to compel conveyance of real property against infant or incompetent. 624. Security for costs. 625. Security for costs — Action for negligently causing death. Genebal Rules as to Limitations and Disabilities. 626. Death within and without the State. 627. Letters deemed issued within six years. 628. Effect of disability. 629. Cause of action on current account. 630. When ten-year statute applies. 631. Action by legatee or distributee against representative. 632. Action barred by judgment against heir. 633. Action for legacy charged on real estate. 634. Effect of judgment. 635. Action to enforce power of sale. 636. Action to enforce agreement to will property. 637. Action by after-born child to recover share of estate. 639. Action by witness to will to recover share of estate. CHAPTER XXVIII. Proceedings to Require New Surety ok New Bond — Actions Upon Official Bonds 435 H 640. Proceeding to require new surety or new bond. 641. Decree revoking letters. 642. Proceeding by surety for release. 643. Hearing order, accounting, decree. 645. Actions upon oflScial bonds of representatives. 647. Actions upon official bonds of public officers. 648. Regulations concerning prosecution of official bonds. 649. Liability of surety for money received. 650. Successor may prosecute oflicial bond. 651. Action when no successor appointed. 652. When bond deemed an undertaking. CHAPTER XXIX. Issuing Execution Against a Representative — Against the Property of a Deceased Person and En- forcing Decrees by Execution 445 II 653. Proceeding to obtain leave to issue execution against a repre- sentative. 664. Intermediate accounting may be required. 655. Execution against representative of a deceased representative. 656. Execution on judgment for legacy or distributive share. xxxii Index to Contents of Chaptees. [Vol. I ends with p. 715 and with H 948.] CHAPTER XXIX — Continued. Page- f 657. Execution for costs against representative personally. 657. Execution where one not summoned. 658. Execution where representative has succeeded plaintiff. 659. Execution against the property of deceased 'person. 660. Execution after death of judgment creditor. 661. Application for leave to issue execution against decedent's property. 663. Intermediate accounting may be required. 663. Contents of execution. 664. Issuing execution after five years. 665. Enforcement of decree by execution. 666. Execution to collect costs of motion. 667. Homestead; when exempted. 668. Married woman's homestead; when exempted. 669. Execution against surviving judgment debtors. CHAPTER XXX. Assets of an Estate — Obtaining Possession Thebeop — WuAT Peopeett Constitutes 458 1[ 670. Recording will and filing certificates. 670. Obtaining possession of securities in safe-deposit box. 671. Proceeding to discover property. 675. Hearing and examination. 677. Eflfect of examination as to personal transaction. 678. Result of examination. 679. Liability of person having property to account. 680. Appointment and proceedings of appraisers. 682. Fees of appraisers, their taxation and payment. 683. Importance of duties of appraisers. 684. What property deemed assets. 685. Proceeds of life insurance policies. 686. Accident and benefit insurance. 687. Proceeds of foreclosure of mortgage. 688. Property claimed by others. 690. Property and rights held not to constitute assets. 691. Property which becomes assets under certain conditions. CHAPTER XXXI. The Inventory, Its Contents, Peoceedings to Requiee Fubther oe Amended Inventoet 487 IT 694. Property to be set apart to widow, husband, and minor children. 696. Widow's sustenance and quarantine. 699. Payment for exempt articles which do not exist. 703. Proceeding to cause set-off of exempt articles. 705. Contents of inventory. 706. Inventory of property perished or sold. 707. Return of inventory — Oath. 707. Failure of one representative to join. 708. Return of inventory, how compelled. 710. When representative denies petition. CHAPTER XXXII. Asceetaining Debts Due feom the Deceased — Peesenting and Rejecting Claims 506 If 712. Duty to treat creditors fairly. 713. Publication of notice to creditors. 715. Presentation of claims. 718. Proceeding to require the presentation and trial of claim. 720. Duty to examine cluims and admit or reject promptly. 721. How claim admitted. 723. How claim rejected. • Index to Contents of Chaptees. xxxiii [Vol. I ends with p. 715 and with If 948.] Page. CHAPTER XXXIII. Disputing a Claim — Reference Thereon — Judgment — Costs 514 H 725. Disputing and referring claim. 727. Report and findings of referee. 728. Right to intervene and be made a party. 729. What claims may be referred. 730. No formal answer required. 732. Costs on reference. 733. Judgment on report of referee. 734. Appeal from judgment. 735. Costs against representative. CHAPTER XXXIV. Consent That Subrogate Try Claim upon Judicial Settlement — Limitation of Action if Con- sent Not Filed 524 ^ 736. Action must be commenced within six months. 738. What is a sufficient rejection. 741. Consent that claim be tried by surrogate on judicial settle- ment. < 742. What claims may be so tried. 744. Defense of short statute, when allowed. 747. Allowance of costs; compromise of debt or claim. 748. Application for permission to compromise debt or claim. CHAPTER XXXV. Procuring Funds with Which to Pat Funeral Expenses and Debts — Payment of Funeral Expenses.. 535 f 755. Marshaling assets or securities. 756. Assets applicable in certain cases. 757. Sale of personal property. 758. Proceeding to obtain payment of funeral expenses. 759. Liability of representative for funeral expenses. 760. Reasonableness of charges for funeral, headstones, and ceme- tery lots. 761. Funeral benefits. 762. Estate of husband or wife liable and not the survivor. 763. Payment for wake and masses. CHAPTER XXXVI. Payment of Debts, Priority, Preference, and Classes Thereof 545 IT 764. Priority and preference of debts. 765. Preference of judgments. 766. Preference of taxes. 767. New York city taxes. 768. Debt by judgment or decree against deceased. 769. Preference of judgment for costs against representative. 769. Judgment against representative. 770. Judgments and other liens and secured debts. 771. Bonds as debts. 772. Contracts for purchase of land. 773. Covenant and lease made by deceased. 774. Legacy to widow in lieu of dower. 775. Partnership debts. 776. When earnings of wife should be paid to hei" husband. 777. When earnings of vpife should be paid to her. 778. Agreement between husband and wife as to hef-earningg. 778. When estate of husband liable for debts of wife. 779. When debt may be that of the deceased or of the survivor. 780. Where vdfe has deposited money with her husband. 781. Joint debts. 782. Debt under agreement to give compensation by will. xxxiv Index to Contents of Chaptebs. [Vol. I ends with p. 715 and with IT 948.] CHAPTER XXXVI — Continued. _ Page- 1[ 783. Representative cannot revive debt, but may keep it alive. 784. Interest on debts. 785. Debts charged upon real estate. 786. Debts charged upon devisee. 788. Debts not presented until after payment over of assets. CHAPTER XXXVII. Actions by Ceeditoes Against Surviving Hus- band OR Widow, Next op Kin, Legatees, Heirs, and Devisees to Recover Unpaid Debts 564 U 789. General statement. 790. When action lies against distributees of personal property. 791. Joint or several actions. 793. Requisites in action against legatee. 795. Liability of heirs and devisees. 796. When action may be brought. 797. Requisites to recovery against heirs and devisees. 798. Tax liens and dower deducted. 799. Debts which may be enforced. CHAPTER XXXVIII. Collection op Debts, Funeral Expenses, and Judgment Liens by Mortgage, Lease, or Sale op Real Estate op Deceased 573 % 800. Debts which are payable from real estate, and property liable to pay the same. 801. Property purchased with pension money. 802. Power of sale should be enforced in Supreme Court. 803. What language charges debts. 804. Who may present petition. 805. Creditor's time to apply extended. 806. Contents of petition. 807. Proceedings where some facts are unknown. 808. Citation. 809. Hearing. 810. Effect of allowance of claim by representative. 811. Proof of claims. 812. Trial by jury may be ordered. 813. Necessary proof. 814. Decree to mortgage, lease, or sell. 815. Payment of expenses of administration. 817. Decree should fix costs. 818. Filing bond. 819. Failure to file bond or execute decree. 820. Effect of death on execution of decree. 821. Executing decree and applying proceeds. 822. Effect of irregularities on title. 823. Relief by purchaser on account of defective title. 824. Offset of debt against bid on sale. 825. Decree may be refused if bond given. 825. Who may not purchase. 826. Effect of sale on title acquired from heir. 826. Effect of conveyance in case of contract for sale. 826. Effect of conveyance when deceased was part owner. 827. Presumption of appointment of special guardian. 828. Deposit of surplus moneys in Surrogate's Court. 829. Transferring fund from Supreme Court. 830. Proceeding to apply surplus to payment of debts. 831. Proceeds of sale in partition. 832. Proceeding by heirs or devisees to obtain surplus. Index to Contents of Ohapteks. xxxv [Vol. I ends with p. 715 and with If 948.] Page. CHAPTER XXXIX. Legaqies and Bequests — Theik VAUDiry, Pay- ment, AND Classification 616 If 835. Validity determined by what law. 836. When to be paid. 837. Obtaining funds for payment of. 838. Payable from personal estate. 839. Payable from both real and personal estate. 840. Classes and definitions. 841. General legacies. 842. Specific legacies. 843. Increase of specific legacies. 844. Distinction between specific and demonstrative legacies. 845. Ademption of legacies. 846. Demonstrative legacy. CHAPTER XL. Legacies and Bequests — Continued — Devise and Bequest to Widow in Lieu of Doweb — Abatement of Legacies 627 IT 847. Dower may be barred by devise or bequest in lieu thereof. 847. Election between provision and dower. 848. When deemed to have elected. 849. When provision may be forfeited. 850. Abatement of legacy defined. 850. Legacy in lieu of dower does not abate. 851. Legacy in lieu of dower — No preference over debts. 852. Abatement of legacies for support. 853. Effect of death of legatee before actual payment. CHAPTER XLI. Legacies and Bequests — Continued — Restbictions UPON Certain Coepobations as to Taking — Legacies to Cebditobs and to Next of Kin 634 If 854. Bequests to certain corporations — Effect of making will within two months prior to death. 855. Bequests to certain corporations of more than one-half of an estate. 856. Who may raise the objection. 857. Ascertaining value of estate — Dower. 858. Legacy to a creditor. 859. Legacy to two or more persons. 860. Legacy to creditor — Conditions annexed. 861. Legacy to heirs or next of kin. 862. Extent to which certain corporations may take gifts. CHAPTER XLII. Legacies and Bequests — Continued — Bequests FOE FUNEEAL EXPENSES, MONUMENTS, CeMETEBT LoTS, Masses, and Religious Societies — Interest on Legacies. 641 If 863. Bequests for funeral expenses, monuments, and cemetery lots. 864. Bequests for masses. 864. Bequests to foreign religious corporations. 865. Bequests for charitable purposes. Interest on Legacies. IT 866. From what time legacies draw interest. 867. Interest on general legacies. 868. Interest on legacy to widow in lieu of dower. •869. Interest on legacy to a child. 870. Interest on legacy payable after death of life beneficiary. 871. Rule for computing after partial payments. 872. From what time interest or income belongs to life beneficiary. xxxvi Index to Contents of Chaptees. [Vol. I ends with p. 715 and with If 948.] Page. CHAPTER XLIII. Legacies and Bequests — Continued — Absolute AND Limited Legacies — Eight to Deduct Debt Due fbom Legatee — Vested and Lapsed Legacies 651 IT 873. Effect of giving power of disposition to legatee. 874. Absolute gift may be limited upon a contingency. 875. Under power of disposition parties take equally, unless other- wise specified. 876. Right of retainer where legatee owes debt to testator. 877. When legatee denies the debt. 878. Right to retain income from trust fund. 879. General rules regarding vesting of legacies. 880. Lapsed devises and legacies. 881. Devise or bequest to descendant does not lapse. 882. Evidence of relationship to testator by proof of pedigree. 883. Effect of death of one person included in a class of legatees. CHAPTER XLIV. Void and Lapsed Legacies — Disposition Theeeof — Legacies Chabged upon Real Estate ob upon Devisee. 661 IT 884. Void legacies. 885. Effect of misnomer. 886. Disposition to be made of void and lapsed legacies. 889. Legacy charged upon land devised. 893. Proceeds of sale remains real estate. 894. Legatees may defeat power of sale by electing to take the land. 896. Payment of legacy charged upon devisee. 897. Intention of testator to charge legacy on land may be con- sidered. 898. Residuary legacies. 898. Legacy of an annuity. CHAPTER XLV. Annuities 674 IF 900. Annuity defined. 901. A charge on land. 902. Making up deficiency. 903. First payment — When due. 903. When alienable. 904. Determining sum to be set apart. 905. Apportionment of annuity. CHAPTER XLVI. Peoceedings to Compel Payment op a Debt, Legacy, oe Distributive Shaeb 680 T 906. Scope of the proceeding. 907. When proceeding may and may not be obtained. 909. The answer. 910. Defense of Statute of Limitations. 911. What may be determined. 912. Partial payment may be ordered. 913. Effect of release or assignment of legacy. 914. Decree and its effect. 914. Decree on giving security. 915. Decree cannot provide for support of infant. CHAPTER XLVII. Devises 690 If 916. What law determines validity. 917. Effect of concealment or not probating will. 918. What may be devised and who may take. 918. Devise to unincorporated association. 918. Devise to aliens. 919. Devise by implication. 920. Devise to a class. 920. Rule of ademption. Index to Contents of Chaptees. xxxvii [Vol. I ends with p. 715 and with IT 948.] CHAPTER XL VII — Continued. Page. H 921. Devise to lawful heirs. 922. Intention to disinherit not sufficient to sustain attempted devise. 923. Devise to hushand and wife. 924. EfiFect of, on after-acquired property. 925. Liability of devisee to pay mortgage debt. 926. Bond to convey does not revoke. 926. EfiFect of contract to sell. . 926. Charge or incumbrance does not revoke. 926. When conveyance revokes. 927. Presumption of death of devisee. CHAPTER XL VIII. Cubtest of Husband in Lands of Wife — Dower of Wife in Lands of Husband 702 If 928. Curtesy of husband in lands held by wife. 929. Curtesy where a dower estate intervenes. 930. Rules for ascertaining curtesy and dower. 930. Annuity table. 930. Statutory provisions regarding dower. 930. Dower in surplus in mortgage foreclosure. 930. How dower is barred. 931. Dower of former wife in case of divorce. 931. Dower in trust lands. 93?. Dower may be released in case of divorce. CHAPTER XLIX. Rights and Duties of Life Tenant and Remain- derman — Probate of Heirship — Escheat 707 K 933. Apportionment of rents, annuities, and dividends. 935. Payment of expenses and taxes. 936. Proceeding for production of life tenant. Probate of Heirship. f 937. Application to establish heirship — Petition, citation, hearing, and decree. Escheat. IT 938. Lands and personal property may revert to the State. 939. Laws of escheat apply to personal property. 940. Proceedings to recover for the State lands claimed to have escheated. 945. Proceedings to recover from the state lands claimed to have escheated. CHAPTER L. AccouNTiNO by Representative of Deceased Executor, Administrator, Guardian, of Testamentaet Trustee... 717 T[ 949. Summary of proceedings for accounting and judicial settle- ment. 952. What all accounts should contain. 953. Proceeding for accounting by a representative of a deceased representative 954. Scope of the proceeding. 955. The petition. 956. The answer. 957. Application of Statute of Limitations. 958. Proof that fund or property has been received. 959. Consolidation of proceedings. 960. The decree. 961. Application for order of revivor. 962. Abatement of proceeding. 963. When decree binds sureties. 964. Decree not evidence of assets. 965. Decree should direct assets to be turned over to successor. xxxviii Index to Contents of Chaptebs. [Vol. I ends with p. 715 and with T 948.] Page. CHAPTEE LI. Intebmediate Accounting and Cokpulsort Judicial Settlement 735 1[ 966. Voluntary and compulsory intermediate accounting. 967. Concurrent jurisdiction of Supreme and Surrogate's Courts. 968. When judicial settlement may be required. 969. From representative of deceased assignee under general assign- ment. 970. Proceeding to require judicial settlement. 971. When settlement will be required. 972. Who may petition. 974. Citation. 975. Decree when no objection is made. 975. Appointment of special guardian. , 976. The answer. 976. Statute of Limitations should be set up by answer. 977. When Statute of Limitations is a bar. 978. Consolidation of proceedings. 979. Right under disputed claim. 980. What defenses recognized. 981. EflFect of release. 982. The issues. 983. Application for supplemental citation. 984. The hearing. 985. The decree. 986. Warrant of attachment. 987. Decree — Proof of insolvency. 988. Imprisonment — Discharged from. CHAPTER LII. Voluntary Judicial Settlement — Petition — Cita- tion AND Account 753 H 990. Contents of petition. 991. Concurrent jurisdiction of Supreme and Surrogate's Court. 992. Scope of the proceeding. 993. When executor may petition. 994. Citation. 995. Jurisdiction — How acquired. 996. Citation where interest has been acquired. 997. Citation where party interested has died. 998. Intervention of interested parties. 1000. The account and vouchers. 1001. Filing vouchers. CHAPTER LIII. Voluntary Judicial Settlement — Filing and Trying Objections 766 T 1002. Filing objections to the amount. 1003. Who may file objections. 1004. Defense of the Statute of Limitations. 1005. Hearing. 1006. Examination of accounting party. 1007. Contesting payment of debt by representative. 1007. Incompetency of representative as a witness. 1008. Standard for judging acts. 1009. Representative may employ an attorney when necessary. 1010. Protection by advice of counsel. 1011. Burden of prooi of payment of debt. 1012. Burden of proof ot payment of administration expenses. 1013. When inventory may be contradicted. 1014. Charging representative with new assets. 1015. Trying the validity of releases or assignments. Index to Contents of Chapteks. xxxix [Vol. I ends with p. 715 and -with H 948.] Page. CHAPTER LIV. Voluntary Judicial Settlement — Continued- — • With What Peoperty the Representative Should be Charged 776 IT 1016. With what property the representative should be charged. 1017. With money or property in his hands before appointment. 1018. With profit or loss arising out of personal dealings with the estate. 1019. With rents and profits of lands descending to heirs. 1020. \^'ith money received on land contract. 1021. With proceeds of land sold under a power of sale. 1022. With personal property owned by husband and wife jointly. 1023. ^^'ith loss by sale on credit. 1024. With loss arising from poor loans. 1025. With loss by depreciation of real estate. 1026. With loss by depreciation of securities. 1027. With loss of funds on deposit. 1028. With loss of uncollected demands. 1029. With loss arising from paying debt barred by statute. 1030. With loss by paying illegal debts or expenses. 1031. With interest on estate funds. 1032. With loss arising from waste by coexeeutor. 1033. With all property recognized as assets. CHAPTER LV. Voluntary Judicial Settlement — Continued — With What Payments and Property the Representa- tive Should be Credited 792 If 1034. With what payments and property the representative should be credited. 1035. With amount paid for taxes. 1036. With amount of principal used for support. 1037. With amount paid on land contract. 1038. With amount paid for medical and funeral expenses of wife. 1039. With amount paid as advancements. 1040. Cannot be allowed for overpayment. 1041. Set-off of debts or judgments not allowed. 1042. With amount paid for general administration. 1042. With amount paid for surety bond. 1042. With amount paid for personal expenses. 1043. With amount paid for bookkeeping and other clerical work. 1044. With amount paid for expenses in case of partial intestacy. 1044. With amount paid for keeping live'stock, etc. 1045. With amount paid as costs. 1046. With amount paid for attorney and counsel fees. 1047. Contracts with attorney for se'-vices. 1048. Reasonableness of attorney charges considered. 1049. Property lost or destroyed. CHAPTER LVI. Voluntary Judicial Settlement — Continued — Determination of Adverse Claims to Personal Prop- erty IN THE Hands of the Representative Claimed by Him to Belong to the Estate 803 If 1050. How issue raised. 10.51. Extent of jurisdiction. 1052. Must be proof of delivery. 1053. Gifts causa mortis. 1054. Gifts '.nter vivos. 1055. V/eight of evidence discussed. 1056. Use of property may be retained. 1057. Gift of savings bank books. 1058. Gifts between husband and wife. 1059. Effect of redelivery of gift. xl Index to Contents of Chapteks. [Vol. I ends witli p. 715 and with H 948.] Page. CHAPTER LVII. Voluntakt Judicial Settlement — Continued — Trial of Claims Against the Estate 815 1[ 1060. Contesting payment of debt allowed by representative. 1061. Proof of value of services. 1061. Proof of agency. 1061. No affirmative judgment on counterclaim. 1062. Application of Statute of Limitations. 1063. Incompetency of witnesses under section 829. 1064. Effect of subsequent dealings between debtor and creditor. 1064. CBaim under agreement to compensate by will. 1065. Proof of nonpayment of claim not necessary. 1066. Claims by near relatives. CHAPTER LVIII. Voluntary Judicial Settlement — Continued — Proop of Notes as Debts — Trial of Claim of Repre- sentative Against the Estate ". 824 IT 1068. Proof of delivery. 1069. Application of section 829. 1069. Proof of indorsement as evidence of partial payment. 1070. Proof of consideration. 1071. Proof of signature. 1072. Validity of notes alleged to have been made to distribute or give property without consideration. 1072. Holder need not prove consideration. 1073. Inadequacy of consideration. 1074. Acknowledgment of a debt. 1076. Trial of claim of representative against the estate. 1078. Proof required. ' 1078. Reference of claim. 1079. Nature and extent of jurisdiction. 1080. Claim of deceased executor. 1080. Claim in which others are interested. 1081. Application of section 829. 1082. No presumption in favor of claim. CHAPTER LIX. Voluntary Judicial Settlement — Continued — Fees of Referees, Witnesses, Subrogates, and Printers — Commissions and Expenses of Representative 836 H 1083. Referee's fees. 1084. Witness' fees. 1084. Appraiser's fees. 1085. Fees of other officers and witnesses. 1086. Fees of the surrogate. 1087. Fees of printers. 1087. Recording fees. 1088. Commissions and personal expenses of representatives. 1089. Basis of computation. 1090. Commission on land taken by foreclosure. 1091. Upon what property no commissions allowed. 1092. Commissions to representative of deceased representative. 1093. Commissions and compensation of temporary administrator. 1094. Extra compensation to representative. 1095. When commissions may be denied. 1097. Compensation provided by will. 1098. Commissions on estates of more than $100,000 personal. 1101. Commissions are not due and payable until awarded. 1103. Commissions are not assignable. 1105. Commissions on resignation. 1106. Commission on removal for cause. 1107. Commissions both as executor and trustee. 1108. Payment for surety bond may be allowed. Index to Contents of Chapters. xli [Vol. I ends with p. 715 and with H 948.] Page. CHAPTER LX. Voluntaet Judicial, Settlement — Continued — Decree on Judicial Settlement 857 If 1109. Decree on judicial settlement. 1110. Decree must direct payment and distribution. 1111. Decree should recite service of citation. 1112. Decree may determine construction of will. 1114. Decree may determine right to legacies or distributive shares. 1115. Decree may allow offset. 1116. Decree may determine whether a corporation may take legacy. 1117. Decree may direct payment to assignee. 1119. Decree may confirm consent and release. 1120. Decree may construe antenuptial agreement 1123. Decree may enforce antenuptial agreements. 1125. Decree must adjust advancements. 1126. Advancement defined. 1127. Advancement in case of intestacy. 1127. Advancement in ease of testacy. 1128. Notes as an advancement. OHAPTER LXI. Decree on Judicial Settlement — Continued — Ordee of Distribution in Case of Intestacy 878 IT 1129. Decree of distribution in cases of intestacy. 1130. Order of distribution. 1131. Decree should determine questions relating to distributive shares. 1132. Distribution to widow. 1133. Distribution of real estate converted into personalty. 1134. Rights of various classes of persons to share. 1135. Proof of marriage and birth of children. 1136. Rights of parties where death occurred between September 1, 1898, and September 1, 1903. OHAPTER LXII. Decree on Judicial Settlement — Continued — Distribution of Damages Recovered foe Negligently Causing Death — Distribution to Adopted Children — Disteibution of Estates of Married Women — Distribu- tion OF Estates op Nonresidents 888 If 1137. Distributing damages reco\'ered for causing death. 1137. Who may maintain the action. 1138. Recovery not assets and not subject to general debts. 1138. Accounting and judicial settlement. 1139. Allowance for expenses of the action. 1139. Allowance for funeral expenses. 1140. Distribution of the surplus. Adopted Childeen. If 1141. Adoption of children and their right on distribution. Married Women. If 1143. Distribution of estates of married women. Nonresidents. If 1144. Distribution of estates of nonresidents. CHAPTER LXIII. Decree on Judicial Settlement — Continued — Rights Affected by Divorce — Death in Common Dis- aster — Contesting Will — Legatee Being a Necessary Witness to Will — Bieth of Child After Making Will. 899 If 1145. Distribution where either husband or wife is divorced. 1146. Decree where persons perish by common disaster. xlii Index to Contents of Chapters. [Vol. I ends with p. 715 and with If 948.] CHAPTER LXIII — Continued. Page. If 1147. Decree where will fixes penalty for making contest. 1148. Decree where legatee was a witness to the will. 1149. Decree where child is born after making will. 1149. Failure to provide must appear. 1150. Validity and construction not affected. CHAPTER LXIV. Decree of Judicial Settlement — Continued — Decree Where Legatee Must Elect Under Will — Decree in Case of Partial Intestacy — Contents of Decrees Generally — Decree Settling Estates of Italian Subjects — Decree as to Custody of Fund for Life Beneficiary 907 If 1151. The doctrine of election as applied to wills. 1152. Decree in case of partial intestacy. 1153. Decree should contain summary statement. 1154. Directions in decree as to payment thereunder. 1155. Direction in decree as to set-off of judgments. 1156. Decree should not direct performance of specific acts. 1157. Decree may provide that exempt property may be set apart or paid for. 1158. Decree may direct retention of debt. 1159. Decree distributing estates of Italian subjects. 1160. Distribution under residuary clause of will. 1161. When reversionary estate lapses. 1162. Decree directing transfer of fund to life beneficiary. 1164. When security should be required. 1165. When security should not be required. 1166. Agreement by decedents in their lifetime as to the distribution of their estates. 1167. Decree on judicial settlement should recite jurisdictional facts. 1168. Decree on judicial settlement should show an abstract of the account. 1169. Decree on judicial settlement should direct distribution. CHAPTER LXV. Decree of Distribution — Deposit of Moneys and Securities in Court 922 f 1170. Decree for delivery of specific property. 1171. Decree may direct retention or deposit of money to meet debt not due, or which cannot be paid because of litigation. 1172. Decree must direct as to application or payment of infants' share. 1174. When additional bond required from guardian. 1175. Decree must direct legacy to unknown person to be paid into State treasury. 1176. Decree must direct unclaimed legacy or distributive share to be paid to county treasurer after two years. 1176. Presumption of death of legatee or distributee. 1177. Decree may direct as to payment of costs. 1178. Decree should award costs. 1179. Decree should fix costs. Payment Into Court. If 1180. Deposit controlled by order of court. 1181. County treasurer is custodian of court property. 1182. In whom title to securities vests. 1183. How deposit withdrawn. 1184. Payment of money out of court. Index to Contents of Chaptees. xliii [Vol. I ends with p. 715 and with 1[ 948.] Page. CHAPTER LXVI. Decree of Jddiciai, Settlement — Continued — FoECE, Effect, and Conclusiveness of Decree — Record- ing Assignments, Releases, and Settlements 935 If 1185. Efifect of judicial settlement of account. 1186. Decree not conclusive upon questions not in issue. 1187. Decree not appealed from is binding upon all parties though erroneous. 1187. Decree by default may be corrected. 1188. Effect of decree considered. 1189. Claim allowed by decree is assignable. 1190. Decree for money, how docketed. 1191. Decree or order, when evidence of assets. 1192. Decree, payment under, after appeal. 1193. Recording assignments aflFecting rights or interests in estates. 1194. Recording instruments settling estates, and receipts and re- leases showing payments of money under decree. 1195. Voluntary settlement without letters. 1196. Agreements settling controversies. CHAPTER LXVII. Costs and Allowances 946 1[ 1197. Costs on recovery of money judgment. 1198. Conditions under which costs may be allowed. 1199. Effect of failure to file consent. 1200. Costs, how charged and collected. 1201. Allowance when parties not united in interest. 1201. Costs on appeal in action. 1202. Costs in special proceedings generally. 1203. Costs upon making decree. 1204. Costs after appeal. 1204. Costs to special guardian on appeal. 1205. Costs to special guardian, from what fund. 1205. Costs after appeal on judicial settlement, from what fund allowed. 1206. Separate costs after trial. 1206. Costs on probate. 1206. Costs, when to include disbursements. 1206. Costs, when same as in Supreme Court. 1207. Costs, how made payable. 1207. Costs, estate less than $1,000. 1208. Costs, when surrogate to fix amount of. 1209. Allowance of costs must be to the party. 1210. What is a contest. 1210. Costs on trial of claim by surrogate. 1210. No per diem allowance for preparation for trial. 1211. To what parties costs may be allowed. 1211. Special guardian — Amount allowed to. 1212. Costs by right and by discretion. 1213. Distinction between allowance to a representative and an award of costs against a party. 1214. Allowance for counsel fees on judicial settlement. 1215. Additional allowance in settling accounts. CHAPTER LXVIII. Proceedings on Appeal — Making Case and Exceptions — To What Court Appeal Taken and Who Should be Made Parties . . '. 961 t 1216. Appeal from orders. 1216. Appeal from order under Transfer Tax act. 1217. Appeal removes jurisdiction to appellate court. 1218. Appeal in probate cases on questions of fact. 1219. When case with exceptions and findings should be made. 1220. Exceptions, case, and motions for a new trial. xliv Index to Contents of Chapters. [Vol. I ends with p. 715 and with If 948.] CHAPTER LXVIII — Continued. Page- 1f 1221. Exceptions on trial — Settlement of case. 1222. When party may appeal. 1223. Who may appeal. 1224. When person not a party may appeal. 1225. To what court taken. 1226. How intermediate order reviewed. 1227. Time in which appeal must be taken. 1228. Who must be made parties. CHAPTER LXIX. Proceedings on Appeal — Continued — Filing Notice or Appeal and Undertaking — Effect of Appeal. 973 H 1229. Appeal — How taken and served. 1230. Security to perfect appeal. 1230. Justification of sureties. 1231. Appeal where decree is for money or delivery of property. 1232. Security to stay proceedings in case of commitment. 1233. Amount of undertaking — How fixed. 1234. Requisites of undertaking. 1234. Security may be waived. 1235. Deposit in lieu of undertaking. 1236. When new undertaking required. 1237. Decree for probate — How far suspended by appeal. 1238. Effect of appeal and staying further proceedings under decree. 1239. Decree revoking probate not stayed. 1240. When appeal stays proceedings. CHAPTER LXX. Peooeedings on Appeal — Continued — Proceed- ings IN THE Appellate Court and After Decision 982 If 1241. Proceedings in appellate court. 1242. Power of appellate court — Further testimony. 1243. Judgment or order upon appeal. 1244. Mode of enforcing aifirmed or modified judgment. 1244. Mode of enforcing affirmed or modified order. 1245. Mode of canceling docket of reversed or modified judgment. 1245. Mode of canceling docket upon reversal in Court of Appeals. 1246. Restitution, when awarded. 1247. Award of jury trial upon reversal in probate cases. 1248. Review of verdict after jury trial in real estate proceeding. 1249. Costs of appeal. 1249. Costs on appeal from order. 1250. Appeal when adverse party has died. 1250. Proceedings when party dies pending appeal. 1250. Order of substitution upon death of party. 1251. How party and cause designated upon appeal. 1252. Action upon undertaking given on appeal. 1253. Defects in proceeding may be supplied. CHAPTER LXXI. Guardianship of Infants — General Duties and Liabilities of All Guardians — Guardianship in Socage. 995 H 1254. Classes of guardianships. 1255. Liabilities of all guardians. 1256. Duties of guardians. 1257. Some things guardians may do. 1259. Some things an infant may do. 1260. Duties and liabilities of guardian as to infant's real estate. 1261. Proceeds of sale of infant's real estate — When personal and when real. 1262. Proceeds of sale of infant's real estate— r When paid to guardian. ' 1263. Guardianship in socage described. Index to Contents of Chapters. xlv [Vol. I ends with p. 715 and with T[ 948.] Page. CHAPTER LXXII. Guabdianship by Will oe Deed 1005 If 1264. Appointment of guardian by will or deed. 1266. Powers and duties of such guardians. 1267. Proving and recording will or deed of appointment. 1268. How guardian qualifies. 1269. When security may be required. 1270. When inventory and intermediate account may be required. 1271. Judicial settlement by such guardian. 1272. Removal and resignation of guardian. 1273. How successor appointed. CHAPTER LXXIII. Guardian by Judicial Appointment — Appoint- ment AND Qualification of Tempokaky and General Guardians — Revocation of Letters and Resiqnation op Guardian — Ancillary Guardianship 1014 IT 1274. Concurrent jurisdiction of Supreme and Surrogate Courts. 1275. Power of surrogate to appoint guardians. 1278. Proceeding for appointment of guardian for infant over fourteen. 1279. Appointment where infant is a married woman. 1280. Hearing and decree on application. 1281. Proceeding for appointment of temporary guardian for infant under fourteen years of age. 1282. How guardian qualifies. 1284. Proceeding to revoke letters of guardianship. 1285. Powers of guardian suspended. 1286. Proceedings on application by guardian for leave to resign. 1287. Proceedings for grant of ancillary letters of guardianship. 1289. Powers and duties of ancillary guardians. CHAPTER LXXIV. Guardians' Annual and Final Accountings . . . 1033 1[ 1290. Guardian must file annual inventory and account. 1292. Examination of annual accounts must be made. 1293. Application of legacy or distributive share to support of infant. 1294. Application for leave to apply the estate of an infant to his education and support. 1295. Allowance for support where parent is guardian. 1297. Proceeding on judicial settlement of guardian's account. 1298. Proceeding on judicial settlement by guardian of the person. 1300. Settling account of guardian. 1301. Allowance for support out of principal of fund. CHAPTER LXXV. Testamentary Trustees and Testamentaey Trusts. 1047 1[ 1303. Testamentary trustee defined and illustrated. 1304. Testamentary trusts defined and illustrated. 1306. Power in trust. 1307. Same person sole trustee and sole beneficiary. 1308. Trust for support and maintenance. 1309. Discretionary power to use principal. 1310. Instances of gifts held to be trusts. 1312. Trust for accumulation of income. 1313. Trust for masses, support of the poor, and monuments and burial lots. 1315. Trusts created by deposit in bank. 1317. Deposits in joint names of husband and wife. 1321. Evidence to establish trusts. 1322. Attempts to create trusts passed upon. 1323. Effect of by-laws printed in bank-book, and of power of attorney to draw. xlvi Index to Contents of Chapteks. [Vol. I ends with p. 715 'and with If 948.] Page. CHAPTER LXXVI. Testamentary Trustees and Testamentary Trusts — Continued ' 1072 H 1324. Suspension of the power of alienation. 1325. Trusts until youngest child arrives at specified age. 1327. Trusts for charitable uses. 1330. Termination of trusts by acts of the parties. 1332. Trusts terminated by merger. CHAPTER LXXVII. Administration of Trust Estate — Rights, Powers, and Duties of Trustees 1086 1[ 1334. Direction of trustees by surrogate. 1335. Duty of trustee in dealing witli estate. 1336. Right to purchase trust property. 1337. Investment of trust funds. 1338. Retaining investments made by testator. 1338. Power to sell securities left by testator. 1339. Diligence and prudence in making investments. 1340. Investments outside of the State. 1341. Rights and duties of foreign trustees. 1342. Trust for support — When surplus can be reached by creditors. 1343. Trust for support — Right to encroach upon principal. 1344. Trust for support — Retaining debt due testator. 1345. Trust for support — Paying claim of creditor. 1346. Trust for support — Right to satisfy judgment for costs against beneficiary. 1347. Depreciation of fund by paying premium on investment. 1348. Increase of fund from sale of securities. 1349. Increase of fund by allotment of stock or bonds. 1350. Increase of fund by option and privileges. 1351. Dividends, surplus, and proceeds of sale of realty. CHAPTER LXXVIII. Trustees' Intermediate, Compulsory, and Vol- untary Accountings 1107 H 1353. Concurrent jurisdiction of Supreme Court. 1354. Intermediate accounting. 1356. Proceeding to compel payment of debt or legacy or delivery of property. 1359. Compulsory judicial settlement. 1361. Voluntary judicial settlement. 1362. Allowance and computations of commissions. 1365. Commissions upon resignation, removal, or death of trustee. 1366. Commissions on income may be retained annually. CHAPTER LXXIX. Decree upon Trustees Accounting — Resigna- tion AND Removal of Trustee and Appointment op Successor 1123 1[ 1367. From what fund taxes and expenses are payable. 1368. Accountings governed by same rules as accountings of exec- utors. 1369. Surrogate may determine controversies. 1369. Effect of assignment of interest. 1370. Consent of beneficiary to illegal investment. 1371. Decree of settlement — Effect of. 1372. Proceeding upon resignation of trustee. 1373. Proceeding to obtain security from trustee. 1374. Proceeding for removal of trustee. 1375. Vacancy in office may be filled under provision of will. 1376. Appointment of substituted trustee. 1377. Concurrent jurisdiction of Supreme Court to appoint sub- stituted trustee. Index to Contents of Chapters. xlvii [Vol. I ends with p. 715 and with H 948.] CHAPTER LXXIX — Continued. Page. IT 1378. When surrogate may appoint substituted trustee. 1380. When trust terminates. 1381. Offices of executor and trustee are separate. 1383. Effect of nonresidence of trustee. CHAPTER LXXX. Definition of Expressions and Teems Used in Relation to Executors, Administrators, Guardians, and Trustees 1139 1[ lff84. Definition of expressions used in Code of Civil Procedure. 1385. Certain provisions of the Code of Civil Procedure are appli- cable to Surrogate's Court. 1386 to 1405. Certain words and phrases construed by the courts. TABLE OF CASES CITED. (References are to Paragraphs — Vol. I. ends with 11948.) Aaron, Matter of, 5 Dem. 362 1209, 1210 7 N. Y. St. Eep. 735 476 Abbey v. Aymar, 3 Dem. 400 880 Abererombie, Matter of, 82 N. Y. St. Rep. 414 134 Abernethy v. Catlin, 2 Dem. 341 844, 845 Acker, Matter of, 5 Dem. 19 131 Ackerman, Matter of, 2 Redf. 521 466 116 N. Y. 654 1257 V. Mott, 4 Barb. 626 1031, 1300 Adair v. Brimmer, 74 N. Y. 539 1031, 1040 95 N. Y. 35 1243 Adams, Matter of, 51 App. Div. 619 1032, 1177 V. Anderson, 23 Misc. Rep. 705 191 V. Becker, 47 Hun, 65 414 V. Fassett, 149 N. Y. 61 795, 796 V. Glidden, 6 Dem. 197 992 V. Massey, 184 N. Y. 62 302 V. Olin, 61 Hun, 318 858 V. Van Vleck, 4 Dem. 343 1338 V. Winne, 7 Paige's Ch. 97 926 Adee v. Campbell, 14 Hun, 551 1114 V. Hallett, 3 App. Div. 308 1054 Adler, Matter of, 60 Hun, 481 46 V. Davis, 31 Misc. Rep. 47 744 Aikman v. Harsell, 98 N. Y. 192 834 Akers, Matter of, 74 App. Div. 461 140, 142 Akin V. Kellogg, 119 N. Y. 441 848 Albrecht, Matter of, 136 N. Y. 91 1022 Alexander, Matter of, 16 AbH. Pr. (N. S.) 9 437 V. Powell, 3 Dem. 152 925 Alexandre, Matter of, 70 N. Y. St. Rep. 431 1264, 1265 Alfson V. Bush Co., 97 App. Div. 632 1137 V. Bush Co., 182 N. Y. 393 1139 Alger, Matter of, 38 Misc. 144 141 Alixanian v. Walton, 14 App. Div. 199 1065 Allen, Matter of, 36 Misc. Rep. 398 695 151 N. Y. 243 920 96 N. Y. 327 1365 v. Allen, 33 N. Y. St. Rep. 876, 11 N. Y. Supp. 535 280 V. Allen, 3 Dem. 524 760 V. Bishop's Executors, 25 Wend. 414 769 V. Farmers L. & T. Co., 18 App. Div. 27 1342 V. Kelly, 171 N. Y. 1 1174, 1262 V. Stevens, 161 N. Y. 122 855, 1327 V. Stevens, 33 App. Div. 485 855 V. Stevens, 22 Misc. Rep. 158 856 V. Williamsburgh S. B., 69 N. Y. 314 1323 Altman v. Hofeller, 152 N. Y. 498 1185 Ametrano v. Downs, 170 N. Y. 388 801 62 App. Div. 401-5 920, 9'36 ;\mherst College v. Ritch. 151 N. Y. 282 856 Ammarell, Matter of, 38 Misc. Rep. 399 1079 [xlix] It 1 Table of Cases Cited. (References are to Paragraphs — Vol. I. ends with 1948.) Amory v. Lord, 9 N. Y. 403 884 Anderson, Matter of, 19 Misc. Rep. 210 841 84 App. Div. 550 1137 84 App. Div. 268 279 V. Anderson, 112 N. Y. 104 174, 414 . V. Fry, 116 App. Div. 740 1154 Andrews, Matter of, 43 App. Div. 394 362 162 N. Y. 1 131, 140, 313 V. Goodrich, 3 Dem. 245 1362 V. Nichols, 116 App. Div. 649 1055 Angevine v. JaolT 28 PowEES OF Sueeogate's Couet. 18 the time to appeal had expired, amendment was refused. Matter of Seaman, 63 App. Div. 49, 71 IST. Y. Suppl. 376. Surrogate may open a decree to correct a mistake of fact where there was an error of figures in the account and decree. Campbell V. Thatcher, 54 Barb. 382. New trial. Affidavits of the persons from whom new and additional testi- mony is expected to be obtained must be presented or good reason for such failure given. Matter of Collins, 6 Dem. 286. In order to entitle the appellant to a new trial upon the ground of newly-discovered evidence, he must show that the existence of the alleged new evidence was unknown to him at the time of the trial and that it could not have been discovered by him in the exercise of proper diligence, or that he was misled and induced to refrain from making certain proof because of excusable mis- take or by some act or admission of the respondent upon which he had a right to rely. A new trial will not be granted on account of inattention, negligence, or misconduct of counsel, nor on an allegation of newly-discovered evidence which might have been known except for such negligence of counsel. Matter of Quin, 22 IST. Y. St. Eep. 338 ; Olmsted v. Long, 4 Dem. 44. When surrogate may construe will. A surrogate has no power to construe a will except in a pro- ceeding regularly before him in which a construction is necessary to the determination of a question arising in that proceeding. Mat- ter of Burdick, 98 App. Div. 560. Citation by order to show cause. While section 780 of the Code may not apply to Surrogate Court, yet the surrogate has undoubted power to issue an order to show cause returnable in less than eight days. Matter of Filley, 47 N. Y. St. Repr. 428, 20 N. Y. Suppl. 427. This section is authority for an order to show cause returnable in less than eight days. Matter of Filley, 47 N. Y. St. Eepr. 428, 20 N. Y. Suppl. 427. By section 2516 of the Code of Civil Procedure all special pro- ceedings must be begun by a citation unless otherwise prescribed by law. An application under section 2602 of the Code of Civil 19 PowEES OF Sueeogate's Couet. 1[ 29 Procedure is not such a proceeding as must be begun by citation, but by order to show cause. Matter of Stein, 33 Misc. Kep. 542, 68 JSr. Y. Suppl. 933. May complete unfinished business. The surrogate may complete taking testimony on probate left imfinished by his predecessor and decide the case upon the whole evidence. Matter of Martinhoff, 4 Eedf. 286. Power of control. The surrogate has no jurisdiction to order an executor or ad- ministrator to turn over rents of real estate devised or descended, which he has improperly collected. Calyer v. Calyer, 4 Redf . 305 j Marston v. Paulding, 10 Paige, 40 ; Shumway v. Cooper, 16 Barb» 556. ^ 29 Void Order or Decree May be Vacated on Motion. Where an order or decree is void for lack of jurisdiction op other sufficient cause, the question arises as to the proper prac- tice to be adopted to have the order and decree annulled of record. An appeal from an ex parte order or decree will not lie. And in those cases where an appeal may be taken it is not necessary for a party apparently affected by the order or decree to secure an annulment by appeal, but he may do so by a motion to vacate. That the Surrogate's Court, though a court of inferior jurisdic- tion, has inherent power over its own records sufficient to expunge therefrom orders and decrees placed there without authority can- not be doubted. Nothing contained in subdivision 6, section 2481 of the Code of Civil Procedure can be construed to deprive the court of this power, even if it cannot be there plainly seen that the power is in terms conferred. Matter of Armstrong, 72 App. Div. 286, 76 W. T. Suppl. 37; app. dism., 72 App. Div. 620, 76 E'. Y. Suppl. 40. In Eamp v. Kamp (59 IST. Y. 216), the court said : " The want of jurisdiction makes the order and judgment of the court and the record of its action utterly void and unavailable for any purpose, and the want of jurisdiction may always be set up collaterally or otherwise * * * but he (the party apparently affected) is at liberty by a more direct and summary proceeding to have them set aside and vacated." 1[ 30 "Vacating Void Oeder oe Deceee. 20 In SJcidmore v. Davies (10 Paige, 316), the chancellor said: ■" If the first order had been irregular, as the appellant supposed, his remedy was not by appeal to the chancellor, but an application to the surrogate to set aside the order as irregular was the proper •course." In Vreedenhurgh v. Calf (9 Paige, 129), the chancellor said: "And if the order * * * was entered when the surro- gate had no power to enter such an order, he not only had the right, but it was his duty to set it aside for irregularity." In Pew V. Hastings (1 Barb. Ch. 454), speaking of a decree entered upon default, the court said : " I think, therefore, the surrogate erred in this case in supposing that he had not the power to open the decree which had been taken by default." In Sipperly v. Baucus (24 N. Y. 46), the foregoing cases are reviewed and com- mended as to the power and duty of the surrogate. Seaman v. Whitehead (Y8 JST. Y. 306) was a case in which the surrogate denied a motion to vacate that part of a decree which directed the payment of a sum of money which the surrogate had no authority to direct to be paid. The Court of Appeals said: " The question arising in such a case relates to the jurisdiction of the surrogate, and could properly be raised by a motion to set aside the order upon that ground. If void, it should have been vacated for that reason, and an appeal lies from an order denying the mo- tion to vacate." Matter of Underhill (IIY IST. Y. 471) was a case arising under the law relating to Surrogates' Courts, as it now appears in the Code of Civil Procedure. In that case the surrogate had vacated on motion so much of a decree in final accounting as gave an unau- thorized judgment against a legatee. The court in afiirming the order said: "And it is a judgment which the surrogate was, as we have seen, wholly without any jurisdiction to enter. He cannot obtain jurisdiction to enter it by formally making it a part of a decree which he has authority to make, nor does he by such a movement chaage its essential character of a separate judgment liable to be set aside on motion, as was done in this case." ^ 30 Time Within Which Application May be Made. There is nothing in the section quoted above which limits the time in which an application of this character may be presented. It is only by reading section 1290 of the Code of Civil Pro- cedure in connection with section 2481, subdivision 6, that any limitation of time could be placed upon the surrogate's decrees. 21 Mat Institute ISTew Proceeding. 1|; 31 Section 1290 provides : "A motion to set aside a final judgment, for error in fact, not arising upon the trial, shall not be heard, except as specified in the next section, after the expiration of two years since the filing of the judgment-roll." It was expressly held in Matter of Henderson (157 N. Y. 423) that the two years' limitation did not apply to the Surrogate's Court, and in construing a portion of subdivision 6, above referred to, the opinion states " a like case means that the party making the motion must show the existence of the error or mistake in the same way as if the record was in the other court, and * * * by the same manner j all that is meant is that the surrogate shall proceed in the same way to hear the application. Proof must be made, notice given and a judicial hearing of the parties had, but there is no more limit as to the time within which the application may be entertained since the enactment of the statute than there was before. There certainly is no express limitation of time upon the power of the surrogate contained in the statute, and it is im- possible to show by any correct reasoning process that one is implied." In addition to Matter of Henderson, supra, it was held in Mat- ter of Flynn (136 X. Y. 287) ; Matter of Coogan (27 Misc. Eep. 563) ; Morgan v. Cowie (49 App. Div. 612) ; Matter of Sherar (25 Misc. Eep. 138) ; Matter of Scrimgeour (80 App. Div. 388) that the surrogate has the power to entertain a proper application after the time to appeal has expired, or after two years have elapsed since the entry of the order. These applications are within the section of the Code, and the Surrogate's Court has power to consider them and determine what is proper in the premises. Matter of Mather, 41 Misc. Rep. 414. Erroneous decree opened and decree corrected after lapse of four years. Sipperly v. Baucus, 24 IST. Y. 46. The power of the surrogate to open his decree for fraud is within the power conferred by section 2481, and the exercise of this power is not subject to the limitations of time prescribed by sections 1282-1290 of the Code of Civil Procedure. Matter of Flynn, 136 ISJ". Y. 287. This case seems to overrule Corhin v. Wescott, 2 Dem. 560. Cf 31 An Interested Person Not Cited May Institute a New- Proceeding. A party interested who has not been cited, and who, therefore is not bound by the order or decree made in the proceeding, need 1 32 Contempt of Couet. 22 not in certain cases move to vacate the decree or order, but lie may demand that as to him the proceeding shall be conducted de novo. Where an accounting had been had to which certain parties were not cited, who were cited upon a subsequent accounting, held that it was not proper to vacate the decree in the first accounting, but that such parties could proceed as though no accounting had been had. Matter of McCurm, 15 JST. Y. St. Repr. Y12. Where a party entitled to notice of probate has been omitted an order to show cause may be issued to him in the proceeding, and his objections, if any, may be tried as they would have been had be been made a party to the original probate. Matter of Crumb, 6 Dem. 478, 18 IST. Y. St. Eepr. 254, 2 '^. Y. Suppl. 744. ^ 32 Contempt of Court, and Proceedings to Punish There- for. The surrogate has power to punish any person for a contempt of his court, civil or criminal, in any case where it is expressly prescribed by law that a court of record may punish a person for a similar contempt and in like manner. § 2481, subd. 7, Code Civ. Pro. Criminal contempts defined. A court of record has power to punish for a, criminal contempt, a person guilty of either of the following acts, and no others : 1. Disorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority. 2. Breach of the peace, noise, or other disturbance, directly tending to inter- rupt its proceedings. 3. Willful disobedience to its lawful mandate. 4. Resistance willfully offered to its lawful mandate. 5. Contumacious and unlawful refusal to be sworn as a witness; or, after being sworn, to answer any legal and proper interrogatory. 6. Publication of a, false, or grossly inaccurate report of its proceedings. But a court cannot punish as a contempt, the publication of a true, full, and fair report of a trial, argument, decision, or other proceeding therein. § 8, Code Civ. Pro. For provisions regarding criminal contempts see sections 9-14 of the Code of Civil Procedure. ^ 33 Contempts Punishable Civilly. A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy 23 Contempt of Oottet. Tf 34 of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in either of the following cases: 1. An attorney, counselor, clerk, sheriflf, coroner, or other person, in any manner duly selected or appointed to perform a judicial or ministerial service, for a misbehavior in his office or trust, or for a willful neglect or violation of duty therein; or for disobedience to a lawful mandate of the court, or of a judge thereof, or of an officer authorized to perform the duties of such a judge. 2. A party to the action or special proceeding, for putting in fictitious bail or a fictitious surety, or for any deceit or abuse of a mandate or proceeding of the court. 3. A party to the action or special proceeding, an attorney, counselor, or other person, for the non-payment of a sum of money, ordered or adjudged by the court to be paid, in a case where by law execution cannot be awarded for the collection of such sum; or for any other disobedience to a lawful mandate of the court. 4. A person, for assuming to be an attorney or counselor, or other officer of the court, and acting as such without authority; for rescuing any property or person in the custody of an officer, by virtue of a mandate of the court; for unlawfully detaining, or fraudulently and willfully preventing, or disabling from attending or testifying, a witness, or a party to the action or special proceeding, while going to, remaining at, or returning from, the sitting where it is noticed for trial or hearing ; and for any other unlawful interference with the proceedings therein. 5. A person subposnaed as a witness, for refusing or neglecting to obey the subpoena, or to attend, or to be sworn, or to answer as a witness. ♦ *****#** **** 8. In any other case, where an attachment or any other proceeding to punish for a contempt, has been usually adopted and practiced in a court of record, to enforce a civil remedy of a party to an action or special proceeding in that court or to protect the right of a party. Part of § 14, Code Civ. Pro. For proceedings to punish a contempt civilly see sections 2266- 2292 of the Code of Civil Procedure. Service of a copy of an order to pay money on behalf of a per- son is not a " personal demand " required by section 2268. Union Trust Co. V. Gage, 6 Dem. 359, 15 N. Y. St. Eepr. 718. C[ 34 No Punishment for Nonpayment of Interlocutory Costs. But a person shall not be arrested or imprisoned, for the non-payment of costs, awarded otherwise than by a final judgment, or a final order made in a special proceeding instituted by State writ, except where an attorney, coun- selor, or other officer of the court, is ordered to pay costs for misconduct as such, or a witness is ordered to pay costs on an attachment for non- attendance. § 15, Code Civ. Pro. If 35 Contempt — Ewfoecement of Deceee. 24 This section applies to a surrogate's decree directing payment of costs solely. Matter of Rumfreyville, 154 N. Y. 115, revg. 19 App. Div. 381, 46 IST. Y. Suppl. 439. Costs allowed against an administrator on a motion can only be collected by execution (Code, § 779), and not by contempt pro- ceedings. Matter of Lippincott, 5 Dem. 299. ^ 35 No Arrest or Imprisonment for Nonpayment of Con- tract Debt. Except in a case where it is otherwise specially prescribed by law, a person shall not be arrested or imprisoned for disobedience to a, judgment or order, requiring the payment of money due upon a contract, express or implied, or as damages for non-performance of a contract. § 16, Code Civ. Pro. That part of a decree which awards costs against an executor personally is a " money judgment," and can be enforced by execu- tion only. Matter of Feehan, 36 Misc. Eep. 614, 73 IST. Y. Suppl. 1126. ^ 36 Enforcement of Decree by Punishment for Contempt. In either oC the following cases, a decree of a surrogate's court, directing the payment of money, or requiring the performance of any other act, may be enforced, by serving a certified copy thereof upon the party against whom it is rendered, or the officer or person who is required thereby, or by law, to obey it; and if he refuses or wilfully neglects to obey it by punishing him* for a contempt of court: 1. Where it cannot be enforced by execution, as prescribed in the last section. 2. Where part of it cannot be so enforced by execution; in which case, the part or parts, which cannot be enforced, may be enforced as prescribed in this section. 3. Where an execution, issued as prescribed in the last section, to the sheriff of the surrogate's county, has been returned by him, wholly or partly un- satisfied. 4. Where the delinquent is an executor, administrator, guardian, or testa- mentary trustee, and the decree relates to the fund or estate, in which case the surrogate may enforce the decree as prescribed in this section, either without issuing an execution, or after the return of an execution, as he thinks proper. If the delinquent has given an official bond, his imprisonment, by virtue of proceedings to punish him for a contempt as prescribed in this section, or a levy upon his property by virtue of an execution, issued as prescribed in the last section, does not bar, suspend, or otherwise affect an action against the sureties in his official bond. § 2555, Code Civ. Pro. 25 Contempt — Enfoecement of Deceee. 1[ 37 Contempt and punishment discussed. Matter of Watson v. Nelson, 69 IST. Y. 536. This case is under the Eevised Statutes and is no longer to be regarded as stating the present law upon the subject. Costs on removal. On removal of an executor he was ordered to pay specified sum as costs. Held, that section 15 forbid the imprisonment of the executor so removed in proceedings for contempt for nonpayment of such costs. Matter of Humfreyville, 154 JST. Y. 115, revg. 19 App. Div. 381, 46 K Y. Suppl. 439. Applied generally. Where a decree had been made find- executor is ordered to pay stenog- ing money in the hands of an execu- rapher's fees, want of assets is a good tor, which he had misappropriated defense in a proceeding to punish him and then transferred Ms property, for contempt. Matter of Davidson, punishment for contempt for not pay- 5 Dem. 224. ing over upheld — in the face of alle- A surrogate is not bound to order gation that the executor was insol- imprisonment, but should be guided vent. Matter of Snyder, 103 N. Y. by a wise discretion exercised in view 178. of the facts of each case. Matter of Where the amount decreed to be Battle, 5 Dem. 447, 10 N. Y. St. Repr. paid an infant is not ordered paid 167. into court, and the representative has Where an appeal is taken from a not converted the money, he will not decree or the time to appeal has not be charged with interest upon it. expired, and the legatees or distribu- Matter of Schiceibert, 25 Jlise. Rep. tees move for payment under the de- 464, 55 N. Y. Suppl. 649. cree, they should be required to give When a fine is imposed for not the representative security. Matter turning over property, and the fine of Armstrong, 32 N. Y. St. Repr. 441. is paid, such executor should have An administrator was charged credit therefor in his account. See costs personal on judicial settlement, § 2284. Matter of Van Eouten, 18 and the surrogate denied an applica- App. Div. 306, 46 N. Y, Suppl. 350. tion to punish for contempt. Matter Where on a contest of a will the of Banning, 108 App. Div. 12. ^ 37 Execution Should be Issued. A decree awarding costs against objecting creditors cannot be enforced by contempt proceedings until an execution has been re- turned unsatisfied. Matter of Dissosivay, 91 IST. Y. 235. While a surrogate may punish for contempt in some cases with- out the prior issuing of an execution, a sound discretion requires the preliminary issue of execution. Matter of Kellinger, 1 Dem. 433. A surrogate has power to punish an administrator for contempt for failure to pay an amount allowed to a special guardian by and under a decree. Matter of Kurtzman, 2 IST. Y. St. Eepr. 655. 1[ 38 Contempt — Debt of Eepbesentative. 26 ^ 38 Punishment for Contempt When Representative Fails to Pay His Debt to Deceased. The liability of the indebted executor is not for all purposes the same as if he had actually received so much money, and if he was at all times from and after the time when he qualified as exec- utor insolvent and unable to pay the debt, he cannot be punished as for contempt for his refusal to pay and distribute such sum of money because of such insolvency. Baucus v. Stover, 89 N. Y. 1 ; Matter of Ockershausen, 59 Hun, 200; Joel v. Ritterman, 5 Redf. 136. In such a case, that is, where total insolvency existed dur- ing all of the time while he was an executor, no recovery can be had against his sureties for his failure to apply the amount of his debt as directed by the decree. Baucus v. Barr, 45 Hun, 582 ; afEd., 107 IST. Y. 624. The principle of these decisions is that an executor is not required to be solvent, that it is sufficient if he shall be honest and diligent, and that the debt due from him to the estate of his testator is to be treated as an asset, the value of which is to be measured, like any similar asset, by its col- lectibility. Therefore, where it appeared that an executor was insolvent when appointed, but afterward became, and for a time continued to be solvent, it was determined that he was properly chargeable with the amount of his debt to the testator as an asset in his hands to be distributed, and that his sureties were liable for his default. Keegan v. Smith, 60 App. Div. 168 ; affd., 172 N. Y. 624. In the present case it was shown that the executor was, for years, and up to and after the time of his filing the ac- count, solvent and fully able to pay the debt owing by him to the testatrix, and if it was not paid by him as an individual to him- self as an executor, it was because he violated a plain duty. If the debt had become due from a solvent stranger, and he, with knowl- edge of the facts, had omitted to take any steps for its collection, and a loss had resulted, he would have been chargeable with its amount because of his violation of duty, on well-recognized prin- ciples. The question as to whether he should be charged with his debt as a worthless asset or at its full amount was raised before the making of the decree upon his accounting, and was disposed of after full hearing and argument, and the decree thus made is, until revoked, " conclusive evidence that there are sufficient assets in his hands to satisfy the sum which the decree directs him to pay." Code Civ. Pro., § 2553. The power of the surrogate to 27 Enfoecing Attobney's Lien. | 39 inflict a fine and punish the executor hy imprisonment for a con- tempt for his disobedience of the decree is fully established. Code Civ. Pro., § 2555; Matter of Snyder, 34 Hun, 302; affd., 103 X. T. 178; Matter of Holmes, 79 App. Div. 267; affd., 176 I^. Y. 604. The remedy was invoked and approved in a case where an exec- utor transferred a specific legacy made to him, to the prejudice of creditors. Matter of Pye, 18 App. Div. 306 ; affd., 154 IST. Y. 773. It is true that the surrogate may, in a proper case, refuse to awafd this remedy (Matter of Battle, 5 Dem. 447), and that it should not be used for mere purposes of oppression, contrary to the spirit of our laws on the subject of imprisonment for debt, but I find nothing in the facts which would make leniency permissible. Matter of David, 44 Misc. Rep. 337. Where the alleged contempt consisted of neglect to pay a debt adjudged to be due the estate from the executor, it was held that the burden was upon the executor to prove his defense of insol- vency. Matter of Strong, 111 App. Div. 281. ^ 39 Power to Enforce Attorney's Lien for Compensation. Attorney or counsel's compensation. The compensation of an attorney or counselor for his services is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action or special proceeding, or the service of an answer containing a counterclaim, the attorney who appears for a, party has a lien upon his client's cause of action, claim or counterclaim', which attaches to a verdict, report, decision, judgment or final order in his client's favor, and the proceeds thereof in whosoever hands they may come; and the lien can not be affected by any settlement between the parties before or after judgment or final order. The court upon the petition of the client or attorney may deter- mine and enforce the lien. § 66, Code Civ. Pro. The proceeding is a special proceeding. By the amendment of said section in 1899 (Laws of 1899, chap. 61), a special proceeding was included therein, and the court was given express authority upon the petition of the client or attorney to " determine and enforce the lien " therein mentioned. Surro- gates' Courts are now courts of record (Code Civ. Pro., § 2), and the Constitution of 1894 (Art. 6, § 15) provides: "Surrogates and Surrogates' Courts shall have the jurisdiction and powers which the surrogates and existing Surrogates' Courts now possess, until otherwise provided by the Legislature." 1 40 Eh'forciitg Attorney's Lien. 28 The statute must be construed liberally (Fischer-Hansen v. Brooklyn Heights R. R. Co., 173 N. Y. 492) and as so construed it gives to Surrogates' Courts power to determine the lien and the ' amount thereof and to enforce it. Rule 10 of the General Kules of Practice provides : "An attor- ney may be changed by consent of the party and his attorney or upon application of the client upon cause shown and upon such terms as shall be just, by the order of the court or a judge thereof, and not otherwise." The General Eules of Practice are applicable to Surrogates' • Courts. Code Civ. Pro., § 17. See C'hatfield v. Hewlett, 2 Dem. 191. The Court of Appeals in Matter of Regan (167 N. Y. 338) say : " It seems to us that the power of the Surrogate's Court to protect the lien of an attorney has been assimilated by modern legislation to the power exercised in that respect by the Supreme Court and the other courts of record of the State. There is now no reason that we can perceive for denying this power to a court that exercises such extensive jurisdiction over persons and prop- erty. An attorney, duly admitted to practice in all the courts of record of the State, is an attorney of the Surrogate's Court, and his functions as an officer of that court are quite as important to the community and to his clients as the services that he may per- form in any other court. In Matter of Fitzsimmons (174 JST. Y. 15), the court, on an ap- peal from an order made in a proceeding before the surrogate for a compulsory accounting by an administratrix and in which the appellant, an attorney, presented a petition setting forth facts entitling him to a part of any recovery to which his clients would be entitled upon such accounting and to compensation as attorney for the contestants, say : " That the proceeding instituted by the appellant to establish his lien was a special proceeding which might be properly instituted in a Surrogate's Court there is now no doubt." ^ 4,0 Application of the Section. An attorney's lien may be enforced Proceedings for probate may be by an order vacating the satisfaction withdrawn against the objection of of a decree made in fraud of the right an attorney claiming a lien for fees. of such attorney. Matter of Regan, Matter of Evans' Will, 33 Misc. Rep. 167 N. Y. 338, revg. 58 App. Div. 1, 567, 68 N. Y. Suppl. 936; Matter of 68 N. Y. Suppl. 527. Wittner (1890), N. Y. Surr. Dee. 464. 29 Enfoecing Attoeney's Lien. f 40 An attorney has n lien upon his An attorney, having an assignment client's papers independent of the to protect a contingent fee, may con- statutory provision. Matter of Mc- test a judicial settlement of the ae- Guire, 106 App. Div. 131. counts of the representative of the An attorney may, by agreement estate which contains the fund upon with his client, have a lien upon his which he claims a, lien, and may re- client's interest in the estate, but quire an investigation of his rights, such an agreement cannot be enforced Matter of Fitzsimons, 174 N. Y. 15, by the surrogate upon real estate for revg. 77 App. Div. 345, 79 N. Y. which the executor cannot be made to Suppl. 194. account. Matter of Fernbacher, 5 An alleged lien under an agree- Dem. 219, 18 Abb. N. C. 1. ment to pay one-third of about $2,000 An attorney who has performed recovered was not enforced, but $300 services in behalf of an infant in prov- was allowed. Matter of Pieris, 82 ing will, bringing an action on the App. Div. 466, 81 N. Y. Suppl. 927; same, etc., by which a house was re- aflfd., 176 N. Y. 566. covered, was not allowed a lien — Where money was obtained through upon a motion held, that an action an administrator appointed in Surro- was necessary. Matter of Oreen- gate's Court, that court has jurisdic- Imlgh, 45 N. Y. St. Repr. 924, 18 N. Y. tion to determine the attorney's lien Buppl. 748, 64 Hun, 26, 47 App. Div upon the fund. Matter of Pieris, 82 643, 62 N. Y. Suppl. 1150. App. Div. 466, 81 N. Y. Suppl. 927; affd., 176 N. Y. 566. Lien upon income of trust estate. In Estate of Hoyt (12 Civ. Pro. Kep. 208, 8 ]Sr. Y. St. Eepr. 786), KoUins, surrogate, in substance held that an attorney's lien for services rendered upon a contest over the admission to probate of a will did not attach to the income of a trust estate created for the benefit of a daughter, for the reason that no person bene- ficially interested in a trust for the receipt of rents and profits can assign or in any manner dispose of such interest; that a person to whom such person is indebted may in a court of general equity jurisdiction and not elsewhere, in a proceeding where the issue is directly made as to the amount necessary for the debtor's support and not otherwise, reach any trust income belonging to the debtor, in excess of the sum necessary for the education, support, and maintenance of himself and family. In the case of Xoyes v. Blakeman (6 X. Y. 567), it was held that an attorney who defends a suit affecting the validity of a trust, at the request of the cestui que trust without the concurrence of the trustee, cannot reach the surplus income of the trust estate under section 57 of the statute relative to uses and trusts to pay the costs of such defense, for the reason that he is not a creditor of the cestui que trust within the meaning of that statute ; that it was the duty of the trustee to use reasonable diligence to pro- tect the trust estate and he would have a lien upon it for the expenses of such protection. I 41 Enfoecing Attoenet's Lien. 30 In Tolles v. Wood (99 N. Y. 616), the action was brought by a judgment creditor in equity to procure the payment of his judgment out of the surplus income beyond what was necessary for the suitable support and maintenance of the cestui que trust and it was held that he could recover, inasmuch as it was deter- mined that the surplus was sufficient to pay such judgment. An attorney may have a lien for his services in procuring pay- ment by a trustee of income left for support, upon such fund when collected, although it may not be liable for general debts or services. Matter of Williams, 187 IST. Y. 286, revg. 114 App. Div. 904. Proper parties. Trustees not proper parties when they received nothing belong- ing to the client against whose interest the lien is claimed. Bulli- van v. McGann, 115 App. Div. 146. ^ 41 Set-Off of Costs Against Costs or Judgment Will Not be Allowed to Defeat Attorney's Lien. The lien of the attorney for his un- or contract he had for their payment, paid services is superior to that of a Barry v. Third Ave. B. R. Co., 87 party desiring to enforce an equitable Apo. Div. 543, 84 N. Y. Suppl. 830. set-off of judgments. Barry v. Third Set-off of costs not allowed where Ave. R. R. Co., 87 App. Div. 543, 84 the client had assigned them to his N. Y. Suppl. 830; Oihbs v. Prindle, attorney. Matter of Ha/cemeyer, 27 II App. Div. 470, 42 N. Y. Suppl. App. Div. 123, 50 N. Y. Suppl. 126. 329. To the amount of such lien the at- The attorney claiming a lien should torncy is to be deemed an equitable file an affidavit showing the value of assignee of the judgment. Marshall his services and the extent to which v. Meech, 51 h. Y. 140; Tunstall v. they are unpaid, and what agreement Winton, 31 Hun, 219. ^ 42 The Order Cannot Direct Execution to Issue. The surrogate has by the order found that the amount found due the attorneys is a lien on the assets of the estate and must be paid before the substitution of attorneys takes effect. The order goes further and directs that the respondents have execution against the executors individually for the amount so found due the respondents. This in effect directs a judgment in favor of the respondents against the appellants individually as in a com- mon-law action for work, labor, and services. We are not aware of any authority in the Surrogate's Court to make that part of the order. The order should be modified by striking therefrom that part thereof directing that execution issue against the execu- 31 Substitution of Attoeneys. T[ 44 tors individually for the amoiint directed to be paid to the attor- neys, and as so modified affirmed, without costs. Matter of Smith, 111 App. Div. 23. ^ 43 Substituting of Attorneys and Fixing Their Compensa- tion in Such Cases. By section 17 of the Code power is given to certain jus- tices to make rules of practice which shall be binding upon surro- gates and pursuant to that power the " General Kules of Practice " have been adopted and rule 10 thereof provides as follows: An attorney may be changed by consent of the party and his attorney, or upon application of the client upon cause shown and upon such terms as shall be just, by the order of the court or a judge thereof, and not otherwise. Under this rule it has been held that a surrogate has authority to direct substitution of attorneys in proceedings pending before him and to adjust the retiring attorneys' compensation. Chat- field V. Hewlett, 2 Bern. 191 distinguishing 12 IST- Y. Suppl. 88. The surrogate cannot make an order substituting attorneys and directing the turning over of papers, when no proceeding is pending before him. Matter of Krakauer's Estate, 33 Misc. Eep. 674, 68 'S. Y. Suppl. 935. Jurisdiction cannot be conferred by consent upon the surrogate to order substitution of attorneys. Matter of Krakaue'^'s Estate, 33 Misc. Eep. 674, 68 IST. Y. Suppl. 935. Appeal from order. An order overruling objections to the jurisdiction of the surro- gate to fix the value of attorney's services does not affect a sub- stantial right and is not appealable. Matter of Loewenguth, 114 App. Div. 754. ^ 44 May Fine Sheriff or Other Officer for Neglect to Execute Process. LiaWlity for neglect in special proceedings. A sheriff, or other officer, to whom is delivered, for service or execution, a mandate, authorized by law to be issued, by a judge or other officer, in a special proceeding, who willfully neglects to execute the same, may be fined by the judge, in a sum not exceeding twenty-five dollars, and is liable to the party aggrieved for his damages sustained thereby. § 103, Code Civ. Pro. T 45 Supplementary Peocebdings. 32 i the Code of Civil Procedure from 721 to 730 are made applica- ble to Surrogates' Courts, so far as they can be applied to the substance and subject-matter of the proceeding, without regard to its form. See Matter of Soule, 6 Dem. 137, 11 JST. Y. St. Eepr. 695. A defect in a decree or other determination, due to an omission therein or in the papers upon which it was founded of a recital or proof of any fact necessary to jurisdiction, which actually existed, or the failure to take any intermediate proceeding required by law to be taken may be supplied by amendment. § 3474, Code Civ. Pro. ^ 53 Defects Cured by Verdict, etc., and by Judgment. In a court of record, where a verdict, report, or decision has been rendered, the judgment shall not be stayed, nor shall any judgment of a court of record Tie impaired or affected, by reason of either of the following imperfections, ■omissions, defects, matters, or things, in the process, pleadings, or other pro- ■ceedings : 1. For want of a summons, or other writ. 2. For any fault or defect in process: or for misconceiving a process, or awarding it to a wrong officer. 3. For an imperfect or insufficient return of a sheriff or other officer; or because an officer has not subscribed a return, actually made by him. 4. For a. variance between the summons and complaint. 5. For a mispleading, insufficient pleading, or jeofail. 6. For want of a warrant of attorney by either party. 7. For the appearance, by attorney, of an infant party, if the verdict, report, or decision, or the judgment, is in his favor. 8. From omitting to allege any matter without proof of which the verdict, report, or decision ought not to have been rendered. 9. For a mistake in the name of a party or other person; or in a sum of money; or in the description of property; or in reciting or stating a day, month, or year; where the correct name, sum, description, or date has been once rightly stated, in any of the pleadings or other proceedings. 10. For a mistake in the name of a juror or officer. 11. For an informality in entering judgment, or making up the judgment- Toll. 12. For an omission on the part of a referee to be sworn ; or for any other default or negligence of the clerk, or any other officer of the court, or of a party, his attorney or counsel, by which the adverse party has not been prejudiced. 5 721^ Code Civ. Pro. 39 Waeeant of Attachment. 1[ 55 Such defects to be supplied. Each of the omissions, imperfections, defects and variances, specified in the last section, and any other of like nature, not being against the right and justice of the matter, and not altering the issue between the parties, or trial, must, when necessary, be supplied, and the proceeding amended, by the court wherein the judgment is rendered, or by an appellate court. § 722, Code Civ. Pro. ^ 54 Amendments by the Court — Disregarding Immaterial Errors, etc. The court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any process, pleading, or other proceeding, by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting an allegation material to the ease; or, where the amendment does not change substantially the claim or defence, by conforming the pleading or other proceedings to the facts proved. And, in every stage of the action, the court must disregard an error or defect, in the pleadings or other proceedings, which does not affect the substantial rights of the adverse party. When amending a pleading or per- mitting the service of an amended or supplemental pleading in a case which is on the general calendar of issues of fact, the court may direct that the case retain the place upon such calendar which it occupied before the amendment or new pleading was allowed, and that the proceedings had upon the amended or supplemental pleadings shall not affect the place of the case upon such calendar, or render necessary the service of a new notice of trial. § 723, Code Civ. Pro. Pelief against omissions, etc., amendments to conform proceedings. The court may likewise, in its discretion, and upon such terms as justice requires, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding, taken against him through his mis- take, inadvertence, surprise, or excusable neglect ; and may supply an omission in any proceeding. Where a proceeding, taken by a party, fails to conform to a provision of this act, the court may, in like manner, and upon like terms, permit an amendment thereof; to conform it to the provision. § 734, Code Civ. Pro. ^ 55 Power to Issue Warrant of Attachment for Witness. The surrogate may issue a warrant of attachment to bring a duly subpoenaed witness before him as provided in section 855 of the Code of Civil Procedure.' Such warrant must be directed to the sheriff of the surrogate's county, who may execute it in any county, and must convey the person arrested to the place where it is returnable. Section 2515, Code Civ. Pro. ^1f 56 Geneeal Powees of Suebogate. 40 ^ 56 Power to Sign Certain Papers Within the State During Vacation. The surrogate may sign decrees, letters testamentary, of ad- ministration, and guardianship, and orders during the month of August, or such other month as he shall designate for his vacation, wherever he shall be passing such vacation within the State. Part of § 2505, Code Civ. Pro. ^ 57 Power to Order Distribution of Legacy or Distributive Share of Unknown Person. The surrogate, or the supreme court, upon the petition of a person claiming to be so entitled, and upon at least fourteen days' notice to the attorney- general, accompanied with a copy of the petition, may by a reference, or by directing the trial of an issue by a jury, or otherwise, ascertain the rights of the persons interested, and grant an order directing the payment of any money, which appears to be due to the claimant, but without interest, and deducting all expenses incurred by the State with respect to the decedent's estate. The comptroller, upon the production of a certified copy of the order, must draw his warrant upon the treasury, for the amount therein directed to be paid; which must be paid by the State treasurer, to the person entitled thereto. Part of § 2747, Code Civ. Pro. ^ 58 Power to Determine the Validity of a Marriage. When called upon to grant letters of administration or to dis- tribute the property of an intestate or to do any other act which may be affected by the fact as to whether a certain person is or is not legally married, the surrogate may hear the proofs and alle- gations of the parties and may determine whether or not the alleged marriage is or is not a legal marriage. Such cases will arise where the application of the alleged widow or husband for letters of administration is opposed and the validity of the mar- riage attacked, or where the property rights of the alleged widow or husband are sought to be enforced, or where the surrogate is called upon to make a decree of judicial settlement. ^ 59 Power to Determine the Validity of a Divorce. Where it is alleged that a husband or widow who applies for letters of administration is not entitled to them by reason of a divorce granted to either of the parties the surrogate may deter- mine the validity of such a divorce. On the distribution of an estate it is sometimes necessary to determine the legality and effect of an alleged divorce and the 41 Geweeal Powers oe Sueeogate, Tf 63 surrogate has the necessary power to pass upoii and determine such question to the end that he may make a proper order or decree in the premises. ^ 60 Power to Determine the Legitimacy of Children. Whenever it becomes necessary in order to grant letters of administration or to distribute an estate to determine as to the legitimacy of any alleged children of the deceased, the surrogate has all necessary power to hear the evidence and determine such question. ^ 61 Power to Construe Ante-Nuptial Agreements. The validity and effect of an ante-nuptial agreement must often be determined in order to make a decree of distribution. When such an agreement is not attacked, if offered it may be received in evidence and given effect to in accordance with its terms and conditions; it sometimes controls in determining with what property an executor or administrator shall be charged and to whom property shall be distributed; it may also become of im- portance where a testator leaves no lineal descendants and gives by will more than one-half of his property to religious societies. ^ 62 Power to Declare a Person Presumptively Dead. After a long period of absence the law in some instances creates a presumptive death. Upon application for letters of administra- tion or for the proof of a will, where this presumption is invoked, the surrogate has power to determine whether or not the presump- tion should prevail. Where an estate is to be distributed to next of kin or legatees, the surrogate may direct the payment of the share or legacy of the absent person into the county treasury, or in a proper case, if the facts justify such a conclusion, he may declare the presumptive death of such beneficiary and direct payment to the personal rep- resentative to be appointed. ^ 63 Power to Determine Residence or Domicile. The question of domicile of an intestate, testator, or infant is often of the utmost importance and must be decided as a pre- liminary question before proceeding to the performance of other ^ 64 General Powers of Sueeogate. 42 duties devolving upon a surrogate. It becomes necessary, therefore, that the surrogate should hear the evidence and determine the matter. Such questions arise where there is a conflict of jurisdiction be- tween two or more surrogates as to which one has jurisdiction of the estate of the deceased person or of the person or property of an infant. CI 64 Power to Determine as to the Validity of an Adoption of an Infant. The rights of an infant in the estate of a foster parent may depend whether or not there has been a legal adoption of such infant by the foster parent. Where such an issue is raised the surrogate has power to deter- mine the question so that he may make a proper disposition of the matter before him. ^ 65 Power to Determine the Relationship of One Person to Another. The proper disposition of an estate often depends upon the question as to who are the next of kin. To enable the surrogate to determine such questions he may take the evidence of the parties and determine the relationship which one person bears to another. ^ 66 Power to Del;ennine Whether an Infant Requires the Application of a Part of the Principal of His Estate to His Support and Maintenance. A general guardian is authorized to apply the income of an infant's estate to his support and maintenance without obtaining authority therefor from the surrogate ; but where it is alleged that the necessities of an infant require an expenditure of a part of the principal of his estate for his proper support, maintenance, and education application should be made to the surrogate for such authority. To determine whether or not any part of the fund should be used for the purpose the surrogate may inquire into the condition in life and the social standing of the infant and his family and the ability of the surviving parent to support the infant, and make such an order as justice requires, having in mind at all times the welfare of the infant and the protection of his estate. 43 Geneeal Powees of Sueeogate. % 70 ^ 67 Power to Allow for Support of Infant on Judicial Settle- ment. While it is not good practice for an executor or administrator to advance any funds of the estate for the support of an infant child of the deceased who has a share of the estate, yet, where small sums of money have been used for the support of infants who have no general guardian, it is customary to allow the executor or ad- ministrator such sums of money so advanced and to charge the same to the shares of the infants as though such sums had been advanced to a duly appointed general guardian and by him applied to such uses. ^ 68 Power to Determine on Judicial Settlement Whether Set-Off Should be Allowed the Husband or Widow and the Amount and Extent Thereof. Where the appraisers have failed to make the proper set-off to the husband or widow an application for such set-off may be made upon judicial settlement, and the surrogate may then deter- mine how much and what property should be allowed to the surviving husband or widow and direct payment or delivery thereof. ^ 69 Power to Determine Whether or Not a Trust in Savings Bank Deposit Has Been Created. The practice is quite common of depositing one's own money in trust for another and the surrogate is often required to determine the validity and effect thereof. Where the claimant in such a trust is a party to the judicial settlement he may determine whether or not the representative of the estate should be charged with such fund as assets in his hands for distribution. This subject is fully considered under the gen- eral head of " Trusts," % 1315. ^ 70 Power to Determine the Validity of Alleged Gifts. The question frequently arises whether or not a certain article of personal property found among the assets of the estate belong to the estate or some person who claims it as an alleged gift from the deceased. Where such claimant is not interested in the estate and is, there- fore, not a party to the judicial settlement, it is doubtful if the ^ 71 Geneeal Poweks op Sueeogate. 44: surrogate would have power to determine tlie question ; but where such claimant is a party interested in the estate, the surrogate may determine in the judicial settlement whether such article is prop- erty of the estate and, therefore, to be distributed by the decree on such settlement. If, however, such property be not in the possession of the repre- sentative of the estate the decision can only charge the representa- tive with such property and make him liable therefor, but could not affect the possessory right of the claimant. ^ 71 Power to Appoint Temporary Administrator on Appli- cation for Full Administration. Where application for letters-in-chief are made on the estate of an intestate there may not be sufficient proof that the person is dead. Where such proof is lacking and there is a necessity that some person would have charge of the estate of the alleged de- ceased person a temporary administrator may be appointed. This subject is fully discussed under the head of Temporary Administration. ^ 72 Power to Issue Limited Letters of Administration. Limited letters of administration are granted in most cases where an action is to be brought to recover damages for negligently killing the intestate. In such cases it is usually impossible for the applicant to give a bond which would be sufficient to allow the granting of full letters even if there were some way of ascertaining the amount even approximately. Upon tiling a bond in twice the amount of the existing personal estate and if there be no personal estate upon filing a nominal bond limited letters are issued. Under such letters the administrator may prosecute the action, and when a judgment is recovered or when a settlement is reached an application is made to the surrogate for leave to compromise and settle or for leave to receive payment of the amount of judg- ment. Upon filing an additional bond in twice the amount of the sum to be received the limitation is removed and the adminis- trator collects the amount of the recovery and gives release and satisfaction therefor. As to the existing personal estate of the in- testate the rights of the administrator are not limited and he should proceed in the ordinary way in the settlement and distribu- tion of such personal estate. 45 Geneeal Powers of Sueeogate. | 74 ^ 73 Power to Permit Compromise and Settlement of an Action for Damages Arising for Negligently Causing the Death of an Intestate. An administrator to whom, limited letters have been issued has no right to receive the proceeds of a settlement of the cause of action or of the judgment recovered therefor, until he has been authorized so to do by the surrogate and has filed an additional undertaking in the penalty of twice the amount of the sum so received. When a settlement has been reached the administrator makes a petition to the surrogate accompanied by the affidavit of his attorney, setting forth the offer of settlement and briefly the facts regarding the cause of action and suggesting the advan- tage of accepting the offer of settlement. The administrator also files a new undertaking and if the appli- cation and undertaking are approved by the surrogate an order is made permitting such compromise and authorizing the adminis- trator to receive the amount of the recovery. ^ 74 Power to Issue Limited Letters of Guardianship. Where the estate of an infant is large and is in the con- trol and custody of some proper person who has authority to re- tain it, and it is impracticable for the proposed guardian to give an undertaking in the full amount of the principal of the estate, such guardian may be allowed to give an undertaking in twice the amount of a certain portion of the principal of the estate or in twice the amount of certain income which he desires to receive and apply for the benefit of the infant, whereupon letters of guardianship limited to receiving and handling such specified portion of the estate of the infant may be granted. This provision is especially useful where the principal of the fund has been paid into court, but a general guardian is desired for the purpose of receiving and applying the income for the maintenance and support of the infant. f Y6 JuKisDicTioN OF Suesogate's Coubt. 46 CHAPTER m. Jurisdiction of the Siurogate and of the Surrogate's Court. U 75. General jurisdiction as court of record. 76. General jurisdiction of surrogate and Surrogate's Court. 77. Jurisdiction — Not subject to collateral attack. 78. Jurisdiction — Obtained by filing petition and issuing citation. 80. Jurisdiction — Mvist be obtained by service of citation to stop the run- ning of the Statute of Limitation. PI. Jurisdiction — First acquired is exclusive. 83. Concurrent jurisdiction of Supreme and Surrogate's Courts. 84. Jurisdiction of Supreme Court to try validity of will. 85. Jurisdiction to commit insane persons. 86. Jurisdiction to permit adoption of minors. 87. Jurisdiction to issue habeas corpus. 88. Jurisdiction to discharge from imprisonment. 89. Jurisdiction to cause discovery of books and papers. 90. Jurisdiction to take deposition. 92. Jurisdiction to consolidate proceedings. 93. Jurisdiction, exclusive. 94. Jurisdiction, concurrent. 95. Jurisdiction affected by locality of debts. 96. Jurisdiction — New or altered county. 98. Jurisdiction to probate heirship. 99. Jurisdiction concerning support of poor. ^ 75 General Provision as to Jurisdiction of All Courts. Each of those courts shall continue to exercise the jurisdiction and powers now vested in it by law, according to the course and practice of the court, except as otherwise prescribed in this act. § 4, Code Civ. Pro. ^ 76 General Jurisdiction of Surrogate's Court. Each surrogate must hold, within his county, a court which has, in addition to the powers conferred upon it, or upon the surrogate, by special provision of law, jurisdiction as follows: 1. To take the proof of wills ; to admit wills to probate ; to revoke the pro- bate thereof; and to take and revoke probate of heirship. 2. To grant and revoke letters testamentary and letters of administration, and to appoint a successor in place of a person whose letters have been revoked. 3. To direct and control the conduct, and settle the accounts, of executors, administrators, and testamentary trustees ; to remove testamentary trustees, and to appoint a successor in place of a testamentary trustee so removed. 4. To enforce the payment of debts and legacies; the distribution of the estates of decedents ; and the payment or delivery, by executors, administrators 47 Jurisdiction — Collateeal Attack, If V7 and testamentary trustees, of money or other property in their possession, belonging to the estate. 5. To direct the disposition of real property, and interests in real property, of decedents, for the payment of their debts and funeral expenses, and the disposition of the proceeds thereof. 6. To administer justice in all matters relating to the aflfairs of decedents, according to the provisions of the statutes relating thereto. 7. To appoint and remove guardians for infants ; to compel the payment and delivery by them of money or other property belonging to their wards; and in cases specially prescribed by law, to direct and control their conduct, and settle their accounts. 8. To settle the accounts of a. father, mother or other relative having the rights, powe. s and duties of a guardian in socage, and to compel the payment and delivery of money or other property belonging to the ward. This jurisdiction must be exercised in the cases and in the manner prescribed by statute. § 2472, Code Civ. Pro. For the cases illustrating jurisdiction upon any special sub- ject, consult that proceeding. ^ 77 Jurisdiction Not Subject to Collateral Attack. Where the jurisdiction of a surrogate's court to make, in a case specified in the last section, a decree or other determination, is drawn in question, col- laterally, and the necessary parties were duly cited or appeared, the jurisdic- tion is presumptively, and, in the absence of fraud or collusion, conclusively established, by an allpgation of the jurisdictional facts, contained in a written petition or answer, duly verified, used in the surrogate's court. The fact that the parties were duly cited is presumptively proved by a recital to that efi'ect in the decree. § 2473, Code Civ. Pro. Where a surrogate of a county admits a will to probate, he must necessarily have passed upon the jurisdictional facts, and his jurisdiction cannot be passed upon by another surrogate. Matter of Harvey, 3 Kedf. 214. The bringing of a watch and chain of deceased into this State in order to appoint an administrator to sue a railroad for negli- gence was held to be a fraud upon our courts and to entitle the railway company to attack the letters collaterally. Hoes v. N. Y., H. & H. E. B. Co., 173 N. Y. 435. Where a person is duly appointed administratrix of tlie same estate of which a public administrator had been appointed, her appointment cannot be called in question collaterally. Power v. Spechman, 126 N". Y. 354. Nor where the person alleged to have died intestate was in fact living. Boderigas v. East B. 8. I., 63 N. Y. 460 ; O'Connor v. Huggins, 113 id. 512. I 78 JuEisDicTioisr — How Obtained. 48 JSTor where there had been no citation to the widow or renuncia- tion by her. Kelly v. West, 80 JST. Y. 139. JSTor where the cause of action arose under the statutes of an- other State. Leonard v. Columbia S. N. Co., 84 K Y. 48, 79 N. Y. Suppl. 1100. A recital in a surrogate's decree in real estate proceedings of due service of citation upon all parties is presumptive proof of such service, when collaterally attacked. MoU v. Fort Edward W, W. Co., 79 App. Div. 179. ^ 78 Jurisdiction, how Obtained. The Surrogate's Court obtains jurisdiction in every case: a. By the existence of the jurisdictional facts prescribed by statute, and b. By the issue of a citation, or c. By the appearance of the necessary parties. Objection on account of defect in the record is available only upon appeal. An objection to a decree or other determination founded upon an omission therein or in the papers upon which it was founded of the recital or proof of any fact necessary to jurisdiction which actually existed, or The failure to take any intermediate proceeding required by law to be taken. Is available only upon appeal. Amendment. The surrogate may, in his discretion, allow such a defect to be supplied by amendment. § 2474, Code Civ. Pro., analyzed. Jurisdiction to control proceeding — How obtained. Upon the presentation of the petition, the court acquires juris- diction to do any act which may be done before actual service of the citation. Part of § 2516, Code Civ. Pro. The petition. A petition alleging all jurisdictional facts gives the court juris- diction to entertain the proceedings and to adjudicate without further proof in case the facts alleged in the petition are not controverted. Prout v. McNab, 6 Dem. 152 ; Matter of Zerega, 58 Hun, 505, 12 IT. Y. Suppl. 497, 35 IST. Y. St. Eepr. 558. 49 Commencement of Peoceedin3. | 79 Variance between original papers and copy served. Where the copy citation served varies from the original, if the party appears the defect may be cured by amendment. Pryer v. Clapp, 1 Dem. 387. Review by appeal. On appeal it is not necessary that the record offered from a court of limited jurisdiction should show afBrmatively and on its face that there was proof of all the jurisdictional facts. Yan Dusen v. Sweet, 51 IST. Y. 378. Where the surrogate has jurisdiction of the subject-matter and has acquired jurisdiction of the parties, his proceedings thereafter and the determination which he makes can be reviewed only upon appeal. Harrison v. Clark, 87 N. Y. 572, affg. 20 Hun, 404. ^ 79 The Commencement of a Proceeding — Citation and Service Thereof. Proceeding commenced by citation issued upon filing petition. Except in a, case where it is otherwise specially prescribed by law, a special proceeding in a surrogate's court must be commenced by the service of a cita- tion issued upon the presentation of a petition. But upon the presentation of the petition, the court acquires jurisdiction to do any act which may be done before actual service of the citation. § 2516, Code Civ. Pro. Service of process, etc., to commence a special proceeding. The provisions of this article, relating to the mode of service of a summons, apply likewise to the service of any process or other paper, whereby a special proceeding is commenced in a court, or before an oflScer, except a proceeding to punish for. contempt, and except where special provision for the service thereof is otherwise made by law. § 433, Code Civ. Pro. Citation to show cause. A special proceeding may also be begun in certain cases by the issue and service of a citation to show cause. In many sections of the Code of Civil Procedure it is specially prescribed that a cita- tion to show cause may issue, and when so issued it is for all purposes to be regarded as a regular citation. The proceeding under section 2602 of the Code of Civil Pro- cedure is one of those otherwise specially prescribed by law, and an order to show cause may issue instead of a citation. Matter of Stem, 33 3iisc. Kep. 542, 68 IST. Y. Suppl. 933. 4 I 80 SoDKCE OF Citation. 50 Citation to show cause may be returnable in less than eight days. While section 780, Code Civ. Pro., does not in terms apply to Surrogate's Court, yet the surrogate has undoubted power under section 2481, Code Civ. Pro., to issue a citation to show cause returnable in less than eight days. Matter of Filley, 47 IST. Y. St. Eep. 428, 20 K Y. Supp. 427. Waiver instead of citation. A proceeding for probate must be begun by the issue of a citation, and no jurisdiction of the proceeding is obtained where citation is waived by the parties and none ever issued. Matter of Gregory, 13 Misc. Eep. 363, 69 N. Y. St. Kepr. 479, 35 N. Y. Suppl. 105. The practice adopted by the surrogates of the State generally does not follow this decision. See collection of authorities, para- graph 250. Effect of failure to serve citation. Where a citation is issued but not properly served, a supple- mental citation may issue and the proceeding will not fail for lack of service of the original citation. Matter of Bradley, 70 Hun, 104, 53 ]Sr. Y. St. Kepr. 540, 23 IST. Y. Suppl. 1127 ; Matter of Oouraud, 95 N. Y. 256, revg. 28 Hun, 560. The provision for service of citation within sixty days does not render the proceeding null for failure to issue the citation promptly on the filing of the petition. Matter of Van Yleck, 32 Misc. Eep. 419, 66 N. Y. Suppl. 727. ^ 80 Citation Must be Served to Stop Running of Statute of Limitations. The presentation of a. petition is deemed the commeneement of a special proceeding, within the meaning of any provision of this act, which limits the time for the commencement thereof. But in order to entitle the petitioner to the benefit of this section, a citation issued upon the presentation of the petition, must, within sixty days thereafter, be served, as prescribed in section 2520 of this act, upon the adverse party, or upon one of two or more adverse parties, who are jointly liable, or otherwise united in interest; or, within the same time, the first publication thereof must be made pursuant to an order made as prescribed in section 2522 of this act. § 2517, Code Civ. Pro. Section 399, which is also applicable, follows: Attempt to commence action in a court of record. An attempt to commence an action, in a court of record, is equivalent to the commencement thereof against each defendant, within the meaning of each 51 JuEiSDicTioN — Exclusive. 1 81 provision of this act, which limits the time for commencing an action, when the summons is delivered, with the intent that it shall be actually served, to the sheriff, or, where the sheriff is a party, to a coroner of the county, in which that defendant or one of two or more co-defendants, who are joint contractors, or otherwise united in interest with him, resides or last resided; or, if the defendant is a corporation, to a like officer of the county, in which it ia estab- lished by law, or wherein its general business ia or was last transacted, or wherein it keeps or last kept an office for the transaction of business. But in order to entitle a plaintiff to the benefit of this section, the delivery of the summons to an officer must be followed, within sixty days after the expiration of the time limited for the actual commencement of the action, by personal service thereof upon the defendant sought to be charged, or by the first pub- lication of the summons, as against that defendant, pursuant to an order for- service upon him in that manner. § 399, Code Civ. Pro. Where a petition to revoke probate was filed within the year, but citation was not issued and served until more than sixty days after the filing of the petition, the surrogate lost jurisdiction. Matter of Clapp, 1 Dem. 387. " United in interest " means identity of interest or joint inter- est as distinct from similarity or community of interest. Foun- tain V. Carter J 2 Dem. 313. Dismissed for failure to serve. Where citation was served within sixty days upon one party only, petition was dismissed. Fountain v. Carter, 2 Dem. 313, dist'd., 11 E". Y. St. Kepr. 695, foU'd., 9 E". Y. Supp. 459. The time for service having elapsed, the proceeding must stand, if at all, upon the service already made. ISTo new or supple- mentary citation can be of any avail. Matter of Soule, 6 Dem. 139, 11 ]Sr. Y. St. Kepr. 695. ^ 81 Jurisdiction First Acquired is Exclusive. Jurisdiction, once duly exercised over any matter, by a surrogate's court, excludes the subsequent exercise of jurisdiction by another surrogate's court, over the same matter, and all incidents, except as otherwise specially pre- scribed by law. Where a guardian has been duly appointed by, or letters testamentary or of administration have been duly issued from, or any other special proceeding has been duly commenced in, a surrogate's court having jurisdiction, all further proceedings to be taking in a surrogate's court, with respect to the same estate or matter, must be taken in the same court. § 2475, Code Civ. Pro. ^ 82 Jtjeisdiction- Attacked. 52 Jurisdiction acquired by filing petition. Upon the presentation of the petition, the court acquires jurisdiction to do any act which may be done before actual service of citation. Part of § 2516, Code Civ. Pro. ■Concurrent jurisdiction becomes exclusive by filing petition. Where a petition for probate of a will or for letters of administration has leen duly filed in either of the courts so possessing concurrent jurisdiction, ■the jurisdiction of that court excludes the other. Part of § 2477, Code Civ. Pro. ^ 82 Claim of Jxurisdiction in Two Counties. Where application for probate or administration is made in two different counties alleging in each that the deceased was a resident of the county, the surrogate to whom the first applica- tion was made acquires jurisdiction of the estate, and he should determine as a preliminary question whether or not the deceased "was a resident of his county. The surrogate of the county in which the later application was made should adjourn the pro- ceeding before him when the pendency of the other proceeding is brought to his attention, in order that the parties may litigate ■the question of residence before the surrogate who first acquired jurisdiction to determine it. The parties will then produce their proof and the surrogate ■will determine whether or not he has jurisdiction; if he decides "that he has, the proceeding in the other court should be dismissed ; if he decides that he has not, he will dismiss the proceeding be- fore him or revoke any letters which he has granted, and the pro- ceedings in the other court will be continued. Matter of Gould, 30 ]Sr. Y. St. Eepr. 949, 9 K Y. Suppl. 603 ; affd., 131 N. Y. 630. It is proper practice for the surrogate to make an order ad- journing the later proceeding until the determination of the ques- tion of residence in the prior proceeding, and to include in the order a provision that in case the surrogate having prior juris- diction should decide that the deceased was a resident of his ■county, then the proceeding before him should be dismissed. Such an order effects a substantial right and is appealable. Matter of Buckley, 41 Hun, 106, 2 IST. Y. St. Kepr. 673. A petition filed with the surrogate followed by a service of a citation upon one or more of the parties gives that court juris- diction to try the question of residence, of which jurisdiction that court cannot be deprived by subsequent proceedings in the Sur- 53 Supreme a^td Suehogates' Couets. If 84 rogate's Court of another county. Bumstead v. Beed, 31 Barb- 661 ; People v. Waldron, 52 How. 221. Where it appears that the surrogate of another county had exercised jurisdiction of the estate, no other surrogate should at- tempt to do any act regarding the estate until the proceeding taken, in the other court is set aside. Matter of Harvey, 3 Dem. 214. ^ 83 Concurrent Jurisdiction of Supreme and Surrogates' Courts to Require an Accounting. The Supreme Court and the Surrogate's Court have concurrent jurisdiction to require executors and trustees and in case of their death, their personal representatives, so far as property has come into their hands, to account for their acts, and ordinarily the Supreme Court will refuse to exercise its jurisdiction; but where the jurisdiction of the Surrogate's Court is insufScient to deter- mine all of the questions necessarily involved, the Supreme Court will exercise jurisdiction. Hard v. Ashley, 117 IST. Y. 606 ;. Sanders v. Soutter, 126 id. 193 ; Douglas v. Yost, 64 Hun, 155 ; Matthews v. Stvdley, 17 App. Div. 303, 312 ; Strong v. Harris, 84 Hun, 314; Blake v. Barnes, 28 Abb. E". C. 401. The Surrogate's Court, being a court of limited jurisdiction, and being without jurisdiction to try the title to real estate, should dismiss the petition upon it being thus made to appear that a question relating to the title to real estate, which should be decided before an accounting should be ordered, is involved. Matter of Spears, 8& Hun, 49; Matter of Fogarty, 117 App. Div. 585. ^ 84 Jurisdiction of Supreme Court to Determine Validity of Will. The validity of any actual or alleged devise or will of real estate may be determined by the Supreme Court in a proper action for that purpose, in which all persons interested, or who claim an in- terest in the question, may be made parties, and such action may be brought by any heir-at-law of the actual or alleged testator or testati-ix, or by any devisee under any actual or alleged will; and thereupon after final judgment in such action any party may be enjoined from setting up or from impeaching such devise or will, as justice may require. The court may also, in its discre- tion, during the pendency of any such action, restrain the com- mencement or prosecution of any other action involving the trial ^ 85 Insane Peesons and Minoes. 54 of the same question. Such adjudication, however, shall not de- termine or affect the validity of any such will as to any personal property; nor shall this act, or any proceeding taken by virtue thereof, affect or interfere with any suit or proceeding in any court of this State relating to the probate of a will. Issues of fact in such actions- may be tried by a jury or the court, as the nature of the case may require and the court shall direct. Laws of 1853, chap. 238, as amended by chap. 316, Laws of 1879. ^ 85 Jurisdiction to Commit Insane Persons to Institutions. The surrogate, as a judge of a court of record, has power to com- mit insane persons to public or private institutions under the pro- visions of the Insanity Law, art. Ill, § 60. Costs. The proceeding under the Insanity Law is not a special pro- ceeding so far as granting costs is concerned, and chapter 428, Laws of 1904, deprived the surrogate of the right to impose costs on petitioner. Matter of Murtaugh, 117 App. Div. 302. ^ 86 Jurisdiction to Permit Adpption of Minors. By the Domestic Relations Law, art. VI, § 62, the surrogate is given power and authority equal with the county judge to permit the adoption of minors. Section 60 of the Domestic Relations Law provides : "Adoption is the legal act whereby an adult takes a minor into the relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect to such minor. * * * " Section 61 provides: " Consent to adoption is necessary as follows : " 1. Of the minor if over twelve years of age ; "2. Of the foster parent's husband or wife, unless lawfully separated, or unless they jointly adopt such minor ; " 3. Of the parents or surviving parent of a legitimate child * * * but the consent of a parent who has abandoned the child, or is deprived of civil rights, or divorced because of his or her adultery or cruelty, or adjudged to be insane, or to be an habitual drunkard, or judicially deprived of the custody of the child on account of cruelty or neglect, is unnecessary. 55 Adoption of Minoks. 1 86 " 4. Of a person of full age having lawful custody of the child, if any such person can be found, where the child has no father or mother living, or no father or mother whoSe consent is necessary imder the last subdivision. * * * " Section 62 provides: " 1. The foster parents or parent, the minor and all the persons whose consent is necessary under the last section, must appear be- fore the county judge or the surrogate of the county where the foster parent or parents reside, and be examined by such judge or surrogate, except as provided by the next subdivision. " 2. They must present to such judge or surrogate an instru- ment containing substantially the consents required by this chapter, an agreement on the part of the foster parent or parents to adopt and treat the minor as his, her, or their own lawful child, and a statement of the age of the child as nearly as the same can be ascer- tained, which statement shall be taken prima facie as true. The instrument must be signed by the foster parent or parents and by each person whose consent is necessary to the adoption, and severally acknowledged by said persons before such judge or surro- gate. * * * " Section 63 provides: "If satisfied that the moral and temporal interests of the child will be promoted thereby, the judge or surrogate must make an order allowing and confirming such adoption, reciting the reasons therefor, and directing that the minor shall thenceforth be regarded and treated in all respects as the child of the foster parent or parents. * * * " Section 64 provides: " Thereafter the parents of the minor are relieved from all parental duties toward, and of all responsibility for, and have no rights over such child, or to his property by descent or succession. * * * The child takes the name of the foster parent. His rights of inheritance and succession from his natural parents re- main unaffected by such adoption. The foster parent or parents and the minor sustain toward each other the legal relation of parent and child and have all the rights, and are subject to all the duties of that relation, including the right of inheritance from each other, * * and such right of inheritance extends to the heirs and next of kin of the minor, and such heirs and next of kin shall be the same as if he were the legitimate child of the person adopting. * * * " TT 87 Habeas Coeptjs — Impeisonment. 56 Section 66 provides: "A minor may be deprived of the rights of a voluntary adoption by the following proceedings only : " The foster parent, the minor and the persons whose consent would be necessary to an original adoption, must appear before the county judge oi* surrogate of the county where the foster parent resides, who shall conduct an examination as for an original adop- tion. If he is satisfied that the abrogation of the adoption is de- sired by all parties concerned, and will be for the best interests of the minor, the foster parent, or minor and the persons whose con- sent would have been necessary to an original adoption shall execute an agreement, whereby the foster parent and the minor agree to relinquish the relation of parent and child and all rights acquired by such adoption, and the parents or guardian of the child or the institution having the custody thereof, agree to reassume such re- lation. * * * From the time of the filing and recording thereof the adoption shall be abrogated, and the child shall re- assume its original name and the parents or guardians of the child shall reassume such relation. Such child, however, may be adopted directly from such foster parents by another person in the same manner as from parents, and as if such foster parents were the parents of such child." Matter of MacRae, 189 K Y. 142. ^ 87 Jurisdiction to Issue Habeas Corpus to Produce Witness. Consult Code Civ. Pro., §§ 2008 to 2014. Habeas corpus to testify; when allowed by court or judge. A court of record, other than a justice's court of a city, or a judge of such a court, or a justice of the supreme court, has power, upon the application of a party to an action or special proceeding, civil or criminal, pending therein, to issue a writ of habeas corpus, for the purpose of bringing before the court a prisoner, detained in a jail or prison within the State, to testify as a wit- ness in the action or special proceeding, in behalf of the applicant. § 2008, Code Civ. Pro. f^ 88 May Discharge from Imprisonment. Consult Code Civ. Pro., §§ 2200 to 2218. Who may be discharged. A person imprisoned by virtue of an execution to collect a sum of money, issued in a. civil action or special proceeding, may be discharged from the imprisonment, as prescribed in this article. A person who has been admitted to the jail liberties, is deemed to be imprisoned, within the meaning of this article. § 2200, Code Civ. Pro. 57 DiscovEEY OF Books and Papees. | 89 To what court application to be made. Application for such a discharge must be made by petition, addressed to the court from which the execution issued; or to the county court of the county in which he is imprisoned; or, if he is imprisoned in the city of New York, to the supreme court. § 2201, Code Civ. Pro. ^ 89 Jurisdiction to Cause the Discovery of Books and Papers. A surrogate has jurisdiction to compel a party to a special pro- ceeding pending before him to produce and discover or to give to the other party an inspection and copy or permission to take a copy of a book, document, or other paper in his possession or under his control, relating to the merits of the special proceeding or the defense thereof. The general rules of practice of the Supreme Court prescribe the cases in which such discovery or inspection may be compelled and they should be consulted in connection with sections 803 to 809 of the Code of Civil Procedure, for the practice relating thereto. Reason for ordering discovery — Even in foreign country. " This court has jurisdiction because the executors and trustees have sought its aid and because all the interested parties are be- fore it. It has jurisdiction because in order to authorize the sale of the real estate here situate, the exact situation of the whole estate is necessary for a determination. Executors and trustees under a last will and testament hold, perhaps, the highest fiduciary relation known to the law. They owe to the court and to their cestuis que trustent the utmost frankness of explanation of their dealings with their trust estate. When they come asking advice and aid in the performance of their trust, the court can view with little patience obstacles interposed by them to prevent a full disclosure of the facts. Under such circumstances the order appealed from was proper to put the cestuis que trustent an.d the court in possession of the facts necessary to a determination of the ultimate issue of this litigation. The order appealed from, while it provides for an inspection of the books and papers in a foreign country, must be considered in view of the fact that those books and papers are the books and papers of these plaintiffs who here come into court asking advice f 90 Deposition by Commission. 58 in regard to the very estate of which these books and papers con- tain the record. The order also provided that in lieu of the originals the plain- tiffs could produce certified copies, and further provided that the expense of compliance with this order should be paid by the estate. Both these provisions were wise and proper. Muller v. City of Philadelphia, 118 App. Div. 276. C[ 90 Jurisdiction to Take the Deposition of a Witness With- out the State for Use Within the State. In a proper case the surrogate may issue a commission to take the deposition of a witness who is not within the State to be used in a proceeding before him. In issuing a commission and in taking such deposition sections 887 to 913, Code of Civil Procedure, apply. Special attention is called to section 895 of the Code of Civil Procedure, which prevents the issuing of an open commission where an infant or incompetent person is a party. % 91 Jurisdiction to Cause the Deposition of a Party to a Special Proceeding to be Taken. The surrogate in a proper case has the right to direct the depo- sition of a party to a special proceeding to be taken to be used in that proceeding. Such right, however, by special provision of law cannot be exercised to take the evidence of a witness to a will who is within the State and physically able to appear in person before the surrogate. Where the surrogate may exercise the right to cause the deposition of a witness to be taken, the procedure is governed by the Code of Civil Procedure, §§ 870 to 886, both inclusive. ^ 92 Jurisdiction to Consolidate Two or More Proceedings. Where two or more proceedings are pending before the surro- gate in which the same parties are interested and which are brought for a similar or like purpose, the surrogate has authority to consolidate such proceedings, and where no special provision is made for such consolidation the authority therefor may be found in sections 817 to 819 of the Code of Civil Procedure. 59 Jtjeisdiction — Cowcueeent. 1 95 ^ 93 Exclusive Jurisdiction. The surrogate's court of each county has jurisdiction, exclusive of every other surrogate's court, to take the proof of a will, and to grant letters testamentary thereupon, or to grant letters of administration, as the case requires, in either of the following cases: 1. Where the decedent was, at the time of his death, a resident of that county, whether his death happened there or elsewhere. 2. Where the decedent, not being a resident of the State, died within that county, leaving personal property within the State, or leaving personal prop- erty which has, since his death, come into the State, and remains unadminis- tered. 3. Where the decedent, not being a resident of the State, died without the State, leaving personal property within that county, and no other; or leaving personal property which has since his death, come into that county, and no other, and remains unadministered. 4. Where the decedent was not, at the time of his death, a resident of the State, and a petition for probate of his will, or for a grant of letters of admin- istration, under subdivision second or third of this section, has not been filed in any surrogate's court; but real property of the decedent, to which the will relates, or which is subject to disposition under title fifth of this chapter, is situated within that county, and no other. § 2476, Code Civ. Pro. ^ 94 Concurrent Jurisdiction of Two or More Surrogates. Where personal property of the decedent is within, or comes into, two or more counties, under the circumstances specified in subdivision third of the last section; or real property of the decedent is situated in two or more counties, under the circumstances specified in subdivision fourth of the last section; the surrogate's courts of those counties have concurrent jurisdiction, exclusive of every other surrogate's court, to take the proof of the will and grant letters testamentary thereupon, or to grant letters of administration, as the case requires. But where a petition for probate of a will, or for letters of administration, has been duly filed in either of the courts so possessing concurrent jurisdiction, the jurisdiction of that court excludes that of the other. § 3477, Code Civ. Pro. ^ 95 Jurisdiction, how Affected by Locality of Debts. For the purpose of conferring jurisdiction upon a surrogate's court, a debt, owing to a decedent by a resident of the State, is regarded as personal prop- erty, situated within the county where the debtor, or either of two or more joint debtors, resides; and a debt owing to him by a domestic corporation, is regarded as personal property, situated within the county where the principal office of the corporation is situated. But the foregoing provision does not- apply to a debt evidenced by a bond, promissory note, or other instrument for the payment of money only, in terms negotiable, or payable to the bearer or holder. Such a debt, whether the debtor is a resident or a non-resident of the State, or a foreign or a domestic government. State, county, public officer, association, or corporation, is, for the purpose of so conferring jurisdiction, regarded as personal property, at the place where the bond, note or other instrument is, either within or without the State. § 2478, Code Civ. Pro. f 96 Peobate of Heieship — Suppoet of Pooe. 60 ^ 96 Jurisdiction in New or Altered County. Where a new county has been heretofore, or is hereafter erected, or territory has been heretofore, or is hereafter, transferred from one county to another, the jurisdiction of the surrogate's court of each of the counties affected thereby, to take the proof of a will, or to grant letters, depends upon the locality, when the petition is presented, of the place, where the property of the decedent is situated, or where the event occurred, as the case may be, which determines jurisdiction. If, before the erection of the new county, or the transfer of the territory, letters have been granted, upon the ground that the decedent died or resided within the county, the surrogate's court, from which they were issued, has exclusive jurisdiction of the estate, and of all matters incidental thereto; and if the place where the decedent died or resided is embraced within another county, certified copies of any papers or proceedings, filed, entered, or recorded in the surrogate's court thereof, must be furnished on the payment of the fees therefor, by tEe proper oflScer, to any person inter- ested in the estate; and, upon the latter's request and payment of the fees therefor, the proper officer of the court so having jurisdiction must file, enter, or record the same, in like manner and with like effect as the originals. Where the letters were granted upon any ground other than the decedent's death or residence within the county, the jurisdiction of the court from which they were issued, remains unaffected by any change in the territorial limits of its county. § 2479, Code Civ. Pro. ^ 97 Jurisdiction — Transfer of Proceedings to Proper County. A special proceeding pending in a surrogate's court, whose jurisdiction to entertain the same is taken away by the provisions of the last section, or in consequence of the erection of a new county, or the alteration of the territorial limits of a county, after this act takes effect, must be transferred, by order of the court in which it is pending, to the surrogate's court having jurisdic- tion; and the latter court has the same jurisdiction, power and authority with respect thereto, which the former court would have had, if the territorial limits of its county had not been changed. § 2480, Code Civ. Pro. ^ 98 Jurisdiction to Probate Heirship. The surrogate has jurisdiction to entertaiii proceedings for the probate of heirship where real property descends and it is desired to make record proof as to the parties who are the heirs-at-law of the intestate from whom it descends. These proceedings are governed by sections 2654 to 2659 of the Code of Civil Procedure. ^ 99 Jurisdiction Under the Laws Relating to the Support of the Poor. In certain cases the surrogate has, as a judge of the court of record, jurisdiction to determine questions regarding the sup- port of the poor in any town in the same manner and with the same affect as the county judge of such county would have. 61 BUEIAL OF THE DeAD. | 100 CHAPTER IV. Rights, Powers, and Duties of Executors and Other Persons Before Probate or Issue of Letters of Admiaistration. If 100. Right to possession of dead body for purpose of burial. 101. Duty to furnish proper burial. 102. Right to protect graves, headstones, and burial lots, 103. Obtaining possession of the will. 105. Disposition of will after probate. 107. Opening and reading will. 108. Preparing to offer will for probate. 109. Rights, powers, and duties of executors and other persons before pro- bate as to preservation and care of property. 111. Acknowledgments and certification. ^ 100 Right to Possession of a Dead Body for Purpose of Burial. The burial of the dead is a subject which interests humanity to a much greater degree than many matters of actual property. There is a duty imposed by the universal feelings of mankind to be discharged by some one toward the dead — a duty to prop- erly cover and bury a dead body. Such duty carries with it a certain legal right of possession and control, and this subject is exhaustively and with great learning discussed in a paper upon the " Laws of Burial," printed in 4 Bradf. 503, wherein the fol- lowing conclusions are reached: The right to bury a corpse and preserve its remains is a legal right which the courts of law will recognize and protect. That such right in the absence of testamentary disposition be- longs exclusively to the next of kin. That the right to protect the remains includes the right to pre- serve them by separate burial, to select the place of sepulture, and to change it at pleasure. That if the place of burial be taken for public use, the next of kin may claim to be indemnified for the expense of removing and suitably reinterring the remains. The courts recognize and enforce the right of next of kin to control the body of a deceased person as a sacred trust to be exer- cised in accordance with the natural sentiment, affection, or rever- If 100 BUEIAL OF THE DeaD. 62 ence which exists for the mortal remains of those we have " loved long since and lost awhile." Cohen v. Cong. 8. I., 85 App. Div. 65, 82 E". Y. Suppl. 918. The right to possession of a dead body for the purpose of preser- vation and burial is a legal right, the violation of which by an unauthorized and unlawful mutilation of the corpse before burial gives rise to an action for damages in favor of the surviving wife of deceased. Foley v. Phelps, 73 IST. Y. St. Kepr. 190, 1 App. Div. 554, 37 N. Y. Suppl. 471. It is lawful for a person to direct by will where his body shall be buried. Matter of Bratt, 10 Misc. Eep. 491, 65 K Y. St. Eepr. 247, 32 N. Y. Suppl. 168. As between a son and the widow (a second wife), the son was given charge of the body for burial. Snyder v. Snyder, 60 How. Pr. 368. Where a question as to the custody of a body was to be liti- gated, the court refused to dissolve an injunction which directed that the body be retained in a vault until the determination of the action. Butler v. Butler, 91 App. Div. 327, 86 IST. Y. Suppl. 586. The husband has the right to select the permanent burial place of the body of his wife, and the wife that of her husband. John- ston V. Marinus, 18 Abb. E". C. 72; Secord v. Secord, 18 Abb. N. C. 78. Ownership of burial grounds and corpses. A reference to the literature of burial grounds and burials may be found in 18 Abb. E". C. 75. For an interesting article on the subject of the " Ownership of a Corpse Before Burial," see 4 Kedf. 527, Appendix. Rules of a church do not prevail. Ecclesiastical law is not a part of the law of this State, nor are equitable rights to be determined by it; on the contrary, when a court of equity exercises its powers, it does so only upon equitable principles, irrespective of ecclesiastical or any other law. As was said in Matter of Dorm (14 IST. Y. Suppl. 189): "When an ecclesiastical body assumes jurisdiction and control over a corpse, its acts are of a temporal and juridical character and not in any sense spiritual ; and, under our laws and institutions, when it at- tempts so to do it is acting outside of its proper jurisdiction and domain." 63 Ih-ctjbeing Funeral Expenses. | 101 It may be that if an agreement were made witli a cemetery association that remains there interred could not thereafter be disinterred, a court of equity would enforce the agreement ; or if a religious corporation had a rule, to which a member subscribed, that if his remains were interred in a cemetery controlled by it they could not thereafter be removed, that a court of equity would refuse to exercise its powers to decree removal. Having found, as a fact, that an expressed intent that a body interred may, perhaps, be removed, entitled the proper parties thereafter to re- move it, imder the practice adopted by the defendant corporation, and that Daniel S., at the time the remains of Adela were in- terred, had this intent, was all that was necessary to entitle the plaintiffs, when applying to a court of equity, to the relief asked. Especially is this so when such finding is read in connection with the other facts developed at the trial, and there is no finding that he did not express this intent to the proper authorities of the de- fendant or the person having charge of the cemetery. Cohen v. Cong. 8. I., 114 App. Div. 118. Right of widow to be buried in lot owned by her husband. The remains of a widow may be buried in a burial let of which her hus- band died possessed and in which his heirs continue to have an estate or right of burial without the consent of any person whomsoever claiming any interest in such lot; § 51, Membership Corporations Law. ^ 101 Incurring Funeral Expenses — Duty of the Under- taker as Well as of the Representative to Consider the Value of the Estate. A person who furnishes burial is entitled to be reimbursed for the reasonable expenses of such burial, but he need not necessarily be reimbursed from the estate for the whole charge so incurred. A person who contracts funeral expenses is personally liable to pay the same and may contract for as elaborate and expensive a funeral as he desires; but when he seeks to be reimbursed from the estate he will be allowed only such a sum as the surrogate deems to be a reasonable expenditure for such purpose when the estate left by the deceased and his station in life are duly con- sidered. The undertaker who furnishes the burial should bear in mind that these rules will be applied when his bill is passed upon by the surrogate, and he is, therefore, charged with the duty of ascer- ^ 101 Liability foe FuifEEAL Expenses. 64 taining the apparent condition of the estate and the station in life of the deceased. If he is convinced that the person with whom he is dealing is ordering a more expensive funeral than will be ap- proved on the application of these rules, he should require such person to become personally bound to pay the balance of the ex- penses after applying the reasonable sum which will be allowed by the surrogate. Matter of Rooney 3 Kedf. 15 ; Matter of Primmer, 49 Misc. Eep. 413 The necessity for proper burial creates an implied promise to repay the person who performed such duty. A surviving husband is under a legal obligation to bury the corpse of his wife, being allowed to reimburse himself from the separate estate of his deceased wife if she has left any such estate. Patterson Y. Patterson., 59 'N. Y. 574; McCue v. Oarvey, 14 Hun, 562 ; Freeman v. Coit, 27 id. 447. If the husband fails to perform this duty he is liable to an action to recover the reasonable value of its performance by any person who, on account of his absence or neglect, has properly incurred the expense of the necessary burial. At common law, if a poor person of no estate dies it is the duty of him under whose roof the body lies to carry it decently covered to the place of burial, and where the owner of some estate dies the duty of the burial is upon the executor. From this duty springs a legal obligation, and from the obligation the law im- plies a promise to him who, in the absence or neglect of the exec- utor, not officiously, but in the necessity of the case, directs a burial and incurs and pays such expense thereof as is reasonable, that he shall be repaid by such estate. Patterson v. Patterson, 59 ]Sr. Y. 574. Where in the absence of the personal representative or the per- son bound to bury the dead body, or, from the necessity of the case, another incurs the expense of a proper burial, he may re- cover it from the person or estate that was bound to do it. Quin V. Hill, 4 Dem. 69 ; Matter of Miller, 4 Kedf. 302 ; Kessell v. Hapen, 8 E". Y. St. Kepr. 352. If there are no near relatives of the deceased or none who will assume the expense of the proper burial of the deceased, it is the duty of the executor to make the necessary arrangements. In do- ing so he will become personally liable for all expense incurred, but he may be reimbursed therefor from the funds of the estate. "65 Custody of the Will. 1 103 ^ 102 Right to Protect Graves, Headstones, and Burial Lots. The heirs of a decedent at whose grave a monument has been erected, or the person who rightfully erected it, can recover dam- ages from one who wrongfully injures or removes it, or, by an injunction, may restrain one who, without right, threatens to in- jure or remove it, although title to the ground is in another. Where a right of way to and a right to maintain a cemetery lot for burial purposes are held in common by several persons, any one or more of them may maintain an action to prevent by injunction the interruption or destruction of those rights without making the others parties. Mitchell v. Thome, 134 N". Y. 536, affg. 57 Hun, 405. ^ 103 Possession, Production, and Disposition of the Will. Where a will is left it may usually be found among the papers of the deceased. Any member of the family or person interested may make an examination of the papers in order to ascertain whether or not a person left a will. If no will is found among the papers to which any member of the family or person interested has access, it may be found in one of several places. Very often £l will is left in the care and custody of the lawyer of the deceased or of the person who drew the will, and he may properly be ap- plied to to ascertain the fact as to whether or not a will was left. The hiring of safe-deposit boxes is becoming quite com- mon, and often a will may be found in such boxes. The person hiring the box usually has one key and the company usually has the other key, and it is necessary for both keys to be used in opening the box. Sometimes there is difficulty in getting the safe-deposit company to allow the will to be taken from the box, due largely to a mistaken notion on the part of the company that it has no legal right to remove or allow the removal of such a paper; if, however, the will is found in such deposit box, the proper course is for the safe-deposit company or other custodian thereof to deliver it to the person named as executor therein and take his receipt therefor, or the will may be delivered to the sur- rogate for filing by .'him. If no will is found in any of these places, it still may be found upon file with the county clerk or the surrogate or with the regis- trar of deeds in the city and county of New York, since special provision has been made by law for the deposit of wills for safe- keeping with such officers. 5 I 104 Custody ob the Will. 66 ^ 104 Deposit of Will for Safe-Keeping. E. S., pt. 2, chap. 7, tit. 3, §§ 67-70, regarding the deposit of wills for safe-keeping provide as follows : Wills to be received for safe-keeping. The clerk of every county of this state, the register of deeds in the city and county of New York, and the surrogate of every county, upon being paid the fees allowed therefor by law, shall receive and deposit in their ofiBces respec- tively, any last will or testament which any person shall deliver to them for that purpose, and shall give a written receipt therefor to the person depositing the same. § ^7. Wills to be sealed up, etc. Such wills shall be enclosed in a sealed wrapper, so that the contents thereof cannot be read, and shall have endorsed thereon the name of the testator, his place of residence, and the day, month and year when delivered; and shall not, on any pretext whatever, be opened, read or examined, until delivered to a person entitled to the same, as hereinafter directed. § 68. To whom to be delivered. Such will shall be delivered only, 1. To the testator in person; or, 2. Upon his written order, duly proved by the oath of a subscribing wit- ness; or, 3. After his death, to the persons named in the endorsement on the wrapper of such will, if any such endorsement be made thereon; or, 4. If there be no such endorsement, and if the same shall have been de- posited with any other oflScer than a, surrogate, then to the surrogate of the county. § 69. Will, when to be opened by surrogate, etc. If such will shall have been deposited with a surrogate, or shall have been delivered to him as above prescribed, such surrogate, after the death of the testator, shall publicly open and examine the same, and make known the con- tents thereof, and shall file the same in his office, there to remain until it shall have been duly proved, if capable of proof, and then to be delivered to the person entitled to the custody thereof; or until required by the authority of some competent court to produce the same in such court. § 70. ^ 105 Disposition to be Made of the Original Will After Probate. Parties often desire to keep the will of an ancestor among their family papers. In a proper case the original will can be obtained upon application to the surrogate. 67 ChisTODT OF Will After Peobate. f 106 Wills to be returned after probate. Except where special provision is otherwise made by law, or where the sur- rogate sends a will into another state or territory or into a foreign country, or delivers it to a party in interest, as provided in section two thousand six hundred and twenty of this act, a written will, after it has been proved and recorded, must be retained by the surrogate, until the expiration of one year after it has been recorded, and, if a, petition for the revocation of probata thereof is then iiled, until a decree is made thereupon. It must then be re- turned, upon demand, to the person who delivered it, unless he is dead, or a lunatic, or has removed from the state; in which case, it may, in the discre- tion of the surrogate, be delivered to any person named therein as devisee, or to an heir or assignee of a devisee; or, if it relates only to personal prop- erty, to the executor, or administrator with the will annexed, or to a legatee. § 2635, Code Civ. Pro» Must remain on file. Where a will is proved by the testimony of but one of the sub- scribing witnesses, or by proof of signatures without the testimony of the subscribing witnesses, the will must remain on file in the surrogate's office unless sent into the custody of another court aa prescribed in section 2620, Code Civ. Pro. Where a. written will is proved, as prescribed in this section, it must be filed and remain in the surrogate's office. But when it shall be shov?n, by afiidavit or otherwise, to the satisfaction of the surrogate, that the decedent left real or personal property in another state or territory of the United States or in a foreign country, and that the laws of such state, territory or country require the production of the original will before the provisions thereof become eflfeetive, the surrogate may, at any time after probate, and upon such notice to the parties interested in the estate as he may think proper, cause any original will remaining on file in his office to be sent by post, or otherwise to any court which, or to any officer of such state, territory or country who, under the laws thereof, is empowered to receive the same for probate, or may deliver such will to any person interested in the probate thereof in such state, territory or country, or to his representative, upon such terms as he shall think proper for the protection of other parties interested in the estate. Part of § 2620, Code Civ. Pro. ^ 106 Proceedings to Obtain Information as to the Existence of a Will and the Custody Thereof. Where a person interested has good reasons to believe that a will is in existence, or that a certain person has the custody and control thereof, he may institute an inquiry before the surrogate as to such facts. A petition should be presented to the surrogate by any person interested setting forth the reasons which lead him to believe that f 107 Eeading the Will. 68 a person or persons therein named has or have information regard- ing the existence of a will or of the custody and control of the same, and thereupon the surrogate will issue a subpoena to such person or persons requiring him or them to appear and be examined in re- gard to these matters, whereupon an order may be made as justice shall require. In form this petition should be drawn as an application for letters of administration, and the examination will be had to deter- mine whether or not the deceased left a will, so that the surrogate may grant or refuse the application for letters. See last sentence, § 2662, Code Civ. Pro. Production of will. Where a will is in a safe-deposit box, its production for filing and probate can be procured by subpoena diices tecum. Matter of Foos, 2 Dem. 600. ^ 107 Opening and Reading the Will. Whenever the death of any person occurs it becomes the imme- diate duty of that person who happens to be in a position of au- thority at that time, whether he be an interested or disinterested person, to ascertain whether or not the deceased left a will. The proper and orderly conduct of all affairs from that moment often depends upon the fact whether the deceased did or did not leave a will. If a will be found inclosed in a sealed envelope or' wrapper and the*name of the executor is marked thereon, it should be delivered to him unopened without delay. The executor may open and read such will either alone or in the presence of the relatives as shall seem to be most convenient. If the will should be opened by the executor at once, it may thereafter be read to the relatives after the funeral, as has been the custom from time immemorial. If the will be found unsealed or without the name of the executor indorsed on its wrapper, any person may open the same and read it, and thereupon he should immediately deliver it to the executor named therein. It is often important to open and read the will before the funeral, since it may contain directions respecting the funeral and burial of the deceased which ought to be carried out. It is also important in those cases where there are no near relatives to as- 69 Peepabing foe Peobate. If 108 sume the expense and control of the funeral and hurial to know the name of the executor so that such arrangements may be made by him or with his consent. After a will has been publicly or privately read it should be left in the possession of the executor or one of the executors named therein. If no executor is named in the will, or if the executor named therein is dead, any person interested thereunder is a proper custodian of the will and is a proper person to make application for its probate. ^ 108 Preparing to OfFer Will for Probate. It is the duty of the executor, or, if there be none, of £,ny party interested, to take the necessary steps to procure probate of the will. To this end a competent lawyer should be engaged to con- duct the proceeding, since it is inadvisable, if not impossible, for the ordinary layman to draw the necessary papers and conduct the proper proceedings to obtain probate of the will. Great care should be taken to ascertain the names, places of residence, and approximate ages of all of the heirs-at-law and next of kin of the deceased, since the validity of the probate and perfect title to real estate left by the deceased depends wholly upon the giving of proper notice of probate to all of such persons. The importance of giving exact information as to who consti- tute the legal heirs-at-law and next of kin of the deceased is usu- ally not properly appreciated. Every person who, in the event of the testator dying without a will, would be entitled to share in his estate must be properly notified by citation requiring him to attend before the surrogate on a day fixed for the probate of the will. He cannot be deprived of his natural right to the property of the deceased unless he has his proper day in court to object, if he so desires, to the establish- ment of the paper which may deprive him of such natural right. In many cases none but a competent lawyer can decide who in a given case are the heirs-at-law and next of kin of a certain person. If, after a careful and thorough investigation, all of such heirs- at-law and next of kin cannot be located with absolute certainty, provision is made for the service of citation upon unknown heirs- at-law and next of kin by due and proper publication thereof. Where the heirs-at-law and next of kin are fully known, over twenty-one years of age, and easily communicated with, they may consent to acknowledge before a notary a waiver of the issue and 7 109 Power op Executoe Befoee Peobate. TO service of a citation to attend the probate, and upon such consents the will is often probated without the issue of citation returnable on a fixed day. ^ 109 Power of Executor Before Probate. An executor named in a will has no power to dispose of any part of the estate of the testator before letters testamentary are granted, except to pay funeral charges, nor to interfere with such estate in any manner further than is necessary for its preservation. See § 2613, Code Civ. Pro. Xiability of unauthorized person for property in his possession. Every person 'beeoming possessed of property of n testator or intestate, "without being thereto duly authorized as executor or administrator, or with- out authority from the executor or administrator, is liable to account for the full value of such property to every person entitled thereto, and shall not bo allowed to retain or deduct therefrom any debt due to him. § 2706, Code Civ. Pro. ■Rights and duties of executors before probate. By statute the executors are deprived of power to dispose of the property, except for the purpose of paying funeral charges, or to interfere with it, except so far as necessary for its preservation until letters are granted to them by the public authorities after an adjudication that the will is executed by a competent person and with the necessary legal formality. But these limitations upon their powers for the purposes of administration do not affect their title, possession, or control of the property in the sense in which these terms are used in the statute. When a deceased per- son has disposed of his personal estate by will, the title, posses- sion, and control thereof, from the moment of his death, must be vested in some one, and in the absence of some wrongful inter- ference by a stranger, it is in the person designated for that pur- pose by the deceased owner in the instrument by which he has made the disposition. The executor derives his appointment and his title to the estate from the will, though he is without any substantial power of dis- position or administration until the probate court grants him authenticated evidence of his title and his right in the form of letters testamentary upon proof of the will. The will is the source of the executor's title and general powers. The letters testamentary, founded upon the probate of the will, '^^ Duty as to Oaee of Peopebty. % 110 do not create the executor nor confer title upon him, but is the authentic evidence of the power conferred by the will and which existed before they were granted. Hartnett v. Wandell, 60 N". Y. 346, revg. 2 Hun, 552. The property of the testator is in the legal custody of the executor appointed by will, before probate, and he may exercise many of the powers of an owner over it. He cannot dispose of it, but he may take it into his manual possession for safe-keeping. Van Schaach v. Saunders, 32 Hun, 515 ; Smith V. Northampton Banh, 4 Cush. 1 ; People ex rel. Oould v. Barker, 150 N. Y. 52 ; affd., 90 Hun, 609. Duty as to care of property. It usually happens that there are near relatives of the deceased living with such deceased in whose care and custody property is left, so that it is not in such cases necessary for the execu- tor to take such property into his actual custody and control, although in such cases the executor must remember that the prop- erty is nominally in his charge and that he must exercise with regard thereto such control as will involve its preservation and its safety. In other cases where there is no responsible person in charge of the property it is the duty of the executor to assume the immediate care and control of it so that it may be preserved and protected for the persons eventually entitled to receive it. ^ 110 Perishable Property. It often happens that there is left perishable property in various forms and this needs immediate and intelligent care in order that it may be protected and preserved or realized upon by an immedi- ate sale; all expenses incurred in protecting and preserving the property will be allowed as charges against the estate. The power to protect and preserve the property includes the power to sell perishable property where a sale is absolutely necessary in the interest of the estate. It is also the duty of the nominated executor to care for all live stock and to see that no personal property is removed unless he removes it for better care and preservation. He should see that no property is lost or misappropriated. All personal property is as much in his care for protection and preservation before pro- bate as after, but he has no authority to dispose of it except where the property is of a perishable nature. See § 2613, Code Civ. Pro. 1 111 Acknowledgment of Papers. 72 Executor charged with value of hothouse plants which he allowed to freeze. Matter of Spears, 10 Misc. Kep. 635, 66 JST. Y. St. Kepr. 215, 32 N. T. Suppl. 819; affd., 89 Hun, 49, 69 N. Y. St. Kepr. 428, 35 JST. Y. Suppl. 35. ^ 111 Requirements for the Due Execution, Acknowledg- ment, and Certification of Papers. It is required that all waivers of issue and service of citation executed to be used in Surrogate Court, and all bonds filed therein, shall, be executed, acknowledged, and certified as would be re- quired for a deed to be recorded in that county. ^ 112 Acknowledgments and Proofs Within the State. The acknowledgment or proof of a conveyance of real property within the State may be made at any place within the State, before a justice of the Supreme Court; or within the district wherein such officer is authorized to perform official duties, before a judge, clerk, deputy clerk, or special deputy clerk of a court, a notary public, or the mayor or recorder of a city, a justice of the peace, surrogate, special surrogate, special county judge, or commissioner of deeds. § 248, Keal Property Law. ^ 113 Acknowledgments and Proofs in Other States. The acknowledgment or proof of a conveyance of real property, within the State, may be made without the State, but within the United States, before either of the following officers acting within his jurisdiction, or of the court to which he belongs: 1. A judge of the Supreme Court, of the Circuit Court of Appeals, of the Circuit Court, or of the District Court of the United States. 2. A judge of the Supreme, Superior, or Circuit Court of a State. 3. A mayor of a city. " 4. A commissioner appointed for the purpose by the Governor of the State. 5. Any officer of the State in which the acknowledgment is taken authorized by the laws thereof to take the acknowledgment or proof of deeds to be recorded therein, of which the certificate required by section 262 shall be evidence. § 249, Real Property Law. 73 Acknowledgment of Papers. 1 115 ^ 114 Acknowledgments in Porto Rico, the Philippines, Cuba, etc. If tlie party or parties executing such conveyanc© shall be or reside in Porto Eico, the Philippine Islands, Cuba, or in any other place over which the United States of America at the time has or exercises sovereignty, control, or a protectorate, the same may be acknowledged or proved bof ore : 1. A judge or clerk of a court of record thereof, acting within his jurisdiction. 2. A mayor or other chief officer of a city, acting in such city. 3. A commissioner appointed for the purpose by the Governor of this State and acting within his jurisdiction. 4. An officer of the United States regular army or volunteer service of the rank of captain or higher, or any officer of the United States navy of the rank of lieutenant or higher, while on duty at the place where such party or parties are or reside. The certificate of an acknowledgment taken before any of the officers mentioned in subdivisions 1, 2, or 3 of this section shall have attached thereto the seal of the court or officer if he have a seal, and if such officer have no seal, then a statement to that effect. The certificate of an acknowledgment taken before an officer of the army or navy mentioned in subdivision 4 of this section shall state his rank, the name of the city or other political division where taken, and the fact that he is on duty there, and shall be authenticated by the Secretary of War or by the Secretary of the Navy, as the case may be, of the United States. § 249-a, Real Property Law. ^ 115 Acknowledgments and Proofs in Foreign Countries. The acknowledgment and proof of a conveyance of real prop- erty within the State may be made without the United States before either of the following officers : 1. An ambassador, a minister plenipotentiary, minister extraor- dinary, minister resident, or charge d'affairs of the United States, residing and accredited within the country. 2. A consul-gen<:>ral, vice-consul-general, deputy consiil-general, vice-consul, or deputy consul, a consular or vice-consular agent, a consul, or commercial or vice-commercial agent of the United State residing within the country; or a secretary of legation at the post, port, place, or within the limits of his legation. 3. A commissioner appointed for the purpose by the Governor, and acting within his own jurisdiction. 1 116 Acknowledgment of Papees. 74 4. A person specially authorized for tliat purpose by a com- mission, under the seal of the Supreme Court, issued to a repu- table person, residing in or going to the country where the acknowl- edgment or proof is so to be taken. 5. If within the Dominion of Canada, it may also be made before any judge of a court of record; or before any officer of such Dominion authorized by the laws thereof to take the ac- knowledgment or proof of deeds to be recorded therein. 6. If within the United Kingdom of Great Britain and Ireland or the dominions thereunto belonging, it may also be made before the mayor, provost, or other chief magistrate of a city or town therein, under his hand and the seal of such city or town. 7. All acts of ambassadors, ministers plenipotentiary, ministers extraordinary, minister resident, charge d' affairs, or secretary of legation, in taking the acknowledgment or proof of a conveyance of real property within the State, performed before the time when this act takes effect, are hereby confirmed, provided that the certificate of acknowledgment or proof is in the form required by the laws of this State. 8. If within the States comprising the empire of Germany it may also be made before a judge of record under the seal of such court or before a notary public under the seal of his office and the seal of the city or town in which the notary resides. § 250, Real Property Law. ^ 116 Acknowledgments and Proofs by Married Women. The acknowledgment or proof of a conveyance of real property, within the State, or of any other written instrument, may be made by a married woman the same as if unmarried. § 251, Real Property Law. ^ 117 Requisites of Acknowledgments. An acknowledgment must not be taken by any officer unless he knows or has satisfactory evidence that the person making it is the person described in and who executed such instrument. § 252, Real Property Law. ^ 118 Proof by Subscribing Witness. "Where the execution of a conveyance is proved by a subscrib- ing witness, such witness must state his own place of residence, and that he knew the person described in and who executed the conveyance. 75 Acknowledgment of Papers. T 118 The proof must not be taken unless the officer is personally acquainted with such witness, or has satisfactory evidence that he is the same person, who was a subscribing witness to the con- veyance. § 253, Eeal Property Law. Compelling witness to testify. On the application of a grantee in a conveyance, his heir, or personal representative, or of a person claiming under either of them, verified by the oath of the applicant, stat- ing that a witness to the conveyance, residing in the county where the application is made, refuses to appear and testify concerning its execution, and that such conveyance can be proved without his testimony, any officer authorized to take, within the State, acknowledgment or proof of conveyance of real property may issue a subpcena, requiring such witness to attend and testify before him concerning the execution of the conveyance. A person who, on being duly served with such subpoena, without reasonable cause refuses or neglects to attend or refuses to answer under oath concerning the execution of such conveyance, forfeits to the person injured $100 ; and may also be committed to prison by the officer who issued the subpoena, there to remain without bail, and without the liberties of the jail, until he answers under oath as required by this section. §, 254, Eeal Property Law. Certificate of acknowledgment or proof. An officer taking the acknowledgment or proof of a conveyance must indorse thereupon or attach thereto a certificate, signed by himself, stating all the matters required to be done, known, or proved on the taking of such acknowledgment or proof, together with the name and substance of the testimony of each witness examined before him, and if a subscribing witness, his place of residence. Any conveyance which has heretofore been recorded, or which may hereafter be recorded, shall be deemed to have been duly acknowledged or proved and properly authenticated, when thirty years have elapsed since such recording, saving, however, the rights of every purchaser in good faith and for a valuable consideration deriving title from the same vendor or grantor, his heirs or devisees, to the same property or any portion thereof, whose conveyance shall have been duly recorded before the said period of thirty years shall have elapsed or before this act shall have taken effect. § 255, Eeal Property Law. f 119 Ceetificate of Acknowledgment. 76 ^ 119 When Certificate to State Time and Place. Where the acknowledgment or proof is taken by a commissioner appointed by the Governor, for a city or county within the United States, and without the State, the certificate must also state the day on which, and the town and county or the city in which the same was taken. § 256, Real Property Law. q 120 When Certificate Must be Under Seal. Where a certificate of acknowledgment or proof is made by a commissioner appointed by the Governor, or by the mayor or other chief magistrate, charge d'affairs, consul-general, vice-con- sul-general, deputy consul-general, vice-consul or deputy consul, consular or vice-consular agent, or consul or commercial or vice- commercial agent, or secretary of legation of the United States, it must be under his seal of ofiice, or the seal of the consulate or legation to which he is attached. All acknowledgments or proofs of deeds, mortgages, or other instruments relating to real prop- erty, the certificates of which were made in the form required by the laws of this State, by the consul-general, vice-consul-general, deputy consul-general, vice-consul, deputy consul, consular agent, vice-consular agent, consul or commercial agent, vice-commercial agent, or secretary of legation of the United States prior to the time when this act takes effect, are confirmed, but nothing herein contained shall affect any action or proceeding now pending in any court. § 257, Eeal Property Law. q 121 Acknowledgment by Corporation and Form of Certifi- cate. The acknowledgment of a conveyance or other instrument by a corporation must be made by some officer thereof authorized to execute the same by the board of directors of said corporation. The certificate of acknowledgment must be in substantially the following form, the blanks being properly filled: STATE OF jSTEW YORK, 1 County of J On the day of , in the year , before me personally came to me known, who, being by me duly sworn, did depose and say that he resided in ; that he is the (president or other officer) of 77 AUTHEKTICATION OF CeETIFICATE. T 123 the (name of corporation), the corporation described in and -which executed the above instrument; that he knew the seal of said corporation ; that the seal affixed to said instrument was such corporate seal; that it was so affixed by order of the board of directors of said corporation, and that he signed his name thereto by like order. (Signature and office of officer taking acknowledgment.) If such corporation have no seal, that fact must be stated in place of the statement required respecting the seal. § 258, Heal Property Law. ^ 122 When County Clerk's Authentication Necessary. A certificate of acknowledgment or proof, made within the State, by a commissioner of deeds, justice of the peace, or, except as otherwise provided by law, by a notary public, does not entitle the conveyance to be read in evidence or recorded, except within the county in which the officer resides at the time of making such certificate, unless authenticated by a certificate of the clerk of the same county, provided, however, that all certificates of ac- knowledgments or proof, made by or before a commissioner of deeds of the city of N^ew York, residing in any part therein, shall be authenticated by the city clerk of said city, that the said com- missioner of deeds was duly appointed and qualified as such, and no other certificate shall be required from any other officer to entitle said conveyance to be read in evidence or recorded in any county or part of a county, situated within the limits, confines, or boundaries of the said city of New York. But this section does not apply to a conveyance executed by an agent for the Holland Land Company, or of the Pulteney estate, lawfully authorized to convey real property. § 259, Keal Property Law. ^ 123 When Other Authentication Necessary. In the following cases a certificate of acknowledgment or proof is not entitled to be read in evidence or recorded unless authenti- cated by the following officers, respectively : 1. Where the original certificate of acknowledgment or proof is made by a commissioner appointed by the Governor, by the Secretary of State. 2. Where made by a judge of a court of record in Canada, by the clerk of the court. 1 124 ATrTHENTICATION OF Ceetipicate. 78 3. Where made by the officer of a State of the United States, or of the Dominion of Canada, authorized by the laws thereof to take the acknowledgment' or proof of deeds to be recorded therein, by the Secretary of State of the State, or the clerk, register, re- corder, or prothonotary of the county, city, or garish in which the officer making the original certificate resided, when the certificate was made, or by the clerk of any court of that county, city, or parish having by law a seal. All acknowledgments or proofs of deeds, mortgages, or other instruments relating to real property heretofore authenticated by any of the officers above referred to are confirmed saving, however, the rights of purchasers in good faith • and for a valuable consideration whose conveyance shall have been duly recorded before this act shall take effect; this act shall not affect any action or legal proceeding now pending. 4. All acts of the Secretary of State of any State or Territory of the United States in authenticating a certificate of acknowledg- ment or proof of a conveyance of real property within the State, performed before the time when subdivision 3 of this section took effect, are hereby confirmed, provided that the said certificate of authentication is in the form required by the laws of this State. § 260, Real Property Law. ^ 124 Contents of Certificate of Authentication. An officer authenticating a certificate of acknowledgment or proof must subjoin or attach to the original certificate a certificate under his hand, and if he has, pursuant to law, an official seal, under such seal. Except when the original certificate is made by a judge of a court of record in Canada, such certificate of authentication must specify that, at the time of taking the acknowledgment or proof, the officer taking it was duly authorized to take the same ; that the authenticating officer is acquainted with the former's handwriting, or has compared the signature to the original certifi- cate with that deposited in his office by such officer; and that he verily believes the signature to the original certificate is genuine; and if the original certificate is required to be under seal, he must also certify that he has compared the impression of the seal affixed thereto with the impression of the seal of the officer who took the acknowledgment or proof deposited in his office and that he verily believes the impression of the seal upon the original certificate is genuine. 79 Authentication of Ceetificate. f 124 A clerk's certificate authenticating a certificate of acknowledg- ment or proof, taken before a judge of a court of record in Canada, must specify that there is such a court; that the judge before whom the acknowledgment or proof was taken, was, when it was taken, a judge thereof; that such court has a seal; that the officer authenticating is clerk thereof; that he is well ac- quainted with the handwriting of such judge, and verily believes his signature is genuine. § 261, Keal Property Law. t 125 What a Valid Will Is. 80 CHAPTER V. A Valid "Will — Its Proper Execution and Its Effectual Revocation. 1[ 125. Will defined. 126. Who may make a will of personal estate. 127. Who may make a will of real estate. 128. Requirements for valid execution of a will. 130. Must be subscribed by testator at the end. 132. Signature by mark. 133. Signature must be made in the presence of the witnesses or must be acknowledged to the witnesses. 135. PublicatiMi to the witnesses. 136. Request to the witnesses to act. 137. Subscription by the witnesses. 138. Wills executed in duplicate. 139. Mutual and reciprocal wills. 140. Holographic will. REVOKING WILLS. % 141. By cancellation, burning, and destroying. 142. By writing. 144. By codicil. 145. By later will. 146. By nonproduction. 148. By marriage and birth of issue. 149. By subsequent marriage of unmarried woman. REVIVING AND REPUBLISHING. 1[ 150. By revocation of later will. 151. By codicil. 152. By republication. 153. Nuncupative will. 154. " Wills " include codicils- RULES OF PRACTICE. 155. Kings county. 161. New York county. 170. Suffolk county. ^ 125 Last Will and Testament. The Century Dictionary defines a will to be " the legal declara- tion of a person's intentions to take effect after his death. The essential distinction between a will and any other instrument or provision contingent upon death is that a will has no effect what- ^1 Last Will akd Testament Defined. | 125 ever until death and may be freely revoked meanwhile ; but a deed which may create or convey an estate in event of death must take effect as binding the grantor in his lifetime. " In English law the word ' will ' was originally used only of a disposition of real property to take effect at death, the word ' testa- ment ' being then used as in the Koman and civil law, of a disposi- tion of personal property ; hence the phrase, now redundant, ' last will and testament.' In modern usage the term ' will ' does not necessarily imply an actual disposition of property ; for an instru- ment, executed with the formalities required by law, in which the testator merely appoints a guardian for his child, or merely nom- inates an extcutor, leaving the assets to be distributed by the execu- tor among those who would take by law, is a will." A nuncupative will. A nuncupative will is made by the verbal declaration of the testator, and usually depends merely on oral testimony for proof. Nuncupative wills are now sanctioned when made by soldiers in actual military service, or mariners or seamen at sea. — Century Dictionary. Definition. A will has been defined to be a " declaration of the mind either by word or writing in disposing of an estate and to take place after the death of the testator. It is in Latin called testamentum, i. e., iestatio mentis, the witness of a man's mind, and to devise by testa- ment is to speak by a man's will what his mind is to have done after his death." Huhhard v. Hubbard, 12 Barb. 148 ; affd., 8 ISr. Y. 196. Where there is a fatal defect in a will which appears clearly upon its face, which cannot be cured by averment or proof, the surrogate is not required to enter upon formal proof of the instru- ment, but may reject it at once. Hewitt v. Hewitt, 5 Eedf. 271. A paper duly executed directed how the estate should be dis- posed of, but stated an intention to make a formal will — held, that the paper was entitled to probate as a will. Matter of Beebe, 6 Dem. 43, 19 IST. Y. St. Eepr. 833. Whether a paper is a will or not in its character does not de- pend upon the maker declaring it to be a will at the time he executes it. Its validity under the statute depends upon that, but 6 I 126 Who Mat Make a Will. 82 the nature of the instrument depends upon its csontents. Carle V. Underhill 3 Bradf. 101. It is not necessary that a will shall contain a statement that it is a will. Matter of Buchan, 16 Misc. Kep. 204, 38 IST. Y. Suppl. 1124. ^ 126 Who May Make a Will of Personal Estate. Every male person of the age of eighteen years or upwards, and every female of the age of sixteen years or upwards, of sound mind and memory, and no others, may give and bequeath his or her personal estate by will iu writing. R. S., pt. 2, chap. 6, tit. 1, art. 2, § 21. A minor more than eighteen years of age may make a valid dis- position of his personal property by will. Laws of 1867, chap. 782. Matter of Bolton, 159 N. Y. 129, affg. 37 App. Div. 625. An infant eighteen years of age may make a valid will of per- sonal estate, but not of real estate. Horton v. McCoy, 47 N. Y. 21. q 127 Who May Make a Will of Real Estate. All persons except idiots, persons of unsound mind and infants, may devise their real estate by a last will and testament duly executed accord- ing to the provisions of this title. R. S., pt. 2, chap. 6, tit. 1, art. 1, § 1. ^ 128 Requirements for a Valid Execution of a Will. Every last will and testament of real and personal property, or both, shall be executed and attested in the following manner: 1. It shall be subscribed by the testator at the end of the will. 2. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him, to have been so made, to each of the attesting witnesses. 3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed, to be his last will and testament. 4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator. R. S., pt. 2, chap. 6, tit. 1, art. 3, § 40. i^ 129 Witnesses Must Write Their Places of Residence — Person Who Signs Testator's Name Must Write His Own as Witness. The witnesses in any will, shall vrrite opposite to their names their respective places of residence; and every person who shall sign the testator's 83 Requisites pok Valid Execution. ^^ 130 name to any will by his direction, shall write his own name as a witness to the will. Whoever shall neglect to comply with either of these pro- visions, shall forfeit fifty dollars, to be recovered by any person interested in the property devised or bequeathed, who shall sue for the same. Such omission shall not affect the validity of the will; nor shall any person liable to the penalty aforesaid, be excused or incapacitated on that account, from testifying respecting the execution of such will. R. S., pt. 2, chap. 6, tit. 1, art. 3, § 41. An attestation clause is not necessary, and it does not invalidate a will if the witnesses fail to write their residences. Matter of Phillips, 98 K Y. 267. The three-year Statute of Limitations applicable to enforcing this penalty does not hegin to run until the death of the testator. Dodge v. Cornelius, 168 N". Y. 242, affg. 40 App. Div. 18, 57 N. Y. Suppl. 791. Seal not necessary. A seal is not necessary to a will of real or personal estate. Matter of Diez, 50 IST. Y. 88. Executed on Sunday. A will was not held invalid because executed on Sunday but dated back to the day before. Children's Aid 8. v. Loveridge, 70 i;r. Y. 387. ff 130 Must be Subscribed by Testator. The will must be subscribed by the testator. Any form or style of signature which is shown to have been adopted by the testator as his signature is suflBcient. Where the subscription is by mark, it is the mark which is the signature and not the name written around it. Where a person is illiterate he must subscribe the will by mak- ing some mark or symbol for his signature, or authorize some person to sign his name for him. Matter of Beneventano, 38 Misc. Rep. 272, 77 1^. Y. Suppl. 651. It is the " mark " and not the written name which is the sub- scription to a will by a marksman, and the writing of the name around the mark is no essential part of the evidence. Jackson v. Jachson, 39 IST. Y. 153. 1 131 Must be Subscribed and Wheee. 84 ^ 131 Must be Subscribed at the End. Both testator and witnesses must sign at the end. Matter of Nies, 13 -N. Y. St. Repr. 756; Dermett v. Tay- lor, 5 Redf. 561; distinguished in is .N. Y. St. Repr. 157. Will written upon printed form of ■ one page and signed at the end thereof. Subdivisions marked first -and second fill the entire blank space, ;and at the end thereof the words ■" See annexed sheet " are inserted. On a separate slip of paper are writ- ten additional subdivisions marked " Third " and " Fourth," and this is attached to the face of the will im- mediately over the first and second subdivisions by metal staples along the top. Held, not a valid subscrip- tion at the end of the will. Matter of Whitney, 153 N. Y. 259, 4 Ann. Gas. 259, revg. 90 Hun, 138, 70 N. Y. St. Repr. 259, 35 N. Y. Suppl. 798. Where the name of testator is writ- ten in the body of the instrument "without any material portion follow- ing the signature, it is not properly subscribed at the end. Sisters of Charity v. Kelly, 67 N. Y. 409. Will signed in the body of the at- testation clause — held, signed at the end. Matter of Acker, 5 Dem. 19. By subscribing after the attestation clause, the testator makes that clause a part of his will and the will is signed at the end. Younger v. Duffle, 94 N. Y. 535, affg. 28 Hun, 242. Not a subscription at the end of the will, where signature was on third page and a part of the written will was carried over to the fourth page. Matter of O'Neil, 91 N. Y. 516; affd., 27 Hun, 130, distinguishing Tonnelle V. Hall, 4 N. Y. 140. Printed blank of one page — part of the will written upon the back of the form — signed on the face by testator and witness — held not signed at the end. Matter of Conway, 124 N. Y. 455, revg. 58 Hun, 16, distinguishing Van Gortlandt v. Kip, 1 Hill, 590; Brown V. Clark, 77 N. Y. 369; In re Wash. Park, 52 N. Y. 131; Tonnelle v. Hall, 4 N. Y. 141; Crossman v. Crossman, 95 N. Y. 145. First page carried to third page and then back to second page, where the signatures were placed — held not signed at the end. Matter of An- drews, 162 N. Y. 1, aflfg. 43 App. Div. 394, 60 N. Y. Suppl. 141. ^ 132 Where Signature is by Mark. Where a will is executed by mark and one of the attesting wit- nesses dies, the testimony of the other subscribing witness or of any other witness present at the time is sufficient proof of the handwriting of the testator together with other facts which con- vince the surrogate of the due execution of the will and of the absence of fraud. "Where the signature is imperfect, it may be considered as a " mark." Hartwell v. McMaster, 4 Eedf. 389, following 5 Dem. 285. ^ 133 Subscription Must be Made in the Presence of the Witnesses or It Must be Acknowledged to Them. The testator must subscribe his name in the presence of the witnesses, or he must acknowledge his signature to each of them, but such acknowledgment may be to each witness separately. 3oth of the witnesses must see the act of signing or must see the signature. A blind person is not competent to act as a witness. 85 ACKNOWLEIXJMENT OF SiGNATUKE. f 134 A person who cannot see well enough to identify a signature on a paper by sight cannot be a witness to a will. Matter of Losee, 13 Misc. Eep. 298, 69 N. Y. St. Eepr. 188, 34 N. Y. Suppl. 1120, Will signed by mark — one witness 758, 37 N. Y. Suppl. 223 ; Matter of dead — surviving witness did not see Dockstader, 6 Dem. 106, 19 N. Y. f-t. mark made — no other proof of mak- Eepr. 245, followed in 20 N. Y. Suppl. ing of mark — probate denied. Mat- 123; Matter of Hyland, 58 N. Y. !st. ter of Porter, 1 Misc. Rep. 262, 54 Eepr. 798, 27 N. Y. Suppl. 961 ; Mat- N. Y. St. Eepr. 239, 22 N. Y. Suppl. ter of Wilson, 76 Hun, 1, 58 N. Y. St, 1062 ; Worden v. VoM Gieson, 6 Dem. Eepr. 732, 20 N. Y. Suppl. 957. 237 ; affd., 47 Hun, 5, 14 N. Y. St. The foregoing authorities have over- Kepr. 117; disapproving 20 N. Y. ruled the following decisions, where Suppl. 123. it was held that, where no one but Will signed by mark — one witness the surviving subscribing witness can dead — the man who drew the will, testify to the making of the mark, not himself a witness, testified to see- the will cannot be proved. Matter of ing the mark made — held sufficient. Reynolds, 4 Dem. 68; distinguished in Matter of Smith, 39 N. Y. St. Eepr. 6 Dem. 107, 19 N. Y. St. Eepr. 245; 698, 15 N. Y. Suppl. 424. disapproved in 20 N. Y. Suppl. 123 ; Surviving witness testified that he followed in 6 Dem. 240; Matter of saw deceased make the mark — held Phelps, 22 N. Y. St. Eepr. 896, 16 sufficient. Matter of Murphy, 15 Civ. Pro. 424, 5 N. Y. Suppl. 270. Misc. Eep. 208, 72 N. Y. St. Eepr. ^ 134 Acknowledgment of Signature. An acknowledgment by the testator of his signature and of the execution of the will is equivalent to the actual seeing by the witnesses of the physical act of subscription. Hoysradt v. King- man, 22 ]Sr. Y. 372. Where the alleged will was not subscribed by the testator in the presence of the witnesses, and when they signed their names it was so folded that they could not see whether it was subscribed by him or not, and the only acknowledgment or declaration made by him to them or in their presence was " I declare the within to be my will and deed" — held not sufficient. Lewis v. Lewis, 11 N'. Y. 220. Where a testator had signed a codicil to his will, and taking it to a person asked him to witness an alteration in his will, and such person then asked testator " if he acknowledged that to be his ■^ork " — held acknowledgment to be insufficient. Matter of Bal- lard, 1 Dem. 496. When a testator produces a paper that the law requires. Baskin v. Bas- to which be has personally affixed his kin, 36 N. Y. 416; Willis v. Mott, 36 signature, requests the witnesses to N. Y. 486. attest it, and declares it to be his The discussion as to subscribing or last will and testament, he does all acknowledging a will in Willis v. I 135 Publication of Will. 86 Mott was treated as dictum in In re Hockey, 110 N. Y. 611, and was not followed. In the absence of a subscription of tlie will in the presence of the wit- nesses, there must be an acknowledg- ment of the signature. Sisters of Charity v. Kelly, 67 N. Y. 409, revg. 7 Hun, 290. A will should not be refused pro- bate because the attesting witnesses did not look closely to see the testa- tor's signature aelaiowledged by her, where it was visible and they heard her acknowledgment, and her decla- ration that the instrument was her last will, and there is no claim of fraud. Matter of Lwudy, 161 N. Y. 429, revg. 31 App. Div. 630. Testator acknowledged his signa- ture to one witness and declared the paper to be his will, and requested him to sign as a witness ; subse- quently he requested the other wit- ness to sign as a witness, without, as that witness swore, either acknowl- edging his signature or declaring the paper to be his will. There were facts tending to cast suspicion upon the testimony of the second witness. Veld valid execution. Matter of Bo- gert, 2 Dem. 117. Where the witnesses see the testa- tor with his hand on the pen and hear the sound of writing, it is sufficient. Matter of Van Bouten, 15 Misc. Rep. 176, 72 N. Y. St. Kepr. 143, 37 N. Y. Suppl. 39. Subscribing witness should either see the testator subscribe the will, or, with the signature visible to them, he should acknowledge it. Matter of Laudy, 148 N. Y. 403, modifying 78 Hun, 479. Where testator handed the will to the witnesses so folded that they could not see his signature, held, that proof of due execution was not sufficient. Matter of Maokay, 110 N. Y. 611; Matter of Laudy, 14 App. Div. 160, 43 N. Y. Suppl. 689, 77 N. Y. St. Repr. 689; Matter of Abercrombie, 82 N. Y. St. Repr. 414, 24 App. Div. 407, 48 N. Y. Suppl. 414; distinguished in 24 App. Div. 540, 49 N. Y. Suppl. 38. Our statute does not require that the acknowledgment of the testator or his declaration shall be made to both witnesses at the same time, or that they shall sign in the presence of each other. Matter of Diefen- thaler, 59 Misc. Rep. 765; Hoysradt V. Kingman, 22 N. Y. 372; Willis v. Mott, 36 N. Y. 486; Barry v. Brown, 2 Dem. 309 ; Lyman v. Phillips, 3 Dem'. 459; aflfd., 34 Hun, 627, 98 N. Y. 267 ; Matter of Carey, 14 Misc. Repr. 486, 71 N. Y. St. Repr. 593, 36 N. Y. Suppl. 817 ; affd., 24 App. Div. 531, 49 N. Y. Suppl. 32. ^ 135 Publication. The publication of the will by the proposed testator is one of the four indispensable requirements to its validity. It is important, first, in denoting that the testator knows the nature of the instru- ment he is executing and to check any deception upon him. In the second place, and also in order that there may be no imposition perpetrated, it is important that the subscribing witnesses under- stand that they are attesting the signature to the will of the person at whose request they severally subscribe their names. They real- ize, if the document is a will, that they are expected to remember what occurred at its execution and be ready to vouch for its valid- ity in court. The declaration of the testator that the instrument is his will is not solely, therefore, for the purpose of showing that he knew he was executing his will. His subsequent declaration that he executed the instrument propounded would not relieve the pro- ponents of the necessity of proving what occurred at the time of 8T Publication Thkotjgh Spokesman. If 135 the execution. The statute is explicit in this requirement, and, while the reason for it may be to insure certainty that the person executing the alleged will knows what the paper is, yet to effectuate this purpose the witnesses selected must be apprised by the testator that they are to witness his will. Matter of Moore, 109 App. Div. 762. The publication of a, will may be It is not sufficient if the witness to made in any form of communication a will knew it was testator's will by the testator to the witnesses, from another source than his own whereby he makes known to them statement or acts equivalent to such that he intends the instrument to statement. Gilbert v. Knox, 52 N. Y. take effect as his will. Co/^ v. 125. Cofjin, 23 N. Y. 9. The publication of a will may be A statement that the paper is a made to the subscribing witnesses on " document " or " instrument " is in- different occasions and when they are sufficient. Matter of Turell, 28 Misc. apart from each other. Matter of Rep. 106; affd., 47 App. Div. 560, 62 Barry, 2 Dem. 309. N. Y. Suppl. 1053; affd., 166 N. Y. Evidence of prior communications 330 ; Matter of Delprat, 27 Misc. Rep. to the subscribing witnesses cannot 355, 58 N. Y. Suppl. 768. be invoked to eke out the circum- Case holding that there was no stances immediately attending the proper declaration to or request of execution, where the latter do not both witnesses. Matter of Burke, 1 include substantially such a declara- Dem. 436. tion. Walsh v. Laffam, 2 Dem. 498, distinguished in 20 N. Y. Suppl. 123. Where after a witness had begun to write his name he was in- formed by testator that the paper was his will — held sufficient. Matter of Phillips, 98 IST. T. 267. Publication through spokesman. The act of the attorney in asking the testator if he acknowledges the instrument to be his last will and testament, and if he desires the parties present to sign it as witnesses, is not an unusual one. It frequently occurs in executing wills that words of request or acknowledgment come from the party who is assisting the testator in the preparation and execution of his will. It was held in Matter of Nelson (141 K Y. 152, affg. 21 IST. Y. Suppl. 1123), that a request to sign as a witness, made by the person superintending the execution of a will in the hearing of the testator and with his silent permission and approval, is a suf- ficient compliance with the requirements of the statute. Gilbert V. Enox, 52 N. Y. 128; Pech v. Gary, 27 id. 9. The fact that the instrument in question was the will of the testator was made known to the witnesses by the declaration of Evarts, who acted and spoke for the testator, not only in preparing f 136 SUBSCEIPTION BY WITNESSES. 88 the will, but in seeing that it was properly executed. We are of the opinion that the testimony of Evarts as to what was said and done at the time the will was executed was competent. Matter of Barnes, 70 App. Div. 523, 75 E". Y. Suppl. 373. ^ 136 What Request to Witness Sufficient. A request to sign as a witness, made by the person superintend- ing the execution of the will, in the hearing of the testator and with his silent permission and approval, with other facts tending to show the intent, is sufficient. Matter of Nelson, 141 IST. Y. 152, affg. 50 N. Y. St. Eepr. 936, 21 K Y. Suppl. 1123. Where there is no question about the good mental condition of the testator, and he dictated the terms of the will to the person who drew it, and that person called in two witnesses and requested them to witness the will which they did, the testator signing in their presence, and giving assent to such act — held valid execu- tion. Troup V. Beid, 2 Dem. 471. Where one witness in presence of testator said to the other : " It is his will. I have witnessed it and he wants you to witness it," such request and statement will be held to be that of the testator, and sufficient. Matter of Carey, 14 Misc. Kep. 486, 71 IST. Y. St. Eepr. 593, 36 IsT. Y. Suppl. 817; affd., 24 App. Div. 531, 49 N. Y. Suppl. 32. ^ 137 Subscription by Witnesses. It is not necessary that the witnesses should subscribe in the presence of each other. Hoysradt v. King/nan, 22 IsT. Y. 372 ; Willis V. Mott, 36 N. Y. 486. A subscribing witness may sign by mark or may authorize another person to write his name for him. Mock v. Garson (Kaufman), 84 App. Div. 65, 82 N. Y. Suppl. 310. Order of signing. The witness must sign after the subscription and not before. Jackson v. Jackson, 39 N. Y. 153. ^ 138 Wills Executed in Duplicate. Where two testamentary papers are executed at the same time, with the formalities required by law, they must be taken together to constitute the will of the testator. Where the duplicates are 89 Duplicate, Mutual and Eecipeocal Wills. Tf 139 exactly alike the production and probate of one is sufficient, but there should be the exhibition of the duplicate as proof that they are identical in their provisions and that neither one has been revoked, since the revocation of one is the revocation of the other. Where the two papers contain different provisions, then both must be produced and admitted to probate and both constitute, when read together, the will of the testator as if all the provisions of both were contained in one instrument. Grossman v. Grossman, 95 :N". Y. 145, affg. 30 Hun, 385; Roche v. Nason, 185 K Y. 128, affg. 105 App. Div. 256. The fact that the two instruments may in some respects be repugnant is no reason why probate should be denied. Matter of Forman, 54 Barb. 274. Where a will is executed in duplicate, it is unnecessary that each duplicate be admitted to probate and recorded. The will is single ; the evidence thereof double. Matter of Grossman, 2 Dem. 69. The destruction of one diiplicate will with the intent to revoke it requires the denial of probate to the undestroyed duplicate. Asinari v. Bangs, 3 Dem. 385. ^ 139 Mutual and Reciprocal Wills. There is no reason in law nor any public policy which stands in the way of parties agreeing between themselves to execute mutual and reciprocal wills, which, though remaining revocable upon notice being given by either of an intention to revoke, become, upon the death of one, fixed obligations of which equity will assume the enforcement, if attempted to be impaired by subsequent testamentary provisions on the part of the survivor. Edson v. Parsons, 155 N. Y. 555, affg. 85 Hun, 263, 66 IST. Y. St. Eepr. 440, 32 K Y. Suppl. 1036. Two parties may join in executing the same paper as the will of each. Matter of Baupp, 10 Misc. Kep. 300, 64 IST. Y. St. Eepr. 305, 31 ]Sr. Y. Suppl. 680. To establish agreement for mutual wills and defeat the right to revoke a will, there must be full and satisfactory proof of the agreement, and such proof cannot be supplied by presumptions. Edson v. Parsons, 155 IST. Y. 555. An agreement signed by husband and wife to take effect upon the death of the one first dying — held to be a mutual will and valid. Matter of Diez, 50 IST. Y. 88. T 140 Revoking Wills. 90 q 140 Holographic Will. The statute makes no exception with respect to a holographic will, in its requirements as to execution. Matter of Turell, 166 N. Y. 330, affg. 47 App. Div. 560, 62 N. Y. Suppl. 1053. In proving the execution of a will of that kind the evidence of its publication may be relaxed somewhat {Matter of Ahers, 74 App. Div. 461, 77 N. Y. Suppl. 643; afEd., 173 N. Y. 620; Matter of Beckett, 103 id. 167, affg. 35 Him, 447), but the statute makes no distinction in favor of a will of that description. Matter of Turell, 166 N". Y. 330; Matter of Andrews, 162 id. 1, affg. 43 App. Div. 394, 60 E". Y. Suppl. 141. Testratrix declared to one witness : " This is the paper I spoke to you about signing," and to the other who had signed a previous will for her, she said she was sorry to trouble the witness to again sign the paper — held, that considering it was a holographic will, the publication was sufBcient. Matter of Beckett, 103 N. Y. 167. Sufficient evidence of publication discussed. Matter of Palmer, 42 Misc. Eep. 469, 87 JST. Y. Suppl. 249. Where testator subscribed will, one witness saw the signature, it was declared to both witnesses, and both signed in presence of testator and of each other — held properly executed as a holo- graphic will. Matter of Akers, 14: App. Div. 461; affd., 173 ISr. Y. 620. q 141 Revoking Will. Written wills, how to be revoked or cancelled. No will in writing except in the cases hereinafter mentioned, nor any part thereof, shall be revoked, or altered, otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, torn, can- celled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by another person in his presence, by his direction and consent; and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, shall be proved by at least two witnesses. R. S., pt. 2, chap. 6, tit. 1, art. 3, § 42. Revocation by cancellation, burning and destroying. The word " cancel " is derived from the word " cancelli," cross- bars or lattice work. Hence, as originally used, referred to mak- 91 Revoking by Cancellation. f 141 ing crosslines on writing, rrom this is derived tlie synonym, as defined by Webster : " To annul or destroy ; as, to cancel an ob- ligation or a debt." Therefore, where it is apparent that the crosslines have been made by the testator, with the evident intention of effecting a revocation, it has been held that such act is sufficient to work a revocation of the will. There is no doubt that originally, the word " cancel " was con- fined to the making of crosslines, indicating the lattice work from which it was derived, and grew to be adopted for such pur- poses in consequence of the fact that in early times few persons were capable of writing, and, therefore, were permitted to mani- fest their intention by drawing lines across the face of a paper. It has not been held necessary that such lines on the face of a paper should be crosslines, and, in fact, it has been held that a single line drawn across a sheet of paper is sufficient to effect a cancellation of the same, if it be shown to have been done for the purpose of revoking an instrument. In considering what is a sufficient revocation by canceling, it will be also instructive to examine what has been held to be suffi- cient revocation by way of burning, tearing, or destroying the same, and the courts have repeatedly held that it is not necessary in order for a will to be revoked by burning, that it should be com- pletely consumed by the fire, or for a will to be revoked by tear- ing, that it should be completely torn into pieces, but that where the testator desired to revoke the will and threw the same into the fire and the same has been but slightly scorched, so that the hand- writing is still legible, that still was a sufficient revocation. It has also been decided that where a seal was appended to a will, and which was unnecessary, has been torn off by the testator for the purpose and with the intention of revoking the same, although he has not torn the signature off, or any part of the writing of the will, that there was a sufficient tearing of the same to effect a revocation. The rule upon this point is well settled in Dam v. Brown (4 Cow. 490), in which the court states as follows: " There must be a canceling animo revocandi. Revocation is an act of the mind, which must be demonstrated by some outward and visible sign of revocation. The statute has prescribed four. If any of them are performed in the slightest manner, joined with a declared intent to revoke, it will be an effectual revocation." f 141 Eevoking by Cancellation. 92 In Matter of Broohman (11 Misc. Eep. 675), it was held, where the testator drew a line through his signature, adding the word " void," with his initials, to be sufficient to revoke the entire codicil. In 2 Am. L. Cas. 689, it was said: "All that is necessary to a revocation is an absolute revoking intention, manifested by any act, however slight in its nature, which can fairly be considered as a tearing, burning, canceling, or obliterating, within the meaning of the statute." Matter of Alger, 38 Misc. Eep. 144, 77 IsT. Y. Suppl. 166. By canceling. Where parts of a will are obliterated with the intention of canceling only such parts and not the whole will, the will includ- ing such parts, if they can be proved, should be probated. Lovell V. Quitman, 88 IST. Y. 377, overruling McPherson v. Clark, 3 Bradf. 96, affg. 25 Hun, 537. Drawing a pen through a provision of a will and writing on, the margin, " I pronounce this void, July 24, 1878," is not a sufficient revocation of the entire will nor of those particular portions, and the will should be probated in its entirety. Gugel V. Yollmer, 1 Dem. 484. Writing upon the margin of a codicil, " this will and codicil is revoked Jany. 14, '96," and signed by testator, does not revoke the codicil or will. Matter of Ahers, 74 App. Div. 461 ; affd., 173 N. Y. 620. Direction to another to destroy a will is not a good revocation where such direction is not carried out. Matter of Evans, 113 App. Div. 373. The most celebrated case of cancellation by pen marks is Mat- ter of Hopkins (172 W. Y. 360, 73 App. Div. 559), in which the doctrine of presumptive revocation is declared where the will is found in the possession of the deceased, but that case turns upon the point that a thorough search did not bring to light the will among the papers of the deceased, but when later it \yas found in one of the places formerly searched, it was canceled. Signature canceled with ink lines and alongside of the name was written "May 26 '92, void H. D. B." — held a revocation. Matter of Brookman, 11 Misc. Eep. 675, 67 N. Y. St. Eepr. 397, 33 ISr. Y. Suppl. 575. ^^ Eevoking by Weiting. t 144 ^ 142 Revocation by Writing — When Not Sufficient The great weight of authority is to the effect that a mere writ- ing upon a will which does not in anywise physically obliterate or cancel the same, is insufficient to work a destruction of the will by cancellation, even though the writing may express an intention to revoke and cancel. Where a will is sought to be revoked solely by writing, it must conform in that respect to the requirement of the statute, and failing in that, it does not revoke the will, even though there may be a clear intention so to do. Matter of Ahers, 7i App. Div. 461 ; affd., 173 JST. Y. 620. Writing on the back of a will and signing a statement that such will is revoked is not a valid revocation thereof. Matter of Mil- ler, 50 Misc. Eep. 70. A will found in the safe of deceased having pen marks through his signature and the words " am going to make a new will," writ- ten by deceased below his signature, will be held to be revoked. Matter of Miller, 51 Misc. Eep. 156. ^ 143 Burden of Proof upon Proponent. The presumption is that where the will was in the custody of the decedent and at the time of his death is found canceled, that it has been so canceled for the purpose of revoking the same. When such a will is presented it is with the infirmity of the can- cellation upon it as a part of it. In the absence of any evidence whatever from which the inference or presumption could be drawn of improper treatment of the will, cancellation for the purpose of revoking will be presumed. Matter of Philp, 46 N. Y. St. Eepr. 356, 19 N. Y. Suppl. 13 ; Matter of Miller, 50 Misc. Eep. 70. ^ ^4:4z Revocation by Codicil. A codicil will not operate as a revocation of a will beyond the clear import of its language, and it never so operates on the ground of repugnancy, save when necessary, and only so far as necessary to give the codicil effect. Viele v. Eeeler, 129 IST. Y. 190 ; Dela- field v. Parish, 25 id. 9. Where a codicil revokes the whole will excepting the clause naming an executor — held, that the will should be probated. New- comb v .Webster, 113 IST. Y. 191, distinguishing 80 App. Div. 342, 80 N. Y. Suppl. 725. 1 145 Eevocation of Duplicate Will. 94 ^ 145 Revocation by a Later Will. Eevocation by a later will, not produced, will not be found from oral testimony of a witness to the later will who only was told that it contained a clause revoking all former wills. Colligan v. McKernan, 2 Dem. 421. Where a later will is not produced, and the witnesses are unable to state its date or contents, it will not be held that the former will was revoked. Matter of William, 34 Misc. Rep. 748, 70 N. Y. Suppl. 1055. Probate of a will offered will be denied where it is proved that subsequently another will was duly executed which revoked the former one, although the subsequent will has not been offered for probate and has been lost. Moore v. Grisivold, 1 Eedf. 388 ; Matter of Barnes, 70 App. Div. 523, 75 IST. Y. Suppl. 373 ; Mat- ter of Brewster, 72 App. Div. 587, 76 N. Y. Suppl. 283. ^ 146 Revocation by Nonproduction. When it is proved that an instrument executed as a will cannot be found after the death of its maker, a presumption arises that it was revoked by him in his lifetime. Hamersley v. Lochman, 2 Dem. 524. ^ 147 Revocation of Duplicate Will. Where one of two duplicate wills has been properly revoked, the other is thereby revoked. Therefore, both should be presented on probate or accounted for to overcome the presimiption of revo- cation which might arise from unexplained nonproduction. ^ 148 Revocation by Marriage and Birth of Issue. If, after the making of any will, disposing of the whole estate of the testator, such testator shall marry, and have issue of such marriage, born either in his life-time or after his death, and the wife or the issue of such marriage shall be living at the death of the testator, such will shall be deemed revoked, unless provision shall have been made "for such issue by some settlement, or unless such issue shall be provided for in the will, or in such way mentioned therein, as to show an intention not to make such provision; and no other evidence to rebut the presumption of such revocation shall be received. R. S., Pt. 2, Chap. 5, Tit. 1, Art. 2, § 43. Action may be maintained by after-born child. See Actions, § 1868, Code Civ. Pro. ; also | 638. 95 Revoking by Subsequent Maekiage. f 150 Adopting a child after the making of a will does not revoke the will. Matter of Gregory, 15 Misc. Rep. 407, 73 N. Y. St. Eepr. 3, 37 N. Y. Suppl. 925. Where a will on its face disposes of the whole estate and would, theref -"e, be revoked by a subsequent marriage and birth of issue, the fact that a legatee dies and, therefore, a part of the estate is not effectually disposed of by the will, will not prevent revocation by virtue of the act. Matter of Eossignot, 50 Misc. Rep. 231. The purpose of the statute was not to restrict the power of the testator or to defeat his intention in case he made it clear that he wished to leave nothing to an after-born child; the purpose was to guard against an unintentional omission. Stachelherg v. Stachelberg, 52 Misc. Rep. 25. ^ 149 Will of Unmarried Woman Revoked by Her Subse- quent Marriage. A will executed by an unmarried woman, shall be deemed revoked by her subsequent marriage. R. S., Pt. 2, Chap. 6, Tit. 1, Art. 3, § 44. Concerning this act it was said by Judge O'Brien (Matter of McLarney, 153 IST. Y. 416-419, affg. 99 Hun, 361, 70 IST. Y. St. Repr. 555, 35 K Y. Suppl. 893) ; " The Legislature might very properly remove it from the statute-books by repeal, but in the meantime it cannot be disregarded by the courts." The Married Woman's Act of 1849, The will of a woman is revoked by chap. 375, did not change this rule. her subsequent marriage, although " Unmarried " held to mean not she provides for her intended husband married at time of testator's death, in such will. Matter of Mann, 51 but not never having been married. Misc. Rep. 315. Matter of Union T. Co., 179 N. Y. A will of a married woman is not 261, affg. 92 App. Div. 620. revoked by her subsequent remar- A widow executed a will and then riage after an intervening widowhood, remarried — held, that the remarriage Matter of McLarney, 153 N. Y. 416. revoked the will. Matter of Kauf- The will of an unmarried woman man, 131 N. Y. 620, affg. 61 Hun, executed out of this State is revoked 331, 40 N. Y. St. Repr. 550, 16 N. Y. by her subsequent marriage out of Suppl. 113. this State, if she dies a resident of The will of an unmarried woman is this State. Matter of Colurn, 1 Gibb. revoked by her subsequent marriage. Surr. Rep. 119, 9 Misc. Rep. 437, 61 Brown v. Clark, 77 N. Y. 369 ; affd., N. Y. St. Eepr. 743, 30 N. Y. Suppl. 16 Hun, 559. 383. CF 150 Revoking Second Will, Not to Revive First. If, after the making of any will, the testator shall duly make and execute a second will, the destruction, cancelling or revocation of such second will, shall not revive the first will, unless it appear by the terms of such revo- cation, that it was his intention to revive and give effect to his first will; or unless after such destruction, cancelling, or revocation, he shall duly republish his first will. 2 R. S., Chap. 6, Tit. 1, § 53. If 151 ^Nuncupative Wills. 96 ^ 151 Republishing by Codicil. C. made a will in 1897 and another in 1899. In 1900 she made a codicil to the 1897 will — held, that the will of 1897 was thereby republished and took eifect as of the date of the codicil. Matter of Campbell 170 N. Y. 84, affg. 67 App. Div. 627, which affd. 35 Misc. Eep. 572, 72 K Y. Suppl. 55 ; Brown v. Clark, 77 ]Sr. Y. 369. M. executed a codicil which simply gave directions about his funeral. His daughter, the primary legatee in his will, had died — held, that the codicil republished the will and made certain sub- stituted legatees in case of his daughter's death, primary legatees under the conditions which existed at the date of the codicil. Matter of Miller. 11 App. Div. 337, 42 N. Y. Suppl. 148 ; affd., 161 K Y. 71. Republication by codicil. Illensworth v. Illensworth, 39 Misc. Eep. 194, 79 JSr. Y. Suppl. 410; modified in 110 App. Div. 399. A republication by means of codicil will not revive a satisfied legacy. Langdon v. Aster's Exr., 16 JST. Y. 9. ^ 152 Republishing Will. The republication cannot be made to other person^ than those who sign as subscribing witnesses. Matter of Stickney, 161 IST. Y. 42, affg. 31 App. Div. 382, 52 K Y. Suppl. 929. ^ 153 Nuncupative or Unwritten Wills, When Allowed. ]^o nuncupative or unwritten will, bequeathing personal estate, shall be valid, unless made by a soldier while in actual military service or by a mariner, while at sea. R. S., pt. 2, chap. 6, tit. 1, art. 2, § 22. Nuncupative will — execution and tenor must be proved by two witnesses. 8 2618, Code Civ. Pro. q 154 " Wills " to Include Codicils. The term " will," as used in this chapter, shall include all codi- cils as well as wills. E. S., pt. 2, chap. 6, tit. 1, art. 3, § 71. q 155 Rules of Practice in Kings County Surrogate's Court. Court days. The Surrogate's Court is open for the transaction of business from 9 a. m. to 4 p. m., except Saturdays, when the office closes 97 Rules op Peactice — Kings County. Tf 157 at noon ; from July 1st to August 31st, inclusive, from 9 a. m. to 2 p. m. Monday, Tuesday, Wednesday, and Thursday are calendar days ; the calendar will be called on those days at 10 o'clock a. m. Eule 1. ^ 156 Probate Proceedings. A party seeking to contest the probate of a will must file a notice of appearance with the clerk of the court, together with a verified answer. Eule 2. In all probate proceedings a copy of a will must be filed with the petition; and on or before the return day of the citation the original will must be filed. The proofs of service should be re- turned before the ofiice closes on the day preceding the return of the citation. Should no one appear on the call of the calendar the proceeding will be once adjourned to the next calendar day. Eule 3. Settlement of orders and decrees. All orders to be entered on litigated motions, and all decrees in contested proceedings, must be settled on two days' notice to all parties appearing. Eule 4. Foreign wills. All exemplified copies of foreign wills must be accompanied by a petition and order for recording the same. Eule 5. ^ 157 Administration and Guardianship Matters. Principals and sureties in administration and guardianship appointments must appear and qualify at the same time before the administration clerk. E"o bond for a sum les than $50 will be approved. Eule 6. JSTo allowance will be made to infants for support or education under section 2846, Code Civ. Pro., unless the petition shows that an annual accounting has been properly filed 'or good cause is therein shown why it has not been filed. The petition must show also the terms of any previous order in the same estate, or, if none has been made, that fact must be stated. Except in exceptional cases, an allowance will be made for the period of one year only, and the order must so provide. Where the infant is over fourteen years of age, he must join in the petition; and when application 7 T 158 EuLEs OF Peactice — Kings County. 98 is made by any person other than the guardian of the property it must be made on at least two days' notice to such guardian. Eule 7. No letters of administration will be issued while another ap- plication for letters on the same estate is pending. Eule 8. All petitions, decrees, orders, and other papers must be in- dorsed with the title of the proceeding, distinctly indicating the nature of the application, the title of the estate, and the name and post-office address of the attorney. A proposed order should not be attached to any other paper. Eule 9. ^ 158 Special Guardian. In the absence of a petition by an infant over fourteen years of age for the appointment of a special guardian in any proceed- ing, the surrogate will appoint a special guardian upon his own motion, l^o special guardian to represent the interest of an infant in any proceeding will be appointed on the nomination of a pro- ponent or the accounting party or his attorney, or upon the ap- plication of a person having an interest adverse to that of the infant. To authorize the appointment of a person as a special guardian on the application of an infant or otherwise in a pro- ceeding in this court, or to entitle a general guardian of such infant to appear for him in such proceeding, it must appear that such person, or such general guardian, is competent to protect the right of the infant, and that he has no interest adverse to that of the infant, and is not connected in business with the attorney or counsel of any party to the proceeding. Eule 10. ^ 159 Real Estate Proceeding. Before the making of a decree under chapter 18, title 5, Code Civ. Pro., an affidavit of regularity must be filed by the attorney for the petitioner. Eule 11. ^ 160 Accountings. When a petition for a voluntary accounting is presented, the account and vouchers to which it relates must be filed therewith. Eule 12. Special guardians in accounting proceedings must file their re- ports within eight days from the time of their appointment, ex- cept where objections are filed, an adjournment had, or their time to file report is extended by the Surrogate. The report or an 99 KuLEs OF Peactiob — Kings County. 1| 160 accompanying affidavit must state in detail the work done and the number of days spent in its performance. Eule 13. In all accounting proceedings where a notice of appearance and demand are filed, or special guardians are appointed, two days' notice "f settlement of decree must be given unless all parties who have appeared consent to the entry of the decree. Rule 14. On an accounting by an executor, administrator, guardian, or trustee, which may be contested, any person interested, or a creditor desiring to contest the account, must file specific objec- tions thereto in writing. Objections to items of receipts or dis- bursements must be verified. All vouchers and other papers must be so arranged as to be readily placed in the document file boxes in use in the ofiice. Rule 15. Referee's reports on contested accounts must conform to sec- tion 2545 of the Code of Civil Procedure. Rule 16. On an accounting by an executor, testamentary trustee, or ad- ministrator with the will annexed, a copy of the will must accom- pany the proposed decree. Rule 17. In contested matters, making partial proof and then adjourn- ing to take further proof will not be permitted, but the hearing must proceed continuously until testimony is closed. Rule 18. ISTo allowance will be made to executors or administrators on the judicial settlement of their accounts unless the bill of costs contains a detailed statement of the days employed by them in connection with the account, showing the time occupied on each day in the rendition of the services, and their nature and extent in detail. Rule 19. No record or paper on file in this court will be intrusted to the custody of the attorneys or parties, except for the purpose of proper examination, in the office where they are deposited ; and if any such document or paper shall be needed before any referee appointed by this court, the same shall be intrusted to a clerk or messenger of this court and delivered to the referee, who shall execute a receipt therefor, and for its redelivery. Rule 20. In all cases where parties consent that the surrogate may hear and determine disputed claims against the estates of decedents upon the judicial settlement of the accounts of executors or ad- ministrators, as provided by section 1822 of the Code of Civil Pro- cedure, the attention of the court must be directed to this fact on filing the petition for accounting in order that the matter may be placed upon the appropriate calendar. Rule 21. f 161 EuLEs OF Pbactice — New Yoke County. 100 In cases where parties to a contested matter fail to submit find- ings and decree in conformity with a decision duly made and rendered within thirty days after the making of such decision the surrogate will not award costs to any party. Eule 22. ^ 161 Rules of Practice in New York County Surrogate's Court. Motions. A special motion calendar will be called on each Tuesday and Friday at 10.30 o'clock a. m., except during the month of August. ISTo calendar will be called during that month. Eule 1. To entitle a motion or proceeding to be entered upon the motion calendar, proof of service of all orders, citations, sum- mons, and other papers on which the motion or application shall be made must be furnished to the clerk of this court at or before 1 o'clock on the day preceding the motion day. No motion shall be adjourned without showing to the satisfaction of the surrogate legal grounds therefor; except upon the return day thereof, when it may be adjourned for a week on filing with the clerk the written consent of the parties. Eule 2. - 375 Eemaining Exectjtoes May Act. 1[ 563 erty ought to be paid into Surro- bond. Matter of Wischmann, 80 App. gate's Court and not to the ward Div. 520, 80 N. Y. Supp. 789. direct. Hicks v. Tovmsend, 54 App. This case seems to overrule Matter Div. 582, 66 N. Y. Supp. 1028; of Magoun, 41 Misc. Rep. 352, where revd. on another point 170 N. Y. 195. the contrary was held. The decree may be enforced by a Where a decree was made that if coadministrator. Sperb v. McCoun, a nonresident executor failed to file 110 N. Y. 605. a bond within twenty days it was Where no property remained, no "ordered that the letters testamen- decree was made directing payment tary be revoked and annulled," it over. Peck v. Sherwood, 5 Redf. 416. was held, an appeal having been per- Where application is made to re- fected, that no further order revok- voke letters testamentary and is ing the letters should be made. Hal- denied, the surrogate may require as sey v. Salsey, 3 Dem. 196. a condition that the executor file a ^ 561 The Last Section Qualified. The last section does not affect the liability of a person, to whom money or other property has been paid or delivered, as husband, wife, next of kin, or legatee, to respond to the person lawfully entitled thereto, where letters are revoked, because a supposed decedent is living; or because a will is discovered, after administration has been granted in a case of supposed intestacy, or revoking a prior will upon which letters were granted. § 2604, Code Civ. Pro. ^ 562 Decree Not to Affect Testamentary Trusts. Where an executor or an administrator is also a testamentary trustee, a decree revoking his letters does not aflfect his power or authority as testa- mentary trustee, except in the case specially prescribed for that purpose, in title sixth of this chapter. § 2688, Code Civ. Pro. ^ 563 Remaining Executors May Act, Where Letters of One Revoked. Where one of two or more executors or administrators dies, or becomes a lunatic, or is convicted of an infamous offense, or becomes otherwise in- capable of discharging the trust reposed in him; or where letters are re- voked with respect to one of them, a successor to the person, whose letters are revoked shall not be appointed, except where such an appointment is necessary, in order to comply with the express terms of a will; but the others may proceed and complete the administration of the estate pur- suant to the letters, and may continue any action or special proceeding brought by or against all. § 2692, Code Civ. Pro. Where one qualified executor remains he is the successor, and no new appointment is necessary. Hood v. Hayward, 48 Hun, 330, 15 IsT. Y. St. Eep. 846, 1 N. Y. Supp. 566; Boyle v. St. John, 28 Hun, 454. Where an executor is removed and has settled his accounts and paid over all money, he is no longer a necessary party to any pro- ceeding regarding the estate. Earle v. Earle, 93 IS. Y. 104. I 564 When Successoe to be Appointed. 376 ^ 564 III Other Cases Successor to be Appointed. When all the executors or all the administrators, to whom letters have been issued, die or become incapable, as prescribed in section two thousand six hundred and ninety-two, or the letters are revoked as to all of them, the surrogate must grant letters of administration to one or more persons as their successors, in like manner as if the former letters had not been issued; and the proceedings to procure the grant of such letters are the same, and the same security shall be required, as in a case of intestacy, ex- cept that the surrogate may, in his discretion, in case where the estate has been partially administered upon by the former representative or repre- sentatives, fix as the penalty of the bond to be given by such successor or successors, a sum not less than twice the value of the assets of the estate remaining unadministered. § 2693, Code Civ. Pro. After judicial settlement a person interested under the decree may enforce his rights against a bond without the appointment of a new administrator. Prentiss v. Weatherly, 68 Hun, 114, 52 N. Y. St. Eep. 80, 22 W. Y. Supp. 680 ; affd., 144 N. Y. 707. Letters after revocation by decree of probate. " The plaintiff ceased to be administrator when the decree of the Surrogate's Court was entered canceling and revoking his letters. He could neither bind the estate, nor could any proceeding against him have any effect upon the estate. Taylor v. Savage, 1 How. (TJ. S.) 282. The decree so provides. It is that the letters of adminis- tration theretofore issued to him ' be and the same hereby are re- voked and all authority and right of the said Henry Belden as such administrator are hereupon to cease.' The fact that the decree admitting the will to probate was subsequently vacated and set aside is of no importance because that did not reverse or reinstate the decree which revoked the letters of administration issued to the plaintiff. The judgment simply determined that the paper writing produced, purporting to be the last will and testament of Henry Belden, was not his last will and testament, and that the ' decree and probate thereof was and is in all respects invalid.' When the letters of administration issued to the plaintiff were revoked he ceased to be an administrator and had no authority in any way to bind the estate formerly represented by him. When letters of administration are revoked, the Surrogate's Court is only authorized to grant letters of administration to the successor in like manner as if the former letters had not been issued and the same proceedings are required (Code Civ. Pro., § 2693), and this is to be done upon a petition setting out the facts showing that 377 Accounting to Successor. 1 565 the person applying for letters is entitled to them, and if there be other persons having an equal right, then they must be cited to appear. Id., §§ 2662, 2663; Matter of EngelbrecM, 15 App. Div, 541. "W hen the plaintiff was appointed administrator he gave a bond, with a surety satisfactory to the surrogate, for the faithful dis- charge of his duties as such. The decree revoking the letters released the surety from future liability, nor was any liability imposed upon the surety by the judgment in the Supreme Court declaring the decree admitting the will to probate invalid. One cannot act as an administrator without giving a bond, and this is an additional reason why the judgment in the Supreme Court did not reinstate the respondent as administrator." Belden v. Belden, 118 App. Div. 296. ^ 565 Successor May be Appointed, and May Compel Ac- counting, etc. Where letters have been revoked by a decree of the surrogate's court, that court has, except in a case where it is otherwise specially prescribed by law, the same power to appoint a successor to the person whose powers have ceased, as if the letters had not been issued. The successor may complete the execution of the trust committed to his predecessor; he may continue in his own name, a civil action, or special proceeding, pending iu favor of his predecessor; and he may enforce a judgment, order or decree, in favor of the latter. The surrogate's court has the same jurisdiction, upon the petition of the successor, or of a remaining executor, administrator, guardian or trustee, to compel the person whose letters have been revoked, to account for, or deliver over money or other property, and to settle his account, which it would have upon the petition of a crediljor or person interested in the estate, if the term of oflBce, conferred by the letters, had expired by its own limitation. § 3605, Code Civ. Pro. A creditor cannot call to account an executor or administrator who has been removed. Breslin v. SmytTi, 3 Dem. 251. An executor in a will proved after letters of administration have been issued is a successor to such administrator. Power v. Speck- man, 126 ]Sr. Y. 354. Until an executor has accounted and been put into possession of the funds as trustee he is still an executor liable to account upon his removal. Matter of Hood, 104 IST. Y. 103. Note. — There are no paragraphs numbered from 566 to 573, inclusive. EXECUTOKS AND Administbatoes. 378 CHAPTER XXVI. General Rights, Powers, and Duties of Executors and Administrators. U 574. When powers cease. 575. Duty as to care of property. 575. Right to incur expense for monument, etc. 576. Title to personal estate vests in. 577. Right to act through attorney or agent. 578. Power to employ agents. 579. Contracts made by. 580. May release a debt. 580. May appear in suit. 580. May bind estate by admissions. 580. May arbitrate. 580. May eflFect and collect fire insurance. 580. May convey land situated in another State. 580. May accept property or securities. 580. May sue on promise to pay debt. 581. Duty to attempt collection of doubtful debts. 582. Duty to perform covenant to rebuild. 583. Duty in regard to contracts to sell real estate. 584. Rights of one of two or more executors. 585. As to sale of real estate. 585. Rights of one of two or more administrators. 586. Possession and control of partnership property. 591. Right to continue business of deceased. 592. Improper use of estate funds in business. 593. May consent to discharge of insolvent. 594. Rights and duties of foreign representatives. 597. Duty to impeach a sale. 598. Duty to disaffirm fraudulent acts. 599. Right of qualifying executor to sell real estate. 600. Rights and duties of administrator with the will annexed. 601. Execution of power of sale by. 602. Duty to be substituted in pending litigation. POWER OF SALE; ITS EXECUTION AN EFFECT. 603. Devise without right to receive rents and profits. 604. Sale by sole qualifying executor. 605. Delegation of power to execute contract. 606. Imperative power of sale. 607. Limited and general power of sale. 608. Equitable conversion of realty into personalty. 609. Equitable conversion of personalty into realty. 379 Always in Office. 1^ 575 SOME SPECIAL STATUTES AS TO RIGHTS AND LIABILITIES OF EXECUTORS AND ADMINISTRATORS. IT 610. Liability on promises. 610. Actions by and against. 610. Actions for trespass. 610. Liability for waste or conversion. 611. Liability for fraudulent sale of real estate. ^ 574 Duties of Executor or Administrator Do Not End with Judicijd Settlement. The decree of judicial settlement is not the termination or end- ing of the duties of the representative in the sense or to the extent that, with respect to other assets that may be realized and in con- nection with which new liabilities may be incurred, the representa- tive may not be compelled to account. Rosen v. Ward, 96 App. Div. "62, 89 N. Y. Supp. 148. The representative is always in office for the purpose of per- forming any duties that require his actions. He may at any time receive new assets, make a new inventory, and have another judi- cial settlement. When an executor, administrator, guardian, or testamentary trustee dies, his executor or administrator has no right to continue the administration of the estate. Upon the death of the representative his duties fall upon a suc- cessor, and his executor or administrator has no duty to perform in connection with the first estate except to keep the remaining assets safely and as speedily as possible render an account of the acts and doings of the deceased representative. An executor of an executor shall have no authority to commence or maintain any action or proceeding relating to the estate, effects or rights of the testator of the first executor, or to take any charge or control thereof as such executor. R. S., pt. 3, ch. 8, tit. 3, § 11. Executor of a deceased executor has no right to take any charge or control of bonds coming into his hands except for the purpose of accounting. Scholey v. Halsey, 72 E". Y. 578. ^ 575 Duty as to Care of Property. Consult fli 109, 110. An executor or trustee is not a guarantor for the safety of the securities which are committed to his charge, and does not war- rant such safety under any and all circumstances and against all ^ 575 Duty as to Headstone. 380 contingencies, accidents, or misfortunes. The true rule which should govern his conduct is that he is bound to employ such pru- dence and such diligence in the care and management of the estate or property as in general prudent men of discretion and intelli- gence employ in their own like affairs. King v. Talbot, 40 JST. Y. 76. While this rule requires an executor or trustee to avoid all extraordinary risks in the investment of the moneys of the estate and to keep the same safely, it does not demand that he shall be made liable for contingencies which, under ordinary circumstances, could not have been anticipated. McCabe v. Fowler, 84 N. Y. 314. Duty of administrator as to insurance on real estate. While an administrator has no duty regarding the real estate, yet, on account of the general belief that he has, he ought at once to advise the heirs that a policy of insurance on real estate written in the name of a person who dies intestate is void by his death and suggest that they reinsure it in their own names. Hine v. Wool- worth, 93 N. Y. 75. Incurring expenses of a monument and other decoration of a burial plot. The law recognizes the right of every deceased to have his grave marked by a modest headstone. This charge is made a part of the funeral expenses by section 2749, Code Civ. Pro., and being part of the funeral expenses the charge is a preferred one, and such a stone may be furnished whether or not the deceased left sufficient money to pay his debts. But where it is desired to erect a monument or a stone more pre- tentious than the ordinary headstone, the value of the estate must be taken into consideration. Such decoration and display cannot be provided at the expense of the creditors of the deceased. Therefore, the representative, before incurring such extraordi- nary expenses, should wait until he has ascertained the amount of the debts against the estate and has ascertained the value of the estate, and if there is a surplus to be distributed he may provide a monument suitable to the rank and station in life of the deceased and to the circumstances of his estate. The representative must decide this question according to his own best judgment, having in view the rules which must govern him in making such decision and the possibility that his action may be assailed on the judicial settlement. Matter of Erlacher, 3 Kedf. 8. 381 Attoen'ey — Agents ANB AssisTAiTTS. T[ 578 ^ 576 Title to Personal Estate Vests in the Duly Appointed Representative. The personal estate of a deceased person vests in his personal representative, and the next of kin have no standing in a court of law or equity to recover possession of the same. Such representa- tives are the proper parties to enforce any right to the personal estate which the deceased had at the time of his death. Delabarre v. McAlpin, 11 App. Div. 591. Right to possession of personal property. The administrator is the owner in trust and entitled to the pos- session of the assets of the intestate. Walton Adm. v. Walton Ex., 1 Keyes, 15. The surrogate may compel production of securities, etc., and make any proper order as to their custody. Wood v. Brown, 34 N. T. 337. The surrogate has no power to compel the delivery by the exec- utor of letters and papers having no value. Thompson v. Mott, 5 Eedf. 574, 1 Dem. 32. ^ 577 Power of Representative to Act, Through Attorney or Agent. An executor or trustee to whom a power has been given by a will may not delegate his judgment and discretion in the execu- tion of the power, but, having exercised the judgment and dis- cretion with which he has been invested, there is no authority which prohibits him from delegating to others the performance of his determination in regard thereto. A ratification of the act of the agent or attorney is equivalent to the exercise of the judgment and discretion of the representatives in the first instance. Gates V. Dudgeon, 173 IT. Y. 426, revg. 72 App. Div. 562, 76 i;r. Y. Supp. 561. C[ 578 Power to Employ Agents and Assistants. For many purposes the executors may employ agents and assist- lants, and, when necessary, attorneys and counsel, and the extent to which they may do this will depend upon the situation of the estate and the greater or less occasion for such services as do not properly belong to the executors to render. Thus the affairs of an estate may be so extensive or complicated as to warrant the executors in employing a bookkeeper, or an agent Tl 579 FoECE AND Effect of Con'tents. 382 to let real estate intrusted to their manageineiit, or to collect rents, or an agent to make other collections, make journeys for the col- lection or protection of the assets, or for the performance of other duties. Collier v. Munn, 41 N. Y. 143. Employment of member of executor's or administrator's firm. A representative may employ his partner to do any necessary work for him or the estate and his reasonable compensation may be paid, but the representative should have no interest in such fund or money so paid, and such compensation must belong wholly to the partner so employed. Parker v. Day, 155 IST. Y. 383, revg. 12 Misc. Rep. 510, 67 N. Y. St. Rep. 378, 33 N. Y. Supp. 676, which revd. 9 Misc. Rep. 298, 61 E". Y. St. Rep. 313, 30 IST. Y. Supp. 267. ^ 579 Force and Effect of Contracts Made in Representative Capacity. Executors, administrator, and trustees cannot, by their execu- tory contracts, although made in the interest and for the benefit of the estate they represent, if made upon a new and independent consideration, bind the estate and thus create a liability not founded upon the contract or obligation of the testator. While as between the executor and the person with whom he contracts the latter may rely on the contract, the beneficiaries are not concluded by the executor's act, but the propriety of the charge and the lia- bility of the estate therefor must be determined in the accounting by the executor. O'Brien v. Jackson, 167 N. Y. 31, revg. 42 App. Div. 171, 58 ISr. Y. Supp. 1044. A bond legally given to accompany charging the amount in his accounts, a mortgage was not signed in the The giving of a note for them does official capacity of the executrix — not change the rule. Matter of Kirk- held valid as an obligation of the patrick, 1 Gibb. Sur. Rep. 75. estate and not of the executrix per- A contract for services to be ren- sonally. Roarty V. McDermott, 140 dered in the interest of the estate X. Y. 206. represented by an executor, although A trustee was authorized by the made by such executor in his repre- will to repair houses and made con- sentative capacity, does not bind the tracts for such repairs — ■ held that the estate or create a, charge upon the contracts could not be enforced assets in his hands, but binds the against him in his representative executor personally. Austin, v. capacity. O'Brien v. Jackson, 167 Munro, 47 N. Y. 360. N. Y. 31. A power of attorney to transact A representative has no power to estate business which describes th» make a claim for funeral expenses a person executing it as executrix of charge upon the estate of the de- an estate is valid even though signed ceased except by payment and then in the individual name of the exeeu- 383 Some TiiiiirGs a Eepeesentative May Do. | 580 trix. Myers v. Mutual L. Insurance contracts and do not bind the estate. Co 99 N. Y. 1, affg. 32 Hun, 321. Parker v. Day, 155 N. Y. 383; Balis In a proper case a contract signed v. Underhill, 19 Misc. Rep. 215, 44 ' A. B., executor," etc., will bind the N. Y. Supp. 419. estate, and not the executor person- Claim was made against the estate ally as, in the same manner as on account of a diamond ring claimed though it were signed "A. B., as to have been unlawfully taken from executor," etc. Chouteau v. Suydam, the donee by the executor — held that 21 N. Y. 179. the executor could not create a liabil- Contracts of an executor for legal ity against the estate by his act. services to be rendered him in the Van ^looten v. Dodge, 145 N. Y. 327. interest of the estate are his personal ^ 580 Some Things Which a Representative May and May Not do. May release a debt. An action for specific performance will lie to compel an exec- utor to perform his contract to release a debt. Sanford v. Story, 15 Misc. Rep. 536, 74 K Y. St. Eep. 557, 38 K T. Supp. 104. May appear in suit. An executor sued as such and individually may appear in each capacity by a different attorney. Boche v. O'Connor, 95 App. Div. 496, 88 K Y. Supp. 968. May bind estate by admissions. An admission by an administrator or executor is not binding as against the estate unless made while he'was engaged in his repre- sentative capacity in the performance of a duty to which the ad- mission was pertinent so as to constitute a part of the res gestce. Davis V. Gallagher, 124 IST. Y. 487, revg. 55 Hun, 593; More v. Finch, 65 Hun, 406, 48 JST. Y. St. Eep. 23, 20 IST. Y. Supp. 164. May arbitrate. Executors and administrators have the power to submit to ar- bitration disputed claims or demands in favor of or against the estate they represent. Wood v. Tunnicliff, 74 'N. Y. 38. May effect and collect fire insurance. An executor or administrator is the " personal representative " intended in a fire insurance policy where it refers to giving notice, etc., and he has the right to collect such insurance for the bene- fit of those entitled to the same. Matthews v. Am. G. Ins. Co., 154 ]Sr. Y. 449, modifying 9 App. Div. 339, 75 JST. Y. St. Eep. 716, 41 K Y. Supp. 304. T[ 580 Some Things a Eepeesentative May Do. 384 An administrator of an insolvent estate may insure the build- ings on real estate owned by the deceased, and the proceeds, in case of iire, go to the administrator to pay debts. Herkimer v. Bice, 27 N. Y. 163. May convey land situated in another State. Although an executor appointed in this State cannot act as such beyond our jurisdiction he may convey land situate in an- other State vyhere the power to do so is contained in the will. Newton v. Branson, 13 JST. Y. 587. May accept property or securities. An executor having found an unsafe investment may take se- curities and collateral in a diligent effort to save the investment and will not be held liable for a failure to realize the full amount upon them. Ormiston v. Olcott, 84 IST. Y. 339. Where executors accept property in payment for a debt due deceased after proper effort to collect the debt they will not be charged with the balance of the debt above what the property brings. Matter of Hosford, 27 App. Div. 427, 50 K Y. Supp. 550. May maintain action on promise to pay debt. An executor or administrator may maintain an action on a promise to pay the debt due an estate either as such representa- tive or individually. Bingham v. Marine Nat. Bank, 41 Hun, 377 ; affd., 112 K Y. 661 ; Spies v. Michelson, 2 App. Div. 226, 73 I>I". Y. St. Kep. 394. See also 15 Misc. Eep. 414, 71 N. Y. St. Kep. 785, 36 K Y. Supp. 619. Security taken for debt of deceased must be enforced in name of repre- sentative. Where an executor or administrator takes a chose in action as a new security for a debt or obligation due the deceased, he takes it in his representative capacity, and under sections 449 and 1814, Code Civ. Pro., he must sue upon it in his representative capac- ity. Weeks V. O'Brien, 25 App. Div. 206, 49 N. Y. Supp. 344, revg. 20 Misc. Kep. 48, 45 K Y. Supp. 740. An executor who takes a note and indorses it " as executor " is liable individually under the contract thus created. -Schmittler v. Simon, 101 IsT. Y. 554, distinguishing Tooker v. Arnoux, 76 iN". Y. 397. 385 Collection of Debts. H 581 ^ 581 Duty as to Attempted Collection of Doubtful Debts. The onus is upon the executor to show a fair reason why he did not commence proceedings to collect a debt, and it is only necessary, in the first instance, for him who insists upon a devasta- vit to show the existence of a debt, and that the executor has taken no steps to collect it. The presumption is that it could have been collected, as the usual course is for men to pay their debts, and solvency is presumed until the contrary is shown. This is what was decided in Stiles v. Guy (16 Sim. 230, 39 Eng. Ch. 229), the vice-chancellor remarking : " Those who seek to exonerate themselves from a debt due from a third person ought to prove that that person could not have paid the debt. If a debt is due the law presumes, until the contrary is shown, that the debtor can pay it. Insolvency cannot be presumed." The same prin- ciple is held in Harrington v. Keteltas (92 IST. Y. 40), where the Court of Appeals held that the executor, hearing of a debt due the estate, was bound to active diligence for its collection, and that he could not wait for a request from the distributees. The existence of the debt being proved, the duty of active diligence was enjoined upon the executor. In that case and upon the facts therein appearing, the court, per Danforth, J., regarded the neglect to prosecute not only as an omission, but as a willful de- fault amounting to positive collusion. Active vigilance is a relative term, and what it is depends upon the facts appearing in each case. As to where the onus lies in making proof of the facts, there can be but little question. A debt being proved the presumption is that it is collectible, as solvency, and not the contrary, is to be presumed. But when the onu^, br;ing shifted to the executor, is met by proof on his part of the absolute, irretrievable, and hopeless insolvency of the debtor, does any rule of active vigilance demand the institution of legal proceedings by the executor against such insolvent debtor ? Does active diligence require the commencement of an action to obtain possession of property which the executor claims belongs to the estate, although, at the same time, he does not know how he can prove that the property does belong to it, and he is also advised by his counsel, in good faith, that he cannot make such proof, and he really believes it ? All the facts being in, the ques- tion arising for determination is whether the conduct of the exec- utor has been guided by good faith, reasonable judgment, and an 25 f 582 Eebuilding ijst Case of Fiee. 386 intention to fairly and fully discharge his duty. If so, it cannot be that he should still be held liable for a devastavit. ISTo duty of active vigilance would make it necessary to sue an absolute and hopeless insolvent, nor to commence an action when he was entirely ignorant as to where to find proof to maintain it. O'Con- ner v. Gifford, 117 IST. Y. 275, distinguishing Hawley v. James, 16 Wend. 61. An executor failed to collect a known debt and allowed the statute to run against it — held, that he was liable for the debt as money collected and that as to such liability the Statute of Limitations did not begin to run against him until it had run against the original debt. Harrington v. Keteltas, 92 IST. Y. 40 ; In re Hosford, 27 App. Div. 427, 50 N. Y. Supp. 550. If on examination of the facts it appears that a suit would have been ineffectual, the representative should not be charged. Matter of Hall, 16 Misc. Eep. 174, 38 1^. Y. Supp. 1135. Where the representative seeks credit for an uncollected note, the burden is upon him to show the insolvency of the makers, since solvency is presumed. Matter of Kemp, 49 Misc. Eep. 396, 100 F. Y. Supp. 221 ; Matter of Hosford, 27 App. Div. 427 ; O'Connor v. Gifford, 117 IST. Y. 275. Au executor bringing an action as such on a clainf alleged to be due the estate will not be charged with costs personally unless bad faith is shown. Hone v. De Peyster, 106 JST. Y. 645, revg. 44 Hun, 487. ^ 582 Covenant to Rebuild in Case of Fire Must be Per- formed by Executor. The presumption is that the party making a contract intends to bind his executors and administrators!, unless the cojitract is of that nature which calls for some personal quality of the testa- tor, or the words of the contract are such that it is plain that no presumption of the kind can be indulged in. Tremeere v. Mori- son, 1 Bing. IST. C. 89; Reid v. Tenterden, 4 Tyrw. Ill; Kemochan v. Murray, 111 IST. Y. 306. Where a party has entered into a contract to purchase real estate and dies before it is conveyed to him and before he has paid for it, his heir or devisee is entitled to have his executor pay for the realty out of the personal estate. Livingston v. Newlcirk, 3 Johns. Ch. 312 ; Broome v. Monch, 10 Ves. 596, 611 ; reargued, 10 Ves. 619; WrigU v. Holhrooh, 32 N. Y. 587. 387 Contracts to Sell Eeal Estate. \ 583 The executor is not permitted to violate the contract of his testator after the latter's death. Wentworth v. Cook, 10 Ad. & El. 42 ; Siboni v. Kirhman, 1 M. & W. 419, remarks of Parke, B. In QuicTc v. Ludhurrow (3 Bulstr. 30), Lord Coke said that if a man be bound to build a house for another before such a time and he which is bound dies before the time, his executors are bound to perform this. To same effect, Tilney v. N orris (1 Ld. Eaym. 553) ; Tremeene v. M orison and Reid v. Tenter den (supra). If the testator devise his land to other parties, the executor still remains liable on the covenant of his testator. If the devisees do not permit the executor to build, the covenant is broken, and it is the act of the devisor in devising his property thus that prevents the executor from fulfilling. If the land descended to the heir, then the covenant still remains in force ; and if it should be that the executor could not force the heir to permit the building, still the estate is liable on the cove- nant, and the executor must pay the damages if he have assets. Chamberlain v. Dunlop, 126 IST. Y. 45. ^ 583 Contracts of Deceased to Sell Real Estate. Testator having made a contract to sell real estate and the time fcfr performance having been extended by the executors of deceased — held, that such extension did not change the real estate so converted into personalty back into real estate. Wil- liams V. Haddock, 145 N. Y. 144, affg. 78 Hun, 429, 60 N. Y. St. Eep. 42^, 29 ¥. Y. Supp. 199. Where deceased made a contract to sell lands and died before the time fixed for delivery of the deed, the vendee being in posses- sion, and especially where some of the heirs are infants, the proper practice is for the vendee to bring an action for specific performance. Tompkins v. Hyatt, 28 If. Y. 347. Testator had contracted to sell land which was subject to a mortgage for which his estate was liable. Executors paid part of the principal of the mortgage for the purpose of protecting the land and carrying out the contract. The vendee failed to perform the contract — held, that the executors were not liable for the loss. Matter of Hosford, 27 App. Div. 427, 50 IST. Y. Supp. 550. The fact that a contract for sale has been made by the deceased owner does not give his executor an implied power of sale. Mur- dock V. Kelly, 62 App. Div. 562, 71 'N. Y. Supp. 152. T[ 584 Eights of One of Two oe More Executoes. 388 Under a contract to convey the heirs can give a good title as against the creditors of the deceased owner. Ritchie v. Bennett, 35 App. Div. 68, 54 JST. Y. Supp. 379. ^ 584 Rights of One of Two or More Executors. To transfer property. An executor may make a transfer of personal property which will give a good title to a bona fide purchaser, although the trans- fer is made in violation of the duty of the executor. Leitch v. Wells, 48 ]Sr. T. 585. One of two or more executors has power to dispose of assets even if his coexecutors do not join. Geyer v. Snyder, 140 N. Y. 394, affg. 69 Hun, 115. The act of one of two or more executors if within the scope of their authority is binding upon his associates. Barry v. Lam- bert, 98 W. Y. 300. May discharge mortgage. Where a mortgage is made to two persons described as " exec- utors of the estate of," etc., either may discharge such mortgage and in the event of one dying the survivor may execute the dis- charge. People ex rel. Eagle v. Keyser, 28 N. Y. 226. Borro\idng money. One executor has no authority to borrow money without the consent of the other. Bryan v. Stewart, 83 IST. Y. 270. ^ 585 One of Two Acting Executors Cannot Sell Real Estate. It is provided by section 56 of the Eeal Property Law that every estate vested in executors or trustees as such shall be held by them in joint tenancy. Where by a will the title to real estate is vested in two exec- utors in trust with power to sell, one of them cannot, without the consent of the other, enter into a valid contract to convey, and the fact that there is an equitable conversion does not change the rule. Wilder v. Ranney, 95 IST. Y. 7. Sale, mortgage, or lease by sole qualifying executor. Where any powers to sell, mortgage, or lease real estate, or any interest therein are given to executors as such or as trus- tees, or as executors and trustees, and any of such persons 389 Eights of P^btkeeship Peopbett. f 586 named as executors shall neglect to qualify, then all sales, mortgages, and leases under said powers made by the executors who shall qualify shall be equally valid as if the other executors or trustees had joined in such sale. From § 2642, Code Civ. Pro. Where power of sale is given to executors and only one quali- fies, his sale is good. Taylor v. Morris, 1 N. Y. 341. Rights of one of two or more administrators. The payment by one administrator with or without the con- sent of the other upon a note against the estate will save it from the operation of the State. Matter of Bradley, 25 Misc. Eep. 261, 54 ISr. Y. Supp. 555 ; affd., 42 App. Div. 301, 59 IST. Y. Supp. 105. Effect of death of one or more executors or administrators. Where one of two or more executors or administrators dies or his letters are revoked, the remaining ones shall continue to exer- cise the duties of their ofBce and no new executor or administrator can be appointed to take the place of the one dead or removed. Prom § 2692, Code Civ Pro. Where all the executors or administrators are removed new representatives must be appointed. Prom § 2693, Code Civ. Pro. ^ 586 Partnership Property Does Not Pass to the Repre- sentative of the Deceased Partner, but to the Sur- viving Pcirtner Who Has the Exclusive Right to Dispose of It in the Performance of His Duty to Pay the Firm Debts. The surviving partner has the exclusive right to dispose of the firm assets in the performance of his duty to pay the firm debt. The representative of the deceased partner has no legal interest in such estate and no legal right to interfere so long as the sur- vivor is applying the proceeds in the payment of firm debts. Wil- liams V. Whedon, 109 N. Y. 333; Loeschigh v. Hatfield, 51 id. 660, a%. 5 Robt. 26 ; Preston v. Fitch, 137 N. Y. 41, revg. 46 ]Sr. Y. St. Eep. 488, 19 K Y. Supp. 849. A surviving partner has the legal title to the partnership as- sets for the purpose of disposing of the same and paying the partnership debts for the benefit of himself and the estate of T[ 587 Accounting foe Paetneeship Peopeety. 390 Ms deceased partner. B'ussell v. McCall, 141 N. Y. 437, revg. 68 Hun, 44, 52 I^. Y. St. Eep. 53, 22 N. Y. Supp. 615 ; Nehrboss V. Bliss, 88 N. Y. 600. A surviving partner may renew a lease which contains a cove- nant for renewal, although one of the partners who was a party to the lease has died. Betts v. June, 51 IST. Y. 274. Where an executor and his testator were prior to the death of the latter copartners, it was the duty of the executor at once after the death of the testator to have separated the interest of the deceased from the partnership business, and not having done so it was proper to charge him with compound interest. Hannahs V. Hannahs, 68 IST. Y. 610 j distinguished in Matter of Bowe, 42 Misc. Eep. 175. A survivor closing up the business cannot bind the estate of a deceased partner by accommodation indorsements. Nat. Bcnh of Newh. v. Bigler, 83 IST. Y. 51. ^ 587 Partnership Agreement as to Disposition of Assets May be Enforced. Partners may agree that the survivor may purchase the firm property upon certain terms and conditions, and the representa- tives of the deceased partner have authority to accept the terms of such agreement. Hull v. Cartledge, 18 App. Div. 454, 45 K Y. Supp. 450. Where the partnership agreement provided for the continuation of the business from the date of death of one partner until the first day of the next January, the income or earnings of the in- terest in such partnership is income, and not corpus. Matter of Slocum, 169 ]Sr. Y. 153, revg. 60 App. Div. 438, 69 E". Y. Supp. 1036. A provision in a will for the continuance of the partnership business after the death of one partner is valid. Walker v. Steers, 38 ]Sr. Y. St. Eep. 654, 14 N. Y. Supp. 398. ^ 588 Purchaser of Assets Liable to Account. A purchaser of the assets from the surviving partner is liable to account to the representative of the deceased partner if he im- properly applies such assets. Hutchinson v. Campbell, 13 Misc. Eep. 152, 68 ]Sr. Y. St. Eep. 74, 34 IST. Y. Supp. 82. 391 Accounting foe Paetneeship Peopbety. f 588 Partnership debts presented to the estate of a deceased partner before the remedy against the surviving partner has been ex- hausted are contingent and not absolute debts, and if rejected, the short statute does not then begin to run. Hoyt v. Bonnett, 50 K Y. 538. Accounting cannot be held in Surrogate's Court. The management of copartnership affairs by a surviving part- ner is not the subject of an accounting in a Surrogate's Court, but an accounting thereof must be had in a court of competent jurisdiction, and the surplus, if any, of partnership property will be the amount of assets in the hands of the representative. Thomson v. Thomson, 1 Bradf. 35 ; Matter of Irvin, 87 App. Div. 466, 84 M Y. Supp. 707. The representative of a deceased partner may adjust and settle by agreement with the surviving partner all the partnership af- fairs, and such settlements in the absence of fraud will be binding upon all parties and the creditors of the deceased partner. Sage V. Woodin, 66 N. Y. 578. A member of the firm invested money of the firm in bonds and then sold the bonds and deposited the money in bank in his own name and died — held, that there having been no partnership accounting a sui-viving partner could not recover from the estate any part of such deposit. Arnold v. Arnold, 90 N". Y. 580. Where there are two surviving partners, and one of them is not a party to the accounting, the surrogate has no jurisdiction to in- vestigate the partnership business. Matter of Mertens, 39 Misc. Eep. 512, 80 JST. Y. Supp. 376. Where the surviving partners deal with the next of kin or rep- resentative, they must deal fairly as trustees are required to act, and the burden is upon them to show fair dealing. Bauchle v. Smylie, 104 App. Div. 513. Executors who are directors of a corporation in which the estate is interested cannot be charged on an accounting before the surrogate with money paid to themselves as officers of the cor- poration. Matter of Schaefer, 65 App. Div. 378, modifying 34 Misc. Rep. 34, 69 N. Y. Supp. 489 ; affd., 171 N. Y. 686. Where the executor or administrator is sole surviving partner of the deceased, the settlement of the partnership accounts must be had on his judicial settlement in Surrogate Court. Matter of Dummett, 38 Misc. Rep. 477, 77 IST. Y. Supp. 1118 ; distinguished in Matter of Mertens, 39 Misc. Rep. 512. J 589 Duty of Sukviving Paetnee. 392 ^ 589 Duty of Surviving Partners to Deal Fairly. The relation whicli a surviving partner holds to the representa- tive of a deceased partner has been clearly defined and is generally understood. It is a fiduciary relation, involving trust and con- fidence of the highest character, which absolutely prohibits the surviving partner acquiring any benefit from the deceased part- ner's interest at the expense of his representative. King v. Leigh- ton, 100 N. T. 392; Case v. Aheel 1 Paige, 393; Murray v. Munford, 6 Cov?. 441 ; Sigourney v. Munn, Y Conn. 11 ; Jones V. Dexter, 130 Mass. 380. It is a relation stronger and more exacting than that vfhich exists between partners themselves, inas- much as the law commits to them, to the exclusion of others, the care and management of the deceased partner's interest for the payment of debts and distribution. He is not a mere agent, but a trustee, and by reason of such relationship the same remedy exists on behalf of the representative of the deceased partner against the surviving partner as exists against a trustee strictly so called in behalf of a cestui que trust. Holmes v. Oilman, 138 K Y. 369 ; Bauchle v. Smylie, 104 App. Div. 515. ^ 590 Surviving Partner Not Entitled to Compensation, It has long been the established rule that a surviving partner should not be allowed any compensation for his services in liqui- dating the business. King v. Leighton, 100 'N. Y. 394 ; Slater v. Slater, Y8 App. Div. 449, 459 ; Burgess v. Badger, 82 Hun, 488 ; Shidmore v. Collier, 8 id. 50 ; Coursen v. Hamlin, 2 Duer, 520. It is the duty of an administrator, and, in the absence of a direc- tion for the continuance of the business of the decedent in his will, of an executor, to dispose of the business and convert it into cash with all reasonable dispatch, having due regard for the interests of the next of kin or beneficiaries and creditors {Riddle v. White- hill, 135 U. S. 621 ; Gilmore v. Ham, 142 N. Y. 1, 8) ; and a con- tinuance of the business beyond a reasonable time for this purpose is unauthorized. An administrator or executor is ordinarily con- fined to the fees or commissions prescribed by statute ; and if the business of the decedent be continued under authority contained in the will, the services rendered by the executor in continuing it are deemed part of the duties of his ofiBce and he cannot receive therefor any compensation other than the commissions allowed by law. Matter of Hoyden, 54 Hun, 197, 7 W. Y. Supp. 313 ; affd., 393 CoiirTiiinjiNG Paetnership Business. 1 591 125 N. Y. 776, on opinion at General Term. In Matter of Hayden (supra), it was held that a son employed by his father, at a salary of $5,000 per annum, appointed executor of his father's will and authorized thereby to continue the business in his discretion, elect- ing to continue it under an arrangement with his coexecutors that he should receive the same salary as during the lifetime of his father, was not entitled to an allowance for the salary on an ac- counting, it appearing that there were infants in interest for whom lawful consent thereto had not been given. If, however, the appel- lant had continued the business at the request of all parties in inter- est and they were competent to consent, then doubtless he would have been entitled to receive the salary which he appears to have justly earned. Matter of Braunsdorf, 13 Misc. Rep. 666, 2 App. Div. 73 ; Lent v. Howard, 89 N". Y. 169. See also Burgess v. Bad- ger, 82 Hun, 488, and Robinson, v. Simmons, 146 Mass. 167. It follows, therefore, that the appellant's account was properly sur- charged with the amount of the salary withdrawn by him. Clau- sen v. Puvogel, 114 App. Div. 455, 100 N. Y. Supp. 49. Compensation. The duty of winding up the partnership affairs by the surviv- ing partner without compensation is one of the incidents of a partnership and no allowance can be made an executor or admin- istrator for such service. Matter of Dummett, 38 Misc. Rep. 477, 77 ISr. Y. Supp. 118 ; Johnson v. Hartshorne, 52 N. Y. 173 ; Bur- gess v. Badger, 82 Hun, 493 ; Matter of Harris, 4 Dem. 468, 1 ]Sr. Y. St. Rep. 331. Compensation has been allowed when the representative has performed duties not obligatory at the request of the parties. Lent V. Howard, 89 IST. Y. 169 ; Matter of McCord, 2 App. Div. 326, 37 IS. Y. Supp. 852 ; Matter of Moriarity, 27 Misc. Rep. 162, 58 ISr. Y. Supp. 380; Matter of Braurvsdorf, 13 Misc. Rep. 672, 69 ]Sr. Y. St. Rep. 652, 35 IST. Y. Supp. 298; modified and affd., 2 App. Div. 73, 72 IST. Y. St. Rep. 764, 37 N. Y. Supp. 229. ^ 591 Directions to Continue Business. By the general rule the death of a trader puts an end to any trade in which he was engaged at the time of his death, and an executor or administrator has no authority virtute officii to con- tinue it, except for the temporary purpose of converting the as- sets employed in the trade into money. Barker v. Parker, 1 Term If 591 Continuing Paetneeship Business. 394 Kep. 287. But a testator may authorize or direct his executor to continue a trade or to employ his assets in trade or business, and such authority or direction, if strictly pursued, will protect the executor from responsibility to those claiming under the will, in case of loss happening without his fault or negligence, and also entitle him to iademnity out of the estate for any liability law- fully incurred within the scope of the power. Burwell v. Cawood, 2 How. (U. S.) 560; LaiUe v. Ferry, 32 N. J. Eq. 791; Scott v. Izon, 34 Beav. 434; Liicas v. Williams, 39 Giff. 150. The courts, while they have sustained with substantial unanimity the validity of a direction of a testator in his will that his trade should be continued, whether his business was that of a sole trader or of a firm of which he was a member, have applied stringent rules of construction in ascertaining both the existence and extent of the authority of the executor. In the first place, the intention bf a testator to confer upon an executor power to continue a trade must be found in the direct, explicit, and unequivocal language of the will or else it will not be deemed to have been conferred (Burwell v. Cawood, supra; Eirkman v. Booth, 1 Beav. 273), and in the next place, a power, simpliciter, to carry on the testa- tor's trade, or to continue his business in a firm of which he was a partner, without anything more, will be construed as an au- thority simply to carry on the trade or business with the fund already invested in it at the time of the testator's death, and to subject that fund only to the hazards of the trade and not the general assets of the estate (Ex parte Oarland, 10 Ves. 119 ; Cut- hiwih V. Cuthush, 1 Beav. 184; Ex parte Richardson, 1 Buck. 202 ; McNeillie v. Acton, 4 De G., M. & G. 742). The property already embarked in the business is the trade fund, unless it appears from the will that the executor was authorized to use the general 'assets in the biisiness. In every case where a trade is carried on by an executor under authority of the will question may arise as to the respective rights of existing and subsequent creditors, that is, creditors of the testator and creditors of the trade whose debts were contracted in the business carried on by the executor. The creditors of the testator, under our statute and the general rule of law for the administration of assets of a decedent, are entitled to have the assets collected in and applied upon their debts, a reason- able time being allowed for the ascertainment of the debts and. the conversion of the assets. It would seem that a direction of the testator that his business should be continued would not be 295 Continuing Pabtnekship Business. I 591 allowed to interfere with this right of existing creditors, or put to hazard the property of the testator applicable to the payment of their debts. Btanwood v. Owen, 14 Gray, 195. It is the settled doctrine of the courts of common law that a debt contracted by an executor after the death of his testator, al- though contracted by him as executor, binds him individually, and does not bind the estate which he represents, notwithstanding it may have been contracted for the benefit of the estate. Austin v. Monro, 47 N. Y. 360. It has been held in numerous cases that an executor, carrying on a trade under the authority of the will, binds himself individually by his contracts in the trade. He is not bound to carry on the trade and incur this hazard, although authorized or directed to do so; but if he carries it on the con- tracts of the business are his individual contracts. Ex -parte Gar- land (supra); Fairltnd v. Percy, L. R., 3 P. & D. 217; La- houchere v. Tupper, 11 Moore P. 0. 198 ; Downs v. Collins, 6 Hare, 418. But, as said by Story, J., in Burwell v. Cawood, a testator may, if he chooses, bind his general assets for all the debts of a business to be carried on after his death. Where this was the intention of the testator expressed in the will, then, in case of the insolvency of the executor, we see no reason to doubt that, in equity, the general assets become liable for the debts of the business. In F airland v. Percy (supra), Sir J. Hannan states the principle. He says : " Where a testator, by his will, directs that his business may be carried on, and that his personal estate shall be used as capital with which to do so, the persons who, after his death, become creditors of the business, in addition to the personal responsibility of the individuals who gave the order for the goods, or otherwise contracted the debt, are entitled in equity to claim against the estate to the extent that he authorized it to be used in that business." (See Owen v. Delamere, L. E., 15 Eq. 134.) Willis v. Sharp, 113 K Y. 589, a%. 43 Hun, 434. JSTotwithstanding a direction in the will that the executors carry on the business, the creditors have a right to have the assets ap- plied to the payment of their debts. Willis v. Sharp, 113 IST. Y. 586, a%. 43 Hun, 434. A testator may authorize his executor to continue his business by using such general terms that his whole estate will become liable to pay such business debts. Willis v. Sharp, 113 IST. Y. 586, affg. 43 Hun, 434. ^592 CoNTT^uixG Pabt>-eeship BusI^'ESS. 396 When a business is carried on by executor under a power con- tained in a will only those assets of the estate which were already invested in the business at the time of the testator's decease will be subject to the hazards and risk of the business. Matter of Rickey, 34 Misc. Eep. 361, 69 X. Y. Supp. 844. The executor is not authorized to involve the general assets of the estate; therefore, persons dealing with him are bound to know that they can resort only to the property embarked in the busi- ness. They could not even have recourse to the general assets of the estate, much less could they look to the beneficiaries indi- vidually, and the assent of the beneficiaries to what the will explicitly authorized could upon no possible theory make them personally liable. Manhattan Oil. Co. v. OiU, 118 App. Div. 17. Xote signed by executors adding " executors estate of," etc., where they are carrying on a business, binds them individually. Darling v. Powell, 20 ilisc. Eep. 240, 45 X. T. Supp. 794. Liable for torts. An executor carrying on business of the deceased is liable for damages arising from his negligence in the conduct of the business whereby a person receives personal injury. McCue v. Finch, 20 Misc. Eep. 506, 46 X. Y. Supp. 242. ^ 592 Continuing Partnership Business Without Authority. The rule is that in the absence of authority expressed in the will the death of a partner works the end of his trade, and, there- fore, the executors had no authority to continue the business ex- cept for the purpose of converting the assets into money. Willis V. Sharp, 113 X. Y. 586, affg. 43 Hun, 434, and authorities cited; Matter of McCollum, 80 App. Div. 362, 80 X. Y. Supp. 755. If in violation of this duty the administrator or executor con- tinues the business or uses the money in his own business, his act is wrongful and the estate is not liable for any obligation incurred or loss sustained, and he may be charged interest upon the money thus wrongfully used, or, at the election of those inter- ested, with the profits made in the business in which it is used; but in that event the burden is upon them to show the amount of the profits, and the business being imlawful and his own so far as the estate is concerned, he is not required to file an itemized account of the receipts and disbursements therein, or vouchers for such disbursements. Estate of Munzor, 4 Misc. Eep. 374; 397 Use of Estate Funds in Business. T 593 Matter of Peck, 79 App. Div. 296; affd., 177 ¥. Y. 538; Matter of Suess, 37 Misc. Eep. 459, 461 ; Willis v. Sharp, 113 IST. Y. 591 ; Eenyon v. Olney, 39 N. Y. St. Rep. 839 ; Matter of U. 8. M. & T. Co., 114 App. Div. 532, 100 N. Y. Supp. 12. If the original creditors consent to the continuance of the busi- ness, they and the business creditors share pro rata in the property on dissolution. Willis v. Sharp, 113 IST. Y. 586. Where the income from conducting a business is to be paid a person, there is chargeable to that income losses, depreciation, and -wear and tear in conducting the business. Matter of Jones, 103 N. Y. 624. Will construed as making profits of the continued partnership business principal and not income going to the life beneficiary. Matter of Marx, 49 Misc. Eep. 280, 99 N. Y. Supp. 334. Use of estate funds in business of the representative. The employment and use of estate moneys by executors, admin- istrators, and trustees, during the continuance of the trust, has been from the earliest times the subject of frequent consideration by the courts, and their decisions have displayed a uniform ten- dency tov^ard that mode of use which should afford the greatest security to the fund. Their employment by such trustees in trade, or as loans to persons engaged in business or in the prosecution of mercantile, commercial, and manufacturing enterprises or specu- lative adventures, has been uniformly devastavit of the estate. Trust funds so invested still remain impressed with the obliga- tions of the trust in the hands of those persons having knowledge of the trust character and are subject to be reclaimed by suit. Deohold v. Oppermann, 111 IST. Y. 531; English v. Mclntyre, 51 N. Y. Supp. 697; Warren v. Union B. of E., 157 N. Y. 259. Whoever receives property knowing it to be the subject of a trust, and to have been transferred by the trustee in violation of his duty or power takes it subject to the right not only of the cestui que trv^t, but of the trustee to reclaim possession. Zim- merman V. Kinkle, 108 N. Y. 282 ; Wetmore v. Porter, 92 id. 76. Cf 593 Consent of Executor, Administrator, Receiver, etc. An executor or administrator may become a consenting creditor, under the order of the surrogate's court from which his letters issued. A trustee, official assignee, or receiver of the property of a creditor of the petitioner, whether created by operation of law, or by the act of parties, may become a consenting creditor, under the order of a justice of the supreme court. A I 594 Eights of Foreign Administkatoks. 398 person who becomes a consenting creditor, as prescribed in this section, is chargeable only for the sum which he actually receives, as a dividend of the insolvent's property. § 3153, Code Civ. Pro. ^ 594 Rights of Foreign Administrators. The succession to and the distribution of the estate of an intes- tate is governed by the law of the domicile, and where an admin- istrator has been appointed and has properly qualified in the State of the domicile he is vested with power to receive payment of the debts owing to the intestate and to take possession of the assets and give proper acquittances therefor wherever the debtors or the holders of the assets may be within or without the State. But where the debtor or the holder of the assets is in a foreign juris- diction and the debts are not paid or the assets surrendered to the administrator of the place of the domicile of the decedent, the courts of the foreign jurisdiction will not enforce the recovery of such debts or assets until the administrator has procured ancillary letters or a new administrator has been appointed under the laws of the place Avhere the debts exist or the assets may be. Maas v. German Sav. Bank, 176 N. Y. 377, affg. 73 App. Div. 524, 77 ISr. Y. Supp. 256; which revd. 36 Misc. Kep. 154, 72 N. Y. Supp. 1068 ; which affd. 35 Misc. Eep. 193, 71 N. Y. Supp. 483. An executor or administrator appointed in another State has not, as such, any authority beyond the sovereignty by virtue of whose laws he was appointed. Parsons v. Lyman, 20 N. Y. 103 ; Matter of Butler, 38 id. 397 ; Peterson v. Chemical Bank, 32 id. 21 ; Matter of Jones, 3 Redf. 257. The remedy against a foreign administrator in his representa- tive character to charge the assets of his intestate for a debt or liability of the decedent is governed by the law of the jiirisdiction where he was appointed and must be pursued in the courts where the decedent resided. Lyon v. Park, 111 JST. Y. 350. A nonresident administrator is not a " resident of the State " within the meaning of section 1780, Code Civ. Pro., in reference to bringing an action against a foreign corporation. Robinson v. Oceanic 8. N. Co., 112 N. Y. 315, affg. 56 E". Y. Super. Ct. 108, 16 N. Y. St. Eep. 583, 1 E". Y. Supp. 418. May receive assets and give good discharge. Payment of a bank deposit to a foreign administrator discharges the bank, even though afterward a will of the same person is found and proved in this State and demand is made for payment. 399 Foreign Eepeesentatives — Actions. T 596 ScKluter V. Bowery S. B., 107 N. Y. 125 ; Boone v. Citizens 8. B., 8i id. 83, revg. 21 Hun, 235. A debtor to a nonresident is not charged with notice of the ap- pointment of a local administrator on the estate of a nonresident from the fact that such appointment is a matter of record in the Surrogate Court of some county of the State. Maas v. Oerman Savings Bank, 1Y6 N. Y. 377, affg. 73 App. Div. 524, 77 E". Y. Supp. 256; which revd. 36 Misc. Rep. 154, 72 N. Y. Supp. 1068; which affd. 55 Misc. Eep. 193, 71 N. Y. Supp. 483. May sue or be sued here upon contracts made with him here. Foreign executor may sue in our courts upon contract made with him as such executor. Plandrow v. Hammond, 13 App. Div. 325, 4 Ann. Cas. 56, 43 N. Y. Supp. 143. A foreign executor may be sued in this State upon a contract made by him. Johnson v. Wallis, 112 IST. Y. 230, affg. 41 Hun, 420. ^ 595 Rights of Representatives When There Are Original Letters in Two States. The executor in this State should transmit the assets after ad- ministering in this State to the State of the domicile. Clark v. Butler, 4 Dem. 378. Where a will was proved in Michigan and New York, with sep- arate executors and separate assets in each State, the New York executor has no title to assets in Michigan. Sherman v. Page, 85 ISr. Y. 123, distinguishing Matter of Butler, 38 id. 397. Intestate was killed in another State and action to recover dam- ages for his death was brought by an administrator regularly ap- pointed in New York State — held regular. Leonard v. Columbia S. N. Co., 84 N. Y. 48 ; Kiefer v. Grand Trunk By. Co., 12 App. Div. 28, 42 K Y. Supp. 171; affd., 153 N. Y. 688. ^ 596 Actions Cannot be Maintained or Continued by or Against Foreign Administrators or Executors. The authorities all appear to be in one direction, holding the law to be that foreign executors and administrators cannot merely by virtue of their offices either prosecute or defend actions in the courts of other States. In some instances the disability has been removed by statute ; but where that is not the case, and the repre- sentative has not removed the assets or some portion of them into \ 596 FoKEiGN- Ebpeesentatives — Actions. 400 this State, tlie rule of the common law is that which has been already stated. The disability of the common law has not been removed by any statute. Matter of Weib (11 Hun, 124) was decided under sec- tion 121 of the Code of Procedure, which provided that in case of the death of a party where the cause of action survives the court " may allow the action to be continued by or against his rep- resentative or successor in interest." By section 757 of the Code of Civil Procedure it is provided that " in case of the death of a sole plaintiff or a sole defendant, if the cause of action survives or continues, the court must, upon a motion, allow or compel the action to be continued, by or against his representative or suc- cessor in interest." The codifications are identical in substance and must be held to relate to representatives and successors over whom jurisdiction exists in the actions, and which do not include foreign representatives in actions at law. The rule invoked in the Webb case seems to have been uniformly followed, both before and since the enactment of the Code of Civil Procedure. See Field V. Gibson, 56 How. Pr. 232 ; Murphy v. Hall, 38 Hun, 528 ; Ferguson v. Harrison, 27 Misc. Rep. 380 ; Flandrow v. Hamr mond, 13 App. Div. 325; Montgomery v. Boyd, 78 id. 64, 72; Blade v. Hale, 84 id. 633 ; Lyon v. Park, 111 JSI". Y. 350; John- son V. Wallis, 112 id. 230; Hopper v. Hopper, 125 id. 400; McOrath v. Weiller, 98 App. Div. 291. The general rule is well settled that a foreign executor cannot sue or be sued, purely in his representative capacity, in the courts of this State. In re Webb, 11 Hun, 124; Vermilya v. Beatty, 6 Barb. 429 ; Field v. Gibson, 20 Hun, 274 ; Hopper v. Hopper, 125 N. Y. 400, 26 K E. 457; Johnson v. Wallis, 112 K Y. 230, 19 IST. E. 653 ; Doolittle v. Leiuis, 7 Johns. Ch. 45 ; Petersen v. Banlc, 32 IST. Y. 21; Lawrence v. Lawrence, 3 Barb. Ch. 74. It will not do to say that a foreign executor may sue or defend in this State if he voluntarily submits himself to the jurisdiction of our courts, because the rule is that he may no more sue than be sued in our courts. He would certainly submit himself to such jurisdiction if he were to bring a suit here, but this he cannot do by reason of this well-settled rule. In Hopper v. Hopper (125 K Y. 400, 402, 403, 26 IST. E. 457), it was said : " By the phrase ' foreign executor ' the courts never meant the mere nonresidence of the individual holding the office, but the foreign origin of the representative character. That is the 401 roREiGW Repeesentatives — Actions. f 596 sole product of the foreign law, and, depending upon it for exist- ence, cannot pass beyond the jurisdiction of the origin. The indi- vidual may come here, and acquire rights or incur liabilities which our tribunals will defend or enforce ; but he can have no repre- sentative rights or liabilities, since we recognize in him no rep- resentative character. The foreign executor may make a contract here which our courts will compel him to perform, because it is his contract ; but, where it is the testator's only, he cannot sue or be sued upon it, since the right or character is purely representa- tive, and exists only by force of the official character, and so can- not pass beyond the jurisdiction which gave it. Johnson v. Wallis, 112 K Y. 230, 10 N. E. 653." And in the latter case it was said : " They [the defendants] rely mainly upon the proposition that, as foreign executors, they could not sue or be sued in this State, and acquire all their rights from, and owe their responsibilities to, another jurisdiction. That is the general rule ; but, in this State at least, it is confined to claims and liabilities resting wholly upon the representative character. In Lawrence v. Lawrence (3 Barb. Ch. 74), the rule was declared only to be applicable to suits brought upon debts due to the tes- tator during his lifetime, or based upon some transaction with him, and does not prevent a foreign executor from suing in our courts upon a contract made with him as such executor. Of course, where he can sue upon such a contract, he may be sued upon it. The remedy must run to each party, or neither." In Lawrence v. Lawrence (supra), the action was brought by the foreign executor to foreclose a mortgage given to a coexecutor after the death of his testator; and it was said: "As a general rule, a foreign executor is not entitled to sue in our courts. * * * This rule, however, is only applicable to suits brought by exec- utors for debts due to the testator, or where' the foundation of the suit is based upon some transaction with the testator during his lifetime; and it does not prevent a foreign executor from suing in our courts upon a contract made with him as such executor." In this case the executrix asked to be made a party in her purely representative capacity, the subject-matter of the suit being a trans- action had with the testator in his lifetime. Under the rule we have stated she cannot be a party, either plaintiff or defendant, in the action. Flandrow v. Hammond, 13 App. Div. S25, 43 N. Y. Supp. 143. 26 ^ 597 AcTioiT TO Impeach a Sale, 402 ^ 597 The Representative May Impeach a Sale Made by Deceased, and if He Fails to do so, a Creditor May Bring Such Action, but No Action Can be Brought to Impeach a Sale Made by the Representative. Section 7 of the Personal Property Law (Laws of 1897, chap. 417) provides that a representative may impeach a sale made by the deceased, and if he fails to do so, a creditor may bring such action. (See section quoted in full in ^ 598.) " Since the executrix is accountable in the probate court for all personal property of the estate received by her, it would seem that clear warrant for an independent action by a creditor to review a transfer of personal property made by her should be found in the statute, or such an action should not be sustained." The reasonable and fair construction of the statute quoted, standing alone, does not authorize such an action, and when the history of the legislation is examined I deem it quite clear that the Legislature only intended to authorize the action to set aside a transfer made by the insolvent debtor. The Legislature, by chap- ter 314 of the Laws of 1858, among other things, authorized the executor or administrator of an estate, in the interest of the cred- itors thereof, to disaffirm a transfer in fraud of the rights of any creditor, and gave a right of action to recover the property or its value, and for damages. That statute conferred no right of action on a creditor individually. The scope of the statute is not ex- pressly confined to transfers by the decedent, but it is evident that such was the intention, for otherwise the representative of the estate would be disaffirming his own acts and suing to recover for his own fraud. The statute was amended by chapter 487 of the Laws of 1889 by adding the following at the end of section 1, to wit: "And any creditor of a deceased insolvent debtor having a claim or demand against the estate of such deceased debtor exceed- ing in amount the sum of one hundred dollars, may in like man- ner for the benefit of himself and other creditors interested in the estate or property of such deceased debtor, disaffirm, treat as void, and resist all acts done, and conveyances, transfers and agree- ments made, in fraud of the right of any creditor or creditors, by such deceased debtor, and for that purpose may maintain any necessary action to set aside such acts, conveyances, transfers or agreements, and for the purpose of maintaining such action it shall not be necessary for such creditor to have obtained a judg- ment upon his claim or demand, but such claim or demand, if 403 AcTiosr to Impeach a Sale. If 597 disputed, may be proved and established upon the trial of such action." It thus appears that when the cause of action was first con- ferred upon creditors it was expressly confined to transfers made hy the deceased debtor. The first section was again amended by chapter 740 of the Laws of 1894 by adding a provision with re- spect to a sale of property recovered and the disposition of the proceeds; but the phraseology, so far as material to a determina- tion of the question now under consideration, was not changed. When the Commissioners of Statutory Revision came to consoli- date these and other statutes, and frame for submission to the Legislature the Personal Property Law, they dropped out the words " by such deceased debtor." Pers. Prop. Law (Laws of 1897, chap. 417), § 7, and schedule of laws repealed thereby. This is another instance of confusion and uncertainty caused by changes in phraseology made by said commissioners. They were not empowered to make changes in the existing law. They did not inform the Legislature that they had attempted to change the former law on this point. The revisers' report to the Legislature and notes, on the contrary, indicate that no change was intended to be made. Under the heading, " Revisers' Preliminary Note to the Personal Property Law," they say : " The accompanying chap- ter of the revision, to be known as the Personal Property Law, includes existing statutes relating to future estates, accumulation of income, trust estates, and that part of the Statute of Frauds which govern transactions in relation to personal property. These statutes are re-enacted in the revision with slight changes, which are indicated in the foot notes, which are appended to the several sections of the proposed law. The table immediately following the repealing schedule shows the disposition of the laws repealed by this chapter in the revision and elsewhere." See Assem. Doe. 1897, vol. 22, l\o. 80, p. 363. Under section 7 they cite the laws from which it was compiled, and then add the following : " Unchanged in substance, so far as relates to personal property." See Assem. Doc. 1897, vol. 22, ISTo. 80, p. 368. The reasonable inference ie that in this case, as in many others, shown by many of their reports to the Legislature,, they deemed the words which they omitted superfluous, and were- of opinion that the statute as they recommended it meant pre- cisely the same as the former statute. However that may be, in these circumstances there is nothing to indicate that the Legisla- f 597 Action to Impeach a Sale. 404 ture intended to change the law and authorize a new and unheard- of practice of permitting a creditor to review by action every sale or transfer of property of an insolvent debtor made by the exec- utor or administrator upon a charge of fraud. If the action would lie and it were successful, it would only result in placing the property back in the hands of the executor or administrator to be resold, with a possible similar review by action of the second and of any subsequent sale, because the Supreme Court would not administer the estate but would leave that to the executor or administrator. Moreover, there does not appear to have been any necessity for such an action, and it is, therefore, not reasonable to suppose that the Legislature intended to authorize it. The Legis- lature is presumed to have known that the Surrogate's Court could remove an executor or administrator for misconduct in wasting the estate (Code Civ. Pro., § 2685, subd. 2; Id., §§ 2686, 2687), or protect the creditors and others interested by requiring an adequate bond, either originally (Id., § 2638), or when the ques- tion is raised on an application to revoke the letters (Id., § 2685, subd. 5; Id., § 2686; Id., § 2687, subd. 3). On the accounting the executor or administrator would be charged with the value of all property received, and the creditor and other persons inter- ested would not be bound by any sale or transfer made, and could attack the same not only for fraud but for inadequacy of con- sideration resulting from negligence. It would seem, therefore, that the statute should not be given a construction that will authorize the maintenance of such an action, unless it be imperatively required by the language employed. I am convinced that it is not so required. It is plain that the Legis- lature merely intended to authorize a creditor to institute an ac- tion in those cases in which by the preceding part of the section the personal representative is authorized to do so. It was contem- plated that an executor or administrator might deem it unwise to bring the action, and that information might be available to the creditor which would give him confidence to proceed. Magoun v. Quigley, 115 App. Div. 226. Hay impeach a sale. Where an estate is insolvent it is the duty of an, executor or administrator to impeach a sale of personal property made by the deceased with the intent to defraud creditors and recover the isame from the fraudulent vendee. Bate v. Graham, 11 N. Y. 237. 405 Right to Sell Real Estate. | 600 ^ 598 Duty to Disaffirm Fraudulent Acts. An executor, administrator, receiver, assignee, or trustee, may, for the benefit of creditors or others interested in personal prop- erty, held in trust, disaffirm, treat as void, and resist any act done, or transfer or agreement made in fraud of the rights of any cred- itor, including himself, interested in such estate, or property, and a person who fraudulently receives, takes, or in any manner in- terferes vfith the personal property of a deceased person, or an in- solvent corporation, association, partnership, or individual is liable to such executor, administrator, receiver, or trustee for the same or the value thereof. A creditor of a deceased insolvent debtor having a claim against the estate of such debtor, exceeding in amount the sum of $100, vfithout obtaining a judgment on such claim, in like manner, for the benefit of himself and other creditors inter- ested in said estate, disaffirm, treat as void, and resist any act done or conveyance, transfer, or agreement made in fraud of creditors or maintain an action to set aside such act, conveyance, transfer, or an agreement. Such claim, if disputed, may be established in such action. The judgment in such action may provide for the sale of the property involved, when a conveyance or transfer thereof is set aside and that the proceeds thereof be brought into court or paid into the proper Surrogate's Court to be administered according to law. Personal Property Law, § 7. ^ 599 When One of Two or More Nominated Executors May Sell Real Estate. When any real estate or any interest therein is given or de- vised by any will legally executed, to the executors therein named, or any of them, to be sold by them or any of them, or where such estate is ordered by any last will to be sold by the executors, and any executor shall neglect or refuse to take upon him the execu- tion of such will, then all sales made by the executor or exec- utors, who shall take upon them the execution of such will, shall be equally valid, as if the other executors had joined in such sale. R. S., pt. 2, ch. VI, tit. IV, § 55. ^ 600 Rights and Duties of an Administrator with the Will Annexed. Where letters of administration with the will annexed are granted, the will of the deceased shall be observed and performed ; I 600 Sale by Admii^isteatoe C. T. A. 406 and tlie administrators with such will have the rights and powers and are subject to the same duties as if they had been named as executors in the will. From § 2613, Code Civ. Pro. The position of a general administrator and an administrator with the will annexed differs in this : That in the latter case, the will, so far as it is consistent with law, is the rule for the man- agement and distribution of the estate, and in the former the ulti- mate right to the personal assets is regulated by the Statute of Distribution. Casoni v. Jerome, 58 !N^. Y. 320. This section is not qualified or changed by section 2693, Code Civ. Pro. If an inventory has been filed by his predecessor, he cannot be required to file one. If notice was duly given, by the former, to the creditors to present claims, and the time limited has expired while he was acting, no new notice should be given by the latter. If the estate is in a condition to be finally settled and distributed when it is devolved on the successor, he may proceed to the ac- counting at once. He simply steps into the place of the deceased legal representative, and his relations to the estate are precisely the same as those of his predecessor at the time of his death. Executors changed by codicil. " The vsdll and codicil are to be construed as but one instrument. The will named two individuals as executors, and the codicil sub- stituted two different individuals. But there is nothing to indicate that the testator cast any duty upon the individuals first named other than perforce of their nomination to the executorships, and there is nothing to indicate that he intended to withhold from the second nominees any of the powers conferred upon the first nomi- nees. And I agree with the learned referee that Paul Cushman alone can exercise the power. Leggett v. Hunter, 19 N. Y. 45 6i. If the trust is annexed to the office of executor, then the resigna- tion of the latter office carries the relinquishment of the former place. The consent of the acting executor was only necessary." Cushman v. Cv^liman, 116 App. Div. 763. Where administrators cum testamento annexo are appointed and account for a trust fund in the hands of their testator, it is not proper to allow them from such fund the expense of their bond and of obtaining their letters. Jeweti v. Schmidt, 45 Misc. Eep. 471 ; affd., 108 App. Div. 322. 407 Sale by Administeatob C. T. A. If 601 Where the will gave the widow the use and possession of the whole estate with the right to use it up, and bequeathed what remained over — heldj that the administrator cum testamento annexo could not recover bank deposits or securities standing in the name of the widow. Matter of Seitz, 17 App. Div. 1, 44 IST. Y. Supp. 836, affg. 16 Misc. Eep. 522, 74 N. Y. St. Kep. 770, 40 K Y. Supp. 206. ^ 601 When a Power of Sale May and May Not be Executed by an. Administrator Cum Testamento Annexo. The distinction between the duties which fall upon an exec- utor and may be discharged by an administrator cum testamento annexo, and the power which must be executed by a trustee, is made as follows : The duties of an executor pertain to the office, and those of the trustee to the person ; the character given to the trustee has relation to a personal trust, while that of an executor is official solely. Where the power granted or duty involved im- ply a personal confidence reposed in the individual over, above, and beyond that which is ordinarily implied in the selection of an executor — the power and duty are not those of executor virtute officii and do not pass to the administrator cum testamento annexo. When a discretionary power of sale is given to executors, or when, in the sense as applied to a trust, the duties imposed are active, the executors will be deemed trustees, and such powers cannot be executed by an administrator cum testamento annexo. Oreenland v. Waddell 116 N. Y. 234; Ward v. Ward, 105 id. 68. Where a power of sale is given to executors for the purpose of paying debts and legacies or either, and especially where there is an equitable conversion of land into money for the purpose of such payment and for distribution, and the power of sale is imperative and does not grow out of a personal discretion confided to the individual, such power belongs to the office of executor and under the statute passes to and may be exercised by the administrator cum testa- mento annexo. Mott v. Acherman, 92 N. Y. 539. When it may not be executed. Devise to executors in trust to sell, " in their discretion," and divide among testator's children in the meantime to receive the rents and profits — held, an invalid trust. By judgment the executors were removed and a receiver ap- pointed vested with all the rights and powers of an administrator f 602 Sale by Administratoe C. T. A. 408 with the will annexed. Held, that the power of sale being dis- cretionary would not have passed to an administrator with the will annexed. Goohe v. Piatt, 98 N. Y. 35 ; followed in 113 id. 11, 130 id. 300. Testator authorized the use of the principal, if the income should be insufBcient, for the support of her husband and ap- pointed him executor with the power to sell real estate " in order to carry out the provisions of the will upon such terms and at such times as to him shall seem meet and proper " — held, that the power of sale was discretionary and did not pass to the ad- ministrator with the will annexed. Simmons v. Taylor, 19 App. Div. 499, 46 JST. Y. Supp. 730; Coan v. Culver, 188 K Y. 9, revg. 108 App. Div. 360. The purely personal discretion given an executor to increase an annuity cannot be exercised by an administrator cum testamento annexo. Hull v. Hull', 24 JST. Y. 647 ; criticised in 86 App. Div. 308, 83 ISr. Y. Supp. 748. Where testator has entered into contract to sell his real estate the administrator cium testamento annexo is not sole party to execute deed under power of sale. Heirs should join. Boome v. Phillips, 27 ]Sr. Y. 357. A trust conferred upon an executor which is personal in its character does not pass to an administrator with the will annexed. Dunning y. Ocean Nat. Banlc, 61 IST. Y. 497, affg. 6 Lans. 298. Where a trust has been established and set apart, it does not pass to the administrator cum testamento annexo, but must go to a trustee to be appointed. Jewett v. Schmidt, 39 Misc. Kep. 502 ; affd., 108 App. Div. 322. When it may be executed. An imperative power of sale for the purpose of paying legacies passes to and must be exercised by the administrator cum testa- mento annexo. Campbell v. Jennings, 22 Misc. Rep. 406, 50 N. Y. Supp. 278. "Authorize " held not to imply discretion which would not permit a sale by an administrator cum testamento annexo. Ayers V. Courvoisier, 101 App. Div. 97. ^ 602 Duty to Continue Unfinished Litigation. The administrator with the will annexed may find proceedings or other litigation which have been instituted by or against his predecessor that need to be completed by him. 409 ExEKCisE OF PowEK OF Sale. 1 603 When he finds such unfinished litigation, he should take the proper measures to be substituted in the place and stead of such predecessor so that the rights of the parties he represents may be protected. He should also make a careful examination and investigation as to all the acts of his predecessor, so that he may be fully informed as to the progress which has been made in the settlement of the estate, and may understand what matters re- quire his immediate attention. If an appeal is pending in which his predecessor has been a party, he may be substituted therein under sections 1297-1299, Code Civ. Pro. ^ 603 Pow«r of Sale. A devise of real property to an executor or other trustee for the purpose of sale or mortgage, where the trustee is not also em- powered to receive the rents and profits, shall not vest any estate in him ; but the trust shall be valid as a power, and the real prop- erty shall descend to the heirs or pass to the devisees of the testa- tor, subject to the «xecution of the power. § 77, Eeal Property Law. The general principle is clearly -established by the authorities that the power of sale need not be express, but may be implied when it is evident from an examination of the entire will that otherwise the testamentary scheme would be defeated. Salisbury V. Slade, 160 E". Y. 278, revg. 22 App. Div. 346, 48 N. Y. Supp. 55. Conversion of real estate into personalty for an invalid purpose fails so far as such conversion was a part of the invalid purpose, and as to such he dies intestate and the same descends to his heirs-at-law. Jones v. Kelly, 170 IST. Y. 401, afFg. 63 App. Div. 614, 72 K Y. Supp. 24. Power of sale not exercised — land retained its original char- acter and descended to heirs. Gourley v. Campbell, 66 IST. Y. 169. For what purpose. A power to an executor to sell real estate " as she shall deem expedient and for the best interests" of certain legatees named is a general power in trust in which the executor has no interest. Such a power is not well executed by a transfer to pay a debt of testator. Russell v. Russell, 36 IST. Y. 581. f 604 ExEECiSE BY On^e Eepeesentative. 410 Power to sell and convey real estate for a specific purpose may preclude the idea that a mortgage may be made for that purpose. Potter V. Hodgman, 81 App. Diy. 233 ; affd., 178 JST. Y. 580. As to what property. Power to sell real estate is good, although the same property is specifically devised. Einnier v. Rogers, 42 N. Y. 531. Where executors are given power of sale for purposes of di- vision and distribution, although the real estate is absolutely de- vised, the estate vests in the devisees subject to the power. Critten- den V. Fairchild, 41 IS!". Y. 289. Held power of sale not repugnant to the residuary devise. Skirir ner v. Quirm, 43 IST. Y. 99. Time limitation. Where j)ower is directed to be exercised within three years the time for its exercise is not limited. Mott v. Acherman, 92 IST Y. 539. ^ 604 The Representatives Who Qualify May Execute Powers. And where any powers to sell, mortgage or lease real estate, or an interest therein, are given to executors as such, or as trustees, or as executors and trustees and any of such persons named as executors shall neglect to qualify, then all sales, mortgages and leases under said powers made by the executors who shall qualify, shall be equally valid as if the other executors or trustees had joined in such sale. From § 2642, Code Civ. Pro. In the ease of Herriot v. Prime (87 Hun, 95, 67 IST. Y. St. Eep. 649, 33 W. Y. Supp. 970; affd., 153 K Y. 5), the power to sell and dispose of the estate was given to two trustees, " In such man- ner and on such terms as they shall jointly consider beneficial and for the interest of my said estate, with full power to convey by deed jointly and not singly, as I might or could do if living." In the case of Hyatt v. Aguero (14 Civ. Pro. 286, 17 N. Y. St. Eep. 746), the authority to sell any part of his real estate was given " In their joint discretion — that is to say, one is not authorized to sell or exchange without the consent and co-operation of the other — and to give valid deeds of the same to purchaser." In these two cases the provisions of the will were construed as clearly expressing the intention of the testator that the power thus given should not in any event be exercised by one only of his trustees. 4:11 Delegation of Powee. 1 605 Where a power of sale is given to executors and three are named, " and to any two of them," and only one qualifies — held, that he had power of sale. Draper v. Montgomery, 108 App. Div. 63, 95 N. Y. Supp. 904. Sale by sole qualifying executor. Where power of sale is given to executors, and only one qualifies, his sale is good. Taylor v. Morris, 1 N. Y. 341. Where sale has been duly made by all, execution by one will convey title. " The assignee of the purchaser at the sale paid the whole of the consideration money to one of the executors and all that was needed to perfect the transaction of sale was that Lunny should unite with his coexecutor in the deed, or, himself, execute a deed. This was not a case of the nonexecution of the power of sale, but of a defective execution ; because the intention to execute the power was effectuated by the actual sale. The deed was but an inci- dent, and the final consummation, of a sale under which the plain- tiff, or her predecessor in the title, was let into possession. The case is one where equity should grant relief, which may be ad- ministered through these provisions of the Code. Brown v. Crabh, 156 ]Sr. Y. 447. The general rule, undoubtedly, is that trustees must unite in a disposal of the trust estate, and a deed of land from less than all the living trustees is invalid. Brennan v. 'Will- son, 71 IST. Y. 502. But this case is not, by reason of the circum- stances, bound by the rigid requirements of that general rule. The requirement of our statutes, that, where a power is vested in several persons, all must unite in its execution, was complied with, in effect, by the actual sale made by the executors. It would be a most harsh and inequitable application of the statute, if, after executing the power by this sale, the subsequent death of one of the executors, who had united in the selling, but who had not joined in a conveyance, should, from the impossibility of pro- curing, or compelling, his deed, result in avoiding the plaintiff's title." Brown v. Doherty, 185 N. Y. 389, affg. 93 App. Div. 190. C[ 605 Representative May Delegate Power to Execute a Contract of Sale, but Not to Make the Contract. " The will of the deceased devised the land to the defendants as executors in trust with power to sell at the expiration of the trust and distribute the proceeds among the testator's children. The f 606 liiPEEATivE Power of Sale. 412 defendants both, and together, entered into an oral agreement to sell the land, and the contract was reduced to writing at their direction ; but when it afterward came to the signing, the defend- ant Charles P. Smith did not sign, and was not present at the signing, but he authorized and directed the other defendant to act for him in the signing, and to sign. The contract by its terms purports to be by both, but it is only signed by the one, and by his name only. "The one being authorized by the other, his signing binds both, the contract not being under seal. It is the same as the case of an agent signing his own name instead of that of his principal to an executory contract ; the principal is bound, and oral evidence to prove that he authorized the agent to sign is not excluded by the Statute of Frauds. Briggs v. Partridge, 64 N. Y. 35Y. "The rule that delegated authority involving the exercise of judgment and discretion cannot be redelegated is not in the way. The trust authority to agi-ee to sell was not delegated ; no exercise of judgment and discreiton was delegated ; only the formal signing was delegated after the terms of the contract had been agreed upon." Roe v. Smith, 42 Misc. Eep. 89, 85 IST. Y. Supp. 527. Where an executor empowered by the will to sell real estate, makes a contract therefor the contract may be enforced in equity. Bostwick v. Becich, 103 IST. Y. 414. ^ 606 " Imperative Power of Sale. Where a power or authority to sell is given without limitation, and is not in terms made discretionary and its exercise is not made necessary by the scope of the will and its declared purposes, the authority is to be deemed imperative, and a direction to sell will be implied, provided the design and purpose of the testator is unequivocal, and the implication so strong as to leave no sub- stantial doubt, and his intention cannot otherwise be carried out. Matter of Gantert, 136 N. Y. 106 ; Scholle v. Scholle, 113 id. 261, affg. 56 N. Y. Super Ct. 399, 4 N. Y. Supp. 809 ; which affd. 55 N". Y. Super. Ct. 474; Chamherlin v. Taylor, 106 N. Y. 194; Hobson V. Hale, 95 id. 598. A power of sale will not be implied from the fact that real estate is devised to certain persons to be " divided " between them equally. Murdoch v. Kelly, 62 App. Div. 562, 71 N. Y. Supp. 152. 413 Limited and Geneeal Powee of Sale. If 607 No power of sale is expressly conferred upon the executors, but they are directed to invest the share being disposed of, and if compliance with this direction involves the sale of real estate the possession of such power will be implied. Van Winkle y. Fowler, 52 Hun, 355 ; Borland v. Borland, 2 Barb. 63 ; Morton V. Morton, 8 id. 18. Where a discretionary power of sale is given in the will, and an imperative power given in a codicil, the latter will control. Matter of Caldwell, 188 IST. Y. 115, modifying 114 App. Div. 906. How enforced. An imperative power of sale to pay debts should be enforced by a creditor, when the personal estate has been exhausted by an action in Supreme Court. Holly v. Gibbons, 176 N. Y. 520, revg. 67 App. Div. 628; Matter of Gantert, 136 ^. Y. 106, a%. 63 Hun, 280, 43 N". Y. St. Rep. 802, 17 N. Y. Supp. 910. ^ 007 When a Power of Sale is Limited and When General. The question relating to the exercise of a power of sale in a will has so frequently been before the courts that it is unneces- sary to refer specifically to the provisions of the Revised Statutes as now incorporated in the third subdivision of section 76 of the Real Property Law (Laws of 1896, chap. 547) concerning the subject, or to the numerous cases which have arisen under these provisions. The two views as to when a power of sale is limited and when general are discussed in Sweeney v. Warren (127 IST. Y. 426) and M'Cready v. Metropolitan Life Iris. Co. (83 Hun, 526; affd., 148 K Y. 761). In the former, the provision of the will authorized the executors to sell " for the purpose of discharging all " debts, and when the executors sold the land, both they and the purchaser knew that the testator's personal property was more than sufficient to pay such debt. It was accordingly held, referring to the will, that " by this provision the lots mentioned are not converted into money out and out, but the executors are empowered to convert them for a specific purpose, to wit, the payment of the testator's debts. When a tes- tator authorizes his executors to sell and convert into money all or a part of his realty for a specific purpose, which fails or is accom- plished without a conversion, the power is extinguished and the land cannot be sold by virtue of it or treated as money, but it descends to the heir unless it is devised." On the other hand, in ^ 608 DiSCEETIONAKY PoWEK OF SaLE. 414 the M'Cready case (supra), we have an instance of a general power of sale. There the power was given in the second clause of the will, and it was said : " If we examine critically this second clause of the will, we ascertain that the power of sale is associated with the widest latitude of management and control of the whole estate. We find that it is a power created at the beginning of the instrument before any dispository provision is mentioned ; that it stands separate from any other provisions of the will, and that it is not by necessary construction made inseparable from the trust which is created in the residuum of the estate." Walter v. Tom- Uns, 71 App. Div. 21, 75 N. Y. Supp. 557. ^ 608 Equitable Conversion Under Discretionary Power of Sale. The law has been settled by a long line of authorities that where the power of sale given to the executors is discretionary and not mandatory, conversion will not be decreed unless there is an abso- lute necessity to sell in order to carry out the scheme of the will or unless the intention that there should be a sale is to be found in the whole scope and tenor of the will. It was said in Matter of Tatum (169 N. Y. 518), which was a case where the power given to sell the real estate was discretionary only, that " unless the pur- pose of the testator will fail without a conversion, equity will not presume it. There should be an implication of a direction to con- vert, so unequivocal and so strong as to leave no substantial doubt in the mind. * * * Indeed, conversion, to be decreed, must be so nece'ssary, as that, without it, the provisions of the will would be rendered unreasonable and incapable of a just and an effective operation." Matter of Coolidge, 85 App. Div. 295; affd., 177 K Y. 541. The gift of the whole residuary estate to the executors, accompanied by a power of sale, evinces a purpose of conversion. In Morse v. Morse (85 ~S. Y. 53), Judge Andrews says: " It is clear that the power of sale in the will in question was conferred for the purpose of conversion, and with a view to the distribution of the proceeds of the sale of the land among the tes- tator's children. This is not expressly declared, but the prior gift of the whole residuary estate to them, followed by the power of sale to the executors, permits of no other inference." 415 Conversion Depends upon Intention. If 609 The case of Delafield v. Barlow (107 N. Y. 535) is one of similar aspect, and there the court denied the right to parti- tion upon the ground that there was an equitable conversion. Salisbury v. Slade (160 ~S. Y. 278) is also in the same line. So also are the cases of Power v. Cassidy, 79 JST. Y. 602 ; Matter of Russell, 59 App. Div. 242; Horsfield v. Black, 40 id. 264, 57 ]Sr. Y. Supp. 1006 ; Matter of Faile, 51 Misc. Kep. 168. ^ 609 Conversion Depends upon Intention. It is the rule of law in this State that such intention must ap- pear plainly, distinctly, and unequivocally. Scholle v. Scholle, 113. JSr. Y. 270; Clift v. Moses, 116 id. 144. An intention to con- vert may be manifested in various ways : First, by a positive direc- tion to the executors or trustees to make it; second, the intention may be ascertained from the necessity of a sale, in order to carry out the general scheme of a testator; and third, the property may be deemed to be equitably converted, when the purpose of the tes- tator would fail without such conversion. In Phelps' Executor v. Pond (23 ISr. Y. 69), it is said that where a testator authorizes his executors to sell real estate and it is apparent from the general provisions of the will that he intended the estate to be sold, the doctrine of equitable conversion applies, even if the power of sale i3 not mandatory. In that case it appeared that the will was in- capable of execution, unless it were held that the property had been converted. In Asche v. Asche (113 N. Y. 235), it is said that the necessity of a conversion to carry out the purpose of a testator will be deemed to be a positive direction to convert ; but in Chamberlain V. Taylor (105 'N. Y. 194), it is remarked that an equitable con- version never will be presumed, unless it is required to carry out a lawful purpose expressed in the will of the testator. So also in Matter of Tatum (169 IST. Y. 518), it is said that unless the purpose of the testator will fail without a conversion, equity will not presume it. If the property is to be deemed as equitably con- verted, it would become the duty of the executors or trustees to sell. In White v. Howard (46 IST. Y. 162), it is said that in order to constitute the conversion of real estate into personal it must be the duty of, or obligatory upon, the trustees to sell it in any event. Phcewix V. Trustees of C. Col, 87 App. Div. 444, 84 'N. Y. Supp. 897. I 609 What Operates as CoNVEEsiojf. 416 A will read: "Lastly: I hereby make, nominate, constitute and appoint my said husband Isaac N. Odell sole executor, of this my last will and testament, and hereby authorize and empower him in his discretion, to sell either at public auction or private sale, any and all of my real estate, and good deeds of conveyance give to the purchaser or purchasers ; and I further direct, that he shall not be required to give security; hereby revoking all other or former wills by me made." The husband was without means of support; and it was held that the wife intended to give the husband power to convert the real estate into property yielding a greater return and, therefore, authorized him to convey the real estate by virtue of his office. Odell V. Claussen, 104 IS^. Y. Supp. 1104. The use of such words as " pay over," " sums," " fund," " all sales " and the like imply a power of sale and operate as a con- version. Burnham v. White, 117 App. Div. 515. Opeiates as a conversion. A power of sale when exercised converts real estate into per- sonal property, and as such it will be disposed of in accordance with the will or the intestate laws. Moncrief v. Boss, 50 IST. Y. 431 ; Wetmore v. Parker, 52 id. 450 ; Hatch v. Bassett, 52 id. 359. Absolute power of sale without discretion, not to be exercised until lapse of three years " at auction," may be exercised at any time at private sale and is an equitable conversion and the exec- utor is accountable for rents. Ticket v. Quinn, 1 Dem. 425. Held equitable conversion even though power of sale was not imperative. Dodge v. Pond, 23 'E. Y. 69. A direction to " divide " the real and personal estate held to be a valid power of sale and that it would be assumed that such sale had been made and that the proceeds were in hand as personal property. Gersen v. Binteln, 2 Dem. 243. Conversion, and upon death of one party interested before actual sale his interest passed to his personal representative as personalty. Fisher v. Banta, 66 IST. Y. 468. From what time conversion is intended. Where power of sale is given to pay debts and legacies, but the rents and profits are given until a sale, no conversion takes place until a sale is made. Ogshury v. Ogshury, 115 ^N". Y. 290, affg. 16 N. Y. St. Kep. 55 ; explained in 121 N. Y. 366. 417 Eights and Liabilities of Eepeesentatives. | 610 £quitable conversion of personalty into realty. A direction in a will to invest $1,500 in real estate for the use of E. during life and then to the heirs of her body converts per- sonalty into realty Webb v. Sweet, 187 N. Y. 172, affg. 109 App. Div. 911. ^ 610 Some Special Statutes as to Rights and Liabilities of Executors and Administrators. XiaMlity of executors, etc., on promises. E^o executor or administrator shall be chargeable upon any special promise to answer damages, or to pay the debts of the tes- tator or intestate, out of its own estate, unless the agreement for that purpose, or some memorandum or note thereof, be in writing and signed by such executor or administrator or by some othen person by him thereunto especially authorized. K. S., pt. 2, ch. VI, tit. V, § 1. Actions by and against executors. Actions of account, and all other actions upon contract, may be maintained by and against executors in all cases in which the same might have been maintained by or against their respective testators. E. S., pt. 2, ch. VI, tit. V, § 2. Administrators' rights and liabilities. Administrators shall have actions to demand and recover the debts due to their intestate and the personal property and effects of their intestate, and shall answer and be accountable to others to whom the intestate was holden or bound in the same manner as ex- ecutors. E. S., pt. 2, ch. VI, tit. V, § 3. Executors, etc., may maintain actions for trespass. Executors and administrators shall have actions of trespass against any person who shall have wasted, destroyed, taken, or carried away, or converted to his own use, the goods of their tes- tator or intestate in his lifetime. They may also maintain actions for trespass committed on the real estate of the deceased in his life- time. E. S., pt. 2, ch. VI, tit. V, § 4. Trespass against executors, etc. Any person, or his personal representatives, shall have actions of trespass against the executor or administrator of any testator or intestate, who in his lifetime shall have wasted, destroyed, taken, 27 1 611 Rights and Liabilities op Eepeesentatives. 418 or carried away, or converted to his own use the goods or chattels of any such person, or committed any trespass on the real estate of any such person. K. S., pt. 2, ch. VI, tit. V, § 5. Liability of executors, etc., for waste or conversion. The executors and administrators of every person, who, as exec- utor, either of right or in his own wrong, as administrator, shall have wasted or converted to his ovm use, any goods, chattels, or estate, of any deceased person, shall be chargeable in the same man- ner, as their testator or intestate would have been, if living. K. S., pt. 2, ch. VI, tit. V, § 6. ^ 611 Liability for Fraudulent Sale of Real Estate. Any executor or administrator or other person, appointed as herein directed, who shall fraudulently sell any real estate of his testator or intestate, contrary to the foregoing provisions, shall forfeit double the value of ithe land sold, to be recovered by the person entitled to an estate of an inheritance therein. K. S., pt. 2, ch. VI, tit. IV, § 58, 419 CoNCSENiNG Actions. [| 612 CHAPTER XXVII. Rules Governing Actions by and Against Executors, Administrators, etc. H 612. Actions must be brought in representative capacity. 612. Party to be benefited need not be joined. 613. Action for funeral expenses. 614. Joining causes of action. 615. Two or more representatives considered as one person, 616. As to counterclaims. 617. EfiFeot of death of party or representative. 619. Effect on judgment of foreclosure. 620. Pleadings. 621. Effect of judgment against representation. 622. Action for reimbursement for cost and expenses. 623. Action to compel conveyance of real property against infant or incompetent. 624. Security for costs. 625. Security for costs— Action for negligently causing death. GENERAL RULES AS TO LIMITATIONS AND DISABILITIES. 626. Death within and without the State. 627. Letters deemed issued within six years. 628. Effect of disability. 629. Cause of action on current account. 630. When ten-year statute applies. 631. Action by legatee or distributee against representative. ) 632. Action barred by judgment 'against heir. 633. Action for legacy charged on real estate. 634. Effect of judgment. 635. Action to enforce power of sale. 636. Action to enforce agreement to will property. 637. Action by after-bom child to recover share of estate. 639. Action by witness of will to recover share of estate. ^ 612 Action, etc., by and Against Executor, etc., to be Brought in Representative Capacity. An action or special proceeding, hereafter commenced by an executor or administrator, upon a cause of action, belonging to him in his representative capacity, or an action or special proceeding, hereafter commenced against him, except where it is brought to charge him personally, must be brought by or against him in his representative capacity. A judgment, in an action hereafter commenced, recovered against an executor or administrator, with- out describing him in his representative capacity, cannot be enforced against the property of the decedent, except by the special direction of the court, contained therein. § 1814, Code Civ. Pro. T[ 613 Action poe Funeral Expenses. 420 This section has not changed the settled rule that contracts of executors and administrators for services to be rendered are their personal contracts and do not bind the estate. Parker v. Day, 155 JSr. Y. 383, revg. 12 Misc. Rep. 510, 12 E". Y. St. Eep. 378 ; which jevd. 9 Misc. Eep. 298. Administrators deposited estate money in a bank and took a cer- tificate — held, that an action to recover the amount thereof brought in their representative capacity would be upheld. Bing- ham V. Marine Nat. Bank, 112 IsT. Y. 661, affg. 41 Hun, 377. " Cause of action belonging to him in his representative capac- ity " means a cause of action which accrued during the lifetime of deceased or is founded upon a contract made by him. Buchland v. Uallup, 105 N. Y. 453, affg. 40 Hun, 61. An action upon a claim due the astute should be brought in the name of the executor as such, and not in his individual capacity. Hone V. De Peyster, 106 N. Y. 645, revg. 44 Hun, 487. An executor who deposited bonds of the estate with a bank may sue in his own name to recover possession of them. Van Buren v. First Nat'l Bank, 53 App. Div. 80, 65 JST. Y. Supp. 703 ; affd., 169 JSr. Y. 610. An administrator may sue on a contract regarding the real estate -of the deceased which he himself made. Loew v. Christ, 13 App. Div. 624, 42 N. Y. Supp. 963, 76 If. Y. St. Eep. 963. Party in interest to sue, trustee, etc., may sue alone. Every action must be prosecuted in the name of the real party in in- terest, except that an executor or administrator, a trustee of an express "trust, or a person expressly authorized by statute, may sue, without joining ■with him the person for whose benefit the action is prosecuted. A person, with whom or in whose name, a contract is made for the benefit of another, is a trustee of an express trust, within the meaning of this section. § 449, Code Civ. Pro. I This section did not change the existing rule in respect to party in interest. Thompson v. Whitmarsh, 100 IST. Y. 35. ^ 613 Action for Funeral Expenses. Where the representative contracted the funeral expenses he may be sued individually, but where another person contracted them he may be sued in his representative capacity. Patterson v. Buchanan, 40 App. Div. 493, 58 N. Y. Supp. 179. Funeral expenses are now considered a charge upon the estate and may be collected of the executor or administrator in his repre- 421 Joining Causes op Action. 1614 sentative character. Patterson v. Patterson, 59 N. Y. 574; Dal- rymple v. Amoldj 21 Hun, 110 ; Laird v. Arnold, 25 id. 4, 42 id. 136, 3 N. Y. St. Eep. 376 ; Koons v. WilUn, 2 App. Div. 13, 37 ]Sr. Y. Supp. 640, 73 N. Y. St. E«p. 234; Shaffer v. Bacon, 35 App. Div. 248, 54 N. Y. Supp. 796 ; affd., 161 N. Y. 635. Action may be maintained to charge funeral expenses of wife upon real estate of husband where his will so charges. HallocJc v. Halloch, 79 App. Div. 508, 80 N. Y. Supp. 61 ; Hbgan v. Kavh anaugh, 138 JST. Y. 417. ^ 614 When Personal and Representative Causes of Action May be Joined. An action may be brought against an executor or administrator, per- sonally, and also in his representative capacity, in either of the following cases : 1. Where the complaint sets forth a cause of action against him in both capacities, or states facts, which render it uncertain, in which capacity the cause of action exists against him. 2. Where the complaint sets forth two or more causes of action against the defendant, in different capacities, all of which grow out of the same transaction, or transactions connected with the same subject of action; do not require different places or modes of trial; and are not inconsistent with each other. In a case specified in this section, a judgment for the plaintiff for a sum of money must distinctly show, whether it is awarded against the d£K fendant personally, or in his representative capacity. § 1815, Code Civ. Pro. Action against an executor who was also sole surviving partner maintained. Simpson v. Simpson, 4:4: App. Div. 492, 60 IST. Y. Supp. 879. Action against widow who was sole administratrix and sole dev- isee maintained. Decrano v. Moore, 30 Misc. Eep. 303, 63 IST. Y. Supp. 585; modified and affd., 50 App. Div. 361, 64 IST. Y. Supp. 3. Personal and representative cause of action; separate dockets and executions. In a case specified in the last section, or where costs to be collected out of the individual property of an executor or administrator, are awarded in an action by or against him in his representative capacity, so much of the judgment, as awards a sum of money against him personally, may be separately docketed, and a separate execution may be issued thereupon, as if the judgment contained no award against him in his representative capacity. § 1816, Code Civ. Pro. T[ 615 ExECUTOE XoT Summoned oe Supeeseded. 422 ^ 615 Regulations, When Some of the Executors, etc.. Are Not Summoned. In an action or special proceeding against two or more executors or ad- ministrators, representing the same decedent^ all are considered as one person; and those who are first served with process, or first appear, must answer the plaintiff. Separate answers, by different executors or. adminis- trators, cannot be required or allowed, except by direction of the court. Judgment in favor of the plaintiff may be entered, and, in a proper case, execution may be issued against all the defendants, as if all had appeared. But this section does not affect the plaintiff's right to bring into court all the executors or administrators who are parties. § 1817, Code Civ. Pro. This section does not change the rule that in an action for or against executors all the qualified and acting executors must be made parties. Simpson v. Simpson, 44 App. Div. 492, 60 N. Y. Supp. 879. The appearance in an action by one executor binds both. Mont- gomery T. Boyd, 78 App. Div. 64, 79 IST. Y. Supp. 879. Executors who have not qualified, not necessary parties. One of two or more executors, to whom letters testamentary have not teen issued, is not a necessary party to an action or special proceeding, in favor of or against the executors, in their representative capacity. § 1818, Code Civ. Pro. Where only one foreign representative takes letters here, the other is not a necessary party to an action. Lawrence v. Towns- end, 88 IST. Y. 24. Action against executor, etc., who has been superseded. If an executor or administrator is defendant in an action or special pro- ceeding, pending when his powers cease, the plaintiff may, in a proper ease, proceed therein against him, to charge him personally; but a judgment or other determination, thereafter rendered or made against him, is not of any force as against the estate of the decedent, or a person succeeding to the administration thereof. § 1830, Code ^Civ. Pro. ^ 616 As to Counterclaims. l^ot applicable to Surrogate's Courts. See § 3347, subd. 4. Counterclaim, when defendant is sued in a representative capacity. In an action against an executor or an administrator, or other person sued in a representative capacity, the defendant may set forth, as a counter- claim, a demand belonging to the decedent, or other person whom he repre- sents, where the person so represented would have been entitled to set fort'u the same, in an action against him. § 505, Code Civ. Pro. 423 COUISTTEKGLAIM IN AcTIONS. f 617. An administrator sought to foreclose a mortgage — held that a claim against the deceased could be set up as a counterclaim and adjusted. Thornton v. Moore, 26 Misc. Kep. 120, 56 IST. Y. Supp. 1100 ; afPd., 41 App. Div. 617, 58 N. Y. Supp. 1150. An executor who has taken assignments of judgments cannot set them up as counterclaims in an action brought against him as exec- utor. Weeks v. O'Brien, 25 App. Div. 206, 49 JST. Y. Supp. 344, revg. 20 Misc. Eep. 48, 45 N. Y. Supp. 740. Must have been due before the death of deceased to be pleaded as a counterclaim. Jordan v. Nat. Shoe & L. Banh, 74 IST. Y. 467 ; Peyman v. Bowery Nat. Banh, 14 App. Div. 432, 43 N. Y. Supp. 826. Coimteiclaim when plaintifi is an executor or administrator. In an action brought by an executor or administrator, nn his representa- tive capacity, a demand against the decedent, belonging at the time of his death, to the defendant, may be set forth by the defendant as a counter- claim, as if the action had been brought by the decedent in his lifetime: and, if a balance is found to be due to the defendant, judgment must be rendered therefor against the plaintiff, in his representative capacity. Execution can be issued upon such a judgment, only in a case where it could be issued upon a judgment in an action against the executor or ad- ministrator. § 506, Code Civ. Pro. The executor sold assets on credit and a debtor to the estate sought to set off a claim against the estate — held that the executor personally was the real party in interest and the debt could not be offset. Thompson v. Whiimarsh, 100 E". Y. b5. Must have been due before the death of deceased to be pleaded as a counterclaim. Jordan v. Nat. Shoe & L. B., 74 N. Y. 467 ; Peyman v. Bowery Nat. Bank, 14 App. Div. 432, 43 N. Y. Supp. 826. Where a note was procured to be discounted by fraud, held that it could be set up as a counterclaim although it matured after de- cedent's death. Peyman v. Bowery Nat. Bank, 14 App. Div. 432, 43 JSr. Y. Supp. 526. ^ 617 Regulations Concerning Actions and Special Proceed- ings When Rights or Liabilities Are Transferred by Death. Not applicable to Surrogate's Court. See § 3347, subd. 6. Action; when not to abate. An action does not abate by any event, if the cause of action survives or continues. A special proceeding does not abate by any event, if the T[ 618 Effect of Death of Paktt. 424 right to the relief sought in such special proceeding survives or continues, but this provision as to a special proceeding applies only to cases where a party dies after this act takes effect. § 755, Code Civ. Pro. This section does not apply to Surrogate's Court, and, therefore, a proceeding in that court abates on the death of a sole party plaintiff or defendant. Matter of Schlesinger, 36 App. Div. 77, 56 ]Sr. Y. Supp. 514, revg. 24 Misc. Eep. 456, 53 K Y. Supp. 710. Death, etc., of public officer or trustee. Where an action or special proceeding is authorized or directed by law", to be brought by or in the name of a public officer, or by a receiver, or other trustee, appointed by virtue of a statute, his death or removal does not abate the action or special proceeding; but the same may be continued by his successor, who must, upon his application, or that of a party interested, be substituted for that purpose, by the order of the court, a copy of which must be annexed to the judgment-roll. § 766, Code Civ. Pro. An executor or administrator appointed to sell real estate to pay debts of the deceased is a trustee referred to in this section. See § 1828, Code Civ. Pro. ^ 618 Proceedings When Sole Party Dies and Action Sur- vives. In case of the death of a sole plaintiff or a sole defendant, if the cause of action survives or continues, the court must, upon a, motion, allow or compel the action to be continued, by or against his representative or successor in interest. In case of the death of a sole party to a special pro- ceeding after this act takes effect, if the right to the relief sought in such proceedings survives or continues, the court must upon a motion, allow or compel such proceeding to be continued by or against his representative, or successor in interest. This provision as to a, special proceeding does not apply where provision for such continuance has been otherwise made by law. § 757, Code Civ. Pro. Proceedings upon transfer of interest, or devolution of liability. In case of a transfer of interest, or devolution of liability, the action may be continued by or against the original party; unless the court directs the person, to whom the interest is transferred, or upon whom the liability is devolved, to be substituted in the action, or joined with the original party, as the case requires. | 756, Code Civ. Pro. A trust of personal estate does not terminate instantly on the death of the beneficiary, but the trustee continues for the purpose of winding up the affairs, and a suit may be continued without substitution of new parties. Farmers' Loan & T. Co. v. Pendleton, 115 App. Div. 506. See also 179 IST. Y. 486. 425 Want of Assets No Defense. T[ 620 Proceedings; when one of several parties dies. In case of the death of one of two or more plaintiffs, or one of two or more defendants, if not only of the cause of action, or part of some of others, the action may. proceed in favor of, or against the survivors. But the estate of a person or party jointly liable upon contract with others shall not be discharged by his death, and the court may make an order to bring in the proper representative of the decedent, when it is necessary so to do for the proper disposition of the matter, and, where the liability is several as well as joint, may order a severance of the action so that it may proceed separately against the representative of the decedent, and against the surviving defendant or defendants. § 758, Code Civ. Pro. ^ 619 Proceedings When Part of Cause of Action Survives, In case of the death of one of two or more plaintiffs, or one of two or more defendants, if part only of the cause of action, or part of some of two or more distinct causes of action, survives to or against the others, the action may proceed, without bringing in the successor to the rights or lia- bilities of the deceased party; and the judgment shall not affect him, or his interest in the subject of the action. But where it appears proper so to do, the court may require or compel the successor, or a person who claims to he the successor, to be brought in as a party, upon his own application or upon the application of a party to the action. § 759, Code Civ. Pro. Judgment of foreclosure entered before death of mortgagor. Where judgment of foreclosure and sale has been entered and thereafter the mortgagor dies, the court may order enforcement of it without reviving it against his heirs or representatives. Wing v. De La Bionda, 125 N. Y. 678 ; Hays v. Thomas, 56 id. 521. ^ 620 Want of Assets Not to be Pleaded by Executor, etc. In an action against an executor or administrator, in his representative capacity, wherein the complaint demands judgment for a, sum of money, the existence, sufficiency, or want of assets, shall not be pleaded by either party; and the plaintiff's right of recovery is not affected thereby, except with respect to the costs to be awarded, as prescribed by law. A judgment in Buch an action is not evidence of assets in the defendant's hands. § 1824, Code Civ. Pro. Evidence of lack of assets not admissible. Beardslee v. Heming- way, 65 Hun, 400, 47 N. Y. St. Kep. 922. False pleading by executor, etc. An executor or administrator cannot be made personally liable to the ad- verse party, for a debt or for damages, by reason of his having made a false allegation in pleading. § 1831, Code Civ. Pro. f 621 AcTiow FOE Reimbursement. 426 ^ 621 Decedent's Real Property Not Bound by Judgment Against Executor, etc. Real property, which belonged to a decedent, is not bound, or in any way affected, by a judgment against his executor or administrator, , and is not liable to be sold by virtue of an execution issued upon such a judgment, unless the judgment is expressly made, by its terms, a lien upon specific real property therein described, or expressly directs the sale thereof. § 1823, Code Civ. Pro. Judgment 'against executors not a lien upon land. Piatt v. Piatt, 105 ISr. Y. 488 ; Lichtenherg v. Herdtf elder, 103 id. 302, affg. 33 Hun, 57. ^ 622 Action by Executor, Administrator, or Other Trustee for Reimbursement for Costs and Expenses. Action by surety or trustee to recover costs, etc. A surety, including a drawer or endorser, may recover, in an action against his principal; and an executor, administrator or other trustee, may, where the trust estate is insufficient to reimburse him; recover in an action against the beneficiary whom he represents; his reasonable costs and other expenses, incurred necessarily and in good faith, in the prosecution or defence, by the express or implied consent of the principal or beneficiary, of an action or special proceeding, relating to the demand secured, or to the trust estate, as the case requires. This section does not affect any special agreement relating to those costs and expenses. § 1916, Code Civ. Pro. This section does not relate in any manner to the question ■whether the costs of an action against an executor or administrator should be charged against him personally. Supplee v. Sayre, 51 Hun, 30, 20 IST. Y. St. Eep. 554, 3 N. Y. Supp. 627. An equitable action can be maintained against the estate on be- half of a creditor in case of the fraud or insolvency of the exec- utor, or when he is authorized to make an expenditure for the protection of the trust estate, and he has no trust fund for the purpose. In the latter case, if unwilling to make himself person- ally liable, he may charge the trust estate in favor of any person who will make the expenditure. Charges against the trust estate in such cases can be enforced only in an equitable action brought for the purpose. To that action the beneficiaries and cestuis que trustent are necessary parties. The trust estate cannot be depleted or swept away except in an action which they may defend. O'Brien V. Jackson, 167 IST. Y. 31, revg. 42 App. Div. 171, 58 IST. Y. Supp. 1044. 427 Secueity foe Costs. 1[ 625 ^ 623 May Maintain Action to Compel Conveyance of Real Property Against an Infant or Incompetent, Constat Code Civ. Pro., §§ 2345-2347. Who may maintain action. An action may be maintained, in a case specified in the last section, by a person entitled to the conveyance; and also in a. case specified in subdivision second of that section, by the executor or administrator of the person who made the contract, or of a person who died seized or possessed of the real property, or interest in real property, or by an heir or devisee of either of those persons, to whom the real property has descended, or was devised. The action may be maintained by the committee of the lunatic or other in- competent person; but in that case the court must appoint a special guardian for the incompetent person, as required by law, where an infant is defendant, and the proceedings are the same as in a like action against an infant. § 2346, Code Civ. Pro. ^ 624 Security for Costs in Actions by and Against Execu- tors, etc. In an action brought by or against an executor or administrator, in his representative capacity, or the trustee of an express trust, or a person expressly authorized by statute to sue, or to be sued; or by an official assignee, the assignee of a receiver, or the com- mittee of a person judicially declared to be incompetent to manage his affairs ; the court may, in its discretion, require the plaintiff to give security for costs. § 3271, Code Civ. Pro. By section 3347 of the Code of Civil Procedure, subdivisions 4, 13, the foregoing section does not apply to proceedings in Sur- rogate Court, and, therefore, an executor or administrator who in- stitutes a proceeding in Surrogate's Court cannot be required to give security for costs. Loesche v. Griffin, 3 Dem. 358. Where, an action v^as brought by an administrator to recover pos- session of bank-books, the Surrogate refused to order plaintiffs to iile security for costs and his order was affirmed. See § 3271, Code Civ. Pro. Kelly v. Madigan, 88 App. Div. 138, 84 IST. Y. Supp. 331. Cf 625 Security for Costs in Actions for Negligently Causing Death. Security from an administratrix suing to recover damages for death of husband will not be ordered unless bad faith is shown. Davidson v. Bose, 57 App. Div. 212, 68 E". Y. Supp. ZIQ; McNeil V. Merriam, 57 App. Div. 164, 68 N". Y. Supp. 165. 1 626 Limitations and Disabilities. 428 Where the administrator and all the next of kin are nonresidents and there are no assets in the State, security for costs will be required. Meaney v. Post & McCord, 117 App. Div. 563, ^ 626 General Rules as to Limitations and Disabilities Affecting Actions and Special Proceedings by and Against Representatives. When person liable, etc., dies without the State. If a person, against whom a cause of action exists, dies without the State, the time which elapses between his death, and the expiration of eighteen months after the issuing, within the State of letters testamentary or letters of administration, is not a part of the time limited for the commencement of an action therefor, against his executor or administrator. § 391, Code Civ. Pro. When a person entitled, etc., dies before limitation expires. If a person, entitled to maintain an action, dies before the expiration of the time limited for the commencement thereof, and the cause of action survive^, an action may be commenced by his representative, after the expiration of that time, and within one year after his death. § 403, Code Civ. Pro. Exception when a person liable, etc., dies within the State. The term of eighteen months after the death, within the State, of a person against whom a cause of action exists, or of a person who shall have died within sixty days after an attempt shall have been made to commence an action against him pursuant to the provisions of section three hundred and ninety-nine of this act, is not a part of the time limited for the commence- ment of an action against his executor or administrator. If letters testa- mentary or letters of administration upon his estate are not issued within the State, at least six months before the expiration of the time to bring the action, as extended by the foregoing provision of this section, the term of one year after such letters are issued, is not a part of the time limited for the commencement of such an action. The time during which an action is pending in a court of record between a person or persons and an executor or adminis- trator, wherein the person or persons claim to recover from the executor or administrator any money or other property claimed by said executor or ad- ministrator to belong to the estate of the decedent, or is embraced in the inventory of the assets of said decedent's estate, is not a part of the time limited for the commencement of an action against an executor or adminis- trator, for a claim against the estate of the decedent until the final deter- mination of the action brought to recover said or other property claimed by said executor or administrator to belong to said decedent's estate: 1. Where the claim against the estate of the decedent is liquidated by the recovery of a judgment thereon against an executor or administrator in an action in a court of record or under section twenty-seven hundred and eighteen of this Code after trial on the merits. 2. Where a legatee brings an action, or institutes a proceeding, against an executor or administrator with the will annexed, to enforce the payment of a legacy. § 403, Code Civ. Pro. 429 Limitation on Ctibebnt Accoitnt. | 629 ^ 627 Letters Deemed Issued Within Six Years — Cause of Action Accruing Between the Death of a Testator or Intestate, and the GreUit of Letters. For the purpose of computing the time, within which an action must be commenced in a court of the State, by an executor or administrator, to recover personal property, taken after the death of a testator or intestate, a,nd before the issuing of letters testamentary or letters of administration; or to recover damages for taking, detaining or injuring personal property within the same period; the letters are deemed to have been issued within six years after the death of the testator or intestate. But where an action is barred by this section, any of the next of kin, legatees, or creditors, who, at the time of the transaction upon which it might have been founded, was within the age of twenty-one years, or insane, or imprisoned on a criminal charge, may, within five years after the cessation of such a disability, maintain an action to recover damages by reason thereof; in which he may recover such sum, or the value of such property, as he would have received upon the final distribution of the estate, if an action had been seasonably commenced by the executor or administrator. § 393, Code Civ. Pro. ^ 628 Exceptions as to Persons Under DisabiUties. If a person, entitled to maintain an action specified in this title, except for a penalty or forfeiture, or against a sheriflF or other officer for an escape, is, at the time when the cause of action accrues, either: 1. Within the age of twenty-one years; or, 2. Insane; or, 3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offence, for a term less than for life; The time of such a disability is not a part of the time, limited in this title for commencing the action; except that the time so limited cannot be extended more than five years by any such disability, except infancy; or, in any case more than one year after the disability ceases. § 396, Code Civ. Pro. Where a petition for an accounting is presented on behalf of an infant the Statute of Limitations is not a good defense. Matter of Pond, 40 Misc. Kep. 66, 81 IST. Y. Supp. 249. Disability must exist when right accrues. A person cannot avail himself of a disability unless it existed when his right of action or of entry accrued. § 408, Code Civ. Pro. If several disabilities, no limitation until all removed. Where two or more disabilities co-exist, when the right of action or of entry accrues, the limitation does not attach, until all are removed. § 409, Code Civ. Pro. CI 629 When Cause of Action Accrues on a Current Account In an action brought to recover a balance due upon a mutual, open, and current account, where there have been reciprocal demands between the ^ 630 Legacy oe Disteibutive Shake. 430 parties, the cause of action is deemed to have accrued from the time of the last item, proved in the account on either aide. § 386, Code Civ. Pro. Where there was a running account for board, a payment keeps alive all items for six years prior to the payment, and it is error to limit the recovery to six years prior to the debtor's death. Gil- bert V. Comstoch, 93 IST. Y. 484. ^ 630 Actions Not Before Provided for. An action, the limitation of which is not specially prescribed in this or the last title, must be commenced within ten years after the cause of action accrues. % 388, Code Civ. Pro. Wherre an executor accounted ar.d some estate was left in his hands, and no proceeding was instituted for a further accounting for more than ten years — lield, that the ten years' statute was a bar. Matter of Smith, 66 App. Div. 340, 72 N. Y. Supp. 1062. ^ 631 Action by Legatee or Distributee Against Representa- tive to Enforce Payment of Legacy or Distributive Share May be Maintained After One Year, If, after the expiration of one year from the granting of letters testamentary, or letters of administration, an executor or administrator refuses, upon dc^mand, to pay a legacy, or distributive share, the person entitled thereto may maintain such an action against him as the case requires. But for the purpose of computing the time within which such an action must be com- menced, the cause of action is deemed to accrue when the executor's or admin- istrator's account is judicially settled, and not before. § 1819, Code Civ. Pro. ' This section does not affect the rule of limitation applicable to a special proceeding to compel an executor or administrator to account and pay over. Matter of ElTcins, 74 N". Y. St. Rep. 299, 37 ]Sr. Y. Supp. 1129. Where the Statute of Limitations under this section has run against a legacy, an injunction will be issued restraining the sale by an executor under a power. Butler v. Johnson, 41 Hun, 206, 4 ]Sr. Y. St. Eep. 151 ; affd.. Ill K Y. 204. Costs. In an action to recover the amount of a legacy where the de- fendant succeeds he is entitled to costs under section 3229, Code Civ. Pro., as a matter of right. Ladies' U. B. Soc. v. Van Natta, 96 App. Div. 99, 88 'N. Y. Supp. 1083. 431 Action foe Legacy. f 633 Action by infant; guardian's bond. The guardian ad litem of an infant, in whose favor an action i3 brought, as prescribed in the last section, must, unless he is also the general guardian, execute and file with the clerk, before the commencement of the action, a bond to the infant, with at least two sufficient sureties, in a penalty fixed by u judge of the court, conditioned that the guardian will duly account to the infant, when he attains full age, or, in case of his death, to his personal repre- sentatives, for all money or property which the guardian may receive, by reason of the legacy or distributive share. § 1820, Code Civ. Pro. ^ 632 When Action Barred by Judgment Against Heir, etc. A final judgment against an heir or devisee, bars an action against the executor or administrator of the decedent, for the same cause, and every other remedy to enforce payment thereof out of the decedent's property ; unless an execution against property, issued upon the judgment, has been returned wholly or partly unsatisfied, or sufScient real property to satisfy the judgment has not descended, or been devised to the judgment debtor. But, if the judgment was recovered for a debt or legacy, expressly charged upon the estate descended or devised, the bar is absolute. § 1821, Code Civ. Pro. ^ 633 Legacy May be Collected by Action. The collection of a legacy charged on the real estate only by force of the intention of the testator and of existing circumstances should be made by an action declaring it to be so charged and not by an execution. Hiscock v. Fulton, 63 Hun, 624, 43 IST. Y. St. Eep. 738, 17 K Y. Supp. 408. Where several parcels have been sold the parcels should be charged in the inverse order of alienation. Mallery v. Facer, 181 ]Sr. Y. 567, revg. 90 App. Div. 610. The Statute of Limitations applicable to an action at law against the devisees of the will to recover the legacy was alike available as a defense to a suit in equity founded upon the charge of it as a lien upon the land. Zweigle v. Hopman, 75 Hun, 379, 58 N. Y. St. Eep. 660; Matter of Neilley, 95 N. Y. 582. Burden of proof. The burden of showing extrinsic circumstances showing an in- tent to charge legacies on real estate is on the legatee claiming it. Brill V. Wright, 112 N. Y. 129. Debts. In an action to charge land with the payment of a legacy, the debts of the deceased cannot be paid out of the proceeds of sale. Dunning v. Dunning, 82 Hun, 462, 64 N. Y. St. Eep. 397, 31 ISr. Y. Supp. 719. T[ 634 Enfoecing Powbe of Sale. 432 ^ 634 Effect of Judgment. Decedent's real property not bound by judgment against executors, etc. Real property, which belonged to a decedent, is not bound, or in any way aiiected, by a judgment against his executor or administrator, and is not liable to be sold by virtue of an execution issued upon sueh a judgment, unless the judgment is expressly made, by its terms, a lien upon specific real property therein described, or expressly directs the sale thereof. § 1823, Code Civ. Pro. Want of assets not to be pleaded by executor, etc. In an action against an executor or administrator, in his representative capacity, wherein the complaint demands judgment for a sum of money, the existence, sufiiciency, or want of assets, shall not be pleaded by either party; and the plaintifif's right of recovery is not affected thereby, except with respect to the costs to be awarded, as prescribed by law. A judgment in such an action is not evidence of assets in the defendant's hands. § 1834, Code Civ. Pro. ^ 635 Action in Equity May be Maintained to Enforce the Exercise of a Power of Sale to Pay Debts or Legacies. " The power of sale thus given was imperative and imposed a duty on the executor, the performance of which might be com- pelled in equity for the benefit of the creditors, or the daughter. 2 E. S. 734, § 96. The debts were not made a charge upon the testator's real estate ; but a power to sell certain portions of it for their payment was given, the execution of which in nowise de- pended upon the will of the grantee of the power. Hence, the remedy of the creditor, upon the failure to exercise the power of sale, was by application to a court of equity. Matter of Gantert, 136 N. T. 106. The sale of the real estate for the payment of the debts is not, as it is argued, to be effected, solely, through proceedings provided for in the Code of Civil Procedure. Sec- tion 2749 provides that a decree directing the disposition of real property, in a case where, under section 2750, Code Civ. Pro., the creditor of the decedent has instituted a proceeding for that pur- pose, can be made only where the property directed to be disposed of is not subject to a valid power of sale for the payment of the debts. Eolly v. Gibbons, 176 N. Y. 620, revg. 67 App. Div. 628. ^ 636 Action May be Maintained upon an Agreement to Devise or Bequeath Property. Proof of a parol agreement that the decedent promised to leave all his property to the plaintiff must furnish all the essentials of a 433 AcTiOK BY Witness or After-Boen Child. | 638 contract ; must show that the agreement is fair and equitable, and the terms thereof definite and certain, and the agreement must be clearly established by the testimony of disinterested witnesses. Pattat V. Pattat, 93 App. Div. 102 ; Hamlin v. Stevens, 177 N. Y. 39; Gall v. Oall, 64 Hun, 600; affd., 138 N. Y. 675, affg. 19 N. Y. Supp. 332. ^ 637 Witness to Will Who Forfeits His Interest, or an After-Born Child May Maintain Action to Recover His Share of the Estate. A child, bom after the making of a, will, who is entitled to succeed to a part of the real or personal property of the testator, or a subscribing witness to a will, who is entitled to succeed to a share of such property, may maintain an action against the legatees or devisees, as the case requires, to recover his share of the property; and he is subject to the same liabilities, and has the same rights, and is entitled to the same remedies, to compel a distribution or partition of the property, or a contribution from other persons interested in the estate, or to gain possession of the property, as any other person who is so entitled to succeed. § 1868, Code Civ. Pro. ^ 638 Recovery by After-Bom Child. Whenever a testator shall have a child born after the making of a last will, either in the lifetime or after the death of such testa- tor, and shall die leaving such child, so after-bom, unprovided for by any settlement, and neither provided for, nor in any way men- tioned in such will, every such child shall succeed to the same por- tion of such parent's real and personal estate as would have de- scended or been distributed to such child, if such parent had died intestate, and shall be entitled to recover the same portion from the devisees and legatees, in proportion to and out of the parts devised and bequeathed to them by such will. K. S., pt. 2, ch. VI, tit. 1, art. Ill, § 49, as amended by Laws 1869, chap. 22. See also | 148. At common law a revocation was generally effected by subse- quent marriage and the birth of issue, but not by the subsequent birth of a child only. Brush v. Wilkens, 4 Johns. Ch. 5U6 ; Smith V. Robertson, 24 Hun, 210. The civil law, which was much more disposed to find implied revocation, applied a different rule, which seemingly rested upon the presumed oversight of the parent (Brush v. WilJcens, supra), for it also obtained when living chil- dren were left unprovided for, although any provision, however slight, was deemed to rebut the presumption of inadvertent omis- 28 •^ 0;i9 Action by Witxess oe ArxEK-BoKX Child. 434 sion. It was, as we consider, the principle of the civil law that was intended to be ingrafted upon our law by the statute above quoted; the object being not to secure equality of distribution, but to guard against inadvertent or iinintentional disinheritance, or, as the revisors expressed it in their notes, a " probable over- sight." Therefore, it was provided in order to stistain a will against the claims of after-born children that provision must have been made for them, or that they must have been in some way men- tioned in the will, either provision or mention being sufficient. If, therefore, it can be seen or reasonably presumed from the terms of the win itself that the testator had in mind the probability that children might be born after the will was made, and provided with that contingency in mind, the statute will be satisfied and the wiU sustained. ^Vormser v. Croce, 104 X. T. Supp. 1090. ^ 639 Witness May Recover Share as from an Intestate. But if stich witness would have been entitled to any share of the testator's estate, in case the will was not established, then so much of the share that would have descended, or have been dis- tributed to such witness, shall be saved to him, as will not exceed the value of the devise or bequest made to him in the will, and he shall recover the same of the devisees or legatees named in the will, in proportion to, and out of, the parts devised and bequeathed to them. K. S., pt. 2, eh. VI, tit. 1, art. Ill, § 51. 435 Pkockeding to Kequiee New Surety. If 640 CHAPTER XXVIII. Proceedings to Require New Surety or New Bond — Actions upon Official Bonds. If 640. Proceeding to require new surety or new bond. 641. Decree revoking letters. 642. Proceeding by surety for release. 643. Hearing, order, accounting, decree. 645. Actions upon oflEicial bonds of representatives. 647. Actions upon official bonds of public ofiScera. 648. Regulations concerning prosecution of official bonds. 649. Liability of surety for money received. 650. Successor may prosecute official bond. 651. Action wben no successor appointed. 652. Wben bond deemed an undertaking. ^ 640 Proceeding to Require the Giving of a New Bond or of New Surety or Sureties. Any person interested in the estate or fund, may present to the surrogate'ss court a written petition, duly verified, setting forth that a surety in a bond, taken as prescribed in this chapter, is insufficient, or has removed, or is about to remove, from the State, or that the bond is inadequate in amount; and praying that the principal in the bond may be required to give a new bond, in a larger penalty, or new or additional sureties, as the case requires; or, in default thereof, that he may be removed from his office, and that letters Issued to him may be revoked. Where the bond so taken is that of a guardian) the petition may also be presented by any relative of the infant. When the bond is that of an executor, or administrator, the petition may also be pre- sented by any creditor of the decedent. If it appears to the surrogate, that there is a reason to believe that the allegations of the petition are true, he must cite the principal in the bond to show cause why the prayer of the petition should not be granted. § 3597, Code Civ. Pro. A proceeding by a surety to be relieved from further liability and a proceeding by a next of kin for the filing of a new bond cannot be joined and heard together. Bick v. Murphy, 2 Dem. 251. The death of a surety upon a nonresident executor's bond is no ground for ordering the filing of a new bond. Stevens v. Stevens, 2 Dem. 469. Healing and order. Upon the return of a citation, issued as prescribed in the last section, the surrogate must hear the allegations and proofs of the parties; and if the objections, or any of them, are found to be valid, he must make an order. f 641 Peoceeding by Sueety foe Release. 436 requiring the principal in the bond to give new or additional sureties, or a new bond in a larger penalty, as the case requires, within such a reasonable time, not exceeding five days, as the surrogate fixes; and directing that, in , default thereof, his letters be revoked. § 3598, Code Civ. Pro. ^ 641 Decree Revoking Letters for Failure to Give New Bond. If a, bond with new or additional sureties, or, in a larger penalty, is approved and filed in the surrogate's office, as required by such an order, the surrogate must make a decree, dismissing the proceedings, upon such terms, as to costs as justice requires; otherwise he must make a decree, removing the delinquent from office, and revoking the letters issued to him. § 2599, Code Civ. Pro. ^ 642 Proceeding by Surety for Release from Bond — Sure- ties May Apply to be Released, as to Future Breaches. Any or all of the sureties in a bond taken as prescribed in this chapter, may present a petition to the surrogate's court praying to be released from responsibility, on accoimt of any future breach of the condition of the bond and tliat the principal in the bond be required to give new sureties and to render and settle his account and that a citation issue to said principal to attend on such application. The surrogate must thereupon issue a citation accordingly. § 2600, Code Civ. Pro. A proceeding by a surety to be relieved from further liability and a proceeding by a next of kin (Code Civ. Pro., § 2597) for the filing of a new bond cannot be joined and heard together. Bich V. Murphy, 2 Dem. 251. CI 643 Hearing — Order — Accounting. Upon the return of the citation issued as prescribed in the last section, if the principal in the bond does not file a new bond in the usual form, with new sureties to the satisfaction of the surrogate, the surrogate must make an order requiring said principal to file such new bond within such reasonable time not exceeding five days as the surrogate fixes. Should the principal file such new bond upon the return of such citation or within the time fixed by such order, the surrogate must thereupon make a decree releasing the peti- tioner from liability upon the bond for any subsequent act or default of the principal and requiring the principal to render and settle his account to and including the date of such decree and to file such account within a time fixed, not exceeding twenty days from such date; otherwise he must make a decree revoking the delinquent's letters. § 2601, Code Civ. Pro. Decree may be made without bringing in all interested parties. Without determining that an account filed under section 2601, Code Civ. Pro., now being considered, can be litigated at the in- 437 Actions on OFriciAL Bonds. f 645 stance of the resigning surety, by the issuance of a supplemental citation to all parties in interest in the absence of any statute expressly permitting it, unless the surety objects to the account as filed and makes some further affirmative application, the pro- ceeding is at an end and must be closed by a decree settling the account on the motion of the accounting executor or administrator. Such a decree will, of course, not be binding upon strangers to the proceeding, but it places upon record the sworn declaration of the representative as to the condition of the estate at the time when the surety ceases to be bound for future defaulting, and may thus serve a useful purpose. Matter of Sogaard, 39 Misc. Eep. 621, 80 K Y. Supp. 379. Q 644 Proceeding by Surety or Representative of a Surety to be Relieved from a Bond Under Section 812, Code Civ. Pro. A proceeding has been provided in section 812 of the Code of Civil Procedure whereby any surety or sureties or any represen- tative of them may apply to the surrogate who approved the bond to be relieved from any further liability on account of the bond and to require the giving of a new surety or sureties. This section also makes provision for the filing of the account of the principal up to the date of the order relieving the surety and for the settlement of such account when such settlement is ad- visable or necessary. These proceedings are outlined in detail in f 478. ^ 645 Actions upon the Official Bonds of Executors, Adirin- istrators, and Guardians. There are three classes of actions upon the official bonds of executors, administrators, and guardians,, and each of them is independent of the others. When bond may be prosecuted. Where an execution, issued upon a surrogate's decree, against the property of an executor, administrator, testamentary trustee, or guardian, has been returned wholly or partly unsatisfied, an action to recover the sum remaining uncollected, may be maintained upon his official bond, by and in the name of the person in whose favor the decree was made. If the principal debtor is a resident of the State, the execution must have been issued to the county where he resides. § 2607, Code Civ. Pro. Sureties cannot escape liability for property claimed to have been transferred by an administrator to himself as guardian until f 645 SuEETiES Bound bt Decbee. 438 ihej show such a transfer as will hold the sureties of the guardian. Potter y. Ogden, 136 N. Y. 384, afFg. 65 Hun, 27, 47 N. Y. St. Eep. 190, 19 ]Sr. Y. Supp. 594. In a case provided for in section 2606, Code Civ. Pro., it is not necessary to issue an execution before beginning an action •on the bond. Van Zandt v. Grant, 175 N. Y. 150, affg. 67 App. Div. 70, 73 ]Sr. Y. Supp. 600. An administrator de bonis non may prosecute the bond of a deceased administrator where his executor is a nonresident and will not submit to the jurisdiction of the court by an account- ing or otherwise. Dunne v. Am. 8ur. Co., 34 Misc. Kep. 584, 70 N. Y. Supp. 391. An action on the official bond of a deceased guardian may be maintained by the new guardian after a decree made on the ac- counting by the representative of the deceased guardian directing payment to such new guardian. Van Zandt v. Grant, 175 N. Y. 150, distinguishing Perkins v. Stimmel, 114 1^. Y. 359, revg. 42 Hun, 520; Prentiss v. Weatherly, 68 Hun, 114, 52 IST. Y. St. Eep. 80, 22 K Y. Supp. 680; a£Fd., 144 K Y. 707. In an action on the bond of a deceased general guardian it is not necessary for his successor to exhaust all remedies against the administrator ef such guardian before proceeding against the sureties on the bond of the deceased guardian. Van Zandt v. Grant, 67 App. Div. 70; affd., 175 JST. Y. 150. Sureties bound by decree. The sureties on the bond of an administrator are bound by a judgment or decree against him, and such decree may be opened for fraud and a new one made charging the administrator with a larger amount, and the sureties are bound thereby without notice. Deobold v. Oppermann, 111 IST. Y. 531. The sureties are concluded by an unreversed decree of the sur- rogate and cannot attack it in an action brought against them on their bond. Casoni v. Jerome, 58 ]N". Y. 315. The sureties on an administrator's bond are bound by the final decree, although they had no notice of the proceedings for an ac- counting. But the defense of fraud and collusion is always open to them. Annett v. Terry, 35 IST. Y. 256. It is the general rule that the sureties on the bond of an exec- utor or administrator are not liable until the default of their principal has been established before the surrogate. Hood v. Eood, 85 ISr. Y. 661 ; HaigU v. Brishin, 100 id. 219. 439 Action oit Guakdian's Bond. f 646 Guardian settled -with infant and got extension of time to pay over balance due. Such settlement was set aside for fraud, and an accounting had and decree made — held, that the sureties on the guardian's bond were liable, and that one dying his estate was liable. Douglass v. Ferris, 138 N. Y. 192, modifying and affg. 63 Hun, 413, 44 N. Y. St. Eep. 710, 18 N. Y. Supp. 685. ^ 646 Action May be Maintained in Equity Against the Sure- ties on the Bond of a Guardian Who Removed from the State, Died Insolvent, Leaving No Property in this State upon Which Administration Could be Granted. In Otto V. Van Riper (31 App. Div. 278 ; affd., 164 IT. Y. 536) and in Bischoff v. Engel (10 App. Div. 242), it was held that where an administrator died in a foreign State wholly insolvent, without having accounted and where no representative of the de- ceased trustee had been appointed in this State, equity would inter- vene and furnish a remedy ; that no accounting was necessary and that an action in equity to recover of the surety without such an accounting could be maintained. It was there said : " We think a court of equity had power to determine the liability of the guardian and in the same action enforce the obligation of the sureties upon the bond ; and upon the facts, as found by the learned trial judge, sustained by the evidence, we think the defendants (the sureties) were liable." At law the surety waa not responsible nntil after a settlement of the guardian's accoimts and a refusal to comply with a decree requiring the guardian to pay the balance found due to his ward, but where such an accounting before the surrogate who appointed the guardian is impossible because of the insolvency and death of the guardian, and where, in conse- quence of there being no assets, no letters testamentary or of ad- ministration could be obtained in this State, a court of equity will take jurisdiction, ascertain the amount due from the guardian, and compel the sureties to pay. Such an action being solely cognizable in a court of equity, the action is triable at Special Term. ParTcer v. Dominiclc, 105 App. Div. 440. Evidence of false representation to induce signing bond. " The only debatable question in this case, as it seems to me, is the one passed upon by the court during the progress of the trial, and that is whether the defendants Payne and Hodgkins, as sure- I 647 Action ttpon Official Bonds. 440 ties upon the bond of the defendant Whitney, as guardian, may allege and establish as against the plaintiff, the infant, any fraud or misrepresentation on the part of the defendant Whitney at or prior to the time of the execution of the undertaking so as to in- validate such undertaking. I was then of the impression that they could not, and am still of the same view." Bouse v. Whit- ney, 53 Misc. Eep. 56. ^ 647 Actions upon Official Bonds of Public Officers, Includ- ing Trustees, Guardians, Executors, and Adminis- trators. Consult Code Civ. Pro., §§ 1880 to 1892. Actions upon official bonds of other officers. Where a public officer is required to give an official bond to the people, and special provision is not made by law, for the prosecution of the bond, by or for the benefit of a person, who has sustained, by his default, delinquency, or misconduct, an injury, for which the sureties upon the bond are liable, such a person may apply for leave to prosecute the delinquent's official bond. § 1888, Code Civ. Pro. Executors (other than the public administrator) are not public ofBcers within the meaning of this section. Dunne v. Am. Surety Co., 43 App. Div. 91, 59 JST. Y. Supp. 429. Bonds, etc., to the people or a public officer, for the benefit of a suitor. Where a bond or undertaking has been given, as prescribed by law, in tht course of an action or a special proceeding, to the people or to a public officer, for the benefit of a, party or other person interested and provision is not specially made by law for the prosecution thereof; the party or other person so interested may maintain an action in his own name for a breach of the condition of the bond, or of the terms of the undertaking; upon procuring an order granting him leave so to do. The order may be made by the court in which the action is or was pending; the city court of the city of New York, or a county court, if the bond or undertaking was given in a special proceed- ing, pending before a judge of that court ; or in any other case, by tne supreme court. Notice of the application therefor must be given, as directed by the court or judge, to the persons interested in the disposition of the proceeds. § 814, Code Civ. Pro. Receivers, etc., deemed public officers. A receiver, an assignee of an insolvent dehtor, or a trustee or other officer, appointed by a court or a judge, is a public officer, within the meaning of the last section but one; but where he was appointed by or pursuant to the order of a court, or in a special proceeding specified in title twelfth of chapter seventeenth of this act, the application for leave to prosecute his official bond must be made to the court by which, or pursuant to whose order, he was 441 Action upon Official Bonds. ^ 648 appointed, or in which the judgment was rendered, as tlie case may be. An action, brought as prescribed in this section, must be brought in the court to which application is made for leave to bring it. § 1890, Code Civ. Pro. Action upon a surrogate's bond. Where a surrogate, or an officer acting as surrogate, is guilty of any action- able default or misconduct in his office, the person injured thereby may apply for leave to prosecute the delinquent's official bond, § 1886, Code Civ. Pro. Action upon a penal bond. A bond in a penal sum, executed within or without the State, and containing a condition to the effect, that it is to be void, upon performance of any act, has the same effect, for the purpose of maintaining an action or special proceeding, or two or more successive actions or special proceedings thereupon, as if it contained a covenant to pay the sum, or to perform the act, specified in the condition thereof. But the damages to be recovered for a breach, or successive breaches, of the condition, cannot, in the aggregate, exceed the penal sum, except where the condition is for the payment of money; in which case they cannot exceed the penal sum, with interest thereupon, from the time when the defendant made default in the performance of the condition. § 1915, Code Civ. Pro. ^ 648 Regulation Concerning Prosecution of Official Bonds. Execution must be issued before bond may be prosecuted. Where an execution, issued upon a surrogate's decree, against the property of an executor, administrator, testamentary trustee, or guardian, has been returned wholly or partly unsatisfied, an action, to recover the sum remaining uncollected, may be maintained upon his official bond, by and in the name of the person in whose favor the decree was made. If the principal debtor is a resident of the State, the execution must have been issued to the county where he resides. § 2607, Code Civ. Pro. When execution need not be issued. With respect to the liabilities of the sureties in and for the pur- pose of maintaining an action upon the decedent's official bond a decree against his executor or administrator rendered upon such an accounting has the same effect as if an execution issued upon a surrogate's decree against the property of the decedent had been returned imsatisfied during the decedent's lifetime. From § 2606, Code Civ. Pro. The person to whom the claim has been assigned may sue. If none but the person in whose favor a decree is made can sue on an official bond under section 2607, Code Civ. Pro., the exec- utor, administrator, trustee in bankruptcy, or general assignee for the benefit of creditors of such person cannot bring such a suit. 1 649 Liability of Sueeties. 442 The language of section 2607 of the Code should not be con- strued according to the strict letter thereof; so that no person having an interest in the enforcement of the surrogate's decree can maintain an action upon the official bond of an administrator other than the person in whose favor the decree was made. Sections 814 and 2067, Code Civ. Pro., should be read and con- strued in connection with sections 1909, 1910, and 449, Code Civ. Pro., for the purpose of determining their effect in respect to each other, for they are deemed to have been enacted simultaneously. Code Civ. Pro., § 3355. Chester v. Buifalo Car Mfg. Co., 183 ISr. Y. 425, modifying 94 App. Div. 612. See also 70 App. Div. 443. The death of a surety on the official bond of a nonresident exec- utor does not relieve his estate from liability for the principals after management of his trust. Stevens v. Stevens, 2 Dem. 469. Where by the will there is a conversion of real estate the exec- utor must account for the same and for rents and profits, and if he fails to do so the sureties on his bond are liable. Hood v. Hood, 85 JST. Y. 561 ; Stagg v. Jackson, 1 id. 206. On the giving of a bond by an executor who has become a non- resident, the sureties undertake that the executor will pay over all money ordered to be paid over, even though he did not have the money in his hands when the bond was given. Scofield v. Churchill, 72 N. Y. 565. The sureties on the bond of a trustee who has been by a decree removed and directed to turn over funds in his hands, but who never after that comes into the State, may be sued for such default. Yates V. Thomas, 35 Misc. Eep. 552, 71 N. Y. Supp. 1113. ^ 649' Sureties Liable for Money, etc., Received in Another Capacity. A person to -whom letters are issued, is liable for money or other personal property of the estate, which was in his hands, or under his control, when his letters were issued; in whatever capacity it was received by him, or came under his control. Where it was received by him, or came under his control, by virtue of letters previously issued to him, in the same or another capacity, an action to recover the money, or damages for failure to deliver the property, may be maintained upon both official bonds ; but, as between the sureties upon tlie official bond given upon the prior letters, and those upon the official bond given upon the subsequent letters, the latter are liable over to the former. § 2596, Code Civ. Pro. Where a person receives a fund belonging to the estate as an in- dividual, the moment letters are issued to such person he holds 443 Action on Bond by Sucokssoe. If 651 such fund under the letters. Power v. Speckmcn, 126 N. Y. 358 ; Matter of Brintnall, 40 Misc. Eep. 67. ^ 650 Successor May Prosecute Official Bond. Where letters have been revoked by a decree of the surrogate's court, the successor of tlie executor, administrator, or guardian, whose letters are so revoked, may maintain an action upon his predecessor's official bond, in which he may recover any money, or the full value of any other property, received by the principal in the bond, and not duly administered by him; and to the full extent of any injury, sustained by the estate of the decedent or of the infant, as the case may be, by any act or omission of the principal. The money, recovered in such an action, is regarded, as part of the estate, in the hands of the plaintiff, and must be distributed or otherwise disposed of accordingly; except that a recovery for an act or omission, respecting a right of action, or other property, appropriated by law for the benefit of the husband, wife, family, or next of kin of a decedent, or disposed of by a will for the benefit of any person, is for the benefit ot the person or persons so entitled thereto. § 2608, Code Civ. Pro. The surety should be charged with interest on the misappropri- ated funds from the date of the decree, not from the date of the misappropriation. Hood v. Hayward, 124 N. Y. 1, modifying and affg. 48 Hun, 330, 15 N. Y. St. Eep. 846. Where one of two executors has been removed the remaining executor is a " successor " within the meaning of this section. Hood V. Hayward, 124 'S. Y. 1, modifying and affg. 48 Hun, 330, 15 N. Y. St. Eep. 846. An action cannot be maintained against the sureties on the bond of a deceased guardian until an accounting in court. Perkins v. Stimmel 114 N. Y. 359, revg. 42 Hun, 520. ^ 651 Action on an Official Bond, When No Successor Ap- pointed. Where the letters of an executor or administrator have been so revoked, and no successor is appointed, any person aggrieved may, upon obtaining an order from the surrogate, granting him leave so to do, maintain an action upon the official bond of the executor or administrator, in behalf of himself and all others interested; in which the plaintiff may recover any money, or the full value of any other property, received by the principal in the bond, and not duly administered by him, and to the full extent of any injury sus- tained by the estate of the decedent, by any act or omission of the principal. The money recovered in such an action must be paid, by the sheriff or other officer who collects it, into the surrogate's court; and the surrogate must distribute it to the creditors or other persons entitled thereto. The pro- ceedings for such a distribution are the same as prescribed in title fifth of this chapter, for the distribution of the proceeds of a sale of real property. § 2609, Code Civ. Pro. Y 652 Bond Deemed an Undeetakeng. 444 An accounting as executor was had and a fund established ■which the executor was directed to invest as trustee, but the de- cree did not in terms discharge him as executor — held, that his sureties were liable for his subsequent acts as executor. Clwjf v. Bay, 124 N. Y. 195. An action may be brought by an administrator de bonis non against the bond of his deceased predecessor for his wrongful con- version of property, without first issuing execution. Dunne v. Am. Surety Co., 43 App. Div. 91, 59 E". Y. Supp. 429. Administrator accounted and was decreed to pay guardian of infant his share of the estate. He was subsequently removed — • held, that an action on his bond by the guardian did not require leave of court. Prentiss v. Weatherly, 68 Hun, 114, 52 IST. Y. St. Eep. 80 ; affd., 144 K Y. 707. Application of this article to executors, etc., heretofore appointed. The provisions of this article apply to an executor, administrator, or guardian, to whom letters have been issued, and to a testamentary trustee, whose trust has been created, before this chapter takes effect; except that it does not affect, in any manner, the liability of the sureties in a bond, executed before this chapter takes effect. i 2610, Code Civ. Pro. ^ 652 When Bond Deemed an Undertaking. A provision of law authorizing or requiring a bond to be given shall be deemed to have been complied with by the execution of an undertaking to the same effect. Statutory Construction Law, § 16. 44:5 Peoceedietg to Issue Execution. If 653 CHAPTER XXIX. Issuing Execution Against a Representative — Against the Property of a Deceased Person and Enforcing Decrees by Execution. 1[ 653. Proceeding to obtain leave to issue execution against a representative. 654. Intermediate accounting may be required. 655. Execution against representation of a deceased representative. 656. Execution on judgment for legacy or distributive share. 657. Execution for costs against representative personally. 657. Execution where one not summoned. 658. Execution where representative has succeeded plaintiff. 659. Execution against the property of deceased person. 660. Execution after death of judgment creditor. 661. Application for leave to issue execution against decedent's property. 663. Intermediate accounting may be required. 663. Contents of execution. 664. Issuing execution after five years. 665. Enforcement of decree by execution. 666. Execution to collect costs of motion. 667. Homestead; when exempted. 668. Married woman's homestead; when exempted. 669. Execution against surviving judgment debtors. ^ 653 Proceedings to Obtain Leave to Issue Execution Against a Representative. Petition. The application should be by petition to the surrogate from whose court the letters were issued, and if a notice of less than six days is proper the reason therefor should be stated. The amount of the assets, the amount of the claim, and other facts showing the right to the execution should be set forth. Older to show cause. The order to show cause must be directed to the representative, and must be returnable in not less than six days, unless the time is shortened by direction of the surrogate for good cause shown. Service of the order to show cause. The order must be served personally upon the representative at least six days before the return day, unless such time is shortened or some other mode of service is directed by the surrogate upon good cause shown. If 653 OeDEE PEEillTTlNG IsSUE OF EXECUTION. 446 Hearing. Where it appears that the assets after payment of all sums chargeable against them for expenses and for claims entitled to priority as against the applicant are not or will not be sufficient to pay all debts, legacies, or other claims of the class to which applicant's claim belongs, the sum directed to be collected by the execution shall not exceed the applicant's just proportion of the assets. Order for execution. The execution can only be issued upon an order therefor, which specifies the sum to be collected. Execution. The execution must be indorsed with a direction to collect that sum, which is named in the order. Subsequent orders and executions. One or more orders may be afterward made in like manner, and one or more executions may be afterward issued, whenever it ap- pears that the sum directed to be collected by the first execution is less than the plaintiff's just proportion. §§ 1825, 1826, Code Civ. Pro. analyzed. Order permitting issue of execution. An order permitting a judgment creditor to issue an execution against an executor or administrator is, except upon appeal there- from, conclusive evidence that there are sufficient assets in his hands to satisfy the sum for which the order permits the execution to issue. Erom § 2552, Code Civ. Pro. Leave to issue execution against executor, etc. An execution shall not be issued, upoii a judgment for a sum of money, against an executor or administrator, in his representative capacity, until an order, permitting it to be issued, has been made by the surrogate, from whose court the letters were issued. Such an order must specify the sum to be col- lected; and the execution must be indorsed with a direction to collect that sum. § 1825, Code Civ. Pro. Right to enforce judgment by execution does not conflict with section 2719, Code Civ. Pro., establishing priority of payment. Mount V. Mitchell, 31 IST. Y. 356. Member of firm died and by his will directed his executor to continue his interest in the business — held, that the executor became copartner with the surviving partner, and that debts so 447 Ordek Peemittijstg Issue op Execution. 1 654 contracted were primarily liens on the partnership funds, and that execution need not be issued under sections 1731, 1825, 1826, Code Civ. Pro. Columbus W. Co.. v. Hodenpyl 135 IST. Y. 480, a£Eg., 61 Hun 567, 41 K Y. St. Kep. 393, 16 K Y. Supp. 337. Upon an application for leave to issue execution where a receiver of the property of the deceased has been appointed, the validity of such appointment and the title to the property cannot be tried by the surrogate. Peters v. Carr, 2 Dem. 22. The pending of an appeal, where there has been no stay, does not prevent issue of execution. The case of Curtis v. Stilwell (32 Barb. 354), holding to the contrary, was reversed (25 How. Pr. 595). Matter of Morey, 6 Dem. 287, 10 IST. Y. St. Kep. 693. Damages recovered for death are now assets for the payment of funeral expenses, and an execution may issue against the repre- sentative upon a judgment recovered therefor. Matter of McDer- mott, 49 Misc. Eep. 402, 99 IST. Y. Supp. 829. Leave to issue execution; how procured; order; and contents thereof. At least six days' notice of the application for an order specified in the last section, must be personally served upon the executor or administrator, unless it appears that service cannot be so made with due diligence ; in which case, notice must be given to such persons, and in such manner, as the surro- gate directs, by an order to show cause why the application should not be granted. Where it appears that the assets, after payment of all sums charge- able against them for expenses, and for claims entitled to priority as against the plaintiff, are not or will not be, sufficient to pay all the debts, legacies, or other claims of the class to which the plaintiff's claim belongs, the sum, directed to be collected by the execution, shall not exceed the plaintiff's just proportion of the assets. In that case, one or more orders may be afterwards made in like manner, and one or more executions may be afterwards issued, whenever i£ appears that the sum, directed to be collected by the first execu- tion, is less than the plaintiff's just proportion. § 1826, Code Civ. Pro. ISTo preference can be given to a judgment creditor under this section. Schmitz v. Langhaar, 24 Hun 168; affd., 88 K Y. 503 ;. Matter of Warren, 105 App. Div. 582. ^ 654 An Intermediate Accounting May be Required. Where an application for an order permitting an execution to issue on a judgment against the executor or administrator, has been made by the judgment creditor, the surrogate may make an order requiring such executor or administrator to render an inter- mediate accounting. From § 2725, Code Civ. Pro. 1 655 Issue of Execution Against Repeesentative. 448 Notice of motion to set aside. JSTotice of motion to set aside an order for issue of execution may be served upon the attorney who obtained the order. Judg- ment creditor a nonresident. Matter of McGunn, 4 Redf. 15. What must be shown. The applicant must show either that the representative has funds of the estate on hand applicable to the payment of the judg- ment which he refuses to apply, or that funds of the estate have been misapplied which should have been devoted to the payment of the judgment. Matter of Warren, 105 App. Div. 582; Matter of Gall 40 App. Div. 114, 57 IST. Y. Supp. 835. A claim for costs against an administrator obtained in an action brought by her in which she was defeated may be enforced by execution. Matter of Mahoney, 37 Misc. Eep. 472, 75 IST. Y. Supp. 1056. The moving papers should show the amount of all claims against the estate so that the surrogate can determine the amount for which he will allow execution to be issued. 8ippel v. MacMin, 2 Dem. 219. ^ 655 Proceedings to Obtain Leave to Issue Execution Against Representative of a Deceased Executor or Administrator. Where the representative of a deceased executor has accounted and been charged in a decree with an amount found to be due from the original executor, such decree is not conclusive evidence of the existence of assets (§ 2606, Code Civ. Pro.) and execu- tion thereon can only be issued by leave of surrogate. Upon such application it is competent to inquire as to what assets, if any, the representative holds, and how far there are other creditors who are entitled to participate in the assets. Matter of Seaman, 63 App. Div. 49, 71 IS. Y. Supp. 376. Where the moving papers do not show existence of assets, an accounting should be ordered before granting leave to issue execu- tion. Peters v. Carr, 2 Dem. 22. The order is conclusive evidence that there are sufficient assets in the hands of the representative. Section 2552, Code Civ. Pro. Except in a case under section 2606, Code Civ. Pro. Matter of Weil, 110 App. Div. 67, 96 N. Y. Supp. 1017. Where execution has been issued and an accounting had, the surrogate may make an order requiring payment of the amount 449 Issue op Execution Against Eepeesentative. | 658 found to be applicable to tbe payment of a judgment of the Supreme Court. Matter of Mahoney, 88 App. Div. 140, 84 IST. Y. Supp. 329. ^ 656 Where Judgment Has Been Obtained Against the Rep- resentative for a Legacy or Distributive Share — Security May be Required from Such Claimant. Where a judgment has been rendered against an executor or adminis- trator, for a legacy or distributive share, the surrogate, before granting an order, permitting an execution to be issued thereupon, may, and in a proper case, must, require the applicant to file in his office, an undertaking to the defendant, in such a sum, and with such sureties, as the surrogate directs, to the effect, that if, after collection of any sum of money by virtue of the execution, the remaining assets are not sufficient to pay all sums, for which the defendant is chargeable, for expenses, claims entitled to priority as against the application, and the other legacies or distributive shares, of the class to which the applicant's claim belongs, the plaintiff will refund to the defendant, the sum, so collected, or such ratable part thereof, with the other legatees or representatives of the same class, as is necessary to make up the deficiency. § 1827, Code Civ. Pro. ^ 65T Execution Where Costs Are Awarded Against the Rep- resentative Personally. So much of the judgment as awards costs against the repre- sentative personally may be separately docketed and a separate execution may be issued thereon. From § 1816, Code Civ. Pro. Execution may be issued against all the representatives, even though all have not appeared. Where all the representatives have not been summoned or have not appeared, execution may be issued against all. From § 181Y, Code Civ. Pro. This section does not change the rule that in an action for or against executors all the qualified and acting executors must be made parties. Simpson v. Simpson, 44 App. Div. 492, 60 IST. Y. Supp. 879. ^ 658 Execution May be Issued in Favor of a Representative Who Has Succeeded to the Office of the Plaintiff. An execution may be issued, in the name of an executor or adminis- trator, in his representative capacity, upon a judgment recovered by any person who preceded him in the administration of the same estate, in any case where it might have been issued in favor of the original plaintiff, and without a substitution. § 1829, Code Civ. Pro. 29 T[ 659 Issue of Execution Against Property. 450 ^ 659 Issuing Execution Against the Property of a Deceased Person. Contents of execution. An execution against real or personal property, in the hands of an executor, administrator, heir, devisee, legatee, tenant of real property, or trustee, must substantially require the sheriff to satisfy the judgment, out of that property. § 1371, Code Civ. Pro. ^ 660 Execution After Death of Judgment Creditor. Where the party recovering a final judgment has died, execution may be issued at any time, within five years after the entry of the judgment, by his personal representatives, or by the assignee of the judgment, if it has been assigned, and the execution must be indorsed with the name and resi- dence of the person issuing the same. And where a party or one or more of several parties against whom a judgment for the recovery of possession of real property has been obtained, has died, an order granting leave to issue and execute such execution or writ of possession may be granted upon giv- ing twenty days' notice to the occupants of the lands so recovered and to the grantees or devisees of said deceased, or, if he died intestate, to the heirs- at-law of said deceased; said notices to be served in the same manner as a summons is directed to be served in an action in the supreme court. § 1376, Code Civ. Pro. A firm composed of two partners obtained a judgment and one party died — held, that the representative of the deceased party could join with the surviving partner in an application to issue execution. Matter of Armstrong, 35 Misc. Eep. 327, 71 IST. Y. Supp. 951. Upon application for leave to issue an execution obtained against partners, one of such persons cannot show that no sum- mons was ever served upon him. Matter of Armstrong, 35 Misc. Eep. 327, 71 E". Y. Supp. 951. No execution against decedent, except by leave of court. An execution to collect a sum of money cannot be issued, against the property of a judgment debtor, who has died since the entry of the judg- ment, except as prescribed in the next two sections. § 1379, Code Civ. Pro. ^ 661 Leave Required to Issue Execution Against Dece- dent's Property. After the expiration of one year from the death of a party, against whom a final judgment for a sum of money, or directing the payment of a sum 451 Issue op Esbodtiost Against Peopeety. 5 ^^^ of money is rendered, the judgment may be enforced by execution against any property upon which it is a lien, with like effect as if the judgment debtor was still living. But such an execution shall not be issued, unless an order granting leave to issue it is procured from the court from which the execution is to be issued, and a decree to the same effect is procured from a surrogate's court of this state, which has duly granted letters testamentary or letters of administration upon the estate of the deceased judgment debtor. Where the lien of the judgment was created as prescribed in section twelve hundred and fifty-one of this act, neither the order nor the decree can be made until the expiration of three years after letters testamentary or letters of ad- ministration have been duly granted upon the estate of the decedent, and for that purpose such a lien existing at the decedent's death, continues for three years and six months thereafter, notwithstanding the previous ex- piration of ten years from the filing of the judgment-roll. But where the decedent died intestate and letters of administration upon his estate have not been granted within three years after his death by the surrogate's court of the county in which the decedent resided at the time of his death, or if the decedent resided out of the state at the time of his death, and letters testa- mentary or letters of administration have not been granted within the same time by the surrogate's court of the county in which the property on which the judgment is a, lien is situated, such court may grant the decree wherft it appears that the decedent did not leave any personal property within the state upon which to administer. In such case the lien of the judgment exist- ing at th^ decedent's death continues for three years and six months as aforesaid. Provided, however, that such judgment lien, existing at the decedent's death, upon the decedent's real property, or some portion thereof, may be enforced and payment thereof obtained during the said three years after granting of letters testamentary, or letters of administration, by the proceeding provided and prescribed by title five of chapter eighteen of this act. But this section shall not apply to real estate which shall have been conveyed, or hereafter may be conveyed by the deceased judgment debtor during his lifetime, if such conveyance was made in fraud of his creditors or any of them, and any judgment creditor of said deceased, against whose judgment said conveyance shall have been, or may hereafter be, declared fraudulent by the judgment and decree of any court , of competent juris- diction, may enforce his said judgment against such real property, with like effect as if the judgment debtor was living, and it shall not be necessary to obtain the leave of any court or officer to issue such execution, and the same may be issued at any time to the sheriff of the county where such property is or may be situated. The person issuing such execution, however, shall annex thereto a description of the real estate against which the same is sought to be enforced, as aforesaid, and shall indorse on said execution the words " issued under section thirteen hundred and eighty of the Code of Civil Procedure," whereupon said sheriff shall enforce said execution as therein directed, against the property so described, and not against any other property, either real or personal, and all provisions of law relating to the sale and conveyance of real estate on execution and the redemption thereof shall apply thereto. § 1380, Code Civ. Prov ^ 662 Issue of Execution Against Peopeett. 452 q 662 Leave, How Obtained. Leave to issue an execution as prescribed in the last section, must be procured as follows : 1. Notice of the application to the court from which the execution is to be issued, for an order granting leave to issue the execution, must be given to the person or persons whose interest in the property will be affected by a sale by virtue of the execution, and also to the executor or administrator of the judgment debtor. The general rules of practice may prescribe the manner in which the notice must be given; until provision is so made therein, it must be served either personally or in such manner as the court prescribes in an order to show cause. Leave shall not be granted, except upon proof by affidavit, to the satisfaction of the court, that the judgment remains wholly or partly unsatisfied. 2. For the purpose of procuring a decree from the surrogate's court grant- ing leave to issue the execution, the judgment creditor must present to that court a written petition, duly verified, setting forth the facts, and praying for such a decree; and that the persons specified in the first subdivision of this section, may be cited to show cause why it should not be granted. Upon the presentation of such a petition the surrogate must issue a citation accordingly, which said citation may be served in the same manner as is provided in the first subdivision of this section for the service or giving of a notice to the parties or persons therein mentioned, and, if the general rules of practice of the supreme court do not provide for a mode of giving such notice, such citation must be served in such manner as the surrogate by order may prescribe, or as is otherwise provided by law; and, upon the return thereof, he must make such a decree in the premises as justice requires. § 1381, Code Civ. Pro. This application is an original special proceeding in whicli in case of contest costs may be awarded under section 2561, Code Civ. Pro. Gillies v. Kreuder, 1 Dem. 349. Leave to issue execution should only be granted upon notice to the persons interested. First Nat. Bank of Utica v. Ballou, 49 'E. Y. 155. Section 2561, Code Civ. Pro., applies to a special proceeding for leave to issue execution as to allowance of costs. Gillies v. Kreuder, 1 Dem. 349. The surrogate has no power to hear evidence on an allegation that the judgment was fraudulently obtained. Freeman v. Nelson, 4 Eedf. 374. The surrogate has power to determine what, if any, payments have been made on the judgment to ascertain the sufficiency of the assets to pay debts of like character, but not to ascertain if the judgment is valid. Freeman v. Nelson, 4 Eedf. 375. 453 Accounting — Contents of Execution. If 664 ^ 663 An Intermediate Accounting May be Required. On tbe return of a citation issued on the petition of a judg- ment creditor, praying for a decree, granting leave to issue an execution on a judgment rendered against the decedent in his life- time, the surrogate may, in his discretion, make an order requir- ing the executor or administrator to render an intermediate ac- counting. From § 2725, Code Civ. Pro. Contents of execution. The execution to be issued on a decree of this court is gov- erned by section 2554 of the Code of Civil Procedure, and must be " against the property of the party directed to make the pay- ment," even though, by the terms of the decree, such party is re- quired to pay out of the assets of an estate in his hands for ad- ministration. Matter of Waring, 1 Misc. Eep. 502, 58 IST. Y. St. Eep. 797, 28 IST. Y. Supp. 393 ; Bennett v. Crain, 41 Hun, 183,. 186. An execution to be satisfied out of the property of the es- tate could only be issued by express order and after notice under sections 1825 and 1826 of the Code of Civil Procedure, and such execution would have to be in the form prescribed by section 1371, Code Civ. Pro. The execution was, therefore, proper. The ap- plication to set aside the docket and execution must be denied. Matter of QvMckenbos, 38 Misc. Rep. 66. The execution on a decree must run against the property of the executor or administrator and not against the estate he repre- sents. Matter of Waring, 7 Misc. Eep. 502, 58 IST. Y. St. Eep. 797, 28 N. Y. Supp. 393. ^ 664 When Execution May be Issued After Five Years. After the lapse of five years from the entry of a final judgment, execution can be issued thereupon, in one of the following cases only: 1. Where an execution was issued thereupon within five years after the entry of the judgment, and has been returned wholly or partly unsatisfied or unexecuted. 2. Where an order is made by the court, granting leave to issue the execution. § IS"??, Code Civ. Pro. The mode of procedure to issue an execution upon a surrogate's decree which has been docketed in the county clerk's office is the same as upon a judgment, and this section applies. The time of five years must be computed from the date of entry of the decree in the surrogate's office. People v. Woodbury, 70 App. Div. 416. T[ 665 Enforcement of Decree by Execution. 454 Issuing execution; leave, how obtained. Notice of an application for an order granting leave to issue an execution, as prescribed in the last section, must be served personally upon tbe adverse party, if he is a resident of the State, and personal service can, with reason- able diligence, be made upon him therein; otherwise, notice must be given in such manner as the court directs. Where the judgment is for a sum of money, or directs the payment of a sum of money, leave shall not be ; granted, except on proof, by affidavit, to the satisfaction of the court, that ■the judgment remains wholly or partly unsatisfied. § 1378, Code Civ. Pro. Ttis section applies to an execution upon a surrogate's decree docketed in the county clerk's ofiSce, and notice of application must be given. People v. Woodbury, 70 App. Div. 416. ^ 665 Enforcement of Decree by Execution. A decree, directing the payment of a sum of money into court, or to one or more parties, may be enforced by an execution against the property of the party directed to make the payment. The execution must be issued by the surrogate, or the clerk of the surrogate's court, under the seal of the court, and must be made returnable to the court. In all other respects, the provisions of this act, relating to an execution against the property of a judg- ment-debtor, issued upon a judgment of the supreme court, and the pro- ■ceedings to collect it, apply to an execution issued from the surrogate's court, and the collection thereof, the decree being for that purpose regarded as a judgment; except that the proceedings prescribed in title twelfth of chapter seventeenth of this act, if founded upon such a decree, must be taken, as if the decree was a judgment of the county court, or, in the city of New York, of the supreme court. § 2554, Code Civ. Pro. Leave to issue need not be obtained. Sections 1825, 1826, 1827 of Code apply where a judgment has been rendered against the executor or admi-nistrator, not where a decree of the Surrogate Court has directed him to pay money. Peyser v. Wendt, 2 Dem. 221. Sections 1377 and 1378, Code Civ. Pro., apply to decrees of Surrogate's Court. People ex rel. Backett v. Woodbury, 70 App. Div. 416. Leave to issue execution under this section need not be obtained from the surrogate. Section 1825, Code Civ. Pro., does not apply. Joel v. Ritterman, 2 Dem. 242. Section 2554 of the Code of Civil Procedure authorizes the is- suance of an execution to enforce the payment of moneys directed by the decree of a Surrogate's Court, whether the sum to be paid consist in costs alone, or otherwise. Matter of Humfreville (154 455 Execution to Collect Costs. f 667 E". T. 115), decided, under section 2555 of the Code, that a de- cree of that court for the payment of costs could not be enforced by imprisonment, in proceedings to punish for contempt; the ground for the decision being that section 15 of the Code forbade, generally, the enforcement of a decree for costs by imprisonment. Matter of Rirsh, 185 IST. Y. 598, affg. 112 App. Div. 914. Definition of "order," how enforced. A direction of a Surrogate's Court, made or entered in writing, and not included in a decree, is styled an order. It may be en- forced in like manner as a similar order, made by the Supreme Court in an action; and the costs are the same as upon euch an order, and may be collected in like manner. § 2556, Code Civ. Pro. ^ 666 Execution to Collect Costs of Motion. Not applicable to Surrogate's Court. § 3347, subd. 6, Code Civ. Pro. Where costs of a. motion, or any other sum of money, directed by an order to be paid, are not paid within the time fixed for that purpose, by the order, or if no time is so fixed within ten days after the service of a copy of the order, an execution against the personal property only of the party required to pay the same, may be issued by any party or person to whom the said costs or sum of money is made payable by said order, or in ease permission of the court shall be first obtained by any party or person having an interest in compelling payment thereof, which execution shall be in the same form, as nearly as may be, as an execution upon a judgment, omitting the recitals and directions relating to real property; and all proceedings on the part of the party required to pay the same, except to review or vacate the order, are stayed, without further direction of the court, until the payment thereof. But the adverse party may, at bis election, waive the stay of proceedings. Where the order directs that the costs of a motion abide the event of the action, or where costs of a motion, awarded by an order, have not been collected, when final judgment is entered, they may be taxed, as part of the costs of the action, or set oflF against costs awarded to the adverse party, as the case requires. But nothing herein contained shall be so con- strued as to relieve a party or person from punishment as for contempt of court for disobedience to an order in any case when the remedy of enforce- ment by such proceedings now exist. § 779, Code Civ. Pro. ^ g67 Homestead — When Exempted. A lot of land, with one or more buildings thereon, not exceed- ing in value $1,000, owned, and occupied as a residence, by a householder having a family, and heretofore designated as an ex- ^ 668 Exempt Homestead. 456 empt homestead, as prescribed by law, or hereafter designated for that purpose, as prescribed in the next section, is exempt from sale by virtue of an execution, issued upon a judgment, recovered for a debt contracted after the 30th day of April, 1850; unless the judgment was recovered wholly for a debt or debts, contracted before the designation of the property, or for the purchase-money thereof. But no property heretofore or hereafter designated as an exempt homestead, as prescribed by law, or by the next section, shall be exempt from taxation, or from sale for nonpayment of taxes or assessments. § 1397, Code Civ. Pro. How exempt homestead designated. In order to designate property, to be exempted as prescribed in the last section, a conveyance thereof, stating, in substance, that it is designed to be held as a homestead, exempt from sale by virtue of an execution, must be recorded, as prescribed by law; or a notice, containing a full description of the property, and stating that it is designed to be so held, must be subscribed by the owner, acknowledged or proved, and certified, in like manner as a deed to be recorded in the county where the property is situated ; and must be recorded in the oflSce of the clerk of that county, in a book kept for that purpose, and styled the " homestead exemption book." § 1398, Code Civ. Pro. ^ 668 Married Woman's Homestead — When Exempted. A lot of land, with one or more buildings thereon, owned by a married woman, and occupied by her as a residence, may be desig- nated as her exempt homestead, as prescribed in the last section; and the property so designated is exempt from sale, by virtue of an execution, under the same circumstances, and subject to the same exceptions, as the homestead of a householder having a family. § 1399, Code Civ. Pro. When exemption to continue after owner's death. The exemption, prescribed by the last three sections, continues, after the death of the person in whose favor the property was ex- empted, as follows : 1. If the decedent was a woman, it continues, for the benefit of her surviving children, until the majority of the youngest sur- viving child. 457 Execution Against Survivoe. T 669 2. If the decedent was a man, it continues, for the benefit of his widow and surviving children, imtil the majority of the young- est surviving child, and until the death of the widow. But the exemption ceases earlier, if the property ceases to be occupied, as a residence, by a person for whose benefit it may so continue, except as otherwise prescribed in the next section. § 1400, Code Civ. Pro. ^ 669 Execution Against Surviving Judgment Debtors. The last six sections do not affect the right of a judgment creditor to enforce a judgment, against the property of one or more surviving judgment debtors, as if all the judgment debtors were living. In that case, an execu- tion must be issued in the usual form; but the attorney for the judgment creditor must indorse thereupon, a notice to the sheriff, reciting the death of the deceased judgment debtor, and requiring the sheriff not to collect the execution, out of any property which belonged to him. § 1383, Code Civ. Pro. ^1 670 Recoeding Will and Filing Ceetificates. 458 CHAPTER XXX. Assets of an Estate — Obtaining Possession Thereof — What Property Constitutes. If 670. Recording will and filing certificates. 670. Obtaining possession of securities in safe-deposit box. 671. Proceeding to discover property. 675. Hearing and examination. 677. Effect of examination as to personal transaction. 678. Result of examination. 679. Liability of person having property to account. 680. Appointment and proceedings of appraisers. 682. Fees of appraisers, their taxation and payment. 683. Importance of duties of appraisers. 684. What property deemed assets. 685. Proceeds of life insvirance policies. 686. Accident and benefit insurance. 687. Proceeds of foreclosure of mortgage. 688. Property claimed by others. 690. Property and rights held not to constitute assets. 691. Property which becomes assets under certain conditions. ^ 670 Recording a Certified Copy of the Will and Filing Certificates of the Grant of Letters. Every executor must within twenty days after letters a-re issued to him cause a will which relates to real property or an exemplified copy thereof to be recorded in each county where real property of the testator is situated. From § 2633, Code Civ. Pro. See 1[ 380. Since all wills where the witnesses are dead must forever re- main in the surrogate's office and all other wills must remain there for one year, it is impracticable to record the original will in the clerk's office within twenty days ; therefore, it is usually necessary to obtain an exemplified copy of such will for recording. In most counties a certified copy of the will and of the certificate of pro- bate is usually considered sufficient for the purpose of recording. Filing certificates. Before any money on deposit in any bank can be withdrawn by the executor or administrator it is necessary to file with such bank a certificate showing the grant of such letters. This certificate is issued upon application by the clerk of the court. 459 Peocebdings to Discovee Peopeett. f 671 It is advisable to obtain and file this certificate at once as under the rule enforced by the State Comptroller in regard to transfer taxes no bank is permitted to pay out any money, so deposited, until it has given to the Comptroller ten days' notice of the filing of such certificate. It is also necessary to file such a certificate with each corporation which has issued any securities held by the deceased. Obtaining possession of securities in a safe-deposit box. On application by the representative for an order that a safe- deposit company turn over a tin box in its vaults which is claimed by another than the company, the order should be granted. Matter of Scott, 34 Misc. Eep. 446, 70 K Y. Supp. 425. ^ 671 Proceedings to Discover Property Withheld. These sections were not intended as a substitute for ordinary civil remedies in cases where the latter are alone appropriate. The object was to provide a summary means of discovery, and, in case of a mere naked possession of the decedent's " money or other personal property," to compel delivery to the legal repre- sentative. In the case of money, it must be a specific sum tor- tiously withheld, not merely money due belonging to the deceased in the sense of an indebtedness. Matter of Nay, 6 Dem. S46, 19 K Y. St. Eep. 259; Matter of Knittel, 5 Dem. 371, 7 IST. Y. St. Eep. 752. So as to the personal property in general. It must be some definite thing upon which the person proceeded against has no possessory claim, and which can be described in the decree. Thus, the executor or administrator is entitled, without delay, to make a full and complete inventory, to frustrate fraudulent concealment of the decedent's personalty and to reduce the latter to executorial possession. In effecting this purpose, he has the efficient aid of the statute. Where, however, there has been neither concealment nor withholding, the executor should be re- mitted to his appropriate action. Matter of Cunard, 27 N. Y. St. Eep. 128, 7 ]Sr. Y. Supp. 653. General history and scope of the proceeding. The present statute is derived from chapter 394 of the Laws of 1870, which, together with its various modifications since that date, has been the subject of much discussion by the courts. In 1880 the General Term of the Third Department held that this statute was unconstitutional, because, under its provisions, a person might 'J 671 Pkoceedings to Discover Pkopeety. 460 be deprived of his property vpithout due process of law. Matter of Beebe, 20 Hun, 462. Tlie following year, the General Term of the First Department held that the act was not unconstitutional, because it involved merely the question of possession, in a case where possession was wrongfully withheld from the petitioner ; and that, although it dispensed with a jury trial, it was not, on that account, to be considered unconstitutional; for a trial by a jury was not in all cases an essential element in due process of law; for cases within the jurisdiction of the equity courts, although they often involved the title and final disposition of property, are, nevertheless, due process of law within the meaning of the Con- stitution. Matter of Curry, 25 Hun, 321. The same year, 1881, the Legislature amended the statute by inserting in section 2710, Code Civ. Pro., the following provision : " In case the person so cited shall interpose a written answer, duly verified, that he is the owner of said property, or is entitled to the possession thereof by virtue of any lien thereon or special property therein, the sur- rogate shall dismiss the proceeding as to such property so claimed." Under this provision it was held by the General Term of the Third Department {Matter of Wing, 41 Hun, 452) that, where the re- spondent asserted in his answer that he had a lien upon the prop- erty and claimed the right to its possession, the surrogate, having the right to determine the question of possession, but not the ques- tion of title, had no jurisdiction of the issues necessary to be decided in order to decide whether the respondent should sur- render the property and thereupon affirmed the order of the sur- rogate dismissing the proceedings. Judge Parker dissented, stat- ing that, as the answer was not in the form provided by statute, the surrogate was not ousted of jurisdiction and, therefore, was bound to permit the examination to go on. In Doyle v. Doyle (15 IST. Y. St. Kep. 318), it was held that, where the answer conformed to the statute, the surrogate had no power to investigate the verity of the denial. In Matter of Estate of Hastings (16 IST. Y. St. Kep. 980), where the answer was held insufficient because too general, the surrogate ordered the examination to proceed; and in Matter of Peyser (35 App. Div. 447), where the answer was insufficient be- cause in the alternative, the same rule was followed. In Matter of Estate of Cunard (24 IST. Y. St. Rep. 320, 7 E". Y. Supp. 553), where it appeared by the answer that the respondent originally came rightfully into possession of the assets of the de- 461 Proceedings to Discovee Peopeety. | 671 cedent with the right to dispose of them; that they remained in his possession under the same terms subsequent to the decedent's death by virtue of his contract with the representative of the dece- dent's estate, and that the respondent had disposed of them in accordance with these arrangements ; it was held that the petition should be refused, the surrogate remarking that, if the applica- tion should be granted, it would virtually be for an inquisitorial purpose. In Matter of O'Brien v. Baher (65 App. Div. 282), the re- spondent answered, alleging that he had been appointed temporary administrator of the estate of the decedent by a court of compe- tent jurisdiction in the State of Texas, and had in his possession as such temporary administrator certain personal property of the decedent located in Texas ; that all the property of the decedent in his possession or under his control, except that in the State of Texas, had been turned over by him to the petitioner; that as to the Texas property he was entitled to the. possession thereof by virtue of a special property therein arising out of his appoint- ment as temporary administrator; that he had withheld no infor- mation in regard to any property belonging to the estate of the decedent, but had given all the information in his power to the petitioner and had repeatedly offered to answer any question in regard to the estate which the petitioner might ask. The court held that this answer did not set up a lien thereon or special prop- erty therein upon the part of the respondent. His appointment as temporary administrator in Texas constituted him a mere cus- todian of the property and that the case was one to which the provisions of the Code were designed to apply and that the order of the surrogate directing the respondent to attend and be exam- ined should be affirmed. In this case Judge Ingraham, in a care- fully written opinion, says (p. 286) : " It will be noticed that this section (2707) is not confined to a proceeding to compel a person in the possession of property belonging to a decedent to deliver such property to the administrator. It also provides for a case where there is personal property that should be included in an inventory or appraisal, and which ' is in the possession, under the control or within the knowledge or information of a person who withholds the same ' from the representative of the deceased, or who refuses to impart knowledge or information he may have concerning the same, or to disclose any other fact which will aid such executor or administrator in making discovery of such prop- % 671 Peoceedixgs to Discovek Peopeety. 462 erty, so that it cannot be inventoried or appraised. It is for the purpose of procuring information as to the property that should be inventoried and appraised as well as of the property that should be delivered to the administrator that the proceeding is allowed, and an examination of a person having knowledge of the decedent's property is allowed so as to give information as to such property which the administrator here is required to inventory or appraise, although its present situation is such that it would be impracticable to order its delivery to the administrator. * * * The petition to be presented to the court must allege facts tending to show that money or other property which should be delivered to the peti- tioner, or included in an inventory or appraisal is in the possession, under the control, or within the knowledge or information of a person who withholds the same from him, or refuses to impart knowledge or information he may have concerning the same, or to disclose any other fact which would aid such executor or ad- ministrator in making a discovery of such property, and upon presentation of that petition such a person may be cited to attend the inquiry and be examined accordingly ; and I can see no reason why this statute should be confined to a proceeding in which the surrogate could order property in the hands of such a person de- livered to the temporary administrator." In this case (Matter of O'Brien v. Baker), the court seems to have asserted, more clearly than in any former case, the legislative intent of providing in this proceeding a remedy which should be, to some extent, inquisi- torial in its character, and to have dissented from a construction of the statute made with the avowed purpose, as expressed by Sur- rogate Ransom, of preventing the remedy from becoming such. According to the prevailing opinion in this case, the proceeding was not intended solely as a method by which an executor or ad- ministrator might obtain possession of assets withheld; but was intended, as well, to enable an executor or administrator to obtain information in regard to such assets and the grounds upon which they were withheld and to inquire into the facts and circum- stances upon which an adverse claim thereto was based, so that the executor or administrator might have some reasonable ground upon which to proceed in the performance of his duties, so far as such assets were concerned. The amendments to the statute which have been made since 1901, it seems to me, emphasize this aspect of the proceeding and show, more clearly, that such was the legis- lative intent. The provision for answer of title or claim of special 463 Peoceedings to Discovee Peopektt. 1 671 property, -whicli was to oust the surrogate of jurisdiction to pro- ceed further, has been modified, so that, upon the attendance of a person to -whom citation is issued, he is permitted to submit an answer, duly verified, showing cause why the examination should not proceed; the surrogate may then dismiss the proceeding or direct the examination to proceed. It is, therefore, left to the discretion of the surrogate, to a certain extent, whether to proceed with the examination ; and it is no longer possible for the respond- ent, by filing such an answer as was provided for in the former statute, to oust the surrogate of jurisdiction. A still more signifi- cant change, however, has been made in the statute, by adding the provision in section 2709 that, if the witness is examined con- cerning any personal communication or transaction between him- self and the decedent, all objection under section 829 to his testimony as to the same in future litigation is waived. There could hardly be any reason for inserting this provision in the stat- ute if the Legislature did not contemplate the examination of the respondent touching assets which he might claim to own, or in which he might claim some special property, or upon which he might claim to have some lien. Such, I am convinced, was the intention. I cannot see how any harm should arise therefrom to the respondent. His rights are, it seems to me, adequately pro- tected by this provision. If his right to the property which he had in his possession depends upon any personal transaction be- tween himself and the decedent, the executor will interrogate him in reference thereto at his peril; for, if he does so, the respond- ent's mouth will be opened and he will be permitted, thereafter, to testify in his own favor as to such transaction and in support of his claim. I am convinced, therefore, that, whatever the Legislature may have intended by the act of 1870, the provisions, as they now stand, are intended to afford the executor or administrator a rem- edy which is, as I have said, in a certain sense, and to a certain degree, inquisitorial, and one that is not likely to do any harm, but, on the contrary, one that is likely to be of great service to executors and administrators in performing duties that the law casts upon them and which often place them in a position of great difficulty and hazard. The objection of the respondent that the petition is indefinite does not strike me as having much force. This very proceeding is intended to remove indefiniteness and uncertainty in respect to f 672 Proceedings to Discovee Peopeett. 464 things that are unknown to the executor or administrator and to give the representative an opportunity to find out, with certainty and definiteness, about things as to which he lacks information. These things are more likely to be in the knowledge of the re- spondent; and, perhaps, as a result of the examination, the peti- tioner in this proceeding will obtain the information which the respondent now possesses and can then tell in what bank the moneys he refers to were deposited. ISTor am I able to accept the theory of the respondent's counsel as to the meaning of the word " witness " as employed in section 2710, nor to subscribe to the proposition that the provisions of this section for ending the proceeding will be satisfied if the re- spondent files an answer admitting that he has control of the property and alleging that the facts as to petitioner's right are in dispute. A simple reading of these sections in their consecutive order will exhibit the fact that, until the proceeding progresses to the point where the respondent is sworn and actually becomes a witness, in the ordinary meaning of the word, he is not so denomi- nated. He is spoken of as " a person who withholds the same " or " the person complained of," or " the person to be cited," or " the party cited," but he is never called a " witness " until that part of the proceeding is reached at which the statute contemplates his having been sworn as a witness. It seems to me, therefore, that the statute contemplates the respondent as having been sworn and as having been examined, and that a dispute has been devel- oped by such examination, in regard to the facts as to the peti- tioner's right to the moneys or property, in relation to which discovery is sought. This means something more, it seems to me, than the mere statement of a conclusion on the part of the witness that the property is his or that he has a right to its custody. It is the facts out of which his right to maintain such a claim arises, and not the mere fact that he makes it, which ends the proceeding ; and those facts, I apprehend, are the facts brought out upon the examination contemplated by the statute. Matter of Gich, 49 Misc. Eep. 32; affd., 113 App. Div. 16; Matter of Packard, 53 Misc. Eep. 161. ^ 672 Proceedings to Discover Property Withheld. An executor or administrator may present to the surrogate's court, from ■which letters were issued to him, a written petition duly verified, setting forth, on knowledge or information and belief, any facts tending to show 465 Peoceedings to Discovee, Pkopektt. ^ 672 that money or other personal property which should be delivered to the petitioner, or included in an inventory or appraisal, is in the possession, under the control or within the knowledge or information of a person who withholds the same from him; or who refuses to impart knowledge or infor- mation he may have concerning the same, or to disclose any other fact which will aid such executor or administrator in making discovery of such property, so that it cannot be inventoried or appraised; and praying an inquiry respecting it, and that the person complained of may be cited to attend the inquiry and be examined accordingly, and to deliver the property if in his control. The petition may be accompanied by an affidavit or other evidence, written or oral, tending to support the allegations thereof. If the surrogate is satisfied, on the papers so presented, that there are reasonable grounds for the inquiry, he must issue a citation accordingly; which may be made returnable forthwith, or at a future time fixed by the surrogate, and may be served at any time before the hearing. Where the person, or any of the persons, to be cited does not reside, or is not within the county of the sur- rogate, the citation, in the surrogate's discretion, may require him to appear at a specified time and place within the county where he resides or is served before the surrogate of that county. § 2707, Code Civ. Pro. Order; service of citation and order. The surrogate must annex to or indorse upon the citation an order requir- ing the party cited to attend, personally, at the time and place therein specified. The citation and order must be personally served, and service thereof is ineffectual, unless it is accompanied with payment or tender of the sum required by law to be paid or tendered to a witness who is sub- poenaed to attend a. trial in the supreme court. § 2708, Code Civ. Pro. Petition — Citation. The petition must be verified ; it may be made on knowledge, or on information and belief; it must set forth the facts tending to show that some person named withholds money or personal prop- erty from petitioner's possession, or withholds information con- cerning the same; it may be accompanied by an affidavit or other evidence tending to support the allegations. Citation. If the surrogate is satisfied that there are reasonable grounds for the inquiry, he must issue a citation, returnable forthwith, or at a future time fixed by the surrogate. It may be made returnable before the surrogate, or where the party to be cited is not a resident of or within the surrogate's county, before the surrogate of the county where he resides or is served. The surrogate must' annex to or indorse upon the citation an order requiring the party cited to attend personally at the time and place therein specified. 30 1[ 673 Petition — Citation — Decree. 466 Service of citation may be made at any time before the hearing; must be personal service, and accompanied with payment or tender of the sum required by law to be paid or tendered to a witness who is subpoenaed to attend a trial in the Supreme Court. §§ 2707, 2708, Code Civ. Pro,, analyzed. ^ 673 Petition. The petition is sufficient to require the issue of a citation if it contains allegations " tending to show " that there is property withheld from the executor or administrator. Mead v. Sommers, 2 Dem. 296. The petition need not state the sources of his information or the grounds of his belief. Walsh v. Downs, 3 Dem. 202. The proceeding may be brought liy a temporary administrator. Matter of O'Brien, 8-4 Misc. Eep. 436, 69 N. Y. Supp. 1022; affd., 65 App. Div. 282, 72 IST. Y. Supp. 1001. All executors or administrators must join in making the peti- tion or the one refusing to join must be cited. Matter of Slinger- land, 36 Hun, 575. q 674 Citation. Citation for examination cannot be issued as a matter of course, but must be by order of the surrogate. Mauran v. Haidey, 2 Dem. 396. Seivice of citation and order. A copy of the citation and order must be served personally, and in order to pursue contempt proceedings against the witness, if necessary, the original order should be exhibited at the time of service. Mauran v. Hawley, 2 Dem. 396. q 675 Examination and Decree. On the attendance of a person to whom a citation is issued, as prescribed in this article, he may submit an answer duly verified showing cause why the examination should not proceed. The surrogate may then dismiss the proceeding or direct the examination to proceed. In the latter case he must be sworn to answer truly all questions put to him, touching the inquiry prayed for in the petition; and he may be examined fully and at large respecting property of the decedent, or of which the decedent had possession at the time of, or within two years before his death. A refusal to attend or be sworn, or to answer a question which the surrogate determines to be proper, is punishable in the same manner as a like refusal by a witness sub- 467 DiscovEBY OF Peopekty — Heaeinct. t 676 pcenaed to attend a hearing before the surrogate. The extent of the exam- ination shall be in the discretion of the surrogate. If the witness is examined concerning any personal communication or transaction between himself and the decedent, all objection under section eight hundred and twenty-nine to his testimony as to the same in future litigation is waived. Either party may produce further evidence, in like manner and with like effect as on a trial. § 2709, Code Civ. Pro. Hearing — When to be dismissed. The person cited may present a verified answer showing cause why the examination should not proceed, in fhich case the'surro- gate may dismiss the proceeding, or he may direct it to proceed. Hearing. The witness must be sworn; the examination may cover two years prior to the death of deceased; if he be examined as to personal transaction between himself and the deceased, all objec- tions to the same testimony from him under section 829, Code Civ. Pro., are thereby waived in all future litigation ; either party may examine other witnesses; the extent of the examination is in the discretion of the surrogate. Witness may be punished for contempt. A refusal to attend, be sworn, or to answer a proper question is punished as for contempt. § 2709, Code Civ. Pro., analyzed. ^ 676 When Maintained. The proceeding may be maintained against a person withhold- ing information even though he has no property of the deceased. Matter of O'Brien, 34 Misc. Rep. 436, 69 N. Y. Supp. 1022; affd., 65 App. Div. 282, 72 N. Y. Supp. 1001. May be maintained against a bank which had knowledge of assets of the deceased derived from having been in possession of securities pledged by the deceased for loans. Matter of Richard- son, 31 Misc. Kep. 666, 66 N. Y. Supp. 94. When dismissed. Where a proceeding is brought to recover papers, receipts, deeds, etc., and an attorney's lien is set up, the proceedings should be dismissed. Matter of McGuire, 106 App. Div. 131, 94 N. Y. Supp. 97. This proceeding cannot be used for collection of a debt, but for recovery of existing specific property. Matter of Nay, 6 Dem. 346. ^ 611 Examination as to Personal. Teansaction. 468 Where money of the deceased in the hands of a third person had been spent before the proceeding was begun — held, that it could not be maintained for the purpose of collecting a debt. Matter of Stewart, 11 Him, 564, 60 IST. Y. St. Eep. 505, 28 'E. Y. Supp. 1048. The proceeding should be dismissed where it is sought to ex- amine the officers of a bank concerning a banlt deposit, as the position of the bank is that of debtor and the proceedings cannot be maintained for the purpose of examining a debtor. Matter of Knittel. 5 Dem. 371, 1 IST. Y. St. Rep. 752. The person cited had received sums of money from the deceased from time to time and had paid out sums at her direction. He admitted having a balance on hand, but could not tell the amount — held, that as an accounting was necessary, the matter could not be determined in such a proceeding. Matter of Carey, 11 App. Div. 289, 42 IST. Y. Supp. 346. Mere denial by answer not sufficient to cause dismissal. A denial by a party cited that he has any property of deceased in his possession is not sufficient to require the dismissal of the proceedings. Matter of Hastings, 6 Dem. 423, 2 N. Y. Supp. 22, 16 K Y. St. Eep. 980 ; Matter of O'Brien, 34 Misc. Eep. 436, 69 K Y. Supp. 1022 ; affd., 65 App. Div. 282, 72 K Y. Supp. 1001. ^ 677 Effect of Examination as to Personal Transaction. Where a statement concerning the ownership of some bonds was brought out on an examination, and an action was thereafter brought, testimony as to personal transaction was not allowed to be given. Eillian v. Heinzerling, 47 Misc. Eep. 511. See also 114 App. Div. 410, 99 K Y. Supp. 1036. On another trial the witness is only entitled to testify upon the subject as to which she was examined in the Surrogate Court. Killian v. Heinzerling, 114 App. Div. 410, revg. 47 Misc. Eep. 511. Refusal to answer. An order adjudging an attorney guilty of contempt for refus- ing to disclose information about the estate of deceased is a final order. Matter of King v. Ashley, 179 N. Y. 281, affg. 96 App. Div. 143. 469 Teemination of Proceeding. f 679 An attorney cannot refuse to answer on the claim of privilege (§ 835, Code Civ. Pro.) if he has derived such information from other persons or other sources. Matter of King v. Ashley, 179 N. Y. 281, affg. 96 App. Div. 143. ^ 678 Result of Examination. Decree. If upon such examination the facts admitted by the witness show that he is in control of property to whose immediate posses- sion the petitioner is entitled, the surrogate may decree that it be delivered to the petitioner. Proceeding ends. If the witness admits having the control of the property, but the facts as to the petitioner's right are in dispute, the proceeding shall end, unless the parties consent to its determination by the surrogate in which case it shall be so determined. § 2710, Code Civ. Pro. Decree. Matter of Legiorato (34 Misc. Rep. 31) criticised and held, that Italian consul, as administrator, was entitled to have property of the intestate, a subject of Italy, turned over to him. Matter of Lobrascino, 38 Misc. Rep. 415, 77 N. Y. Supp. 1040. Where the property has been inventoried but the contention arises under an agreement by which the party cited has had con- trol of the property the proceeding cannot be maintained. Matter of Cunard, 27 N. Y. St. Rep. 128. Where the examination shows that the property in question was bequeathed to the executor and the party cited and that all debts have been paid and that the specific legacy has been assented to by the executor the proceeding should be dismissed. Matter of McCaHhy, 47 N. Y. Supp. 1127, 26 Civ. Pro. 397. Costs. The decree may award costs against the person cited where he has contested the proceeding. De Lamater v. McCaskie, 5 Dem. 8. C[ 679 Liability of Persons Who Assume to Hold and Control Property of Estates. Every person becoming possessed of property of a testator or intestate, without being thereto duly authorized as executor or administrator, or without authority from the executor or admin- *[ 680 Appoia'tment of Appeaisees. 470 istrator, is liable to account for the full value of such prop- erty to every person entitled thereto, and shall not be allowed to retain or deduct therefrom any debt due to him. § 2706, Code Civ. Pro. ^ 680 Appointment of Appraisers — Notice of Appraisal — Oath of Appraisers — Inventory. Within a reasonable time after qualifying and receiving letters the executor or administrator should apply to the surrogate for the appointment of two appraisers. Such application need not be made formally but may be made orally or by letters, and the names of two proper persons may be suggested. The surrogate must in writing appoint two disinterested persons to appraise the personal property of the deceased. The executor or administrator must then give a notice of at least five days to the legatees or next of kin residing in the county where the property is situated and by posting a notice in three of the most public places of the town, specifying the time and place at which the appraisement will be made. Service of the notice may be either personal or by mail in ac- cordance with subdivision 1 of section 797, Code Civ. Pro., in which latter case the notice must be mailed ten days before tho day fixed for the appraisal. Oath. Before making the appraisement the appraisers must take and subscribe an oath to be annexed to the inventory that they will truly, honestly, and impartially appraise the personal property exhibited to them, according to the best of their knowledge and ability. Appraisal. They must in the presence of such of the parties interested as attend estimate and appraise the property exhibited to them, .and set do^vn each article separately with the value thereof in ■dollars and cents distinctly, in figures opposite to the articles respectively. Part of § 2711, Code Civ. Pro., analyzed. On the application of an executor or administrator, the surrogate, by writing, must appoint two disinterested appraisers, as often as may be neces- sary, to appraise the personal property of a deceased person, who shall be ^entitled to receive a reasonable compensation for their services, to be 471 Notice of Appeaisal. T 681 allowed by the surrogate, not exceeding for each, the sum of five dollars for each day actually employed in making appraisement, in addition to expenses actually and necessarily incurred. The number of days' services rendered, and the amount of such expenses, must be verified by the affidavit of the appraiser, delivered to the executor or administrator, and adjusted by the surrogate before payment of the fees. The executors and administrators, within a reasonable time after qualifying and after giving a notice of at least five days to the legatees and next of kin, residing in the county where the property is situated, and posting a notice in three of the most public places of the town, specifying the time and place at which the ap- praisement will be made, must make a true and perfect inventory of all the personal property of the testator or intestate; and if in different and distant places two or more such inventories as may be necessary. Before making the appraisement, the appraisers must take and subscribe an oath, to be inserted in the inventory, that they will truly, honestly and impartially appraise the personal property exhibited to them, according to the best of their knowledge and ability. They must in the presence of such of the parties interested as attend, estimate and appraise the property exhibited to them, and set down each article separately with the value thereof in dollars and cents, distinctly, in figures opposite to the articles respectively. Service of the notice above mentioned may be either personal or in the manner prescribed by section seven hundred and ninety- seven, subdivision one and section seven hundred and ninety-eight of this act. § 3711, Code Civ. Pro. ^ 681 Appraisers May be Appointed as Often as May be Necessary and Two or More Sets May be Ap- pointed. By section 2711, Code Civ. Pro., it is provided that apprai&ers may be appointed as often as may be necessary, and if tbe prop- erty is located in different or distant places, two or more inven- tories may be made. By section 2714, Code Civ. Pro., it is provided that if after the inventory is made other and additional property is discovered, an inventory thereof shall be made and returned within two months after such discovery. It may not be economical or practicable to have the same two appraisers act in places widely separated or upon different occa- sions, so that it is reasonable to suppose that it was intended to give the surrogate authority to appoint as many sets of appraisers as circumstances should require in order to properly perform the duty of making proper inventories. The surrogate cannot direct the appraisers as to the manner of the performance of their duties. Matter of McCaffrey, 50 Hun, 371, 20 K Y. St. Eep. 5, 3 N. Y. Supp. 96. I 682 Fees of Appraisers. 472 An inventory taken where no notice lias been given is invalid and the appraisers can be allowed no fees. Salomon v. Heichel, 4 Dem. 176. Filling vacancy where appraiser refuses to serve. If a person appointed appraiser refuses to serve another suit- able person may be appointed in his place. To accomplish this such appraiser should sign a statement that he declines or refuses to serve, which statement should be filed with the surrogate. Thereupon an order will be entered by the surrogate appointing another suitable person as appraiser in his place and stead. ^ 682 Fees of Appraisers, Their Taxation and Payment. The appraisers shall be entitled to receive a reasonable compen- sation for their services, to be allowed by the surrogate, not ex- ceeding for each the sum of $5 for each day actually employed in making appraisement, in addition to expenses actually and necessarily incurred. The number of days' services rendered and the amount of such expenses must be verified by the affidavit of the appraiser, deliv- ered to the executor or administrator and adjusted by the surrogate before payment of the fees. From § 2711, Code Civ. Pro. An appraiser is entitled, in addition to his actual expenses, to a sum to be fixed by the surrogate, not exceeding $5 for each day actually and necessarily occupied by him in making the ap- praisal or inventory. The number of days' services and the ex- penses, if any, must be proved by the affidavit of the appraiser, and the sums payable therefor taxed by the surrogate and paid by the executor or administrator. It is not customary or necessary to give notice of the application to the surrogate for taxation of the fees. The executor or admin- istrator represents the persons interested. The order effects a substantial right, and any party interested may appeal from it. Where the persons interested have not had notice of the taxation of appraisers' fees, the surrogate should grant a motion to set aside the taxation and grant a hearing. Matter of Harriot, 146 1^. Y. 540, revg. 63 K Y. St. Eep. 871, 30 K Y. Supp. 1132. An allowance of $250 where the items were few and the work was not complicated disapproved, even though the estate was large. Matter of Harriot, 145 IST. Y. 540. 473 What Shall be Deemed Assets. T[ 684 C 683 Importance of the Duties of Appraisers. Too little attention is sometimes given to the selection of proper persons to act as appraisers, and this is due to the fact that repre- sentatives and attorneys do not fully appreciate the importance of the duties of the appraisers. It often happens that persons who would be entirely competent to appraise shop or factory machinery and appliances are selected to put a value on farm tools and produce ; and that two men ap- praisers are chosen where the only property to be appraised con- sists of women's clothing. There is no good reason why in a proper case one or both of the appraisers should not be women, and in all cases persons should be chosen who have a fair knowledge of the value of the property which they are to appraise. The appraisers are required to take an oath that they will fully and fairly appraise such property as may be shown them, and yet it is often found that appraisals are apparently made with very little regard to the actual value of the property, and thereby the rights of persons interested may be greatly prejudiced or destroyed altogether. ^ 684 What Shall be Deemed Assets. The following shall be deemed assets and go to the executors or administrators, to be applied and distributed as part of the per- sonal property of the testator or intestate, and be included in the inventory : 1. Leases for years; lands held by the deceased from year to year ; and estates held by him for the life of another person. 2. The interest remaining in him, at the time of his death, in a term of years after the expiration of any estate for years therein, granted by him or any other person. 3. The interest in lands devised by an executor for a term of years for the payment of debts. 4. Things annexed to the freehold, or to any building for the purpose of trade or manufacture, and not fixed into the wall of a house so as to be essential to its support. 5. The crops on the land of the deceased at the time of his death. 6. Every kind of produce raised annually by labor and cultiva- tion, except growing grass and fruit ungathered. 7. Rent reserved to the deceased which had accrued at the time of his death. 1[ 684 Assets — Debts — Rents. 474 8. Debts secured by mortgages, bonds, notes, or bills ; accounts, moneys, and bank bills, or other circulating medium, things in action, and stock in any corporation or joint-stock association. 9. Goods, wares, merchandise, utensils, furniture, cattle, pro- visions, moneys unpaid on contracts for the sale of lands, and every other species of personal property not hereinafter excepted. Things annexed to the freehold, or to a building, shall not go the executor, but shall descend with the freehold to the heirs, or devisees, except such fixtures as are mentioned in the fourth sub- division of this section. The right of an heir to any property, not enumerated in this section, which by the common law would descend to him, is not impaired by the general terms of this section. § 2712, Code Civ. Pro. Debts due the deceased from an executor or administiator or other person. Debts due the deceased from an executor or other person, al- though they may be discharged by the terms of the will, since they are liable if necessary for debts of the deceased. From § 2714, Code Civ. Pro. Rents. For apportionment of rents, etc., see section 2720, Code Civ. Pro., If 933. Kents which had not become due and payable at the time of the death of the owner belong to the heirs, and are not assets to be paid to the representative and distributed by him. Matter of Strick- land, 10 Misc. Eep. 486, 65 IS. Y. St. Eep. 250, 32 IST. Y. Supp. 171. Where a farm is let " on shares " the proceeds from milk which the deceased would have been entitled to had he lived belong to the representative and are distributable as personal estate. An agree- ment to work on shares is not a lease. Matter of Strichland, 10 Misc. Eep. 486, 32 N. Y. Supp. 171. Testator died in June and widow was devisee of farm for life. Farm was rented on shares, and tenant paid to widow a share of the proceeds of sale of hay — held, that the widow took proceeds as life tenant and not as executrix. Matter of Chamberlain, 140 N. Y. 390, modifying 46 N. Y. St. Eep. 841. Eent accrued where deceased and another held property in com- mon goes to the representative. Matter of Foulds, 35 Misc. Eep. 171, 71 E". Y. Supp. 473. 475 Assets — Cbops — Leasehold Peopeety. ^684 Eent which accrued before owner's death goes to the representa- tive, and there cannot be set off against it a claim for damages accruing after such death. Jay v. Kirkpatrick, 26 Misc. Eep. 550, 57 K Y. Supp. 476. Growing crops. Growing crops shall go to the executor or administrator to be applied and distributed as part of the personal estate of their tes- tator or intestate and shall be included in the inventory thereof. Under this provision the executor takes possession of the growing crops as he does of all other personal property. But he takes pos- session only for the purposes of administration according to law. He may sell them if necessary for the payment of debts and lega- cies. Bu.t when the land upon which the crop is growing has been devised in such a form as to convey it to the devisee, then the crop is to be put upon the footing of a chattel specifically bequeathed ; and it cannot be sold for the payment of general legacies, and can be sold for the payment of debts only after the other assets not specifically bequeathed have been applied. Stall v. Wilburn, 77 K Y. 158. Grass and fruit growing upon lands belonging to an intestate at the time of his decease are not assets belonging to the adminis- trator, but descend with the land to the heir. Kain v. Fisher, 6 ]Sr. Y. 597. Crops growing on land devised go to the executor if needed to pay debts, etc., but if not so needed go to the devisee of the land. Bradner v. Faulkner, 34 N. Y. 347. Crop on dower land is personal property. A widow may bequeath a crop in the ground of land held by her in dower. § 185, Real Property Law. Leasehold property. If the deceased has leasehold property the executor or ad- ministrator may sell the lease or enter into possession and receive the rent. In the latter case the rent so received is not general as- sets until the rent due under the lease held by deceased has been paid, but should be paid over to satisfy the terms of the original lease. MiUer v. Knox, 48 IST. Y. 232. Where a deceased has entered upon a yearly tenancy of real estate and his representative does not end the tenancy, the repre- f 684 Damages — Pensions — Paktneeship Peopeett. 476 sentative is liable for the rent until the end of the term and the estate or interest passes to the representative. Pugsley r. Aikin, 11 X. Y. 494. Damages to real estate. A right cf action for an injury to the rental value of real estate done while testator is alive passes to his executor or administrator and not to the devisee or heir of the real estate and is a part of the personal assets of the deceased. Griswold v. Met. E. R. Co., 122 N". Y. 102 ; RoUnson v. Wheeler, 25 id. 252 ; Shepard v. Manh. R. Co., 117 id. 442. Pension money. Widow who obtained pension died leaving unexpended pension money and infant children — Jield, that such money was not liable for such widow's debts. Hodge v. Leaning, 2 Dem. 553. Pension money deposited in bank is assets subject to payment of debts. Beecher v. Barber, 6 Dem. 129, 20 IST. Y. St. Pep. 136. Pension money receive by a mother for services of her son re- maining in bank at her death are liable for her debts. Matter of Winans, 5 Dem. 138. Partnership property. See H 586. Inventory of representative of deceased partner should not in- clude an inventory of the firm assets, but of the estimated balance due the deceased partner upon the winding up of the firm business. No specific enumeration of the articles of partnership property at the death of one partner should be made by his representative in the inventory of his estate, but the interest of the deceased partner may be set out as an unascertained balance in the partnership as- sets. Thomson v. Thomson, 1 Bradf. 35 ; followed in 9 Civ. Pro. 231. On the death of a member of a firm the legal title to the assets of the firm vests in the surviving members, and what is left to the representatives of a deceased partner is the right to an accounting. Matter of King, 71 App. Div. 581, 76 N. Y. Supp. 220 ; affd., 172 IST. Y. 616. Right to firm name does not belong to the surviving partner, but should be sold for benefit of the firm assets. Slater v. Slater, 175 K Y. 143, modifying 78 App. Div. 449. 477 Debt Due FEoiir Eepresentative. f 684 Debt due from the executor or administrator to deceased. A debt due from the executor or administrator to the deceased is made by section 2714, Code Civ. Pro., assets in his hands, but in ease of his insolvency or actual inability to pay it, he may have credit therefor. This section applies to a debt due from the firm of which the executor is a member, and such a debt should be charged to the executor. Matter of Consalus, 95 IST. Y. 340. Where the property came to the executor before death of tes- tator, upon issue of letters, such fund becomes at once assets in the hands of the representative. See section 2596, Code Civ. Pro. Matier of Brintnall, 40 Misc. Eep. 67, 81 N. Y. Supp. 250. Subjecting the executor, as between himself and those interested in the estate, to liability for his debt as for so much money in his hands does not necessarily discharge a lien on real estate by which the debt may be secured. Soverhill v. Suydam, 59 JST. Y. 140. An executor who was insolvent and indebted to the estate, hav- ing sustained a loss by fire, indorsed on his policy of insurance an assignment of it to himself as executor, and upon receiving payment, deposited the money in a bank to his credit as executor — held, an appropriation of the money to pay the debt he owed the estate. Scrantom v. Farmers' £ Mech. Bank, 24 IST. Y. 424. A claim against the administrator should be included in the inventory, and if he be insolvent and unable to pay it, he may receive credit therefor on his final accounting. Burkhalter v. Norton, 3 Dem. 610; Baucus v. Stover, 89 IST. Y. 1; Matter of Davis, 4:4: Misc. Kep. 337, 89 JS^. Y. Supp. 927. The note of an insolvent executor must be held as assets since his commissions, when allowed, must be credited on the note. Freeman v. Freeman, 4 Eedf. 211. Where the debt is interestrbearing it includes the interest upon the same until the amount is actually paid over. Matter of Davis, 37 Misc. Kep. 326, 75 K Y. Supp. 493. Judgment obtained by the deceased against an administrator must be treated as money in his hands. " Contestants claim that the administratrix should be charged with the amount of a Supreme Court judgment against her and in favor of her husband, the intestate, as so much money in her hands to be applied to the payment of debts and for distribution. Code, § 2714. This judgment was obtained by confession dated If 684 Judgment Against Eepresentative. 478 July 9, 1897, and on May 24, 1900, was docketed in tlie Eensselaer county clerk's office. " The administratrix sets up three reasons why she should not be charged with the judgment. First, that the judgment was confessed without consideration, at the suggestion of her hus- band, and is, therefore, invalid. She desired to offer evidence upon this point, but such evidence was excluded on the ground that the validity of such judgment could not be tried in Surro- gate's Court, the same being regular upon its face. The jurisdic- tion of the court granting it is not attacked and, therefore, the judgment is a judicial settlement of the rights of the parties within the issues involved at its date. The Surrogate's Court cannot set such judgment aside, but is botmd to give it full faith and credit. McNuUy v. Hurd, 72 IST. Y. 521 ; Matter of Browne,. 35 Misc. Eep. 362. " The second objection urged is that the administratrix is finan- cially unable to pay such judgment ; and she asked to give evidence to show her inability to make such payment, which evidence was excluded. The Code, section 2714, says that the executor must be charged with such a debt as so much money in his hands. There is no provision that the Surrogate's Court can become a bank- ruptcy court and determine to what extent an executor is solvent or insolvent. It appears that this administratrix has neither in- ventoried this judgment nor sought to enforce it against herself. The regular way to determine whether or not a judgment is col- lectible is to issue execution upon it and take such other proceed- ings as the law has provided. This the creditors and persons interested have not yet had an opportunity to do; and, if this administratrix should be relieved from accounting for the money due upon this judgment, upon such testimony as might be pro- duced in Surrogate's Court, the parties interested would be de- prived of their legal rights. The only method of preserving those rights is to charge the administratrix with the amount due upon this judgment in the decree of judicial settlement, which decree can then be docketed as a judgment in favor of all interested parties, upon which they can take such legal proceedings as will determine in a legal manner whether or not the judgment is col- lectible. The duty of the siirrogate to so charge the executor was distinctly laid down in Baucus v. Stover (89 IST. Y. 1)." Mcdter of Griffith, 49 Misc. Eep. 405. i79 Pkoceeds of Insueance. If 686 Debt due from a legatee or devisee to deceased. A debt due the deceased from a legatee is an asset and should be retained by the representative even though the Statute of Limi- tations has run against it. Matter of Foster, 15 Misc. Rep. 175, 72 N. Y. St. Rep. 140, 37 N. Y. Supp. 36. Debt due from a legatee of income should be paid by retain- ing such income until the debt is satisfied. Matter of Foster, 38 Misc. Rep. 347, 77 IsT. Y. Supp,, 922. ^ 685 Proceeds of Life Insurance Policies as Assets. The distinction between two classes of policies — those pay- able to the insured or his personal representatives, and those payable to at specific beneficiary — is clearly recognized by the decisions. In the first class the contract is made for the benefit of the insured and the proceeds pass to his personal representatives as part of his estate and are liable for the payment of his debts and legacies; while in the latter case the contract is made for the benefit of others, and the proceeds are transferred to them by the terms of the contract, and not by virtue of the Statute of Dis- tributions or the provisions of the will of the insured. Matter of Fay, 25 Misc. Rep. 468, 55 IST. Y. Supp. 749. Payable to the deceased, his executor, administrator or legal representative. Where a policy is payable to the deceased or to his executors, administrators, or his personal representatives, the proceeds form part of his estate and are liable for debts and legacies. Matter of Knoedler, 68 Hun, 150, 52 N". Y. St. Rep. 47 ; affd., 140 E". Y. 377. ^ 686 Accident Insurance. The proceeds of a policy of accident insurance made payable to the estate are subject to disposition by will. Matter of Smith, 46 Misc. Rep. 210, 94 IST. Y. Supp. 90. Payments by benefit association. Whether or not sums paid to the widow or family from fraternal organizations are assets depends upon the constitutions and by- laws of those associations. Benefits received from the Sons of Temperance, I. O. 0. F., Fidelity Temple of Honor, and Temperance are not assets. Mat- ter 'of Brooks, 5 Dem. 326, 5 IST. Y. St. Rep. 381. 5 687 Assets in Possession of Others. 480 ^ 687 Proceeds of Foreclosure of Mortgage. Where the interest of the decedent has been in the land and he has died before conversion by foreclosure sale, then his interest in the avails of the conversion goes to the heirs-at-law. Where the conversion has taken effect before the death of the decedent, then his interest in the avails goes to the administrator. Denham V. Cornell 67 K Y. 556. Where a mortgage held by deceased has been foreclosed and the property bid in by the personal representatives, it becomes per- sonal estate to be accounted for by the representative, and the heirs-at-law are not necessary parties to a deed conveying the same. Haherman v. Baker, 128 ]^. Y. 253 j Lochman v. Beilly, 95 K Y. 64. Proceeds of sale of real estate converted under a power of sale, and the rent received before actual sale. Eents received by executors vphere the real estate is devised to them with power of sale may be assets for payment of debts. Glacius V. Fogeh 88 K Y. 434. ^ 688 Securities, Bank-Books, and Other Personal Prop- erty in the Possession of the Deceased, Even Though Claimed by Others Should be Treated as Assets. All securities, bank-books, and other personal estate and evi- dences of indebtedness which come to the possession of the repre- sentative should be treated as assets of the deceased, even though claimed by others, unless such right is clear and unmistakable. Even then it is better to produce such property before the ap- praisers and take their decision upon the matter, before delivering it to the claimants. If there is any fair question about the right of such person to the property, it should be retained until the rights of all parties are determined in court. WTiere an administrator finds in the safe-deposit box of the deceased securities which are claimed as the property of another, the surrogate has no jurisdiction to make an order that they be turned over to such claimant. Case v. Spencer, 86 App. Div. 454. "\^'^lere securities are given to trustees, the executor should turn over such securities to the trustees, instead of collecting and re- investing the proceeds. Matter of Ryer, 94 App. Div. 449, 88 K Y. Supp. 52; affd., 180 K Y. 532. 481 Peopeety Not Assets. f 690 Savings bank-books and deposits. Deposits in savings bank in trust and in various forms sliov^ing an intention to make a person named therein a beneficiary after the death of the depositor have given rise to much litigation. This subject is discussed at H 1057 under judicial settlement, v^hich should be consulted as an aid in determining whether or not such deposits are assets. ^ 689 Examination to Determine Whether Property is or is Not Assets of the Estate of the Deceased. The representative should make a careful examination of the property of the deceased vs^hich comes to his hands to ascertain whether or not it is in fact the property of the deceased or prop- erty of some other person in his possession. It is not always safe to assume that all of the property in sight about a place, store, farm, or house is the property of the de- ceased. It may never have been his or it may be fully covered by a chattel mortgage or other lien and sometimes securities known to be owned by the deceased will be found to be pledged as col- lateral. If the representative has not fully informed himself as to these matters he may consider that the deceased left more than sufficient property to pay his debts and may make the mistake of beginning to pay debts and find later that there is not suflScient assets to pay all debts in full. The representative must also bear in mind that certain property which will aggregate more than $300 in value may be required to be set off to the surviving husband, widow, or minor children and, therefore, to the extent of such set-off be taken from the ap- parent assets of the estate. ^ 690 Property and Rights Held Not to Constitute Assets. Proceeds of fire insurance. Insurance money received by the administrator as proceeds of a policy of fire insurance on real estate owned by the deceased which burned shortly after his death and before the policy was changed belongs to the administrator in trust for the heirs, and is not assets in the hands of the administrator. Wyman v. Wy- man, 26 K Y. 253; HerUmer v. Bice, 27 id. 163; Matthews V. American Cent. Ins. Co., 9 App. Div. 339, 75 IST. T. St. Eep. 716, 41 N. T. Supp. 304; modified in and affd., 154 K Y. 449; 31 T[ 691 Pkopebtt Which May be Assets. 482 Lawrence v. Niagara Fire Ins. Co., 2 App. Div. 267, IS N. Y. St. Eep. 397, 37 N. Y. Supp. 811 ; affd., 154 JST. Y. 752. Proceeds of fire insurance policies standing in the name of a deceased owner of the real estate go to his executors or admin- istrators as trustees for the true owners and not as assets of the estate of the deceased. Matter of Kane, 38 Misc. Rep. 276, 77 N. Y. Supp. 874. Real estate devised for life. Eeal estate devised to the widow until hL-r death or remarriage is not assets of the estate even where there is a power of sale given, as that cannot be exercised until the event occurs. James V. Beesly, 4 Eedf. 236. Money paid over in lifetime. Money paid by testator to another person under an agree- ment as to its use during life and its disposition after death cannot be recovered by the executor of testator as part of his estate. Morris v. Wucher, 115 App. Div. 278. New York Produce Exchange gratuity. A gratuity fund from the New York Produce Exchange pay- able on the death of a member according to its by-laws is not assets liable to pay debts or legacies. In re Fay's Estate, 25 Misc. Rep. 468, 55 N. Y. Supp. 749. Insurance for benefit of widow. Where an insurance policy on the life of the husband is made payable to the assured, his executors, administrators, or assigns for the benefit of his widow, the proceeds are not assets of the estate subject to the payment of debts and legacies, but come to the representative as trustee for the widow. Van Dermoor v. Van Dermoor, 80 Hun, 107, 61 N. Y. St. Rep. 770, 42 Hun, 326, 3 K Y. St. Rep. 713. ^ 691 Certain Property May Not be Assets in the First Instance, but May Become Such, or May be De- clared to be Such. Proceeds of sale of real property of a lunatic or infant — When real estate and for what purpose treated as personal property. Proceeds of sale of real property of an infant or lunatic remain real estate until they become competent. But if either dies before becoming competent, not leaving any personal property, or not 483 PRoPEiRTT Which Mat be Assets. \ 691 leaving sufficient personal property to pay funeral expenses and expenses that may be necessary or necessarily incurred, then such fund is to be deemed personal property so far as may be necessary to meet such demands. Such proceeds axe payable to an administrator for such purpose, and the residue must be returned by such administrator to the trustee or persons who had the legal control of the fund. A sale of real property, or of an interest in real property, of an infant or incompetent person, made as prescribed in this title, does not give to the infant or incompetent person any other or greater interest in the proceeds of the sale, than he or she had in the property or interest sold. Those pro- ceeds are deemed property of the same nature, as the estate or interest sold, until the infant arrives at full age, or the incompetency is removed. If the infant should die before arriving at full age, or the incompetent person should die before the incompetency is removed not leaving any personal property, or not leaving sufficient personal property to pay funeral expenses and expenses that may be necessary or necessarily incurred, then in either or each case the proceeds are to be deemed personal property so far as may be necessary to pay the funeral and other necessary expenses. The proceeds are to be paid upon order of the surrogate's court or court having juris- diction of the estate of deceased, to an administrator appointed by the surro- gate to administer upon decedent's estate, and after paying all funeral expenses and expenses of administration and any indebtedness, the remainder, if any there be, shall upon the order of the surrogate, be paid into the hands of the trustee who held the same, to be distributed as the law directs. This act is to include the said proceeds of any infant or incompetent person that has died prior to this amendment, the proceeds now remaining in the hands of a trustee. § 2359, Code Civ. Pro, Money derived from payment by the elevated railroad pur- suant to a judgment, to the committee of a lunatic, is upon the death of the lunatic real estate passing to his heirs and not per- sonal estate passing to the next of kin. Ford v. Livingston, 140 ]Sr. Y. 162, affg. 10 Hun, 176, 54 K Y. St. Eep. 164. Liability of a deceased committee of an adjudged lunatic for property in his hands and for his acts should be settled before the County or Supreme Court. La Grange v. Merritt, 96 App. Div. 61. The provision for payment over to the representative of deceased infant or incompetent applies only to cases where the real estate has been sold to pay debts, etc., and not where it has been sold in partition. Flynn v. Lynch, 27 IsT. Y. Supp. 926, 23 Civ. Pro. 369; Matter of Beeve, 38 Misc. Eep. 410, 77 K Y. Supp. 936. f 692 Insueabtce Money May be Assets. 484 Where a lunatic dies after appointment of committee, that com- mittee should account to the proper officer and the estate should be administered and settled in Surrogate's Court by an executor or administrator. Eillick v. Monroe Co. S. B., 17 N. Y. St. Rep. 283, 1 K Y. Supp. 501. Proceeds of sale of infant's real estate remain such and cannot be converted into personalty by any act of the infant or guardian. Matter of McKay, 37 Misc. Eep. 590, 75 N. Y. Supp. 1069; modified in 75 App. Div. 78, 77 N. Y. Supp. 845. An administrator cannot have distribution of proceeds of sale of infant's real estate on an accounting. The Surrogate Court has jurisdiction to distribute personal estate only. Matter of Wood- worth, 5 Dem. 166, 3 K Y. St. Eep. 225. Estate of an adjudged incompetent where the incompetent or committee has died. The proper method of ascertaining the condition of the estate of a lunatic whose committee has died is by an accounting in the proper court. La Grange v. Merritt, 96 App. Div. 61, 89 N. Y. Supp. 32. Apportionment of rents, annuities and dividends. The executor or administrator is entitled to and should inven- tory in certain cases a part of rents, annuities, and dividends vyhich accrued during the life of the deceased as provided in section 2720, Code Civ. Pro. Cf 692 In Certain Cases Proceeds of Life Insurance Policy Are Assets Liable for Payment of Debts. "Where the premium actually paid annually out of the husband's property exceeds $500, that portion of the insurance money which is purchased by excess of premium above $500 is primarily liable for the husband's debts. Domestic Eelations Law (Laws of 1896, chap. 272, § 22). Other assets must be first applied. Eight of creditor to have applied to debts insurance purchased by payment of premiums above $500 a year does not accrue until other assets have been applied to the payment of debts. Kittel v. Domeyer, 175 IST. Y. 205, revg. 70 App. Div. 134, 76 I^. Y. Supp. 150. 485 Insueance Money May be Assets. If 692 Tlie insurance moneys were not general assets of the estate. 'So part could be disposed of under the Statute of Distributions or used for the expenses of administration. They constituted a special fund created by statute for a special purpose and could be applied on the claims of creditors only after a decree of a court of equity. Action to enforce lien. The orderly course of procedure, as adopted in Hirshfeld v. Fitzgerald, is by a representative action to establish and enforce the lien after the assets of the estate have been exhausted and the amount required to pay the remainder of the husband's debts has been established by a decree of the surrogate. Distribu- tion may doubtless be made in the action brought for that purpose and circuity thus avoided. ISTo part of the fund is applicable to the piirposes of general administration, as it is liable for debts only, and is held as a separate fund, devoted exclusively to the pay- ment of the deficiency arising after all the assets of the estate have been applied upon the debts, while the surplus, if any, is to be returned to the widow. Kittel v. Domeyer (supra); Matter of Thompson, 184 N. Y. 40, revg. 102 App. Div. 617. Is not part of the estate of insured. Where an insurance upon the husband's life is payable to the wife, this Act does not make any part of such insurance the prop- erty of the husband or of his estate after his death. The proceeds of such a policy are not to be included in the in- ventory of his property. The statute does not make such proceeds a part of his estate nor provide that it shall be his property even as to creditors, but directs that the fund itself shall be primarily, that is, in order of payment, liable for his debts. The liability is owing wholly to the act of the Legislature, and the husband has not any legal or equitable interest in the policy if he dies insolvent or the statute imposes a lien upon the proceeds thereof for the benefit of his creditors. Should the wife die before the husband the proceeds should go to her personal representatives, though the excess would still be subject to the claims of the creditors. Matter of Thompson, 184 IST. T. 40, revg. 102 App. Div. 617. A policy taken out by the husband and made payable to his wife "if living in conformity with the statute, and if not living to their children," does not pass under the will of the wife who dies ^ 693 Debt Dischakoed by Will. 486 before her husband. Bradshaw v. Mut. Life Ins. Co., 181 N. Y. 347, revg. 109 App. Div. 375. Jurisdiction. Where the policy is made payable to the wife, the surrogate has "no jurisdiction to try as between husband and wife and the cred- itors of her husband the question as to whether any part of the " proceeds of the policy was charged with the statute lien in favor of his creditors. Matter of Thompson, 184 'N. Y. 40, revg. 102 App. :Div. 617. The fact that the wife is the representative of her husband's estate does not give the surrogate jurisdiction to try the question as between the wife and the husband's creditor as to whether or not they have lien upon the surplus of the insurance. Matter of Thompson, 184 IST. Y. 40, revg. 102 App. Div. 617. fl 693 A Debt Due a Testator Although Discharged by the Will. A discharge or bequest in a will of a debt or demand of the tes- ■tator against an executor named therein or against any other per- son is not valid as against the creditors of the deceased ; but must be construed only as a specific bequest of such debt or demand; and the amount thereof must be included in the inventory, and, if necessary be applied to the payment of his debts; and if not necessary for that purpose must be paid in the same manner and proportion as other specific legacies. From § 2714, Code Civ. Pro. '^87 Setting Avart Exempt Peopeett. f 694 CHAPTER XXXI. The Inventory, Its Contents, Proceedings to Require Further or Amended Inventory. T 694. Property to be set apart to widow, nxisband, and minor children. 696. Widow's sustenance and quarantine. 699. Payment for exempt articles which do not exist. 703. Proceeding to cause set-off of exempt articles. 705. Contents of inventory. 706. Inventory of property perished or sold. 707. Return of inventory — Oath. 707. Failure of one representative to join. 708. Return of inventory, how compelled. 710. When representative denies petition. ^ 694 Property to be Set Apart for Widow or Husband and Children, and Which Shall Not be Considered Assets. If a man having a family die, leaving a widow or minor child or children, the following articles shall not be deemed assets, but must be included and stated in the inventory of the estate without being appraised: 1. All spinning-wheels, weaving looms, one knitting machine, one sewing machine, and stoves put up or kept for use by his family. 2. The family bible, family pictures and school-books, used by or in such family, and books not exceeding in value fifty dollars, which were kept and used as part of the family library. 3. Sheep to the number of ten, with their fleeces, and the yam and cloth manufactured from the same ; one cow, two swine, and the pork of such swine and necessary feed for such swine, sheep or cow for sixty days and all necessary provisions and fuel for such widow, child or children for sixty days after the death of such deceased parent. 4. All necessary wearing apparel, beds, bedsteads and bedding, necessary cooking utensils, the clothing of the family, the clothes of the widow and her ornaments proper for her station; one table, six chairs, twelve knives and forks, twelve plates, twelve tea- cups and saucers, one sugar dish, one milk- pot, one tea-pot and twelve spoons, and other household furniture not exceed- ing one hundred and fifty dollars in value. 5. Other necessary house-hold furniture, provisions or other personal prop- erty, in the discretion of the appraisers, to the value of not exceeding one hundred and fifty dollars. Such articles and property shall remain in the possession of the widow, if there be one, during the time she lives with and provides for such minor child or children. If she ceases so to do, she shall "be allowed to retain as her own, her wearing apparel, her ornaments and one bed, bedstead and the bedding for the same, and the property specified in sub- division five; and the other articles so exempted shall then belong to such J 694 Settijn'g Apaet Exempt Peopeett. 488 minor child or children; if she lives with or provides for such minor child or children until it or they become of full age, all the articles and property in this section mentioned shall belong to the widow. If there be a widow and no minor child, all the articles and property in this section mentioned shall belong to the widow. If a married woman die, leaving surviving her husband or a minor child or children, the same articles and personal property shall be set apart by the appraisers with the same effect for the benefit of such hus- band or minor child or children. § 2713, Code Civ. Pro. Under subdivisions 1 and 2 of section 2713, Code Civ. Pro., only the specific articles and property on hand at the time of the decedent's death shall be exempt. Under subdivision 3 the exemption shall apply only to the speci- fic property on hand at the time of the decedent's death, except that in the absence of necessary provisions and fuel for the widow and her family, for sixty days after the death of the decedent, a sum of money sufficient to supply her and them with such neces- sary provisions and fuel shall be set aside therefor. Under subdivision 4 only the specific articles and property on hand at the time of the decedent's death shall be exempt. Under subdivision 5 it is a matter of course clearly within the discretion of the appraisers to set aside $150 in cash or other per- sonal property of such value whichever they may determine. Mai ter of Sprague, 41 Misc. Eep. 608, 85 JST. Y. Supp. 303. "Family." Where a husband and wife did not live together, the husband did not keep house nor pay board for his daughter or wife — Jield, that he had a family under section 2713, Code Civ. Pro. Matter of Shedd, 60 Hun, 367, 38 K Y. St. Eep. 310, 14 ]Sr. Y. Supp. 841. A man has a family who has a wife but no children. Kain v. Fisher, 6 E". Y. 597. " Statutory allowances " include exempt property to be set off to a widow, but do not include a distributive share. Matter of Mersereau, 38 Misc. Eep. 208, 77 IST. Y. Supp. 329. Where the widow is also sole executrix, it is proper to defer mak- ing the set-off until the judicial settlement. Matter of Warner, 53 App. Div. 565, 65 IST. Y. Supp. 1022. The direction is mandatory if the property exists, and the dis- cretion of the appraisers only goes to the nature of the property and its value. Matter of Bidgood, 36 Misc. Eep. 516, 73 N. Y. Supp. 1061. 489 Set-Off May be Waived. 1[ 695 ®| 695 Right to Set-Off May be Waived by Ante-Nuptial Agreement. An agreement provided for the payment of $1,500 in full satis- faction of the widow's dower in either real or personal estate — held to bar the widow from having set off to her the articles speci- fied in section 2T13, Code Civ. Pro. Young v. Hichs, 92 N. Y, 235, a% 27 Hun, 54. By acceptance of provision in will. The widow will be held to waive her right to set-off where she accepts a provision in the will expressed to be in lieu of dower and also of all statutory allowance. Matter of Mersereau, 38 Misc. Kep. 208, 77 K Y. Supp. 329. By express waiver before appraisers. A widow may waive her right to a set-off by making such a statement before the appraisers. Matter of Campbell, 48 Misc. Kep. 278, 96 'E. Y. Supp. 768. Where the widow was one administratrix and the inventory returned by them jointly did not set-off to the widow the exempt articles, in the absence of any express waiver — held, that she would not be adjudged to have waived. Matter of Hulse, 41 Misc. Eep. 307, 84 E". Y. Supp. 220. A husband held to have waived his rights by refusing to ac- cept the set-off when tendered by the executor. Matter of Camp- bell, 96 App. Div. 561, 89 N. Y. Supp. 569. When statutory allowance not waived by accepting provision of will. This statutory provision. Code Civ. Pro., § 2713, in favor of the widow holds good and must be respected, though the husband by his will make other provisions for her, which are not specified to be in lieu of her exemptions, and even though he dispose of all of his personal property. Matter of Frazer, 92 N. Y. 239, 246 ; Hatch V. Bassett, 52 id. 359, 362; Vedder v. Saxton, 46 Barb. 188; Sliipman v. Keyes, 127 Ind. 353; Matter of Harris, 2 Conn. 4. The court, in speaking of the widow's exemptions in the latter case, said : " It has been held that this class of property forms no part of the estate as a subject of bequest. The testator could no more divest his widow of it by will than he could her dower in real estate." 1[ G96 Widow's Sustena^^ce and Quarantine. 490 Neither the widow's quarantine nor these exemptions come to the widow by way of descent or distribution. They are provisions having for their primary object the temporary relief of a widow, and, strictly speaking, they may be termed " statutory allowances." Matter of Mersereau, 38 Misc. Rep. 21-i. A husband cannot divest his widow of the rights under this section by any provision of his will in lieu of dower, or by any other provision which is not expressed to be in lieu of the statu- tory provision, and, therefore, her acceptance of any such pro- vision is not a waiver of her right. Tedder v. Saxton, 46 Barb. 188. ^ 696 Widov/s Sustenance for Sixty Da3rs. The widow, child, or children are entitled to have set off all necessary provisions and fuel for their maintenance for sixty days after the death of such deceased person. § 2713, subd. 3, Code Civ. Pro. Sufficient provision and fuel should be set apart under this section to provide for the support of the table and fires of the widow and those constituting her family for sixty days. If such articles do not exist no money allowance should be made in lieu thereof. If the appraisers fail to set off articles for sustenance which do exist, on judicial settlement their value may be ordered paid to the widow. Matter of Griffith, 49 Misc. Eep. 405. Widow's sustenance allowed at $200. Matter of Weaver, 53 Misc. Eep. 244. Widow's quarantine in husband's chief house. A widow may remain in the chief house of her husband forty days after his death, whether her dower is sooner assigned to her or not, without being liable to any rent for the same ; and in the meantime she may have her reasonable sustenance out of the es- tate of her husband. § 184, Real Property Law. ^ 697 Setting Apart Specific Articles. A piano may be classed as household furniture and be set off as part of the household furniture valued at $150. Matter of Allen, 36 Misc. Rep. 398, 73 E". Y. Supp. 750. 491 Article^ to be Set Off Must Pxist. 1 699 Where there are not enough articles of household furniture to amount in value to $150, cows and other property cannot be set off to make up the deficiency. Matter of Oriffin, 118 App. Div. 518. Estate less than. value of exempt property. Estate of less than $150 — held, that the whole estate vested absolutely in the widow and that she could maintain an action of conversion against the administrator, before filing of inventory. Crawford v. Nassoy, 173 E". Y. 163, revg. 55 App. Div. 433, 67 IST. Y. Supp. 108. ^ 698 Sustenance Not Allowed. Widow having use of homestead and all personal property, and having received $188 in money, not entitled to an allowance for forty days' sustenance nor to $150 for household furniture. Pech v. Sherwood, 56 IST. Y. 615. ^ 699 Widow's Set-OfF. It has been a question upon which there has been some differ- ence of opinion as to whether a widow is entitled to the money value of the articles directed to be set off, where those articles do not exist. The reason for the statute is found in the hardship which would result if immediately upon the death of a husband the contents of the home should pass to the representative and the widow become homeless. As some cases are clearly contrary to the plain reading of the statute we must examine them. Matter of Shedd (60 Hun, 367, 38 N. Y. St. Rep. 310, 14 N. Y. Supp. 841) only decided the meaning of the word "family." Matter of Frazer (92 N. Y. 239) only decided that the set- ting off of certain articles was proper notwithstanding that all the household furniture had been given to the wife by the will. Matter of Durscheidt (65 Hun, 136) only decided that money was " other personal property " from which the $150 mentioned in subdivision 5 could be set off. Kapp V. Public Adm. (2 Bradf. 259) only decided that the statute applied to the property of a nonresident. Matter of Williams (31 App. Div. 617) only decides that neces- sary fuel and provisions for sixty days may be furnished and set off in money, but language is used which implies that if any of T[ 699 Abticles to be Set Off Must Exist. 492 the articles specified in subdivision. 3 were lacking their value in money could be set off. Eelley v. Moor (18 Abb. K C. 468) only decided that the second lot of household furniture of the value of $150 provided to be set off might be allovs^ed for in money and the decision is in accordance with the present subdivision 5. In the Matter of Hemhury (37 Misc. Eep. 454) the surrogate of Kings county held that where the deceased did not leave the articles specified in subdivision 4, the widow was entitled to $150 in money, as the value thereof. He cited Matter of Williams, which as we have seen does not decide that precise question. An- other case is Matter of Hulse (41 Misc. Eep. 307), where the sur- rogate of Suffolk county allowed a widow $300 as the value of the articles specified in subdivisions 1, 2, 3, and 4, $150 having been previously set off to her under subdivision 5. We are not told in the opinion the rule which the surrogate followed when he made his guess that articles of the nature of those described in sub- divisions 1, 2, 3, and 4 and which the deceased did not own were worth $300. Suppose the deceased did not have " family pic- tures " mentioned in subdivision 2, would the widow be allowed thousands of dollars, the reasonable cost of family pictures done in oil, or the few cents that the country tin-type would cost ? If a man did not own sheep at the time of his death, which might have occurred at the Waldorf Astoria, should not the widow be allowed $5,000 in lieu of ten sheep, because a man of her hus- band's wealth might have owned sheep worth $500 each if he had owned any at all ? It would seem that these and many other questions will arise if the courts attempt to depart from the rule for appraisement of all estates alike laid dovm in section 2713, Code Civ. Pro., and that the plain reading of the section should not be set aside and the surrogate be asked upon judicial settlement to make an advance- ment to the widow in lieu of articles which the deceased never owned, the value of which there is no possible way to prove. Against these decisions we have Matter of Perry (38 Misc. Eep. 167), where the surrogate of Allegany county refused to order pay- ment of money in lieu of the missing articles and very pertinently said : " If the Legislature had intended that the widow should receive their cash equivalent, it would have fixed the amount under each subdivision of the section that the widow would receive if she did not take the articles enumerated." 493 Abticles to be Set Off Must Exist. | 700 Again in Matter of Sprague (41 Misc. Kep. 608), the surrogate of Orleans county refused the application of the widow for a cash equivalent, and called attention to the impossibility of fairly fix- ing a value upon sheep or a cow that did not exist. In the case of Baucus v. Stover (24 Hun, 109), the surrogate had made a money allowance to the widow in place of ten sheep and two swine that the deceased did not possess, and the General Term of this Department held that such allowance was improperly made, although the deceased had a half interest in such animals, the court saying : " The statute contemplates such an ownership and possession of this property in the deceased, or his personal repre- sentative, at the time of making up of the inventory, as will per- mit their delivery to the widow at least potentially. Here the testator had but a half interest in these animals. They could not be then delivered over to the widow, even potentially and, there- fore, could not be set off to her." This ease was reversed (89 N. Y. 1), but the only question argued was an entirely different one. While the courts should construe the law liberally in the in- terest of the widow, yet they should not attempt a construction not fairly within the language of the section. If the construction contended for by some should be adopted by the surrogates of the State, the personal opinion of each sur- rogate as to how much a widow should be allowed from the money of her deceased husband would prevail in place of the statute. In estates of $1,500 and under, there would be no certainty that there would be any money with which to pay administration expenses or funeral expenses or debts, after the surrogate had awarded to the widow a money set-off in lieu of any or all the enumerated articles. No administrator would dare pay out a loUar of the estate even for funeral expenses for he would not know how much the surrogate would fix on the final accounting as the allowance to the widow. In all small estates the greatest uncertainty would arise while by strictly following the statute there would be abso- lute certainty and safety. Matter of Griffith, 49 Misc. Rep. 405. ^ 700 Articles to be Set Off Must Exist. The exemptions allowed by section 2713, Code Civ. Pro., are quite specific with one or two exceptions, and it is plain from the precise language employed that the general intention is to limit the allowance to articles actually in existence. They are all % 700 Aeticles to be Set Off Must Exist. 494 articles of personal property, some of which are referred to as be- ing in use by the family, and they are declared by the terms of the section not to be deemed assets of the estate, but are to be included in the inventory unappraised, and to be " set apart " for the bene- fit of the widow or husband, and minor child or children. There is nothing in the section tending to indicate in any way an inten- tion to exempt or set apart any articles which may not in fact exist, or to exempt an equivalent in money in lieu of such articles. It would have been easy to express such intention had it existed, and to have provided some practical means for the determination of the value of the nonexistent articles. See Baucus v. Stover, 24 Hun, 109, and Matier of Keough, 42 Misc. Eep. 387. The Williams case (31 App. Div. 617) did not establish a con- trary doctrine. The reasoning of the opinion would probably justify such a conclusion, but none of the associate justices con- curred in the opinion, their concurrence being expressly confined to the result. The only question presented was whether the widow was entitled to necessary provisions and fuel during the sixty days suc- ceeding her husband's death, such provisions and fuel being ex- empted under subdivision 3 of section 2713, Code Civ. Pro., in addition to ten sheep, one cow, two swine, etc., an allowance for all of which articles has been made herein. In that case no provision whatever was made for the widow by the will, and her application to the surrogate for sustenance was made long after the sixty days had expired. As the appraisers had failed to set apart either pro- visions or fuel for her use and the statutory period had elapsed, the court could only make her a reasonable allowance in money out of the estate as a substitute for the articles of which she had been unlawfully deprived, or as compensation for the redress of her undoubted grievance ; and an affirmance of this result is the extent of the decision. The question whether an allowance in money would have been proper at the time of quarantine, in the absence of provisions and fuel, was not before the court. Matter of Libolt, 102 App. Div. 29. Widow and children are not entitled to the money value of such articles where they do not exist. Matter of Libolt, 102 App. Div. 27 ; Matter of Griffith, 49 Misc. Rep. 405 ; Baucus v. Stover, 24 Hun, 109; Matter of Keough, 42 Misc. Eep. 387; Matter of Sprague, 41 id. 608 ; Matter of Perry, 38 id. 167 ; Crawford v. Nassoy, 173 IT. Y. 163 ; Matter of Campbell, 48 Misc. Rep. 278. There are several cases holding that where a husband dies leav- 495 Title to Exempt Aeticles. ^ 702 ing a widow but does not possess the property to whicli his widow is entitled under section 2713 of the Code money may be paid to her in lieu thereof. Matter of Williams, 31 App. Div. 617; Matter of Hembury, 37 Misc. Eep. 454 ; Matter of Eulse, 41 id. 307 ; Matter of Berns, 62 id. 426. All the above cases were decided in the Second Department, but the weight of authority seems to be against them. Such, however, is the rule in Kings county. On judicial settlement. On judicial settlement if the property which might have been set off to the widow under subdivision 5, section 2713, Code Civ. Pro., no longer exists, the widow may have $150 in cash. Matter of Bidgood, 36 Misc. Eep. 516, 73 N. Y. Supp. 1061. ^J 701 Surviving Husband Entitled to Same Exemptions and Set-Off as Widow. The surviving husband is entitled to have set apart for his bene- fit the same articles and personal property, with the same effect as the widow is entitled to upon the death of his husband, §' 2713, subd. 5. Matter of Keough, 42 Misc. Eep. 387, 86 E". Y. Supp. 807. The husband cannot have set apart to him the clothes of the deceased wife and her ornaments suitable to her state in life. Matter of Whiting, 19 Misc. Eep. 85, 43 IST. Y. Supp. 969. ^ 702 Title of Widow and Children to Exempt Articles. Such articles and property shall remain in the possession of the widow, if there be one, during the time she lives with, and pro- vides for such minor child or children; if the ceases so to do she shall be allowed to retain as her own, her wearing apparel, her ornaments, and one bedstead and the bedding for the same, and the property specified in subdivision 5 ; and the other articles so exempted shall then belong to such minor child or children. If she lives with and provides for such m.inor child or children until it or they become of full age, all the articles or property in this section mentioned shall belong to the widow. If there be a widow and no minor child all the articles and property in this section mentioned shall belong to the widow. From § 2713, subd. 5. Under these statutes, the title of the widow to such exempt prop- erty, where there is no minor child, is absolute on the death of her f 703 Peoceedings to Obtain Set-Opf. 496 husband, not only as against creditors and next of kin, but as against legatees, subject only to the right of the administrator or executor, to take possession of the property for the purpose of in- cluding and stating it in the inventory. Fox v. Burns, 12 Barb. 677 ; Voelckner v. Hudson, 1 Sandf. 215 ; Sheldon v. Bliss, 4 Seld. 31. In the latter case, the husband of the plaintiff made his will, thereby giving her an annuity, and the residue of his property to other persons. The executors failed to set apart for the widow what the statutes allow her, but sold the whole estate, real and personal, and the court held that the proceeds of the sale of the personal property constituted a trust, in the hand of the executors, in favor of the widow, to the extent of her interest in or claim upon the property of the testator under the statutes; thus, not- withstanding the testator made other disposition of the property in question, affirming her right to it, under the statutes, as against the legatees as well as the creditors. The effect of these statutes is, then, to give to the wives of per- sons owning personal property of the character specified therein a contingent interest in so much thereof as the statutes specify, de- pendent only on their surviving their husbands, and the property remaining undisposed of by the husbands while living. Tedder v. Saxton, 46 Barb. 191. ^ 703 Proceedings for Neglect to Set Apart Exempt Prop- erty — Proceedings upon Judicial Settlement. Where an executor or administrator has failed to set apart property for a surviving husband, wife or child, as prescribed by law, the person ag- grieved may present a petition to the surrogate's court, setting forth the failure and praying for a decree, requiring such executor or administrator to set apart the property accordingly; or, if it has been lost, injured or dis- posed of, to pay the value thereof or the amount of the injury thereto, and that he be cited to show cause why such a decree should not be made. If the surrogate is of the opinion that stiflScient cause is shown, he must issue a citation accordingly. On the return of the citation, the surrogate must make such a- decree in the premises as justice requires. In a proper ease, the decree may require the executor personally to pay the value of the property, 01" the amount of the injury thereto. The decree, made on a judicial settle- ment of the account of an executor or administrator, may award to a sur- viving husband, wife or child, the same relief which may be awarded in his or her favor, on a petition presented as prescribed in this section. § 2724, Code Civ. Pro. For cases where set-off is applied for on judicial settlement see t 1157. ^97 Proceedings to Obtain Set-Off. 1 Y04 Proceedings to obtain set-off of exempt property; petition. The petition must be made by the party aggrieved and must set forth the failure to set off such property. Prayer of petition. The petition should ask for a decree a. Eequiring such representative to set apart the property ac- cordingly, or b. Eequiring the representative to pay the value thereof, or the amount of the injury thereto, if the property has been lost, injured or disposed of c. That an order to show cause be issued. If the surrogate is satisfied that there are good grounds for the application he must issue a citation accordingly. Decree. On the return of the citation the surrogate must make such a decree as justice requires. In a proper case the decree may require the representative per- sonally to pay the value of the property or the amount of the injury thereto. It seems to be a question whether the representative of a de- ceased husband or wife can maintain the proceeding under this section. Matter of Campbell, 96 App. Div. 561, 89 IST. Y. Supp. 569. ^ 704 Husband and Children of Deceased Woman to Have Articles Set Apart for Them. When a married woman or widow shall die, leaving her surviv- ing a husband or a minor child or children, the same articles and personal property shall be set apart by the appraisers for the benefit of such husband or minor child or children, as is now pro- vided by law in the case of a man dying and leaving a widow or minor children ; and all articles and property set apart, in accord- ance with law for the benefit of a widow or widower and a minor or minors, shall be and remain the sole personal property of such widow and a minor or minors, shall be and remain the sole per- sonal property of such widow or widower after such minor or minors shall have arrived at age. L. 1867, Ch. 782, § 13. (As amended by chap. 630, Laws of 1887.) 32 f 705 CoNTEiirTS OF Inventoby. 498 ^ 705 Contents of Inventory, The inventory must contain a particular statement of all : a. Bonds, mortgages, notes, and other securities for the pay- ment of money ; b. Debts dtie the deceased from any executor or administrator ; c. Debts due the deceased from an executor or other person, al- though the same may have been discharged by the terms of the will: d. All money, and if there is none that fact should be stated. It shall contain the name of the debtor in each security, the date, the sum originally payable, the indorsements thereon if any and the date and amount thereof, the interest due thereon to the date of death of deceased, and the estimated value of such security at the date of such death. Separate and further inventories. If there is property in different and distant places two or more separate inventories may be made. If personal property not mentioned in any inventory comes to the knowledge or possession of an executor or administrator he must cause the same to be appraised and an inventory thereof to be returned within two months after the discovery thereof. For cases showing what are and are not assets to be included in the inventory see f 684. Contents of inventory. The inventory must contain a particular statement of all bonds, mort- gages, notes and other securities for the payment of money belonging to the deceased, known to the executor or administrator; with the name of the debtor in each security, the date, the sum originally payable; the indorse- ments thereon, if any, with their dates and the sum which, in the judgment of the appraisers, is collectible on each security; and of all moneys, whether in specie or bank-bills, or other circulating medium, belonging to the de- ceased, which have come to the hands of the executor or administrator, and if none have come into his hands, the fact shall be stated in the inventory. The naming of a person executor in a will does not operate as a discharge or bequest of any just claim which the testator had against him; but it must be included among the credits and effects of the deceased in the inventory, and the executor shall be liable for the same as for so much money in his hands at the time the debt or demand becomes due, and he must apply and distribute the same in the payment of debts and legacies, and among the next of kin as part of the personal property of the deceased. The dis- charge or bequest in a will of a debt or demand of the testator against an executor named therein, or against any other person is not valid as against the creditors of the deceased; but must be construed only as a specific be- quest of such debt or demand; and the amount thereof must be included in ^99 Peopekty Not in Existeitce. If T06 the inventory and, if nfecessary, be applied in the payment of his debts; and if not necessary for that purpose, must be paid in the same manner and proportion as other specific legacies. If personal property not mentioned in any inventory come to the possession or knowledge of an executor or adminis- trator, he must cause the same to be appraised as herein required, and an inventory thereof to be returned within two months after the discovery thereof; and the making of such inventory and return may be enforced in the same manner as in the case of a first inventory. § 2714, Code Civ. Pro. Partnership assets pass to the surviving parties and should not be inventoried except as an estimated balance due from the firm. Thomson v. Thomson, 1 Bradf. 24; followed in 9 Oiv. Pro. 231. The estimate of values placed in the inventory are prima facie evidence of such values. Matter of Maack, 13 Misc. Eep. 368, 35 N. Y. Supp. 109, 69 K Y. St. Rep. 483 ; Maiter of Shipman, 82 Hun, 108, 31 'N. Y. Supp. 571, 64 E". Y. St. Eep. 161. A direction in a will that a certain method should be pursued in taking inventory will not be enforced, and may be disregarded by the executor. Brainerd v. Birdsall, 2 Dem. 331. ^ 706 Inventory cA Perishable and Other Property Which May Have Been Sold or Disposed of. In case where it has been necessary to dispose of perishable property at once, it is apparent that such property cannot be ex- hibited to the appraisers. In such a case if the appraisers have been selected in time they may view such property before its sale and appraise it, and they would then be justified in including it in the final inventory when the same is made. If such course is not pursued the representative should himself take an inventory of svich property and make an estimate of its value and then the facts regarding the same may be set up in the ofiicial inventory. If the making of the inventory is delayed so that any other classes of personal property have been disposed of and a similar statement thereof can be furnished by the representative, the same course may be pursued. If, however, no memoranda of such articles have been kept the same of course cannot be appraised by the appraisers and the representative may be called upon to account for such property and be made liable therefor on his judicial settlement. An inventory must include all personal property of the de- ceased whether situated in this State or elsewhere, or whether I 707 Return of Inventory — How Compei-led. 500 it can be viewed and handled by the appraisers. Matter of But- ler, 38 N. Y. 397. After a sale of the assets before inventory is taken, -no official inventory can be made, but the representative will be required to file an affidavit setting forth the items of property that came to his hands. Matter of Bobbins, 4 Redf. 144. ^ 707 Return of Inventory — Oath to Same— Failure of One Executor or Administrator to Join. Duplicates of the inventory must be made and signed by the appraisers, one of which must be retained by the executor or administrator, and the other returned to the surrogate within three months from the date of the letters. On returning such inventory, the executor or adminis- trator must take and subscribe an oath, indorsed upon or annexed to the inventory, stating that the inventory is in all respects just and true, that it contains a true statement of all the personal propery of the deceased which has come to his knowledge, and particularly of all money, bank bills and other circulating medium belonging to the deceased, and of all just claims of the deceased against him, according to the best of his knowledge. Any one executor or administrator, on the neglect of the others, may return an inventory; and the executors or administrators so neglecting shall not there- after interfere with the administration or have any power over the personal property of the deceased; but the executor or administrator so returning th3 inventory shall have the whole administration, until the delinquent return, and verify an inventory in accordance with the provisions of this article. § 3715, Code Civ. Pro. ^ 708 Return of Inventory — How Compelled. A creditor or person interested in the estate may present to the surrogate's court proof, by aiHdavit, that an executor or administrator has failed to return an inventory, or a sufficient inventory, within the time prescribed by law therefor. If the surrogate is satisfied that the executor or administrator is in default, he must make an order requiring the delinquent to return the inventory, or a further inventory, or in default thereof, to show cause, at a time and place therein specified, why he should not be attached. On the re- turn of the order, if the delinquent has not filed a sufficient inventory, the surrogate must issue a warrant of attachment against him, on which the proceedings are the same as on a warrant issued for disobedience to an order, as prescribed in title twelfth of chapter seventeenth of this act. A person committed to jail on the return of a warrant of attachment, issued as pre- scribed in this section, may be discharged by the surrogate or a justice of the supreme court, on his paying and delivering, imder oath, all the money and other property of the decedent, and all papers relating to the estate undar his control, to the surrogate, or to a person authorized by the surrogate to receive the same. § 3716, Code Civ. Pro. 501 Retukn of Ikventoey — How Compelled. T[ 709 The order to return the inventory or show cause must be made as a result of a judicial determination by the surrogate and must either be signed by the surrogate or an order entered authorizing its issuance in which latter case it may be signed by the clerk. White V. Lewis, 3 Dem. 170. Ketuin of the inventory; how compelled; warrant of attachment for failure to make return and imprisonment therefor; how discharged. A creditor or person interested in the estate may present to the Surrogate's Court proof, by affidavit, that the executor or admin- istrator has failed to return the inventory, or a sufficient inven- tory, within the time prescribed by law therefor. If the surrogate is satisfied that the executor or administrator is in default he must make an order requiring the delinquent to return the inventory or in default thereof, to show cause why he should not be attached. Warrant of attachment may be issued. On the return of the order, if the delinquent has not filed a sufficient inventory the surrogate must issue a warrant of attach- ment against him on which the proceedings are the same as on a warrant issued for disobedience to an order as prescribed in title 12 of chapter 17 of the Code of Civil Pjocedure. Discharge from imprisonment. A person committed to jail on the return of a warrant of at- tachment may be discharged by the surrogate or a justice of the Supreme Court on his paying and delivering under oath the prop- erty of the deceased and all papers relating to the estate under his control to the surrogate or to a person authorized by the sur- rogate to receive the same. § 2716, Code Civ. Pro., analyzed. C[ 709 Application Must be Made by Person Interested. The early cases holding that the filing of an inventory is a general duty imposed upon all executors and administrators are Thomson v. Thomson (1 Bradf. 24 [1849]); Cotterell v. Broch (id. 148 [1850]); Forsyth v. Burr (37 Barb. 540 [1862]) Creamer v. Waller (2 Dem. 351 [1884]). Other and later de- cisions may be found to the same effect, but they all rest on the cases decided by Surrogate Bradford in 1849 and 1850, without discussion as to the reasons for the rule. Surrogate Bradford discusses the practice of the English ecclesiastical courts, which ^ 709 Petitioi^ foe Eetuen of Iistventokt. 502 was, of course, based on special powers belonging to them not at all applicable here, and rests bis decision on a provision of the Revised Statutes then in force. This provision of the law was repealed when the Code of Civil Procedure took effect, on Sep- tember 1, 1880, but it does not seem to have been noticed that these early cases were thus rendered obsolete. The power of con- trol by a surrogate over executors and administrators is, by the Code of Civil Procedure, required to be " exercised in the cases, and in the manner prescribed by statute." Section 2472, Code Civ. Pro. Section 2716, Code Civ. Pro., prescribes the only cases in which the filing of an inventory may be compelled, and it can now only be done on the application of " a creditor or person interested in the estate." The purpose of filing an inventory is to give in- formation to the parties having interest in the assets. Even if a discretionary power could be spelled out from the statute, to re- quire the exhibition of the affairs of the estate on the request of a person holding an unproved and disallowed demand, such dis- cretion should be exercised only where the surrogate is satisfied that the claim is probably meritorious, and that the opposition to it is vexatious and probably unreasonable. Matter of Huntington, 39 Misc. Eep. 477, 80 N. Y. Supp. 220. Alleged creditor. An alleged creditor may have an order to compel filing of in- ventory, even though his standing as a creditor is disputed. Dreamer v. Waller, 2 Dem. 351. The applicant must be a creditor, and it is not sufficient to al- lege that at one time he was a partner of deceased, and that such .firm or its legal representative is a creditor. Pendle v. Waite, 3 Dem. 261. Where the allegation of being a creditor is denied, the surro- gate should require a statement of facts regarding the claim, even though he cannot try the issue as to the validity of the debt. Creamer v. Waller, 2 Dem. 351. When required. An unverified list of decedent's assets is not an inventory, and an official inventory can be required, even though the assets can no longer be submitted to the appraisers for inspection. The es- tate consisted of money. Loerche v. Griffin, 3 Dem. 358. 503 Answek of Eepeesentative. H 710 An inventory may be ordered of money and other like prop- erty situated in another State, even though it may not be produced before the appraisers. Matter of Butler, 38 N. Y. 397. An administrator may be directed to file an inventory, even though the articles of property have been disposed of and cannot be actually inspected. Silverhrandt v. Wedmayer, 2 Dem. 263; 4 Eedf. 144, overruled; 38 IsT. Y. 397, followed. Where the articles cannot be submitted to the appraisers no ofiScial inventory can be ordered. Matter of Bobbins, 4 Redf . 145. ^ 710 Where the Representative Denies the Petition. By the former statute authorizing the surrogate, in case of the neglect of the executor or administrator, to require him to appear and return an inventory, etc., there was no provision made for the amendment of an inventory, but in Sheldon v. Bliss (8 IST. Y. 31), it was held that the surrogate might require the inventory to be amended where the executor had made no exemption of articles for the use of the widow. It was held in Thomson v. Thomson (1 Bradf. 31), that while the court might order an inventory to be amended, if the answer confess more assets, yet if such further assets shall not be admitted, proof will not be received to contradict the answer, and the reason of this rule is stated that the inventory is required by law to be under oath, and that the court cannot order assets to be inserted in the inventory without the parties' oath, nor can it compel an executor or ad- ministrator to swear to assets, possession of which he has twice already denied, viz. : on the inventory, and then in the answer denying the allegations; and the conclusion in that case was, that if there was any error in the inventory, it must await correc- tion on accounting by the representative of the estate. Thus stood the law until the present Code went into effect, which, by section 2715, Code Civ. Pro., expressly provides, that the surrogate, on a proper application, may require the executor or administrator to return an inventory, or further inventory, and the question is whether this makes any substantial change of the law, as it had been wisely adjudged by Surrogate Bradford. From the nature of the proceeding and reason also, it seems that the special authority of the surrogate, conferred by that section, to cause a further inventory does not change the authority of the court in respect to it, but only makes special provision for what had been adjudged to be a necessary implication of authority. f 711 Answee of Eepeesentative. 504 The surrogate has no power to require any examination of the parties or witnesses, for the purpose of testing the correctness of the inventory filed; and that any errors therein must be corrected on a future accounting ; for the impropriety of requiring the rep- resentative of an estate to verify an inventory, which, in effect, ho has twice sworn is not true, is as applicable to proceedings under the new Code as under the former statute. Matter of Mclntyre, 4 Eedf. 489. Upon an application to amend inventory or file further inven- tory and include certain property therein, if the representative de- nies that such property was the property of the deceased, the sur- rogate has no power to determine the question, and the application should be denied. Oreenhough v. Greenhough, 5 Redf. 191. Where the administrator claims title to the property sought to be added to the inventory, that question will not be tried, except upon judicial settlement. Matter of Goundry, 57 App. Div. 232, 68 N. Y. Supp. 155. Where the representative denies the allegation upon which further inventory is asked, the surrogate will not direct such further inventory, but leave the questions to be determined upon the final accounting. Thomson v. Thomson, 1 Bradf. 24; Matter of Arhogast, 9 Civ. Pro. 231, 4 Dem. 399. ^ 711 Settlement Alleged. Where answer is made to the petition that the petitioner has no interest in the estate by reason of the same having been ex- tinguished and satisfied by a settlement, the surrogate should dis- miss the petition. Matter of Wagner, 119 IST. Y. 28, affg. 52 Hun, 23, 22 N. Y. St. Rep. 208. Where there has been a lapse of thirty years between the grant- ing of letters and the application to compel the filing of an in- ventory, such request will be refused on the ground that it is presumed that the estate has been settled. Thomson v. Thom- son, 1 Bradf. 24. On application to compel the filing of an inventory if it ap- pears that the estate has been settled and that the applicant has released his interest, the application should be denied notwith- standing his allegation of interest. Matter of Wagner, 119 IST. Y. 28, affg. 52 Hun, 23, 22 K Y. St. Eep. 208. Where an allegation is made that the petitioner has released and settled all his interest in the estate, the surrogate should deny 505 Answer of Representative. f 711 the application, even though he cannot try that issue. Matter of Wagner, 52 Hun, 23, 22 N. Y. St. Rep. 208 ; affd., 119 N. Y. 28. Refusal to obey order. In case of refusal to obey the order the representative may be committed to jail. Potter v. McAlpine, 3 Dem. 108, 128. 1[ 712 Ascertaining Debts. 506 CHAPTER XXXII. Ascertaining Debts Due from the Deceased— Presenting and Rejecting Claims. U 712. Duty to treat creditors fairly. 713. Publication of notice to creditors. 715. Presentation of claims. 718. Proceeding to require the presentation and trial of claim. 720. Duty to examine claims and admit or reject promptly. 721. How claim admitted. 723. How claim rejected. ^ 712 Duty to Discover Debts Due from the Deceased. While the law prescribes a legal method of ascertaining and presenting debts due from the deceased, yet the representative is not justified in ignoring the knowledge which may come to him of just debts due from the deceased to other persons. His duty as representative does not require him to use any trick or deceit to prevent a creditor having knowledge of the death of his debtor. It oftentimes happens that the deceased was engaged in business and many persons who appear to be creditors upon his books might never see the published notice to creditors. It is the duty of the representative to treat all persons interested in the estate fairly and to give all of such persons the requisite information to enable them to present claims in the proper manner, if they desire to do so. ^ 713 Publication of Notice to Creditors — Vouchers in Sup- port of Claims. The executor or administrator at any time after the granting of his letters, may insert a notice once in each week for six months in such newspaper or newspapers printed in the county as the surrogate directs, requiring all per- sons having claims against the deceased to exhibit the same, with the vouchers therefor, to him, at a place to be specified in the notice, at or be- fore a day therein named, which must be at least six months from the day of the first publication of the notice. The executor or administrator may- require satisfactory vouchers in support of any claim presented and the affidavit of the claimant that the claim is justly due, that no payments have been made thereon, and that there are no offsets against the same to the knowledge of the claimant. Part of § 2718, Code Civ. Pro. 507 Publication of Notice to Creditors. | 715 Advertisement for claims by temporary administrator. A temporary administrator is authorized to advertise for claims in certain cases and such advertisement has the same effect as if made by t>ie administrator-in-chief. § 2673, Code Civ. Pro. ^714 Ascertainment of Debts — Advertising for Presentation of Claims. It is always desirable that the executor or administrator cause to be published the formal notice for the presentation of claims but the publication of such notice is not compulsory. It some- times happens that the deceased had not for many years or never had been engaged in business and contracted few, if any, debts, and in such a case the executor or administrator is often willing to assume the responsibility of ascertaining and paying all debts. In such cases the publication of a notice serves no practical pur- pose, except that the estate of an intestate may be judicially set- tled at the expiration of the publication of the six months' notice to creditors, while if such notice be not published the estate can- not be judicially settled until the expiration of one year after the grant of letters. Where it is desired to publish the notice an informal application is made to the clerk of the court, naming the newspaper published in the county in which it is desired to have the notice published and stating to whom and at what place claims shall be presented ; the clerk will then furnish a notice to be published in the designated nev/spaper for the period of twenty- six weeks. Upon judicial settlement the printers' proof of publication should be filed. ^ 715 Presentation of Claims. Claims may be presented at any time after the executors qualify and enter upon the discharge of their duties, and while they are entitled to a reasonable time to examine and decide upon the question of claims presented, when they do decide, even though no notice has been published, the effect of their decision is the same as though the claim was presented during publication. The notice is for the protection of executors and the estate which they represent, and there is no absolute legal obligation to give it at all. Field V. Field, 77 N. Y. 294. It is not required that the claim presented shall be stated with legal precision. It is sufficient if the transaction out of which 1i 716 Notice to Ceeditoes. 508 the claim arises is identified and its general character indicated without technical formality and the amount of the claim is stated. The party who presents a claim which is rejected cannot be per- mitted to evade the statute by successive presentations of claims founded on the same transaction, but varying in form or detail. Titus V. Poole, 145 N. Y. 414. An administrator's knowledge of existence of a claim does not avoid the necessity of its due presentation. Matter of Morton, 7 Misc. Eep. 343, 58 N. Y. St. Rep. 515, 28 IST. Y. Supp. 82; Niles v. Crocker, 88 Hun, 312, 68 N. Y. St. Eep. 579, 34 N. Y. Supp. 761. The claim should be presented and exhibited in writing, stat- ing its nature and amount, the owner's name, and demanding its payment. Matter of Morton, 58 IST. Y. St. Eep. 515. The only effect of a failure to present a claim to the representa- tive is to relieve him from liability under this section. The cred- itor may wait as long as he pleases and then proceed against the next of kin or heirs-at-law. Olmstead v. Latimer, 9 App. Div. 163, 75 ]Sr. Y. St. Eep. 500; revd. on another point, 158 N. Y. 313. The representative may waive the presentation of the claim as a legal formality since the requirement is for the protection of the representative. Having by sufficient acts waived the formal presentation, he then stands in the same position as though the claim had been legally presented. Matter of Miles, 170 N. Y. 75; Oansevoort v. Nelson, 6 Hill, 391. ^ 716 Notice and Its Effect. The due publication of the notice to creditors exempts the representative from all liability to creditors whose claims are not presented, for any and all assets thereafter paid out in good faith. Erwin V. Loper, 43 IST. Y. 521. Notice to creditors is for the protection of the administrator or executor and there is no absolute legal obligation to give it at all. Fliess V. Buckley, 90 N. Y. 286. A creditor having an unpaid debt against decedent, not barred by the statute, is not precluded by mere omission to present his claim pursuant to notice from establishing his debt and demand- ing an accounting at any time before the executor or administrator is formally discharged from his trust. Matter of Mullon, 145 N. 509 Proceeding Compelling Peesentation/ 1 718 T. 98, affg. 74 Hun, 358, 56 N. Y. St. Eep. 347, 26 N. Y. Supp. 683. The omission of the middle letter in the name of the decedent used in the notice to creditors is immaterial. Comes v. Wilkins, 79 N. Y. 129, afPg. 14 Hun, 428. ^ 111 The Affidavit. The object of the affidavit is to prevent or check the presenta- tion of unfounded claims — not to prove the existence of a debt, and such affidavit is not to be received in lieu of testimony where the payment of the debt is contested. Osborne v. Parker, 66 App. Div. 277; Matter of Goss, 98 id. 489, 90 IST. Y. Supp. 69. The presentation of a claim with affidavit attached may be waived by the representative. Matter of Miles, 33 Misc. Rep. 147, 68 K Y. Supp. 368; revd., 61 App. Div. 562, 71 K Y. Supp. 71 ; which was revd., 170 N". Y. 75. The affidavit annexed to a claim is no proof of the claim where it becomes necessary to make proof of it. Underhill v. Newburger, 4 Eedf. 499. ^ 718 Proceeding to Require the Presentation and Trial of a Claim Either Against the Estate or Against the Representative, or Against Property Held by the Representative. Upon the petition of an executor or administrator, after notice of publi- cation to creditors to present claims has been completed, a citation may be issued against any claimant directing him to. present his claim to the sur- rogate for determination at a date not less than three months from the ser- vice of the citation upon him. If he shall not have commenced an action against the petitioner upon his claim prior to the return day, the claim shall be deemed forever barred unless on the return day he shall consent to its determination by the surrogate, in which case it shall be so determined. The word claimant within the meaning of this section shall be deemed to in- clude every person claiming to 1j3 a creditor of the estate or claiming a right in or lien upon any personal property in the custody of the petitioner or any claim against the petitioner by reason of any act of his in the administration of the estate, or in his representative capacity. § 2718a, Code Civ. Pro. Petition. The petition may be made by the executor or administrator at any time after notice of publication to creditors to present claims has been completed. •; 719 ExAiiiXATiON OF Claims. 510 Citation. Upon filing such petition a citation may be issued against any alleged claimant directing him to present his claim to the surro- gate for determination at a date fixed, not less than three months from the date of the service of the citation upon him. Effect of citation. If the alleged claimant shall not have commenced an action against the petitioner upon his claim prior to the return day the claim shall be deemed forever barred, Unless upon such return day he presents such claim and consents to its determination by the surrogate, in which latter case it shall be determined by the surrogate. "Claimant" defined. The word " claimant " within the meaning of this section shall be deemed to include every person claiming to be a creditor of the estate, or claiming a right in or lien upon any personal property in the custody of the petitioner, by reason of any act of his in the administration of the estate, or in his representative capacity. § 2718a, Code Civ. Pro., analyzed. ^ 719 The Advantages of This Section. This recent addition to the Code is of great practical value to the representative of the estate. It has sometimes happened that people who did not have just claims against an estate have made a pretense of having such claims and have refused to present them in the proper manner and for that reason the representative has been uncertain whether or not he had enough property in the es- tate to pay any or all debts. By refusing to present claims such alleged creditors have held a club over the representative and in some instances, no doubt, have secured a settlement in order that the proper administration of the estate might be proceeded with. This new section gives the representative ample authority to bring about a determination of such question within a reasonable time and will protect the estate from many unjust claims. ^ 720 Duty to Examine Claims and Either Admit or Reject Them Promptly. In the process of adjusting claims against estates by presenta- tion to administrators, the latter are permitted, by section 2718 Sll' Admittijstq ok Rejecting Claim, If 721 of the Code, to call for the evidence of the validity of the claim in its support, and it is a plain duty imposed upon them by virtue of their office to examine respecting its validity as a claim against the estate, and, if found to he just and valid, allow it, or, if otherwise, reject and offer to refer it under the provisions of the statute. Matter of Miner, 39 Misc. Eep, 609, 80 E". Y. Supp. 643. A claim not admitted and allowed is a disputed claim, and should be so considered by the claimant. The administrator or executor should not hold the question of allowance or rejection in abeyance until the final accounting. Tucker v. Tucker, 4 Keyes, 136. ^ 721 Claim May be Admitted Expressly or by Implication, but Never by Silence. Silence of an executor after receiving a claim is not an admis- sion of the claim, or a waiver of the right to raise the Statute of Limitations. Schutz v. Morette, 146 JST. Y. 137. The doctrine that the lapse of a reasonable time without ob- jection made transforms an account rendered into an account stated has a much more restricted application when the claimant deals with an executor, and the Court of Appeals refused to ap- ply it when similar inaction of an executor followed the presenta- tion of a claim, observing also that the creditor must see to it that the claim is admitted or allowed or else commence an action. Schutz V. Morette, 146 E". Y. 137. See also. Matter of Callahan, 152 id. 320, 325 ; which revd. 87 Hun, 210, 33 N. Y. Supp. 1016. The executor or administrator at any time before he shall have made distribution to claimants may make such an admission of the validity of the debts as will bind him and all parties inter- ested in the estate. Wright v. Beirne, 2 Dem. 539. Delay by an executor in rejecting a claim against the estate does not establish it, so as to preclude the executor from disputing it afterward. Matter of Clauss, 16 App. Div. 34, 44 N. Y. Supp. 805. Claims presented to administrators and admitted and allowed by them acquire the character of liquidated and undisputed debts ao'ainst the estate. Lambert v. Craft, 98 1^. Y. 342 ; Magee v. Vedder, 6 Barb. 352-354; Schutz v. Morette, 146 IST. Y. 137. The latter case limits the rule laid down in the two former ones *[ 722 Admitting oe Eejecting Claim. 512 as regards the effect of mere silence and inaction of administrators on claims presented, but does not disturb the rule itself that the admission and allowance of the claim give it the character of a liquidated and undisputed debt; but on the other hand it recog- nizes the rule and the effect of such action in holding that an executor may state an account of the dealings of his testator and an action on the account so stated will lie against him in his representative character. Matter of Miner, 39 Misc. Hep. 609. ^ 722 A Duly Admitted Claim Acquires the Character of a Liquidated and Undisputed Debt. The administrators having published a notice to creditors to present their claims against the estate as authorized by law, and the time of publication having expired, and every claim presented having acquired the character of a liquidated demand against the estate by reason of such admission and allowance, the admin- istrators are clothed with authority to apply the moneys in their hands to the pro rata payment thereof, and the law will protect them in so doing, if they act in good faith, as against the claims of creditors which may thereafter be presented. Matter of Miner, 39 Misc. Kep. 609. ^ 723 Rejecting Claims. There is great difference in the effect of disputing and of re- jecting a claim, and in the rights and remedies of the parties thereafter. Either a disputed or rejected claim may be referred by con- sent under section 2718, Code Civ. Pro., but a rejected claim, if not so referred, must be sued within six months from the date of rejection, or a consent must be filed within that time for its trial by the surrogate on judicial settlement. § 1822, Code Civ. Pro. Section 2718, Code Civ. Pro., provides for the case of a doubt in the representative's mind as to the validity of a claim, not sufiiciently well established to justify its absolute rejection, and enables him imder such circumstances to notify the claimant that he doubts the justice of his claim for the purpose of effecting an agreement to refer the same. For this purpose there is no limit of time, and the agreement may be made at any time between the 513 Seevestg Notice of Eejection. H V24 parties. If the representative desires to set in operation the short Statute of Limitations, his attitude toward the disputed claim must not be susceptible of any doubt in the mind of the claimant, and his dispute or rejection of the claim must be in the most un- qualified and absolute terms. Matter of Eichman, 33 Misc. Kep. 322, 68 K Y. Supp. 636. Doubting the justness of a claim is sufficient to authorize a reference under section 2718, Code Civ. Pro., and to prevent its being treated as admitted ; but it is not sufficient to set the short statute running under section 1822, Code Civ. Pro. Matter of Eichman, 33 Misc. Kep. 322, 68 IST. Y. Supp. 636. ^ 724 Service of Notice of Rejection of Claim Should be Made upon the Claimant, but May be Made upon Claimant's Attorney or Agent. The safer practice is to serve a written rejection of the claim upon the claimant personally. The notice should be written so that there may be no question about the fact of rejection of the claim and it should be served upon the claimant so that there may be no question about the claimant having personal notice of the rejection and of its date. An oral rejection has been held to be sufficient as has also a written notice served upon an attorney whose name was signed to the claim and by whom the claim was presented. The case of Van Saun v. Farley (4 Daly, 165), holding that service upon the attorney is not sufficient has been criticised and not followed. 33 T[ 725 Disputing and Refekeing Claim. 514 CHAPTER XXXin. Disputing a Claim — Reference Thereon — Judgment — Costs. U 725. Disputing and referring claim. 727. Report and findings of referee. 728. Right to intervene and be made a party. 729. What claims may be referred. 730. No formal answer required. 732. Costs on reference. 733. Judgment on report of referee. 734. Appeal from judgment. 735. Costs against representative. ^ 725 Disputing a Claim and Reference Thereof by Consent, A representative may not desire to reject a claim absolutely and leave the creditor to his suit thereon in Supreme Court, but may prefer to have the claim tried before a referee; if he desires to take the latter course, he may accompany his rejection vpith an. offer to refer the claim under section 2718 of the Code of Civil Procedure, or he may not reject the claim absolutely, but he may say to the claimant that he doubts the justice of the claim and may offer to refer under such section. If the offer to refer is accepted by the claimant an agreement is entered into by the respective parties, which is submitted to the surrogate for approval. Upon filing such approval and agreement in the office of the clerk of the Supreme Court in the county in which the parties or either of them reside, an order is made referring the matter in controversy to the person or persons named in the agreement. The trial of the claim before the referee then proceeds in the same manner as the trial of a Supreme Court action, which has been referred. Some general provisions regarding powers and duties of reference may be found at H 47. ^ 726 Disputing a Claim — Reference Thereon — Judgment — Costs. If the executor or administrator doubts the justice of any such claim, he- may enter into an agreement in writing with the claimant to refer the matter in controversy to one or more disinterested persons, to be approved by the surrogate. On filing such agreement and approval in the office of the clerk of the supreme court in the county in which the parties or either of 515 Eefeebnce — Eepoet — Findings. 1[ 72T them reside, an order shall be entered by the clerk referring the matter in controversy to the person or persons so selected. On the entry of such order the proceedings shall become an action in the supreme court. The same proceedings shall be had in all respects, the referees shall have the same powers, be entitled to the same compensation, and subject to the same control as if the reference had been made in an action in vchich such court might, by law, direct a reference. In determining the question of costs the referee shall be governed by sections eighteen hundred and thirty- five and eighteen hundred and thirty-six of this act. Judgment may be entered on the report of the referee and such judgment shall be valid and efifeetual in all respects as if the same had been rendered in a suit commenced by the ordinary process, and the practice on appeal therefrom shall be the same as in other civil actions. If a suit be brought on a claim which is not presented to the executor or administrator within six months from the first publication of such notice, the executor or administrator shall not be chargeable for any assets or moneys that he may have paid in satisfaction of any lawful claims, or of any legacies, or in making distribution to the next of kin before such suit was commenced. Part of § 2718, Code Civ. Pro. This section does not prevent a creditor from putting his claim into judgment if he desires to do so. Mayor, etc., of N. Y. v. Gorman, 26 App. Div. 191, 49 N. Y. Supp. 1026. Where one or more of several referees appointed refuse to serve, the Supreme Court may appoint other referees. Hustis v. Ald- ridge, 144 K T. 508. Mere offer not sufl5cient. An offer to refer by the personal representative, made within six months after the claim was rejected by him, did not prevent the operation of the short limitation. Comes v. Wilkin, 79 IST. Y. 129, a% 14 Hun, 428. Power of referee. The referee has no povs^er to grant an amendment which with- draws several items of the account. Eldred v. Fames, 115 W. Y. 401, revg. 48 Hun, 253. Upon a reference an aiSrmative judgment cannot be rendered against the claimant upon a counterclaim in favor of the executors. Mowry V. Peet, 88 W. Y. 453. The referee may allow an amendment increasing the claim. Lounsbury v. Sherwood, 53 App. Div. 318, 65 IST. Y. Supp. 676. ^ 727 Report and Findings. In the Supreme Court a referee may be appointed to hear and determine, in which case he has all the powers of a judge, and I 728 Eight to Inteevene. 516 upon his decision judgment is entered with like effect as if it were the decision of a judge, and an appeal is taken directly to the Appellate Division. By section 1023, Code Civ. Pro., it is pro- vided that, upon a trial before a judge or referee, the attorneys for the parties must submit in writing proposed findings of fact, upon which the court or referee must note whether he has found or re- fused to find the same, before the rendering of his decision or report. Section 1015 of the Code provides that the court may, wherever it is necessary for its information, order the referee to take proof and report to the court his opinion thereon. It is manifest, therefore, that the provisions of section 1023, Code Civ. Pro., with relation to findings, do not apply to a reference which is merely to take proof and report, as provided in section 1015, Code Civ. Pro. Matter of Sprathoff, 50 Misc. Eep. 109 ; affd., 112 App. Div. 918 ; Matter of BoUnson, 53 Misc. Eep. 177. ^ 728 Right to Intervene and be Made a Party to the Action. Where the subject-matter referred is merely a money demand, a third party will not be allowed to intervene. By the terms of section 2718 of the Code of Civil Procedure the proceeding for the ascertiainment of the validity of a claim be-- eomes on the appointment of the referee an action in the Supreme Court. The statute is explicit. It says that " on the entry of such order, the proceeding shall become an action in the Supreme Court." That being the status of the proceeding, the right to intervene in it must be controlled by provisions of law relating to that subject. The right of a third party to intervene in an action is conferred by section 452 of the Code of Civil Procedure. There has been a diversity of opinion as to the proper construc- tion to be given to that provision of the Code, but its inter- pretation has been finally settled by the Court of Appeals. In Bauer v. Deivey (166 IST. Y. 402), it was held that the Supreme Court has " no authority under section 452 of the Code of Civil Procedure to compel the plaintiff, in an action in which a money judgment only is sought and in which the title to no real, specific, or tangible personal property is involved, to bring in as a defend- ant a third party on his own application." It may be suggested that an equitable power resides in the court to allow a stranger to intervene in an action where facts are pre- sented showing that he has some possible interest in the event of 517 What Claims May be Referred. 1[ Y29 that action, and the case of Mertens v. Mertens (87 App. Div. 295) is cited as authority for that proposition. There the in- terest of an infant was directly involved and the court exercised its power to guard the interests of a person not able to protect himself and because of the exceptional character of the case. Haas V. Craighead (19 Hun, 396) was a suit in equity, relating to some- thing more than a mere money demand. Honigbaum v. Jackson, 97 App. Div. 527, 90 N. y. Supp. 182. ^ 729 What Claims May and What May Not be Referred. Under the provisions of the Eevised Statutes which regulated the references of claims against an estate (§§ 35-37, tit. 3, chap. 6, pt, 2), it was said in many cases that only those claims were referable which accrued during the life of the decedent, or would have accrued against him if he ^ad lived. Godding v. Por- ter, 17 Abb. Pr. 374; Smith v. Patten, 9 Abb. Pr. (K S.) 205; Skidmore v. Post, 32 Hun, 56. That was the view taken in Ee VanSlooten v. Dodge (145 K Y. 327, 332, 39 IST. E. 950). In Sands v. Craft (10 Abb. Pr. 216), it was held that the liability of the estate of a deceased executor for assets held by him as such at his death is not a debt of the estate which could be referred under the provisions of the Revised Statutes. The provisions of section 2718 of the Code, as amended in 1893, are, in substance, the same as the provisions of the Revised Statutes, except that it is provided that, upon the entry of the order of reference, the proceeding shall become an action in the Supreme Court. The effect of this provision was considered in Rutherford v. Soop (85 Hun, 119, 32 IT. Y. Supp. 636), and it was, in substance, held that the amendment did not operate to en- large the scope of references of disputed claims. It cannot be claimed that the defendant, by consenting to refer, waived the objection that the claim was not referable. It was held otheiTvise in Re Van Slooten v. Dodge {supra). Shorter v. Mackey, 13 App. Div. 20, 43 IST. Y. Supp. 112. A claim for funeral expenses is not one that can be referred. Genet v. Willock, 93 App. Div. 588, 87 IST. Y. Supp. 938. A judgment cannot be referred. Matter of Wait, 39 Misc. Rep. 74, 78 1ST. Y. Supp. 869 ; Matter of Browne, 34 Misc. Rep. 362, 71 ISr. Y. Supp. 1034. ^ 730 Eefeeence — Pleadings. 518 Keference. This section is in substance the same as the Revised Statutes (§§ 35-37, tit. 3, chap. 6, pt. 2), and the additional provision making the proceeding one in Supreme Court has not enlarged the scope of the references. Rutherford v. Soo-p, 85 Hun, 119, 66 JSr. Y. St. Eep. 22, 32 N. Y. Supp. 636. The widow was executor and having the use of certain property had it in her possession when she died. The coexecutor of her husband's estate presented to the executor of her estate a claim for such funds, which claim was rejected and referred — held not referable, but that an accounting should be had under section 2606, Code Civ. Pro. Shorter v. Machey, 13 App. Div. 20, 43 N. Y. Supp. 112. Only those claims are referable which accrued during the life of the decedent, or would have accrued against him if he had lived. Godding v. Porter, 17 Abb. Pr. 374 ; Smith v. Patten, 9 Abb. Pr. (JST. S.) 205 ; Skidmore v. Post, 32 Hun, 54. A claim for a diamond ring delivered to the executor for his inspection and retained by him as the property of the deceased cannot be referred even by consent. Van Slooten v. Dodge, 145 A'. Y. 327 ; revg. Van Slooten v. Wheeler, 76 Hun, 55, 27 IST. Y. Supp. 666. The liability of the estate of a deceased executor for assets held by him as such at his death is not a debt of the estate which can be referred. Sands v. Craft, 10 Abb. Pr. 216. Action deemed commenced when order of reference is filed. Upon reference of a disputed claim the date of the entry of the order of reference is the date of the commencement of the action. Leahy v. Campbell, 70 App. Div. 27. ^ 730 No Answer or Bill of Particulars Required. ITo answer or bill of particulars will be required from the rep- resentative who has consented to refer a claim. Rutherford v. Soop, 85 Hun, 119, 66 W. Y. St. Eep. 22, 32 IST. Y. Supp. 636 ; Townsend v. N. Y. Life Ins. Co., 4 Civ. Pro. 403; Eldred v. Fames, 115 JST. Y. 403, revg. 48 Hun, 253. In a reference of this character no answer is required where there has been a rejection of the claim. Any defense may be urged which is available to defeat the claim, including the Statute of Limitations. Simons v. Steele, 82 App. Div. 202, 81 IST. Y. -519 Eefekence — Commission May Issue. T[ 731 .Supp. 737; affd., 177 IST. Y. 542; Tracy v. Suydam, 30 Barb. 110; Roe v. Boyle, 81 K Y. 307; Oilhert v. Comstoch, 93 id. 484. ^ 731 Commission May Issue. Upon such a reference the Supreme Court may order a com- mission to take the testimony of a nonresident witness. Paddock T. Kirhham, 102 N. Y. 597. Commission to examine on oral questions will be granted on payment of expenses. The Legislature has expressly prescribed in section 893 of the Code of Civil Procedure that, where an issue of fact has been joined in an action pending in the Supreme Court, a commission may issue by consent of the parties, or by order of the court with- out such consent, to take the depositions of witnesses without the State upon oral questions. The authority to issue commissions applies to actions instituted under said section 2718 of the Code of Civil Procedure, as well as to actions begun by service of a summons. The court properly scrutinizes an application for a commission to examine witnesses without the State upon oral ques- tions, or for an open commission authorized by section 894 of the Code of Civil Procedure, which neither requires that the witnesses be named nor limits their number, to the end that a party having the election whether to bring an action here or elsewhere should not be permitted, after bringing the action in this jurisdiction, to transfer the place of trial to another forum, and to the end, also, that the adverse party should not be put to the expense or incon- venience incident to the proper execution of such commissions, where it can be fairly seen that a commission on written interroga- tories will fully answer the ends of justice. Ordway v. Radigan, 114 App. Div. 538, 100 ]Sr. Y. Supp. 121 ; FrounfeTker v. D., L. x& W. R. R. Co., 81 App. Div. 67, 80 N. Y. Supp. 711. In any case where the testimony of a witness is taken by com- TQission, whether upon written interrogatories, or in the form of a deposition on oral questions, or under an open commission, neither the court nor the jury has an opportunity to scrutinize the testi- mony of the witnesses by their appearance or conduct upon the stand. That objection to the issuance of a commission applies alike to the various classes of commissions authorized. The com- missions which have heretofore been regarded with disfavor by the courts are open commissions, in which no witnesses are named f 732 Eefeeen CE — Costs. 520 and where there is no limit to the number that may be produced or examined by either party (Code Civ. Pro., § 894) ; but the courts have not always discriminated between those and commissions to examine designated witnesses on oral questions, and they are often erroneously classed together. In many cases the ends of justice will be subserved by a liberal exercise of the authority to issue commissions to take the testimony of designated witnesses on oral questions; due regard being had, however, to the rights of the adverse party. When it becomes necessary to take the testimony of a witness without the State, it is apparent that the class of commission to be issued must rest in judicial discretion, to be exer- cised according to the particular facts presented. There is less likelihood that a witness will testify falsely if examined orally than if examined on written interrogatories ; and, if he should, it is more likely that a cross-examination orally will be efFective than if it be confined to written interrogatories. The only serious ob- jection to issuing a commission to examine designated witnesses on oral questions is the expense to which the adverse party may be subjected in sending counsel familiar with the facts to attend the execution of the commission, and it may well be that in some in- stances it would be necessary for the party, or for one representing him, familiar vsdth the subject-matter of the litigation, to likewise attend, in order that his counsel might be enabled to properly cross-examine the witnesses. These objections may be met, ac- cording to the justice of the case and in the discretion of the court, by requiring the moving party to pay a reasonable amount for such expenses as a condition of granting the commission upon oral questions, instead of upon written interrogatories. Deery v. Bryne, 104 N. Y. Supp. 836. ^ 732 Costs on Reference of Disputed Claim. The referee shall be governed by sections 1'835, 1836, Code Civ. Pro., in determining the question of costs on trial of disputed claims. Part of § 2718, Code Civ. Pro. Since the amendment of 1893 to section 2718, Code Civ. Pro.^ the referee has power to award costs against an executor or admin- istrator on a claim referred and judgment is entered on the report of the referee. Although section 1836, Code Civ. Pro., apparently gives power to the court alone to award costs, it must be construed in conjunction with section 2718, Code Civ. Pro. Fisher v. Ben- 521 Ceetificate foe Costs. H 732 nett, 21 Misc. Eep. 178, 47 K Y. Supp. 114; Whitcomb v. Whit- coml, 92 Hun, 446, 36 E". Y. Siipp. 607, 71 IST. Y. St. Rep. 661 ; Winnie v. Bills, 91 Hun, 93, 36 N. Y. Supp. 683, 71 IST. Y. St. Rep. 702 ; Niles v. Crocker, 88 Hun, 314, 34 IST. Y. Supp. 761, 68 ]Sr. Y. St. Rep. 579; Ellis v. Filon, 85 Hun, 489, 33 JST. Y. Supp. 138, 66 ISr. Y. St. Rep. 764. Certificate for costs required. The Code of Civil Procedure (section 1835) forbids the allow- ance of costs in an action brought against an executor or adminis- trator in his representive capacity, except as prescribed in section 1836, which permits such an award where it appears that the claim was duly presented, that its payment was unreasonably resisted or rejected, or that there was a refusal to refer. Since these facts depend in whole or in part, at least, upon circumstances outside of the litigation, and not within its issues, the latter section provides that the facts must be certified by the judge or referee before whom the trial was had. The award of costs, therefore, must de- pend upon the certificate. Matson v. Abbey, 141 N. Y. 179, 36 jST. E. 11 ; Schou v. Blum, 104 Is^. Y. Supp. 887. Certificate not upheld where the claim was materially reduced and the right to recover was doubtful. Matter of Raab, 47 App. Div. 33, 62 ]Sr. Y. Supp. 332 ; Ryan v. McElroy, 15 App. Div. 216, 44 ]S". Y. Supp. 196. A certificate granting costs may be made by the referee after he has made his report under the authority of section 3248, Code Civ. Pro. Brainerd v. DeGraef, 29 Misc. Rep. 560, 61 JST. Y. Supp. 953. Claim which was referred had not been presented within the running of the notice — held, that section 1836, Code Civ. Pro., did not apply to a reference and that costs could be allowed the claimant. Denise v. Denise, 110 'N. Y. 562. Where a rejected claim is referred and the claimant does not recover $50, the defendant is entitled to costs against him as in action in Supreme Court. LampJiere v. Lamphere, 54 App. Div. 17, 66 K Y. Supp. 270. The successful party is entitled to recover disbursements with- out a certificate. Larhins v. Maxon, 103 N. Y. 680; Lounsbury V. Sherwood, 53 App. Div. 318, 65 'N. Y. Supp. 676; Niles v. Crocker, 88 Hun, 312, 34 N. Y. Supp. 761, 68 N". Y. St. Rep. 579 ; Eallock v. Bacon, 64 Hun, 90, 19 IST. Y. Supp. 91, 45 N. Y. St. Rep. 485. f 733 JuDGMEi^T — Costs — Appeal. 522 Fees and disbursements may be awarded the prevailing party under section 317, Code Civ. Pro., although he is not entitled to costs. Osborne v. Parker, 66 App. Div. 277, 72 IST. Y. Supp. 894 ; Matter of Raab, 47 App. Div. 33, 62 N. Y. Supp. 332. Fees of referee on trial of disputed claim. Fees of referee on trial of a disputed claim shall be the same as of referees on a trial. From § 2718, Code Civ. Pro. ^ 733 Judgment on Report of Referee. The judgment on report of referee to try a disputed claim shall be valid and effectual in all respects as if the same had been rendered in a suit commenced by the ordinary process. Part of § 2718, Code Civ. Pro. 1^0 application to the court to confirm the report of the referee is required. Jenkinson v. Harris, 27 Misc. Rep. 757, 59 ]^. Y. Supp. 549 ; Fisher v. Bennett, 21 Misc. Eep. 178, 47 E". Y. Supp. 114. ^ 734 Appeal from a Judgment After Reference of a Dis- puted Claim. The practice on appeal from such a judgment shall be the same as in other civil actions. From § 2718, Code Civ. Pro. Since the referee is allowed to decide as to costs no appeal therefrom as to costs can be taken to the Special Term, unless the referee does not find as to costs. Jenkinson v. Harris, 27 Misc. Rep. 714, 69 K Y. Supp. 548. % 735 Costs Against Representative in Judgment for Money. Where a judgment for a sum of money only is rendered against an executor or administrator, in an action brought against him in his representative capacity, costs shall not be awarded against him, except as prescribed in the next section. § 1835, Code Civ. Pro. Costs, when awarded, etc. Where it appears in a case specified in the last section that the plaintiflF's demand was presented within the time limited by a notice published as prescribed by law, requiring creditors to present their claims and that the payment thereof was unreasonably resisted or neglected, or that the de- fendant did not file the consent provided in section eighteen hundred and 523 Judgment — Costs — Appeal. % 735 twenty-two at least ten days before the expiration of six montlis from the rejection thereof the court may award costs against the executor or ad- ministrator to be collected either out of his individual property or out of the property of the decedent as the court directs, having reference to the facts which appear upon the trial. Where the action is brought in the supreme court or any county court, the facts must be certified by the judge or referee before whom the trial took place. § 1836, Code Civ. Pro. 1 736 Limitation on Eejectkd Claim. 524 CHAPTER XXXIV. Consent That Surrogate Try Claim upon Judicial Set- tlement — Limitation of Action if Consent Not FUed. 1[ 736. Action must be commenced within six months. 738. What is a sufficient rejection. 741. Consent that claim be tried by surrogate on judicial settlement. 742. What claims may be so tried. 744. Defense of short statute, when allowed. 747. Allowance of costs; compromise of debt or claim. 748. Application for permission to compromise debt or claim. ^ 736 Limitation of Action by Creditor on Clziim Rejected. An action must be commenced within six months after the re- jection of a claim by the executor or administrator or after some part of it becomes due, but before this statute can be invoked by a representative as a bar, a notice requiring the presentation of claims must be published, a claim in writing must be presented to the executor or administrator, and it must be plainly disputed or rejected by him. Ulster Co. 8. I. v. Young, 161 !N". Y. 23, affg. 15 App. Div. 181, 44 IST. Y. Supp. 493. A written consent signed by the executor or administrator and the claimant may be filed agreeing that the claim may be heard and determined by the surrogate on the judicial settlement. To avoid costs the executor or administrator may file such a consent ten days before the expiration of six months (§ 1836, Code Civ. Pro.), even though the claimant does not join in it. The jurisdiction of the Surrogate's Court to try a rejected claim is not acquired unless the consent of both parties is filed with the surrogate within six months from the rejection of the claim. Limitation of action by creditor on claim rejected, etc. Where an executor or administrator disputes or rejects a claim against the estate of a decedent, exhibited to him, either before or after the com- mencement of the publication of a notice requiring the presentation of claims, as prescribed by law, unless a written consent shall be filed by the respective parties with the surrogate that said claim may be heard and determined by him upon the judicial settlement of the accounts of said executor or ad- ministrator as provided by section twenty-seven hundred and forty-three, the claimant must commence an action for the recovery thereof against the executor or administrator within six months after the dispute or rejection, or, if no part of the debt is then due, within six months after a part thereof 525 LiMn»ATio]sr om Eejected Claim. T[ 737 becomes due; in default whereof he, and all the persons claiming under him are forever barred from maintaining such an action thereupon, and from every other remedy to enforce payment thereof out of the decedent's prop- erty. § 1832, Code Civ. Pro. ^ 737 As a Foundation for Rejection and the Application of the Short Statute the Representative Should Require the Claim to be Presented in Writing. The statute is penal in its character and should be strictly con- strued. To entitle a personal representative to the benefit of it, the statute must be complied with in all its essential particulars. Hoyt V. Bonnett, 50 N. Y. 538. An examination of the statute discloses that its provisions are that, vrhere an executor or administrator disputes or rejects a claim exhibited to him, an action therefor must be coramenced within six months thereafter. It is difficult to understand how an oral claim could be exhibited to a personal representative. From these words the necessary implication arises that the claim is to be presented in writing. We think, before this statute can be invoked by a representative as a bar to a claim against the estate he represents, a notice requiring the presentation of claims must be published, a claim in writing must be presented to the executor or ' administrator, and it must be plainly disputed or rejected by him. The almost universal practice in presenting claims to representatives of an estate, to public officers, or public boards, whether executors, administrators, assignees, receivers, supervisors, aldermen, or auditors, has been to present them in writing, properly verified by the claimant. In many of the in- stances mentioned, there is no such explicit requirement, but the language of the statute clearly indicates that the claim exhibited must be in writing. Public policy and certainty in the admin- istration of estates also require the enforcement of that rule. Otherwise the opportunity is at once presented for an unscrup- ulous or dishonest representative to claim the benefit of this statute from some uncertain and inconclusive talk in regard to a claim against the estate, which upon a trial may be transformed into an absolute demand and refusal, by perjury or a mistaken remembrance of the facts. In a matter so important, we think nothing short of a written claim exhibited to the representative, as the statute plainly requires, and absolutely rejected by him, will have the effect of establishing the time for the commence- ment of the limitation provided by this statute. f 738 What is a SuFFICIE^-T Eejection. 526 In Matter of Morton (58 ¥. Y. St. Rep. 515, 517, 28 IST. Y. Supp. 82), it was said: "The statute plainly intends that the claim shall be presented or exhibited in some writing, stating its nature and amount, the owner's name and demanding its pay- ment. The personal representative of the estate is then in posses- sion of information which will enable him to act intelligently, and either to admit the claim or take such steps to protect the estate against it as he shall deem prudent and necessary." The following cases are to the same effect : Cruikshanh v. Cruihshanh ( 9 How. Pr. 350, 351) ; King v. Todd (27 Abb. IST. C. 149) ; Boheris v. Ditmas (7 Wend. 523); Oansevoort v. Nelson (6 Hill, 392); Niles V. Croclcer (88 Hun, 312, 34 N. Y. Supp. 761, 68 IST. Y. St. Eep. 579). While there is some conflict in the courts below upon this ques- tion, we think the cases to which we have referred establish a correct principle which should be' adopted by this court. Ulster County Sav. Inst. v. Young, 161 N. Y. 33, affg. 15 App. Div. 181, 44 ]Sr. Y. Supp. 493. ^ 738 What is a Sufficient Rejection. Where on presentation of the claim by a person other than the claimant the executor then and there told the bearer of the claim that he disputed and rejected it — held, a sufficient rejection. Peters v. Stuart, 2 Misc. Eep. 357, 51 K Y. St. Rep. 120, revg. 1 Misc. Rep. 8, 48 JST. Y. St. Rep. 511, 20 N. Y. Supp. 661. The rule is stated in Dillon v. Anderson (43 N. Y. 231, 238) as follows : " JSTotice to the agent is notice to the principal, if the agent comes to the knowledge of the fact while he is acting for the principal in the course of the very transaction which becomes the subject of the suit." Where a written notice of rejection was left at the house of claimant during a temporary absence — held, a sufficient rejec- tion. Peters v. Stuart, 2 Misc. Rep. 357, 51 E". Y. St. Rep. 120, revg. 48 ¥. Y. St. Rep. 511. It is entirely immaterial whether the plaintiff was ever in- formed that the claim had been rejected' by the administrator, if such was the fact, the witnesses referred to having been authorized to present such claim. Cox v. Pearce, 112 JST. Y. 637; Gardner V. Pitcher, 109 App. Div. 106, 95 K Y. Supp. 678; affd., 185 N. Y. 534. 527 What is a Sufficient Eejection. If 739 Where a claim was presented by a firm of attorneys and the firm name and address was the only address indorsed upon the claim, a written rejection served upon a member of the firm was held a sufficient rejection. Lockwood v. Dillenbeck, 104 App. Div. 71, 93 K Y. Supp. 321. When an executor notifies the claimant that as at present advised he declines to pay the claim and asks for the items of the account, etc., he has not rejected the claim. Hoyt v. Bonnett, 50 ISr. Y. 538. A mere statement of doubt about the justice of the claim and an offer to refer the same is not such a rejection as will set the statute running. Matter of Eicliman, 33 Misc. Eep. 322, 68 IST. Y. Supp. 636. Salomon v. Heichel (4 Dem. 176) overruled by Wintermeyer V. Sherwood (77 Hun, 193, 60 IT. Y. St. Kep. 131, 28 E". Y. Supp. 449). A rejection of a claim may be made to the attorney who presents it, and need not be in writing or in any particular form. Matter of Jacobs, 109 App. Div. 293, 96 N. Y. Supp. 133. Where some of the items of the claim are rejected and others admitted the statute begins to run as to the rejected items at the time of rejection. Wintermeyer v. Sherwood, 77 Hun, 193, 60 K Y. St. kep. 131. ^ 739 Effect of Statement of Account Filed That Claim is Rejected. Where the claimant is an involuntary party to an accounting in which account it is stated that the claim is rejected, such state- ment is not sufficient notice of rejection to set the short statute running. Potts v. Baldwin, 67 App. Div. 434, 74 N. Y. Supp. 655; affd., 178 :N^. Y. 335. An account which states that a certain claim is disputed and rejected constitutes a rejection of the claim so that the surrogate cannot try it without the consent of the parties. Edmonds v. Edmonds, 47 App. Div. 229, 62 N. Y. Supp. 652. An administrator, being called to an accoimt by an alleged creditor whose claim had been duly presented more than a year before, filed his account which included among the claims against the estate the claim of petitioner — held, a binding admission of the claim, Wright v. Beirne, 2 Dem. 539. If 740 CoisrsENT poe Tkial on Judicial Settlement. 528 q 740 May be Referred. The question as to the acceptance or rejection of the claim and the application of the Statute of Limitation may be referred, under authority of section 2546, Code Civ. Pro. Matter of Hoes, 54 App. Div. 281, 66 IST. Y. Supp. 664. If 741 Filing Consent. The executor filed his consent within six months, but the creditor did not file his until fourteen months after the rejection, neither did he begin an action. On application by alleged creditor for an accounting — held, that the failure to file the consent within the six months or to bring an action deprived the applicant of a right to an accounting. Matter of Brown, 76 App. Div. 185, 78 K T. Supp. 297, revg. 38 Misc. Kep. 407. An oral consent of counsel is not sufficient to give the surro- gate jurisdiction. Matter of Eirhy, 36 Misc. Kep. 312, 73 N. Y. Supp. 509. Filing a petition for an accounting and an answer by the executor is not filing the necessary consent. Holly v. Gibbons, 176 :Nr. Y. 520, revg. 67 App. Div. 628, 74 N. Y. Supp. 1132. ^ 742 What Claims May and May Not be Tried by Consent. A judgment or a decree of Surrogate Court cannot be tried by consent. Matter of Wait, 39 Misc. Eep. 74, 78 N. Y. Supp. 869 ; Matter of Browne, 34 Misc. Eep. 362, 71 N. Y. Supp. 1034 ; Matter of Lyman, 60 Him, 82, 37 N. Y. St. Eep. 928, 14 IST. Y. Supp. 198 ; affd., 128 H. Y. 614. Surrogate may ascertain the amount of payments made upon a • claim or judgment and determine the amount due thereon. Matter of Browne, 34 Misc. Eep. 362, 71 JST. Y. Supp. 1037. ^ 743 Must be Tried on Judicial Settlement. The claim cannot be tried at any other time than the judicial settlement. Matter of ClarTc v. Hyland, 88 App. Div. 392. Prior to the amendments, in 1895, of the provisions of the Code of Civil Procedure (§§ 1822, 2743) a surrogate had no jurisdic- tion to try or determine disputed claims against an estate {Mc- Nulty V. Hurd, 72 IST. Y. 520 ; Matter of Callahan, 152 id. 320 ; Matter of Edmonds, 47 App. Div. 229), and the consent of the parties did not confer jurisdiction or estop a party from raising 529 Must be Teied on Judicial Settlement. | 743 the question on appeal from the decision of the surrogate. Matter of Walker, 136 IST. Y. 20, 48 N. Y. St. Rep. 893. Section 1822 of the Code provides for the limitation of actions hy a creditor on a rejected claim. Prior to the amendment of 1895 the section provided, in effect, ,that the action must be com- menced within six months after the rejection of the claim "unless the claim is referred, as prescribed by law." Laws of 1882, chap. 399. By the amendment in 1895 the words quoted, " unless," etc., were omitted, and there were inserted, in place thereof, the words " unless a written consent shall be filed by the respective parties with the surrogate that said claim may be heard and determined by him upon the judicial settlement of the accounts of said executor or administrator, as provided by section 2743." Laws of 1895, chap. 595. Section 2743 relates to the decree to be made upon a judicial settlement, and prior to the amendment of 1895 it provided, among other things, that " where the validity of a debt, claim or distributive share is not disputed or has been established the de- cree must determine to whom it is payable, the sum to be paid by reason thereof, and all other questions concerning the same." Laws of 1880, chap. 178. Under this language it was held that the surrogate had no jurisdiction to try and determine disputed claims against estates. The claims had to be established in some other tribunal than before the surrogate. By the amendment of 1895 the phraseology was changed and the following words were inserted after the word " established," " upon the accounting or other proceeding in the Surrogate's Court or other court of competent jurisdiction." Laws of 1895, chap. 595. These amendments to these two sections were made by the same act, and should be considered together in determining what new jurisdiction was intended to be conferred upon the surrogate or his court in reference to the trial and determination of said disputed claims against estates. So considering the amendments, it is evident that it was intended to give the surrogate jurisdiction to try and determine such claims upon the judicial settlement of the accounts of the executor or administrator upon the written consent filed with him by the respective parties. What was in- tended by the words in the amendment of section 2743, Code Civ. Pro., " or other proceeding in the Surrogate's Court," it is difficult to say. It does not seem that the intention was to confer jurisdic- tion to try and determine such claims in any cases other than 34 f 744 Six Months' Limitation. 530 these referred to in section 1822, Code Civ. Pro., and those were " upon the judicial settlement," etc., only. If the intention was to confer jurisdiction to try and determine such claims generally, when consent of the parties was given, such intention would have been more clearly expressed, especially as it had been held that no jurisdiction to try and determine such claims existed at all prior to such amendments of 1895. Matter of Clark v. Hyland, 88 App. Div. 392, 84 IST. Y. Supp. 640. Until then the policy of the law had been to withhold all juris- diction from the surrogate and his court to try and determine disputed claims against estates. And even the jurisdiction con- ferred by these amendments was carefully limited to the judicial accountings where all the parties interested in the estate were privileged to be present and to take part in the litigation, and even then to cases where the written consent by the parties to the exercise of such jurisdiction should be filed. Section 2472 of the Code was not changed in 1895 and, therefore, its provision can have no bearing upon the question here involved. In view of these suggestions it would seem that these amendments should be strictly construed and held to confer no new jurisdiction other than that clearly provided. It cannot, therefore, be held that the surrogate has jurisdiction to try and determine a dis- puted claim even with the consent of the parties, at any other time than during the judicial settlement of the accounts of the executors of the estate. That settlement is a well-understood proceedijig in Surrogates' Courts duly instituted, on notice to all parties interested in the estate. Matter of Olarh v. Hyland^ 88 App. Div. 392. ^ 744 Defense of Short Statute Applied. The bar of the short statute is a defense not only to an action against the personal representatives but also to an action against the heirs-at-law. Selover v. Coe, 63 IST. Y. 439. Covers contingent liability as well as those claims where tbe liability is certain and fixed — so held in regard to a claim for contribution by a cosurety. Comes v. Wilkin, 79 IS. Y. 129. The law is settled that a personal representative cannot, by any act of his, restore a claim against the estate he represents which is barred by the six months' Statute of Limitations. Bucklin v. Chopin, 1 Lans. 443 ; Bloodgood v. Bruen, 8 N. Y. 362 ; McLaren, 531 Six Months' Statttte. ^ 745 V. McMartin, 36 id. 88; Matter of Eendrick, 107 id. 108; Flynn^ V. Diefendorf, 51 Hun, 194, 21 N. Y. St. Rep. 563, 4 N. Y. Supp. 934. Where after rejection, the representative continues to negotiate for a settlement he will not be allowed to plead the running of the statute without deducting the time negotiations were in progress. Adler v. Davis, 31 Misc. Eep. 47, 63 IST. Y. Supp. 241. A claim for funeral expenses which has been presented to the representative and rejected is barred by the short statute if not sued in six months. Koons v. Wilkin, 2 App. Div. 13, 73 N. Y. St. Eep. 234, 37 N. Y. Supp. 640. Sections 401 and 405 apply. Where the executor at the time of the death of the testator and ever since had been a resident of another State, section 401 applies to bringing an action on a rejected claim and such action is not barred by the six months' limit. Hayden v. Pierce, 114 N. Y. 512, affg. 71 Hun, 593, 55 K Y. St. Rep. 117, 25 N. Y. Supp. 55. Where an action has been commenced on a rejected claim and a nonsuit granted, section 405, Code Civ. Pro., applies and ex- tends the time to bring a new suit one year therefrom. Titus v. Poole, 145 N. Y. 414, a%. 73 Hun, 383, 58 K Y. St. Rep. 75, 26 N. Y. Supp. 451. ^ 745 Estopped. An agreement in writing was made to refer the claim, but on account of negotiations for a settlement no order of reference was made until after six months — held, that the executor was estopped from availing himself of the defense. National Bank of ff. v. Speight, 47 IST. Y. 668. Consents of both parties having been filed, an action brought in the Supreme Court cannot be maintained after the expiration of the six months' limitation. The claimant must stand on his consent. Clark v. Scovill, 111 App. Div. 35, 97 IST. Y. Supp. 1117; app. dism., 185 N. Y. 541. Effect of stay granted by court. A stipulation to stay all proceedings in a claim made by order of court stops the running of the short statute. Wilder v. Ballou, 63 Hun, 118, 17 N. Y. Supp. 625, 43 IST. Y. St. Eep. 574. 1 746 CoMPEOMisE OF Debt oe Claim. 532 ^ 746 Claim Cannot be Revived by Consent. Agreement to refer made after six months from tlie rejection .and claim tried — on appeal — held, that no action having been 'Commenced within the six months, the claim was barred and the 'executor could not revive it by an agreement to refer. Flynn v. Diefendorf, 51 Hun, 197, 21 N. Y. St. Kep. 563, 4 K Y. Supp. 934. ^ 747 Allowance of costs. Section 2561, Code Civ. Pro., applies to this section as to the allowance of costs on the trial of a disputed claim. Matter of Coonley, 38 Misc. Eep. 219, 77 K Y. Supp. 269, ISTo costs can be allowed where the claimant brings action in less time than five months and twenty days from the date of re- jection. Hart V. Hart, 45 App. Div. 280, 61 IST. Y. Supp. 131 ; Pauley v. Millspaugh, 95 App. Div. 208, 88 N. Y. Supp. 555; Ballantyne v. SteenwortJi, 79 App. Div. 632, 80 IST. Y. Supp. 37. The language of section 1836, Code Civ. Pro., as to costs is in the alternative, and if the consent be not filed costs may be awarded pursuant to that section. Pauley v. Millspaugh, 95 App. Div. 308. Where claims are tried by the surrogate by consent, the costs are to be fixed by section 2561, Code Civ. Pro., but their allowance is in the discretion of the surrogate. Matter of Coonley, 38 Misc. Eep. 219, 77 JST. Y. Supp. 269. ^ 748 Application for Permission to Compromise a Debt or Claim. Sec. 2719, Code Civ. Pro. It is not in every case where the representative desires to settle or compromise a claim that application to the surrogate for per- mission to do so should be made. The executor or administrator is appointed for the purpose of conducting the business of the es- tate and of exercising a careful and intelligent judgment as to such business. Unless the matter is of very great importance and he considers that there are questions involved upon which he ought to take the advice of the surrogate, the representative should assume the responsibility which attaches to his office and act upon his own best judgment. Where such an application is made to the surro- gate, the order permitting a settlement or compromise furnishes no absolute protection to the representative, since any party inter- 533 CoMPEOMiSE OP Debt oe Ci-aim. 1[ 748 ested in the final settlement of the estate may show on such settle- ment that such debt or claim was fraudulently or negligently compromised or compounded. An executor or administrator, independent of a statute, has the power to compromise and adjust claims made either against or in favor of estates represented by him, the only risk in doing so be- ing that unless the surrogate or a court having jurisdiction of the subject-matter thereafter sustains his acts he will be subjected to a personal liability. Chouteau v. Suydam, 21 N. Y. 179. The first statute bearing upon the subject is chapter 80 of the Laws of 1847. This act was amended in 1888, chapter 571, which permitted a surrogate to authorize executors and administrators "to compromise or compound any debt or claim," and while it might be argued with some force that this language was sufficient to confer power upon the surrogate to authorize the settlement of a claim made against the estate, it probably was not so intended — at least it is not sufficiently clear that such was the intent — when the whole act is considered, as to justify the court in thus con- struing it. But whatever doubt may have existed in this respect prior to 1893 was removed by the passage of chapter 100 of the laws of that year, by which section 1 of the original statute of 1847, as amended in 1888, was further amended by adding the words : " Or to compromise or compound any debt or claim owing by the estate of their testator or intestate." The words thus added, taken in connection with the other words used, clearly and unmis- takably indicate an intent upon the part of the Legislature to con- fer power upon the surrogate to permit a settlement or compromise of a claim either made for or against the estate. But it is said that chapter 100 of the Laws of 1893 was repealed by chapter 686 of the same year. This is undoubtedly true, but in repealing the original statute of 1847 and the amendment of 1888 the amend- ment which was thereby added to section 2719 of the Code of Civil Procedure evidences that the Legislature intended to continue the power which had theretofore been conferred upon the surrogate with reference to a settlement or compromise and not to dimin- ish it. Considering, therefore, the history of the legislation bearing on the subject, which has all finally culminated in section 2719 of the Code, and the evident purpose to be accomplished by that section, the Legislature intended to confer power upon a surrogate to per- mit a settlement and compromise of any claim whether it be for ^ 748 CoiiPKOMisE OF Debt oe Claim. 534 or against the estate. Matter of Oilman, 92 App. Div. 462, 87 ]^. Y. Supp. 128 ; affd., 178 N. Y. 606. See also 82 App. Div. 186, 81 ]Sr. Y. Supp. 713. Authority may he given as well where the liability of the debtor is doubtful as where his responsibility is doubtful. Shepard v. Saltus, 4 Kedf. 232. Note. — There are no paragraphs numbered from 748 to 754, inclusive. 535 Maeshaling Assets oe Secueities. T 755 CHAPTER XXXV. Procuring Funds with Which to Pay Funeral Expenses and Debts — Payment of Funeral Expenses. H 755. Marshaling assets or securities. 756. Assets applicable in certain cases. 757. Sale of personal property. 758. Proceeding to obtain payment of funeral expenses. 759. Liability of representative for funeral expenses. 760. Reasonableness of charges for funeral, headstones, and cemetery lots, 761. Funeral benefits. 762. Estate of husband or wife liable and not the survivor. 763. Payment for wake and masses. ^ 755 Marshaling Assets or Securities. To marshal assets or securities is to arrange the order of lia- bility of or charge upon several parcels of property or several funds to which a claimant has a right to resort for payment of his demand. For example : A. and B. have a claim upon two funds, 0. has a claim upon one of them only. A. and B. can be compelled to satisfy themselves out of the fund to which C. has not access, be- fore resorting to the other, which constitutes the only source of payment for him. Century Dictionary. The doctrine of marshaling assets applies in favor of legatees so that where a claimant has two funds to which he may resort, both real and personal assets to answer the demand, and another an interest in only one, the last claimant has a right to compel the former to take satisfaction out of the fund on which the second has no lien. Rice v. Harheson, 63 N. Y. 493. If debts are not by the will charged upon the real estate, the assets are not marshaled in favor of the general legatees so as to throw the 1 rden of the debts upon lands which pass under a residuary devise. Turner v. Mather, 86 App. Div. 172, 83 N. Y. Supp. 1013, 179 E". Y. 581; Hoes v. Yan Hoesen, 1 K Y. 120; Nagle v. McGinnis, 49 How. Pr. 193 ; Rogers v. Rogers, 3 Wend. 503. 1[ 756 Realizing on Assets. 636 ^ 756 Assets Which in Certain Cases Are Applicable to Pay- ment of Funeral Expenses and Debts. There are certain classes of assets which in prescribed cases are applicable to payment of debts or funeral expenses or both, such as proceeds of life insurance, proceeds of sales of real estate of infants and incompetents, and debts due the deceased which are discharged by the will. The conditions under which such assets can be used for such purposes are described in Iff 691, 692, 693, under the head of Assets. ^ 757 Obtaining Funds for the Pa5mient of Debts. It is the duty of the representative to proceed to pay the debts of the deceased as soon as he is sure that there are sufficient assets of the estate to pay them in full. Sometimes this cannot be safely done until the expiration of the publication of notice to creditors, but often it can be begun at once. If sufficient cash for such purpose be not on hand, the personal assets must be converted into cash. The representative is authorized to sell the personal property for such purpose. Sale of personal property. If an executor or administrator discover that the debts against any deceased person and the legacies bequeathed by him cannot be paid and satisfied without a sale of the personal property of the deceased, the same, so far as may be necessary for the pay- ment of such debts and legacies, must be sold. The sale may be public or private, and except in the city of New York, may be on credit not exceeding one year, with approved security. The executor or administrator is not responsible for any loss happen- ing on the sale when made in good faith and with ordinary prudence. Articles not necessary for the support and subsistence of the family of the deceased, or not specifically bequeathed, must be first sold; and articles so bequeathed must not be sold until the residue of the personal estate has been applied to the pay- ment of debts. § 2717, Code Civ. Pro. Section 2717, Code Civ. Pro., does not render a sale by an executor of an estate of a chose in action invalid. That section merely points out what must be done by an executor where there are not sufficient funds available with which to pay debts and legacies, etc. The right of an executor or an administrator to 537 Eealizing on Assets. H 757 sell the property, clioses in action, etc., of his decedent without re- sort to section 2717, has never been questioned and certainly could not be so questioned by a debtor of the estate. The written assignment of the note, made and executed by the executors, conferred upon the plaintiff the title to the note and a right to sue thereon and was ample protection to the defendant as a debtor of the estate. Huck v. Kraus, 50 Misc. Kep. 529. Approved security. An indorsed note is not " approved security." Matter of Wood- bury, 13 Misc. Kep. 474, 70 N. Y. St. Eep. 182, 35 N. Y. Supp. 485. Sale of uncollectible debts. The surrogate may authorize the representative to sell at public auction on such notice as he may prescribe, any uncollectible; stale, or doubtful claim or debt belonging to the estate. From § 2719, Code Civ. Pro. It is not necessary in every case to apply to the surrogate for authority to sell claims, for it is the duty of the representative to make the best possible collection of all assets and to do that he may use his best judgment as to the method to be pursued. Notice of sale. Where there are not sufficient assets to pay all creditors in full, the surrogate will direct notice of sale to be given to all creditors, but if there are sufficient assets, such notice will be required to be given only to the next of kin or legatees. Reasonable notice as to time and publicity will be required to be determined by the facts of each case. Sale upon credit. It will be observed that the executor has no right to sell upon credit, except for the payment of the debts and legacies of the deceased. In commercial dealings between private individuals and corporations, notes, bonds, stocks, and other forms of con- tract may be taken for or as security for debts and other purposes, and may be recognized between the parties and by courts under the name of " securities ;" but in legal proceedings the law re- quires security of a different character, and over which the courts have control — a security which makes the debt assured ; some- thing which makes its payment certain, which makes sure the per- formance of a contract, and prevents loss from insolvency or other- wise. 1 758 FuNEBAL Expenses a Pbefekked Claim. 538 The settlement of estates is a special proceeding, under the supervision and control of the courts; and though the Code says that an executor or administrator may sell on credit for certain purposes with approved security, vpe shall hold that in such cases approved security means national and state bonds and mort- gages on real estate, because it is an investment for the time being of the assets of the estate, and courts have held rigidly to the rule that if trustees, without express authority in some legal form, invest in notes, stocks, or bonds, they will be held responsible for all losses occasioned by such investments. The courts, in so deciding, have imposed no harsh nor unreasonable rule upon them in the discharge of their duties, but have given them a safe, simple, and reasonable rule of conduct, easily complied with, and in obeying which they assume no risk, and the estate they repre- sent can sustain no loss. We have said this note was not such a legal security as the executor was authorized to take because it was not such a one as the courts recognize and approve in the care and management of estate by trustees. We go further, and say that if the executor had a right to sell upon credit and take the notes of purchasers, he would still be liable for the loss, be- cause the security was not approved by the surrogate before it was accepted by him. Matter of Woodbury, 13 Misc. Eep. 474, 70 IST. Y. St. Eep. 183, 35 'S. Y. Supp. 485. Purchaser of assets cannot ofiset debt. Where an executor or administrator sells assets on credit the purchaser cannot offset against the purchase money a debt due from the deceased to him. Thompson v. Whitmarsh, 100 'N. Y. 35. ^ 758 Pa5mient of Funeral Expenses a Preferred Claim — Proceedings to Obtain Pa3mient After Sixty Days. Every executor or administrator shall pay out of the first moneys received the reasonable funeral expenses of decedent and the tame shall be preferred to all debts and claims against the deceased. Petition. If the same be not paid within sixty days after the grant of letter testamentary or of administration the person having a claim for such funeral expenses may present to the Surrogate's Court a duly verified petition praying that the executor or administrator 539 Pkoceeding to Collect Funekal Expenses. | 758 may be cited to show cause why he should not be required to make such payment and a citation shall be issued accordingly. Hearing. If, upon the return of such citation it shall appear that the executor or administrator has received moneys belonging to the estate which are applicable to the payment of the claims for funeral expenses the surrogate shall make an order directing the payment within ten days after the service of such order with notice of entry thereof upon such executor or administrator of such claim or such proportion thereof as the money in the hands of the executor or administrator applicable thereto may be suffi- cient to satisfy. If the executor or administrator denies the validity of the claim or the reasonableness of its amount the surrogate must take proof as to such facts and if satisfied that such claim is valid he shall fix and determine the amount thereof. If it shall appear that no money has come into the hands of the executor or ad- ministrator the proceeding shall be dismissed without costs and without prejudice to the further application showing that since such dismissal the executor or administrator has received money applicable to the payment of the same. Further application. Such further application shall be made upon the duly verified petition stating in addition to the other necessary allegations the facts upon which the belief of the petitioner is based that there are moneys in the hands of such executor or administrator, applicable to the payment of such claim. Upon such second or further application the granting of the citation shall be in the discretion of the surrogate and no such application shall be made less than three months after the grant- ing or denial of any previous application. I 2729, Code Civ. Pro., analyzed. Preference in Kings coninty. The amendment taken in connection with Matter of Williams (31 App. Div. 617) concerning setting off to the widow cash in lieu of specific articles makes funeral expenses a charge upon the money so set off. This seems to be the rule in Kings county and in no other. Matter of Bems, 52 Misc. Eep. 426. Amendment providing for adjustment and payment of funeral expenses not retroactive; assets distributed before igoi. The amendment to the act in question is not retroactive in re- gard to acts of an administrator which were lawful at the time T[ 729 Liability fob Funebal Expenses. 540 of their taking place. It had no more effect prior to September 1, 1901, than if it had never been passed. Before that date there was no cause of action against an administrator in his representa- tive capacity for the funeral expenses of his intestate. This v^as a personal and not a representative liability. Murphy v. Naugh- ton, 68 Hun, 424, 52 N. Y. St. Eep. 756, 23 N. T. Supp. 52. Before the act of 1901 took effect the administrator had col- lected and disbursed the money of his intestate's estate in accord- ance with the existing laws. This he was legally justified in doing. It would be inequitable to force him by threat of proceedings for contempt to pay from his own funds a bill for which he is not responsible in his capacity of administrator. Matter of Ealh- ■fleisch, 78 App. Div. 464, 79 N. Y. Supp. 651. Amendment applies to prior contracted claim. This amendment is a procedure for collection of a claim and is applicable when the claim is to be collected even if the claim ac- crued before the law went into effect. Matter of Kipp, 70 App. Div. 567, 75 K Y. Supp. 589. ^ 759 The Representative is Liable to a Third Person Who Pays for the Burial, to Reimburse Such Person. If an executor is liable for the expenses of the burial of the de- ceased, from that obligation the law implies a promise to him who, in the absence or neglect of the executor, directs, not officiously, but from the necessity of the case, a burial and incurs the reason- able expense thereof. Patterson v. Patterson, 59 N. Y. 574. In Rappelyea v. Russell (1 Daly, 217), it is said thai it is well set- tled that an executor, if he have sufficient assets, is liable upon an implied promise to a third person, who, as an act of duty or necessity, has provided for the interment of the deceased, if the funeral was conducted in a manner suitable to the testator's rank in life and the charge is fair and reasonable. Where a mother officiously and in the presence of the husband of her deceased daughter, ignoring his rights and duties in the premises, gave directions and commands concerning the funeral, she thereby relieved the husband and the estate from the expense thereof. Quin v. Hill, 4 Dem. 69. The law implies a promise on the part of the administrator hav- ing assets in his hands to reimburse the person who pays the funeral expenses. Matter of Miller, 4 Kedf. 302 ; Kessell v. Ha- pen, 8 ]Sr. Y. St. Eep. 352. 541 Eeasonableness of Expenses. I 760 A promise to pay a funeral expense if another does not is not void under the Statute of Frauds where the promisor is in pos- session of assets of the estate. Griffin v. Condon, 18 Misc. Kep. 238, 41 K Y. Supp. 380, 75 K Y. St. Kep. 791. Where no special contract has been made by any person for funeral and burial, the estate of the deceased is liable by operation of law and the representative of the estate may be sued as such representative and not individually, but otherwise where the rep- resentative personally contracted the expense. Biley v. Waller, 22 Misc. Eep. 63, 48 IST. Y. Supp. 535. ^ 760 Reasonableness of Charges for Funeral and Headstone Considered. Headstones and cemetery lots. Payment of $85 for headstone and pended for monument was disallowed $50 for eare of cemetery lot approved. on the ground that a stone of that Matter of Furniss, 86 App. Div. 96, cost was not a headstone but was 83 N. Y. Supp. 530. an erection of considerable display. A payment of $101 for a new Owens v. Bloomer, 14 Hun, 296. burial lot not allowed where deceased Estate of $17,000 — ■ $2,000 was ex- owned one, but the new one was pended for a vault and tomb and bought because the son of the de- $580 for a cemetery lot — held that ceased claimed that he would not per- the $2,000 item should be cut to mit the deceased to be buried on such $1,000. Matter of Shipman, 82 Hun, lot, nor his wife (the testatrix) when 108, 64 N. Y. St. Eep. 161, 31 N. Y. she died. Matter of Caldwell, 188 Supp. 571. N. Y. 115, affg. 114 App. Div. 906. Expenses of removal of body to a Estate of about $10,000 mostly in more appropriate burial place al- real estate. Five hundred dollars ex- lowed. Allen v. Allen, 3 Dem. 524. Under the will which gave the executor discretion as to amount to be expended for monument, and it appearing that the net estate was less than $2,000, an expenditure of $250' was authorized. Burnett v. Noble, 5 Eedf. 69. Estate $2,410 — monument, etc., erected according to direction in the will costing $1,050 — not allowed. Matter of Smith, 75 App. Div. 339, 78 N. Y. Supp. 130. Estate $11,000 — claim for monument erected pursuant to will, giving executor discretion as to amount, to be expended, $1,455 — allowed $700. Matter of LucJcey, 4 Kedf. 95. Where a testator owned a burial lot and had erected a monu- ment thereon, but the widow and executrix bought a lot in another cemetery and erected another monument, such expense was not allowed her. Matter of Woodbury, 40 Misc. Eep. 143, 81 N. Y. Supp. 503. I 761 Insurance and Lodge Benefit. 542 Estate $26,000 — an allowance of $200 for a tombstone ap- proved. Campbell v. Purdy, 5 Redf. 434. Forty dollars allowed for burial lot wbere the gross estate was about $1,200. Chalker v. Chalker, 5 Redf. 480. Three hundred and fifty dollars allowed for burial lot where the estate w^ about $13,000. Valentine v. Valentine, 4 Redf. 265. Payment to a social organization and box of $490 was allowed at $175. for parading at the funeral — not Matter of Kiernan, 38 Misc. Eep. 394, allowed. Matter of Reynolds, 124 77 N. Y. Supp. 924. N. Y. 388. Bill of $329.50 for funeral expenses Allowance for mourning, of a person leaving only $500 of an a widow was allowed $56.09 for estate, reduced to $150. Matter of mourning clothes out of an estate Primmer, 49 Misc. Kep. 413, 99 N. Y. with a surplus of several thousand Supp. 830. for distribution. Allen v. Allen, 3 The items for funeral expenses in- Dem. 524; Matter of Wachter, 10 eluded $47 for a wake and the same Misc. Eep. 137, 1 Gibb. Sur. Rep. 552, was allowed against the estate. Mc- 38 J7. Y. Supp. 941. Oue V. Garvey, 14 Hun, 562. Mourning apparel allowed at $200. An infant's estate amounted to Matter of Weaver, 53 Misc. Eep. 244. about $6,000. A charge for casket ^ 761 Application of Proceeds of Funeral Benefits Received from Lodges, etc. Where the administratrix as widow has received money as funeral benefits from fraternal organizations, such money should be considered as a reimbursement for funeral expenses, and they should not be allowed against the estate. Matter of Broolcs, 5 Dem. 326. Where funeral benefits have been received from various lodges and societies in sums more than sufficient to pay such funeral ex- penses, it is improper to allow the funeral expenses from the gen- eral estate. Leidenthal v. Correll, 5 Redf. 267. Where life estate is given, funeral charges should be paid from principal. Where widow has life use of personal estate, funeral charges should come from principal and not income. Znpp v. Miller, 3 Dem. 266. il 762 The Estate of a Deceased Husband or Wife Should Pay the Funeral Expenses of the One Dying, and Not the Survivor. Concerning the liability of the estate of the deceased wife to the husband for the fimeral expenses thus paid, we must follow the 543 Liability of Husbaistd ok Wife. | 762 authorities in this State, which hold that a husband has a right of recovery of the reasonable expenses incurred and actually paid in connection with the burial, the common-law obligation of the hus- band to provide for the proper sepulture of his wife being a mat- ter which never has been disputed. The necessity of providing for the proper interment of the remains of the wife before an executor acts or may act indicates at once the duty of the husband, and indeed it was a rule of the common law that any one in whose house a person died was under the obligation to see to the proper interment of the remains of the deceased. But notwithstanding this common-law obligation, it has been held by the courts of this State that, under the law as it exists here, the husband, having paid this reasonable expense, may recover from the wife's estate ; and that was distinctly ruled in Patterson v. Patterson (59 N. Y. 574). The liability of the estate of the wife for reimbursement to the husband is also recognized in McCue v. Garvey (14 Hun, 562), where, upon the settlement of the accounts of a husband as ad- ministrator of the estate of his deceased wife, he was allowed out of her estate the necessary and proper funeral expenses paid by him. In Freeman v. Coit (27 Hun, 450), Judge Daniels, re- ferring to Patterson v. Patterson and McCue v. Garvey, says that in this State where such an expenditure has been made by the husband, and the deceased wife has left a separate estate owned by her, he has been allowed to reimburse himself from such estate; and it was held in Patterson v. Buchanan (40 App. Div. 493) that an action thereon would lie. It is argued, however, that the decision in that case has been virtually overruled by what is said by the Court of Appeals in O'Brien v. Jackson (167 IST. Y. 31, revg. 42 App. Div. 171), but what was there decided has no such effect, and does not apply. A husband is bound to bury the body of his deceased wife, but he may be allowed the funeral expenses out of her estate, if she have any. Quin v. Hill, 4 Dem. 69 ; In re Very's Est., 24 Misc. Eep. 139, 53 IST. Y. Supp. 389 ; Matter of Stadtmuller, 110 App. Div. 76, 96 N. Y. Supp. 1102. The estate of a deceased wife is liable to the husband for funeral expenses incurred by a third person who has been paid by the husband. Pache v. Oppenheim, 93 App. Div. 221, 87 IST. Y. Supp. 704. Husband and wife living apart. A surviving husband is under a legal obligation to bury the corpse of his wife, being allowed to reimburse himself from the If Y63 Wake and ]Masses. 544 separate estate of his deceased wife if she has left any such estate. This is so when she is living apart from him. If the husband fails to perform this duty he is liable to an action to recover the reasonable value of its performance by any person who on account of his absence or neglect has properly incurred the expense of the necessary burial. WatMns v. Brown, 89 App. Div. 193, 85 I^. Y. Supp. 820. ^ 763 Payment for Wake and Masses as Part of Funeral Expenses. A reasonable payment for masses said at the fimeral of a Catho- lic will be allowed as part of the funeral expenses. Payment to a Protestant minister for his services and for the services of a church choir or other singers is allowed as part of the funeral expenses, and so may be allowed sums contributed for masses which are said at or about the time of funeral. This does not in- clude, however, anniversary masses. A General Term of this Supreme Court has given (14 Hun, 562) recognition to expenses for a wake by reversing a surro- gate's decision (3 Eedf. 313) putting them upon the estate of a wife instead of upon the husband. That the term " funeral " includes many circumstances and may cover varied outlays needs little search in books at hand. Thus apparel of mourning, not requisite as raiment, but commanded by custom and respect, has been allowed (3 Dem. 524) ; so, too, have been music and flowers. Matter of Ogden, 41 Misc. Pep. 158. Indeed, it is of judicial learning in this State that " ' funeral ' embraces not only the solemnization of interment but the ceremonies and accompani- ments attending j * * * ceremonies prompted by affection and * * * determined by the religious faith and sentiment of the friends of the deceased * * * varying from the simple bier to the imposing catafalque, from the informal liturgical ser- vice or scriptural reading for the humble to the elaborate orisons funebres attending the obsequies of the renowned." McCullough V. McCready, 52 Misc. Eep. 642. Contract to have masses said. A valid contract may be made with a person to expend money then handed over for masses to be said after death. Gilman v. McArdle, 99 IsT. Y. 451, revg. 17 Jones & S. 463. 545 Peioeity and Peefekenoe of Debts. T[ 764 CHAPTER XXXVI. Pajrment of Debts, Priority, Preference, and Classes Thereof. I 764. Priority and preference of debts. 765. Preference of judgments. 766. Preference of taxes. 767. New York city taxes. 768. Debt by judgment or decree against deceased. 769. Preference of judgment for costs against representative. 769. Judgment against representative. 770. Judgments and other liens and secured debts. 771. Bonds as debts. 772. Contracts for purchase of land. 773. Covenant and lease made by deceased. 774. Legacy to widow in lieu of dower. 775. Partnership debts. 776. When earnings of wife should be paid to her husband. 777. When earnings of wife should be paid to her. 778. Agreement between husband and wife as to her earnings. 778. When estate of husband liable for debts of wife. 779. When debt may be that of the deceased or of the survivor. 780. Where wife has deposited money with her husband. 781. Joint debts. 782. Debt under agreement to give compensation by wUl. 783. Representative cannot revive debt, but may keep it alive. 784. Interest on debts. 785. Debts charged upon real estate. 786. Debts charged upon devisee. 788. Debts not presented until after payment over of assets. CI 764 Payment of Debts — Priority and Preference of Debts. Every executor and administrator must proceed with diligence to pay the debts of the deceased according to the following order: 1. Debts entitled to a preference under the laws of the -United States. 2. Taxes assessed on the property of the deceased previous to his death. 3. Judgments docketed, and decrees entered against the deceased according to the priority thereof respectively. 4. All recognizances, bonds, sealed instruments, notes, bills and unliqui- dated demands and accounts. Preference shall not be given in the payment of a debt over other debts of the same class, except those specified in the third class. A debt due and payable shall not be entitled to a preference over debts not due. The com- mencement of a suit for the recovery of a debt or the obtaining a judgment thereon against the executor or administrator shall not entitle such debt 35 f 765 Peioeitt and Peefeeence oe Debts. 546 to preference over others of the same class. Debts not due may be paid according to the class to which they belong, after deducting a rebate of legal interest on the sum paid for the unexpired term of credit without interest. An executor or administrator shall not satisfy his own debt or claim out of the property of the deceased until proved to and allowed by the surrogate; and it shall not have preference over others of the same class. Preference may be given by the surrogate to rents due or accruing on leases held by the testator or intestate at the time of his death, over debts of the fourth class, if it appear to his satisfaction that such preference will benefit the estate of the testator or intestate. The surrogate may authorize the executor or administrator to compromise or compound a debt or claim, on application, and for good and sufficient cause shown, and to sell at public auction, on such notice as the surrogate prescribes, any uncollectible, stale or doubtful debt or claim belonging to the estate; but any party interested in the final settlement of the estate may show on such settlement that such debt or claim was fraudulently or negligently compromised or compounded. § 2719, Code Civ. Pro. Direction in will as to payment of debts. Where certain specified debts are directed by a will to be paid, the executor may pay more than the amount specified if more is justly due. Beecher v. Barber, 6 Dem. 129, 20 N. Y. St. Eep. 136. Agreement for contribution for payment of debts. An agreement for contributing equally to the pa^'ment of debts of deceased upon a division of the estate, where the language is ambiguous will be construed in the light of surrounding circum- stances and will be held to include in debts exuenses of adminis- tration. Springsteen v. Samson, 32 IT. Y. 703. i^ 765 Preference of Debts. Priority of a debt cannot be given by devising certain real estate and charging certain debts upon such real estate. Little Falls Nat. B. v. King, 53 App. Div. 541, 65 N. Y. Supp. 1010. Preference of judgments. The preference which the statute gives judgment creditors in the distribution of the estate of a deceased person is absolute, and they cannot be deprived of that preference by any inquiry into the cause of action on which the judgment was recovered. Matter of Blackford, 35 App. Div. 330, 54 N. Y. Supp. 972. The judgment entered after the defendant's death in accordance with an interlocutory judgment rendered before his death is a judgment against the deceased and is entitled to priority of pay- ment. Matter of Clark, 5 Dem. 377, 8 IST. Y. St. Eep. 745 ; Matter of Dunn, 5 Eedf. 27. 547 Peiokity and Pkefeeence of Debts. If 767 ^ 766 When Taxes Are Debts — Their Preference. Where an assessment is so far completed before the death of a person that the name of the owner cannot be changed on the books, the tax becomes a debt of the deceased. Matter of Babcock, 115 N. Y. 450, affg. 52 Hun, 142, 22 N. Y. St. Eep. 499. Taxes payable by a life tenant are preferred. Coleman v. Cole- man, 5 Kedf. 524. Taxes fixed at the time of death are debts and should be paid from personal estate. Taxes accruing on real estate after death should be paid by devisees or heirs-at-law. Matter of Mansfield, 10 Misc. Eep. 296, 31 N. Y. Supp. 684, 64 N. Y. St. Eep. 307. " Taxes assessed " means assessments for taxation made prior to the decease of the taxpayer. Matter of Babcock, 115 IST. Y. 450, affg. 52 Hun, 142. Taxes as they are generally imposed constitute a personal obli- gation which must be paid by the citizen, for nonpayment of which personal process in the nature of distress or the sale of his goods may be enforced against him or his personal property. Taxes assessed and levied before testator's death upon his real estate are debts to be paid from his personal estate. Matter of Noyes, 3 Dem. 369. Assessments. Assessments for street improvements in Albany are not debts enforceable against the personal estate. Matter of Hun, 144 N. Y. 472. ^ 767 New York City Taxes. In relation to taxes imposed on property situated in the city of E'ew York, and local assessments therein, the rule is different, as such taxes or assessments are made a lien upon the particular property, and are not a general or personal charge against the in- dividual owning the same. The proceedings for their collection are entirely in rem, and no relief can be enforced against the owner of the same. This distinction is clearly pointed out in the case of Krueger v. Schlinger (19 Misc. Eep. 221). That being the case, the executor, who was a specific devisee of this property in question, had no power to pay the taxes and assessments which were a lien upon such property during the lifetime of the deceased from out of the personal estate of said decedent, and, consequently, such payments should be disallowed. Matter of Hewitt, 40 Misc. Eep. 322 ; Lauhy v. Gill, 42 Misc. Eep. 334. 5[ 768 Debt by Judgment Against Deceased. 548 A different view was taken and the taxes allowed in In re Hojf- ■man (42 Misc. Kep. 90), where it was said : " The Comptroller con- tends that this principle does not hold with respect to taxes upon real estate imposed under the charter of the city of ISTew York, because said charter expressly declares such taxes to be a lien upon the land and makes no provision for their collection by distress and sale of goods, and he cites Krueger v. Schlinger (19 Misc. Rep. 221) and Matter of Hewitt (40 id. 322). In the particulars he mentions, however, the provisions of the l^ew York City Con- solidation Act of 1882, under which the taxes were imposed in the Bahcoch case (supra) were substantially the same as those of the present charter. Consolidation Act of 1882, §§ 846, 853, 915, 926; Charter, as amended in 1901, §§ 918, 926, 1017, 1027. Furthermore, it would be unreasonable to suppose that by direct- ing the sale of the land without a previous resort to personalty — a procedure not permitted under an execution, and which would ordinarily be considered harsh — the Legislature intended to cur- tail or impair any of the rights of the State. Neither is it to be presumed that it was the legislative intent to abrogate in this manner as to the city of New York that part of section 2719, Code of Civil Procedure, which requires an executor or administrator to pay ' taxes assessed on the property of the deceased previous to his death.' " ^ 768 Debt by Judgment or Decree Against Deceased. Where a final decree of a surrogate or a judgment is presented as a claim against an estate the surrogate must determine to whom the amount due under the judgment or decree is payable, the sum to be paid by reason thereof, and all other questions of a like nature which do not put in issue the validity of the judgment or decree. Code Civ. Pro., § 2743. McNulty v. Hurd, 72 IST. Y. 521 ; Matter of Brown, 34 Misc. Eep. 362, 71 N. Y. Supp. 1034. The judgment or decree stands as a judicial settlement of the rights of the parties at its date. Transactions may have been had between the parties subsequent to the entry of the judgment or decree by reason of which the rights of the parties have been changed. The surrogate may inquire into and pass upon payments made to apply upon such a judgment or decree and determine the amount remaining. He may also determine who is the owner of the judgment and entitled to the money. 549 Judgment foe Costs xIgainst Eepeesentative. f 769 The statement in McNulty v. Hurd, that the surrogate might determine who was the owner of the judgment, undoubtedly re- ferred to ascertaining the legal or apparent title where there was no dispute. Otherwise that conclusion would subvert the basis of the deci- sion by opening the door to equitable jurisdiction which it sought to close. Alatter of Randall 152 IST. Y. 508. The surrogate has no jurisdiction to try and decide upon an alleged claim in favor of the administrator and against the creditor by judgment or decree which claim when so established it is proposed to set off against such judgment or decree. Matter of Underhill, 117 N. Y. 471; Stillwell v. Carpenter, 59 id. 414; Matter of Wait, 39 Misc. Rep. 74; Mowry v. Peet, 88 K Y. 453. A debt by judgment is one which has been established by a court of competent jurisdiction. Matter of Browne, 34 Misc. Rep. 362, 71 I^. Y. Supp. 1034. Priority among judgments. The preference of a judgment is not affected by the fact that the assets were acquired after the judgment was obtained. Mat- ter of Foster, 8 Misc. Rep. 344, 1 Gibb. Sur. Rep. 82, 60 N. Y. St. Rep. 448 ; aflfd., 84 Him, 610. A judgment is prior to another when it was recorded earlier in point of time than another and as such it is entitled to priority of payment. Matter of Sherwood (Townsend), 83 Hun, 200, 63 ]Sr. Y. St. Rep. 356, 31 N. Y. Supp. 409. ^ 769 Judgment for Cos.ts Against Representative a Pre- ferred Debt. A judgment for costs against an executor or administrator ob- tained in a case where the executor or administrator sued and was defeated should be treated as an expense of administration and is preferred to claims of general creditors on judicial settle- ment. Matter of Mahoney, 37 Misc. Rep. 472, 75 IST. Y. Supp. 1056. Where a judgment was obtained against the administrator and it included costs, it was held that the costs should be paid in full, when there were not enough assets to pay general creditors in full. Shields v. Sullivan, 3 Dem. 296. 1 770 Liens and Secueed Debts. 550 Debt put into judgment against representative. The recovery of a judgment against the administrators would not entitle the debt to preference in payment over others of the same class. It would have the effect, however, of constituting it a liquidated debt against the estate. Code Civ. Pro., § 2719 ; Schmitz V. Langhaar, 88 N. Y. 503; Glacius v. Fogel, id. 434; Allen V. Bishop's Executors, 25 Wend. 414, 415. Where an estate was insolvent and the creditors received 40 per cent, on their claims, the costs in a judgment against the executor were allowed in full. Shields v. Sullivan, 3 Dem. 296. An execution issued on a judgment against an executor or ad- ministrator does not entitle the creditor to any priority of pay- ment. Schmitz V. Langhaar, 88 N. T. 503. Deficiency judgment on foreclosure against representative. A judgment for deficiency on foreclosure presented as a debt is conclusive on the surrogate as a final adjudication between the parties by a competent tribunal. Glacius v. Fogel, 88 IST. Y. 434. Where a mortgagor who was personally liable for any deficiency arising on foreclosure of his mortgage is dead, his personal rep- resentatives may be made parties to an action of foreclQsure, and they must pay the amount of the judgment for deficiency out of any property in their hands. Glacius v. Fogel, 88 IST. Y. 434. Judgment for deficiency on mortgage foreclosure against the representative is not a preferred claim. James v. Beesly, 4 Redf. 236. Judgment rendered against a party after his death. Where a judgment for a sum of money, or directing the payment of money, is entered against a party, after his death, in a case where it may he so taken, by special provision of law, a memorandum of the party's death must he entered, with the judgment, in the judgment-book, indorsed on the judgment-roll, and noted on the margin of the docket of the judgment. Such a judgment does not become a lien upon the real property, or chattels- real, of the decedent; but it establishes a debt, to be paid in the course of administration. § 1210, Code Civ. Pro. ^ 770 Judgments and Other Liens, and Secured Debts. Where claim is made under a judgment against deceased one year and six months is added to the twenty years before the claim is barred. Visscher v. Wesley, 3 Dem. 301. A judgment by default is not a judgment upon a trial tipon the merits. Matter of Kirkpatrich, 1 Gibb. Sur. Hep. 74. 551 Contracts foe Pueciiase of Lands. | Y72 A judgment is not a protection to an executor or administrator who pays the same, where after rejecting the claim he made no defense thereto, but relied upon the fact that such judgment waa obtained to protect him in paying the claim. Matter of Watson, 115 App. Div. 310. A debt secured by a chattel mortgage which has not been re- newed should not be paid in full where the estate is insolvent, but is a general debt. Matter of Van Houten's Est., 18 Misc. Kep. 524, 42 K Y. Supp. 1115. Counsel fee in an action for separation is not a debt of the de- ceased husband payable from his estate. Kellogg v. Stoddard, 89 App. Div. 137, 84 N. Y. Supp. 1015, revg. 40 Misc. Kep. 92, 81 1^. Y. Supp. 271. Local assessments for street improvements in Albany are not debts of the deceased payable by the executor or administrator, but are in the nature of mortgages against the interest of the heirs or devisees. Matter of Hun, 144 N. Y. 472. ^ 771 Bonds as Debts. Where a husband executed and delivered two bonds to his wife as a gift — held, that they were not enforceable after his death against his personal estate. Matter of James, 146 IST. Y. 78, affg. 78 Hun, 121, 60 K Y. St. Rep. 184, 28 K Y. Supp. 992. The holder of a mortgage may by writing acknowledge satis- faction thereof, the consideration of which is services rendered, and the inadequacy of the consideration will not be available to the representatives of the mortgagee after his death. Sherman V. Matthieu, 106 App. Div. 368, 94 N. Y. Supp. 565. ^ 772 Contracts for Purchase of Land — Amount Unpaid is a Debt. Where deceased died having a contract for purchase of land, the amount due upon such contract is payable from the personal estate and the provision that an heir or devisee shall satisfy all liens upon land out of his own property does not apply. Wright V. HoTbrooh, 32 W. Y. 587 ; Chamberlain v. Dunlop, 126 id. 45. An executor may rightfully complete the testator's contract to purchase real estate, and if such land depreciates in value, he will not be charged with the loss. Denton v. Sanford, 103 'N. Y. 607. Executors may pay from the personal estate the balance due from testator upon a land contract, even though such payment If 173 Leases and Rents. 552 goes entirely for the benefit of the heirs-at-law of such testator. Matter of Davis, 43 App. Div. 331, 60 N. Y. Supp. 315. C| 773 Liability of Representative on Covenant in a Lease Where Lessor Dies. Covenants in leases are of two kinds: Those which run with the land; those which are the personal covenants of the lessor. Those which run with the land pass as a burden to grantees and reversioners and may be enforced against such grantees and the heirs or devisees of the lessor. Where the contract or covenant is a personal one which does not concern the land itself, but has reference to personal property or personal services and is not one which runs with the land, the contract or covenant becomes an obligation of the lessor enforce- able against his representatives upon his death. Agreements not under seal relating to land do not run with the land. A personal covenant concerning land, p. g., an agreement to build a fence does not run with the land. Guilfoos v. N. Y. 0. & H. R. R. R. Co., 69 Hun, 593, 53 IST. Y. St. Rep. 538, 23 N. Y. Supp. 925. A note given for the purchase price of land may, upon the pur- chaser's death, be collected from his representative, although the land descends to the heirs. Wright v. Holhrooh, 32 IST. Y. 587. A covenant to purchase personalty brought upon the demised premises, such as live stock, tools, seeds, etc., does not pass as a burden to the grantee or heir, but may be enforced as a debt of the estate of the deceased lessor. Devolution of title. By section 193 of the Real Property Law the rights of lessors and lessees and their successors in interest where there has been a devolution of title are prescribed and protected. Rent due from deceased. A landlord after the death of his tenant has three remedies for rent accruing after the death of the tenant : He may collect the same of the estate of deceased, or from the executor or adminis- trator personally to the extent of the rents or profits received by him, and the balance from the estate. Miller v. Knox, 48 W. Y. 232. 553 Paetnekship Debts. 1i 776 ^ 774 Legacy to Widow in Lieu of Dower — A Debt. Consult ^ 847. A legacy to a -widow in lieu of dower when accepted by her becomes a debt of the deceased payable like other debts. Wilmot V. Robinson, 42 Misc. Kep. 244, 86 N. Y. Supp. 575. ^ 775 Partnership Debts. Partnership creditors cannot enforce a claim against the es- tate of a deceased partner unless the partnership and surviving partner are insolvent, until the remedy against the partnership assets and the surviving partnjer is exhausted. The creditor must exhaust his remedy against a surviving part- ner; he may then proceed against the representative of the de- ceased partner in equity. Richter v. Poppenliausen, 42 IST. Y. 373 ; Voorhis v. Childs, 17 id. 354; Higgins v. Rockwell, 2 Duer, 650; Lane v. Doty, 4 Barb. 530; Tracy v. Suydam, 30 id. 110; Legatt v. Legatt, 79 App. Div. 141, 80 IST. Y. Supp. 327 ; a£fd., 176 K Y. 500 ; Hoyt v. Bonneti, 50 E". Y. 538. When the partnership and surviving partner are wholly insol- vent a creditor may then proceed against the estate of the deceased partner. Van Riper v. Poppenhausen, 43 N". Y. 68 ; Pope v. Cole, 55 id. 124. A cause of action against the estate of a deceased partner for contribution does not accrue until the partnership business has been so far settled as to demonstrate the need of contribution. Gray v. Green, 125 N. Y. 203. Individual debts are entitled to be first paid from the separate estate and partnership debts from the partnership property. Mat- ter of Gray, 111 IST. Y. 407, affg. 42 Hun, 411. ^ 776 When the Husband Should be Paid for the Services of His Wife as Nurse or Attendant. When the circumstances attendant upon performing the services are such that the wife is aiding or assisting her husband in per- forming some duty that he owes or has contracted to perform, her services will belong to him. There is no doubt that notwithstanding the enabling statutes conferring valuable personal and property rights upon married women, they have no effect upon those duties which a wife owes to the husband at common law in the marriage relation. I 777 Eaenings of Maeeied Women. 554 Services rendered by the wife to a boarder in her husband's house belong to the husband. Reynolds v. Bobinson, 64 N. Y. 593 ; Porter v. Dunn, 131 id. 314-317. Reynolds v. Robinson (64 IST. Y. 593) shows this state of facts: Plaintiff's wife rendered the services in his house to a boarder therein. She was engaged in no business or service on her own account. She was in charge of his household and as part of her duties rendered the services to a person in her husband's house, by contract with him. She was then working for her husband, and not for herself, or on her own separate account. Porter v. Dunn (131 N. Y. 314, 317) is a case where the plaintiff's wife, while attending to the household duties and helping her husband in his business, and being engaged in no occupation separate from that devolving upon her as wife, also attended upon the deceased, who was a boarder in plaintiff's house, and cared for him as a nurse. This court held that under the circumstances the right of the husband to maintain the action for such services was clear. ^ 777 When Married Woman Should be Paid for Her Services as Nurse or Attendant. A married woman is entitled to recover in her own name for services rendered the deceased when those services are distinct from those duties which she owes her husband in the marital re- lation. This principle is confirmed by the recent statute (Laws of 1902, chap. 289). It was held in Coleman v. Burr (93 IST. Y. 17, 30), that the act of 1860 (chap. 90, Laws of 1860) authorizing a mar- ried woman to carry on business and to perform labor on her sole and separate account did not absolve her from the duty to render to her husband such services in his household as are commonly expected of a married woman in her station of life. Whatever services are thus rendered are not "on her sole and separate account," and in rendering them she still bears to him the common-law relation. Judge Earl says, at bottom of page 30: "A married woman owes no duty to her husband to go out of his house and render service for persons not members of his family, and she owes him no duty to carry on any business in his house, or elsewhere, for the purpose of earning money for him, and the purpose of the statute is fully accomplished if she be permitted to retain as her own money or property obtained by her in such business or by the rendition of such services." 555 Whether Debt of Husband oe Wife. f 779 The principle here laid down is that the wife was under no obligation, so far as her husband was concerned, to enter into any contract, express or implied, to serve a person outside of his house and to whom he was under no obligation ; she having done so, the statute permits her to collect and retain her earnings in such employment. Stevens v. Cunningham, 181 N. Y. 454, revg. 75 App. Div. 125. ^ 778 Husband May Agree with His Wife That Her Earn- ings Shall Belong to Herself. A husband may agree that his wife's earnings may belong to her, even though she created such earnings by services rendered in his own house. Lashaw v. Croissant, 88 Hun, 206, 68 N. Y. St. Eep. 395, 34 K Y. Supp. 667 ; Matter of Dailey, 43 Misc. Rep. 552; Carver v. Wagner, 51 App. Div. 47, 64 IST. Y. Supp. 747; Stokes V. Pease, 79 Hun, 304, 60 E". Y. St. Eep. 863 ; Sands v. Sparling, 82 Hun, 401, 63 IST. Y. St. Eep. 558. A husband who makes an agreement with his wife that she may have her earnings in boarding and caring for a person in his house is not precluded from testifying in her behalf to transac- tion with the decedent. Lashaw v. Croissant, 88 Hun, 206, 68 ISr. Y. St. Eep. 395 ; Sands v. Sparling, 82 Hun, 401, 63 E". Y. St. Eep. 558. The husband or his estate is liable for certain debts of the wife. If a surviving husband does not take out letters of administration on the estate of the deceased wife,' he is presumed to have assets in his hands sufficient to satisfy her debts, and is liable therefor. A husband is liable as administrator for the debts of his wife only to the extent of the assets received by him. If he dies leaving any assets of his wife unadministered, except as otherwise provided by law, they pass to his executors or admin- istators as part of his personal property, but are liable for her debts in preference to the creditors of the husband. From § 2660, Code Civ. Pro. A husband is liable for the ante-nuptial debts of th* wife to the extent of the property owned by her and acquired by him by ante-nuptial contracts or otherwise. § 24, Domestic Relations Law. Cf 779 The Claim May be the Debt of the Deceased Husband or Wife, or Against the Survivor. Ogden v. Prentice (33 Barb. 160) — held, the husband liable for bonnets for the reason that he knew his wife had them and saw her wear them without expressing any disapprobation. The f 779 Whether Debt oe Husband oe Wife. 556 law is that " the husband will be liable when the goods purchased by his wife (to the payment for which he would not be liable) come to her or his use with his knowledge and permission or when he allows her to retain and enjoy them." Graham v. Schleimer, 28 Misc. Kep. 535, 93 N. Y. St. Kep. 689. Suit by dressmaker for sewing and materials in making silk dress. Husband supplied the house and gave his wife an allow- aiice — held liable — that husband ratified purchase by seeing his wife wear articles and retain them. Cromwell v. Benjamin, 41 Barb. 558. Husband liable for necessaries by implied agency when furnished against his orders. Also child or adult members of family are in same situation. Le Boutellier v. Fiske, 47 Hun, 323, 13 K Y. St. Rep. 439. The use by a wife of her own money for the purchase of neces- saries for herself does not create a liability against her husband for the amount so expended, in the absence of circumstances out of which might arise a promise to pay. Nostrand v. Ditmis, 127 N. Y. 355. Contract by wife. Byrnes v. Rayner, 84 Hun, 199, 65 IST. Y. St. Eep. 742 (Gen- eral Term, 3d Dept. 1895). Contract for board for self, husT band, and horse made by wife in her own name and credit given her, she paying part of bill, balance cannot be collected from hus- band. Matter of Smith, 75 E". Y. St. Rep. 1440 (Sur. Ct. 1896). Doctor's bill allowed against wife's estate as she contracted and promised to pay it. Tiemeyer v. Turnquist, 85 N. Y. 516. A wife who buys, even for support of family, must pay if she contracts and agrees to pay. Travis v. Lee, 34 ¥. Y. St. Eep. 233 (General Term, 3d Dept. 1890). Action for board against wife. She did not make contract, but said of a balance due that it ought to be paid and she would see that it was. It was paid. They continued to board and wife was sued — held not her contract. Crane v. Bandonine, 55 N. Y. 256. Action by physician against father of adult married daughter sick at his house. Were she a daughter for whom by reason of minority and de- pendence upon him, the father was under a natural obligation to provide necessaries, etc., and were he availing himself of services rendered for his benefit or for that of anyone for whom he was bound to furnish them — there might be a recovery. 557 Monet of Wife Deposited with Husbawd If 780 Manrmig v. Wells, 66 N. Y. St. Rep. 109, affg. 61 N. Y. St. Rep. 59. Parent under obligation to support child. Knowledge that necessaries are being furnished implies assent and promise to pay. Maxon v. Scott, 5-5 I^. Y. 247. The law will not imply promise by the husband to pay for the board when it was shown that it was furnished at the request of and upon the credit of his wife. A bill for medicine furnished a. wife is a charge against her husband, and not a debt against her estate. Matter of Very, 24 Misc. Rep. 139, 53 IST. Y. Supp. 389 ; Matter of Stadtmuller, 110 App. Div. 76. Husband and wife living apart. Where a husband and wife are living apart, a party furnishing goods to the wife can only recover upon proof that they were necessaries and that the husband had failed to furnish proper support. Cromwell v. Benjamin, 41 Barb. 558 ; Baher v. Barney, 8 Johns. 73 ; Le Boutillier v. Fislce, 47 Hun, 323, 13 N. Y. St. Rep. 439. Presumption of law that husband is liable for all articles fur- nished for support of family and that wife acts as agent, unless she makes contract on her own account. Strong v. Moul, 22 E". Y. St. Rep. 762. ^ 780 Claim Where Wife Has Deposited Her Money with Her Husband. Money of the wife may be deposited with her husband upon an agreement that he will manage, control, and invest the money and account for it with all accumulations upon request. This is in effect a trust of indefinite duration. Sheldon v. Sheldon, 133 N. Y. 1. Where a wife deposits money with her husband to be held by him until called for and he dies still holding the money, no interest accrues before his death. Boughton v. Flint, 74 E". Y. 476, revg. 13 Him, 206. When Statute of Limitations begins. If money is received in such a way that the law imposes an obligation to pay it over at once, then the statute will begin to run from the time it is received. Mills v. Mills, 115 E". Y. 80, revg. 23 IST. Y. St. Rep. 604; Sheldon v. Sheldon, 133 IST. Y. 1; Y/ood V. Young, 141 id. 211. 1[ 781 Ageeemetstt to Compensate by Will. 558 Husband had collected amounts due on bond and mortgage to bis "wife and had not paid them over at bis death, she having re- quested him to keep the money for her — held, a deposit and that the Statute of Limitations did not begin to run until a demand was made. BougUon v. Flint, 74 N. Y. 476, revg. 13 Hun, 206. Husband was handling wife's money under agreement to have what he could make by its use — held, Statute of Limitations did not run until demand, and claimant allowed to recover against husband's estate. Matter of Wiltsie, 12 IST. Y. St. Eep. 144. The Statute of Limitations will not run against the deposit by a wife with her husband until a demand for its return has been made. Dorman v. Gannon, 4 App. Div. 458, 74 N. Y, St. Eep. 152 ; BougUon v. Flint, 74 F. Y. 476, revg. 13 Hun, 206. f 781 Joint Debts. The estate of a person jointly liable upon contract with others shall not be discharged by his death. Code Civ. Pro., § 758. See also Randall v. Sackett, 77 'N. Y. 480. Decisions no longer applicable. 49 IST. Y. 385 ; 63 id. 245 ; 67 id. 160, 432. Held, that a contribution between surviving surety and estate of deceased surety could be enforced. Johnson v. Harvey, 84 ]Sr. Y. 363. Where a grantee assumes a mortgage and pays it, he cannot re- cover against the estate of the mortgagor as a joint obligor. Matter of Browne, 34 Misc. Eep. 362, 71 N. Y. Supp. 1034. ^ 782 Claims for Services Rendered Under Agreement to Give Compensation by Will May be Allowed as a Debt. Where services are rendered in pursuance of a mutual under- standing that payment shall be made by bequest or devise, and the party dies without making the expected compensation, the one rendering the services stands as a creditor of the estate for their value. Lane v. Calhy, 95 App. Div. 11, 88 IST. Y. Supp 465; Bobinson v. Baynor, 28 IST. Y. 494; Collier v. Butledge, 136 id. 621 ; Bitchie v. Bennett, 35 App. Div. 68, 54 1^. Y. Supp. 379. Mutual understanding between father and son that services rendered should be paid for by devise of farm — on failure to so devise the farm, son was allowed compensation out of the estate as a creditor. Bobinson v. Baynor, 28 IST. Y. 494. 559 Ageeement to Compensate by Will. If 783 Where an agreement to pay for services by a legacy in a will is proved and such legacy is not sufficient to pay for such services, the claimant may maintain an action against the representative of the testator for the balance. Reynolds v. Robinson, 64 'N. Y. 589. Statute of Limitations. Where there is an agreement to pay by will for certain services, and subsequently the promisor abandons the contract, the Statute of Limitations does not begin to run until the death of the promisor. Matter of Funh, 49 Misc. Kep. 199, 98 N. Y. Supp. 934. Contract by guardian. The guardian contracted that infant should live with L. as long as L. lived and in consideration thereof L. was to compensate her by will — held, that the guardian had no power by contract or otherwise, either before or after her arriving at majority to bind her thereafter in the disposition of her time, services, or property. He V. Brown, 178 K Y. 26. When Statute of Limitations begins to run under general hiring. Where services are rendered under a general retainer year after year without any express agreement as to the time or measure of compensation or the term of employment — no payments being made — the law for the purpose of determining when the Statute of Limitations begins to run will not imply an agreement that the payment of compensation shall be postponed until the termination of the employment, but will regard the hiring as from year to year and the wages as payable at the same time. Davis v. Gorton, 16 ]Sr. Y. 255. In re Gardner (103 N. Y. 533), the Statute of Limitations is a bar to a claim for more than six years of services in such employment immediately preceding the death of the de- cedent, unless it appears that payments have been made to apply thereon within six years, in which case a recovery is proper for a period beginning six years prior to the first of said payments. In re Stewart's Estate, 21 Misc. Kep. 412, 47 IST. Y. Supp. 1065. Cf 783 Executor or Administrator Cannot Revive a Debt, but He May Keep It Alive. There is a plain distinction between the right of an executor or administrator to revive an indebtedness against his deceased's es- tate which had been extinguished by law, and his right to acknowl- f 783 Eepeeseis^tative Cannot Revive Debt. 560 edge and to keep in force a subsisting obligation, by making payments from time to time upon the principal of the debt, or by way of keeping down interest. In the one case he creates an indebtedness, while in the other he is performing a moral obliga- tion and is executing a duty recognized by law. Matter of Ken- drich, 107 ]:^. Y. 104; Holly v. Gibbons, 176 id. 520, revg. 67 App. Div. 628, 74 IST. Y. Supp. 1132; McLaren v. McMartin, 36 IST. Y. 88; Butler v. Johnson, 111 id. 204; Hamlin v. Smith, 72 App. Div. 601, 76 K Y. Supp. 258. A claim barred by statute cannot be revived by the executor's admission of its correctness nor by his promise to pay it. Bah v. Underhill. 19 Misc. Rep. 215, 44 K Y. Supp. 419. Where a debtor dies while a claim is valid and subsisting against him, his executor or administrator may make a payment thereon or in writing acknowledge the claim, and the result will be an extension of the life of the claim for six years. But the mere presentation and oral acknowledgment of the claim is not suffi- cient to prevent the running of the statute. Cotter v. Quinlan, 2 Dem. 29, 26 Barb. 316, 61 id. 190, distinguishing 1 Johns. 164. Statute is not suspended. If the Statute of Limitations has once begun to run in the life- time of a debtor, it does not cease running during the period which may elapse between his death and the granting of administration upon his estate. Sanford v. Banford, 62 IST. Y. 553. Where the Statute of Limitations has begun to run during the life of the debtor, it does not cease running during the period which may elapse between his death and the granting of adminis- tration upon his estate, save that eighteen months after the death is by statute not to be deemed a part of the time limited (§ 403, Code Civ. Pro). Church v. Olendorf, 49 Hun, 439, 19 JST. Y. St. Rep. 700, 3 K Y. Supp. 567; Matter of Burdick, 53 N. Y. St. Rep. 842, 24 IST. Y. Supp. 346. Section 403, Code Civ. Pro., extending the time eighteen months in which to bring an action against an executor or administrator does not extend the time in which an executor or administrator may keep alive a judgment by acknowledging or paying thereon. Matter of Kendrich, 107 N. Y. 104. Where letters were issued two years before the expiration of the period of limitation the statute is extended eighteen months — not two years and six months. Church v. Olendorf, 49 Hun, 439, 19 K Y. St. Rep. 700, 3 N. Y. Supp. 567. 561 JDebts Charged upoit Real Estate. T 785 ^ 784 Interest on Claims. Interest allowed on claim for board from time of rejection of claim, and not from time of last item of bill. Matter of Tyndall T. Van Auken, 106 App. Div. 238, 94 IST. Y. Supp. 269. Claims which are unliquidated and are to be paid in the course of administration draw no interest. Matter of Hartman, 13 Misc. Rep. 486, 70 N. Y. St. Rep. 193, 35 N. Y. Supp. 495; Spencer v. Hall, 30 Misc. Rep. 75, 62 K Y. Supp. 826; affd., 51 App. Div. 623, 64 K Y. Supp. 1149. ^ 785 Debts Charged upon Real Estate. Debts and legacies, as to being charged upon real- estate, stand Tipon a different basis, and consequently words that would indi- ■cate an intention to charge one upon the real estate might not convey any such intention as to the other. As, for instance, the giving of a power of sale to pay legacies would indicate an inten- tion that the legacies be paid out of the real estate. But it does not follow that a power of sale to pay debts indicates an intention to charge the debts upon the real estate, for the real estate being liable after the personal property is exhausted, the power of sale may have been incorporated in the will for the purpose of avoid- ing long and expensive proceedings in the Surrogate Court to sell the real estate for the payment of debts. Clift v. Moses, 116 IsT. Y. 144, affg. 44 Hun, 312. Where power to sell certain real estate to pay debts is given, but there is sufficient personal with which to pay debts, the per- sonal estate is not exonerated, but must pay the debts and the land descend to the heirs. Sweeney v. Warren, 127 ^N". Y. 426, revg. 52 Hun, 246. The form-al words " after all my debts," etc., are no evidence of intent to charge debts on real estate, neither is inadequacy of real estate alone. Matter of Rochester, 110 N. Y. 159, revg. 46 Hun, 651. Power of sale general in character. The fact that land is charged with Executors paid debts in excess of per- the payment of debts does not confer sonal estate. They were allowed to upon the executor power to sell the repay themselves from the proceeds land for such purpose. Matter of of the real estate. Matter of Bolton, Foco, 52 N. Y. 530. 146 N. Y. 257, affg. 83 Hun, 259 ; Inadequacy of personalty is not Matter of Powers, 124 N. Y. 361; suggestive of an intent to charge the Matter of Gantert, 136 id. 106, realty with the payment of debts in affg. 63 Hun, 280 ; Cahill v. Russell, view of the provisions of the Code for 140 N. Y. 402. selling real estate to pay debts. 36 J 786 Debts Ohaeged upon Real Estate. 562 '(§ 2749.) Matter of City of Roches- Where general debts are charged on ter, 110 N. Y. 159, revg. 46 Hun, 651. real estate they become a lien thereon,. Where general debts are charged but the devisee is entitled to the rents upon real estate devised, the devisee and profits until sale, unless the es- does not become liable to pay such tate is insolvent and a receiver is ap- debts. Olift v. Moses, 116 N. Y. 144, pointed. OUft v. Moses, 116 N. Y. aflfg. 44 Hun, 312, distinguishing 144, affg. 44 Hun, 312. Brown v. Enapp, 79 N. Y. 136. Devise of land to a son and a charge The heir or devisee is entitled to upon the land of the payment of a the rents and profits arising until the debt due the testator from the son land is actually sold. Glift v. Moses, remains a charge upon the land even 116 N. Y. 144, a£fg. 44 Hun, 312; though the son refuses to accept the Wilson V. Wilson, 13 Barb. 252. devise. Youngs v. Toungs, 102 App. Div. 444; affd., 183 N. Y. 550. ^ 786 Devise Charged with Debt. Land devised to son cbarged with payment of debt due from son to testator. Son refused to accept the devise — held, that the debts were charged on all the land descending and not on the share that descended to the heirs of the son. Young v. Young, 102 App. Div. 444; affd., 183 K Y.,550. Where in event of marriage of wife there was a devise over, the legatee to pay all debts outstanding against testator at time of decease or remarriage of wife — held, that such debts should be paid out of the residuary estate. Brown v. Brown, 41 N. Y. 507. ^ 787 Executor May Sell to Pay His Own Debt. An executor who has power of sale to pay debts may exercise that power for the payment of his own debt where the same has been proved and allowed upon the first accounting. The Statute of Limitations as to such debt is suspended from the death of deceased to the date of such first proceeding. O'Flynn v. Powers^ 136 ]Sr. Y. 416, affg. 49 N. Y. St. Eep. 325, 21 N. Y. Supp. 905. ^ 788 Rights of Parties on Presentation of Claims After Expiration of Notice and After Payment Over of Assets to Creditors. If a suit be brought on a claim which is not presented to the executor or administrator within six months from the first publication of notice ta creditors, the executor or administrator shall not be chargeable for any assets or moneys that he may have paid in satisfaction of any lawful claims or of any legacies, or in making distribution to the next of kin before such suit was commenced. From § 2718, Code Civ. Pro, The evident purpose of section 2718 of the Code was that where an executor had advertised for claims and the period had expired, and every person whom he had reason to believe had any just claim 563 Debts Presented Aftee Notice. 1 788 against the estate had presented his claim, and the executor had, thereupon, after such period had expired, gone ahead and paid such claims to the extent of such estate, or paid such claims and distributed the balance among the legatees, that then he should not be chargeable for so doing; but that the loss should be borne by the person who had neglected within the period to present his claim. In the Matter of Mullon (145 N. Y. 98), the Court of Appeals, in referring to this question, states as follows (p. 104) : " Where an executor or administrator proceeding in good faith, he being also residuary legatee, applies to his own use the assets remain- ing after having paid all the claims under the will and all claims presented in the usual course, pursuant to notice, he cannot, we think, be held accountable, except for the actual value of the as- sets which formed a part of the testator's estate." In Mayor v. Oorman (26 App. Div. 191), the court says in. considering this section of the Code, as follows (p. 199) : " It is apparent, therefore, that the purpose and effect of the provision of section 2718, Code Civ. Pro., under consideration, are, while permitting the claimant to liquidate his debt against the estate without costs, to limit him to such liquidation, so that the formal judgment shall not be chargeable upon any assets or moneys which the executors or administrators have lawfully paid out after the expiration of the statutory period of six months." Matter of Gill, 42 Misc. Kep. 461, 87 N. Y. Supp. 252. Estate which has been paid over to a trustee by agreement of the persons interested has not been distributed according to law, and an action will lie to recover an unpaid debt from such fund. City of N. T. V. 77. 8. S. Co., 78 App. Div. 366, 79 N. Y. Supp. 1010; affd., 178 K Y. 551. Where there has been a partial distribution to creditors, and another is about to be made a creditor who has not presented his claim in time to share in the first distribution may be allowed on second distribution his pro rata share of the first distribution. Home Iris. Co. v. Lyon, 3 Dem. 69. 1 V89 AcTiois^ TO Recovee Debts. 564 CHAPTER XXXVn. -Actions by Creditors Against Surviving Husband or Widow, Next of Kin, Legatees, Heirs, and Devisees to Recover Unpaid Debts. ^ 789. General statement. 790. When action lies against distributees of personal property. 791. Joint or several actions. 793. Requisites in action against legatee. 795. Liability of heirs and devisees. 796. When action may be brought. 797. Requisites to recovery against heirs and devisees. 798. Tax liens and dower deducted. 799. Debts which may be enforced. ^ 789 Actions to Recover Debts Against Surviving Hus- band or Wido^y, Next of Kin, Legatees, Heirs, and Devisees. Because a creditor does not present his claim to the representa- tive and enforce collection of it from the personal property, he does not thereby lose his right to enforce payment of his claim. The personal property is the primary fund for the payment of all debts and it is the proper practice to present claims to the rep- Tesentative and receive payment from him. If, however, there is no personal property or a failure to properly present his claim, so that the creditor does not receive payment from the personal es- tate, he may bring his action against the widow, next of kin, or legatees to recover it from the personal estate distributed to them, or he may bring his action against the heir or devisee who has re- ceived real property descended or devised to him. Any one of these parties is liable to pay valid debts of the de- ceased to the extent of the personal or real property received by lim from the deceased debtor. In granting the judgment the court must be governed by the same preferences which are made in section 2719, Code Civ. Pro., as to payment of debts by the repre- sentative from the personal estate. The Code provisions relating to these actions are from sections 1837 to 1860. 565 Action May be Joint or Seveeau 1" V92 ^ 790 When Action Lies Against Next of Kin, Legatees, etc. An action may be maintained, as prescribed in this article, against tha surviving husband or wife of a decedent, and the next of kin of an intestate, or the next of kin or legatees of a testator, to recover, to the extent of the assets paid or distributed to them, for a debt of the decedent, upon which an action might have been maintained against the executor or administrator. The neglect of the creditor to present his claim to the executor or adminis- trator, within the time prescribed by law for that purpose, does not impair his right to maintain such an action. § 1837, Code Civ. Pre Where the deceased left an estate, effort should be made to col- lect the funeral charges from such fund before resorting to indi- vidual liability. Huhna v. Theller, 35 Misc. Rep. 296, 71 IST. Y. Supp. 752. What allegations sufficient in action to reach surplus on fore- closure to pay debts. Coe v. Cohh, 50 App. Div. 80, 63 N. Y. Supp. 439. No preliminary accounting is necessary before beginning action. The Supreme and Surrogate's Court have concurrent jurisdiction to cause an accounting. Miller v. Morton, 89 Hun, 574, 69 N. Y. St. Rep. 648, 35 K Y. Supp. 294. Where money has been borrowed by the representative to pay outlavs^ed claims at the request of the persons interested, a recovery by the lender may be had against such persons. Hamlin v. Smith, 72 App. Div. 601, 76 N. Y. Supp. 258. ^ 791 ActixDn May be Joint or Several. An action specified in the last section, must be brought, either jointly against the surviving husband or wife, and all the legatees, or all the next, of kin, as the case may be, or, at the plaintiff's election, against one of them only. But where a legacy is received by two or more persons jointly, they are deemed one legatee, within the meaning of each provision of this article, relating to legatees. § 1838, Code Civ. Pro. Where one person takes the entire residuary estate vsrhich is. sufficient to pay the debt without apportionment, action may be maintained directly against such residuary legatee. Mertens v. Boche, 39 App. Div. 398, 57 N. Y. Supp. 349. CI 792 ^^ Joint Action, Recovery to be Apportioned. Where a joint action is brought, as prescribed in the last section, the whole sum, which the plaintiff is entitled to recover, must be apportioned among the defendants, in proportion to the legacy or distributive share, as the case may be, received by each of them; and the final judgment must Tf 793 . Requisites to Recoveey. 566 award, against each defendant separately, the praportionate sum thus ascer- tained. The costs of the action, if the plaintiff is entitled to costs, must be apportioned in like manner; except that the expenses of serving the sum- mons upon each defendant must be taxed against him only; and one sheriff's fee, for returning an execution, may be taxed against each defendant, against ■whom any sum is awarded. § 1839, Code Civ. Pro. Liability apportioned among several persons who had received assets. Miller v. Morton, 89 Hun, 574, 69 N. Y. St. Rep. 648, 35 ]Sr. Y. Supp. 294. Recovery in a several action. Where an action is brought against the surviving husband or wife only, or against one only of the next of kin, or legatees, the sum, which the plain- tiff is entitled to recover, cannot exceed the sum which he would have been entitled to recover from the same defendant in an action brought, as pre- scribed in the last section. § 1840, Code Civ. Pro. ^ 793 Requisites to Recovery in Action Against Legatee. If the action is brought against a legatee, or against all the legatees, the plaintiff must show, either: 1. That no assets were delivered by the executor or administrator of the -decedent, to the surviving husband or wife, or next of kin; or, 2. That the value of assets, so delivered, has been recovered by some other creditor; or, 3. That those assets, after payment of the expenses of administration and preferred demands, are not sufficient to satisfy the demand of the plaintiff; in which case he can recover only for the deficiency. § 1841, Code Civ. Pre. Colegatees in no sense sustain to each other the relation of surety in respect to the testator's debts, each being liable only in proportion to the amount of his legacy. Wilkes v. Harper, 1 IST. Y. 586. Where the claim has been presented to the executor or adminis- trator and has been rejected and not sued upon, no claim can be made against legatees and distributees. Selover v. Coe, 63 IST. Y. 438. ^ 794 Requisites to Recovery — In Action Against a Pre- ferred Legatee. Where some of the legatees are preferred to others, an action may be maintained, as prescribed in the last five sections, against one or all of those who are equally preferred, or equally deferred, as if the legatees of that class were all the legatees. But where it is brought against a preferred legatee. 567 AcTioiT Against Heies oe Devisees. \ 795 or a class of preferred legatees, the plaintiff must show, in addition to the matters, with respect to the next of kin, required by the provisions of the last section, the same matters, with respect to each legatee, or class of legatees, to whom the defendant or defendants are preferred. § 1842, Code Civ. Pro. ^ 795 Liability of Heirs and Devisees. The heirs of an intestate and the heirs and devisees of a testator, are respectively liable for the debts of the decedent, arising by simple contract, or by specialty, to the extent of the estate, interest, and right in the real property, which descended to them from, or was effectually devised to them Isy the decedent. § 1843, Code Civ. Pro. The policy of the Code of Civil Procedure is to give oppor- tunity, where the administration of an estate is promptly pro- ceeded with, for the parties interested to invoke the general and less expensive remedy of the sale of real estate within three years of the granting of letters (§ 2750), and the special remedy against the heir and devisee is suspended during three years from the testator's death for that purpose. If this opportunity is allowed to pass unimproved and a cause of action arises against the heir or devisee by lapse of time, the subsequent granting of letters will not have the effect to further suspend the action against the heir or devisee for three years from their issue. In section 1844, subdivision 1, of the Code of Civil Procedure we have a statute that in positive terms prohibits a creditor from commencing his action against the heir or devisee until three years have elapsed since the death of the decedent. Turning to section 406 of the Code of Civil Procedure, which is found in the title containing general provisions relating to the chapter on limita- tions of the time of enforcing a civil remedy, we find this pro- vision : " Where the commencement of an action has been stayed by injunction, or order of a court or judge or by statutory prohibi- tion, the time of the continuance of the stay is not a part of the time, limited for the commencement of the action." The provision of section 1844, subdivision 1, is a statutory pro- hibition, under section 406, for a period of three years, and this time must be added to the six years of the statute, thus giving the plaintiff nine years in which to begin his action. Adams v. Fas- sett, 149 IT. Y. 67, affg. 73 Hun, 430, 56 N. Y. St. Eep. 31, 26 ]Sr. Y. Supp. 447. ^ 796 Action Against Heirs oe Devisees. 568 There are two modes of reaching for the payment of general debts, the real property devised, or descended to the heirs-at-law, differing in the form and character of the proceeding and also ra the scope of the ultimate relief. Within three years from the granting of letters creditors may apply to the surrogate by a peti- tion setting forth the prescribed facts and asking for a sale of the land and an application of the proceeds. § 2749, Code Oiv. Pro. Such a sale carries the title of the descendants, unaffected by the acts of heirs or devisees, except that where no letters have been issued within four years after the death of the testator or intestate a purchaser or mortgagee from an heir or devisee in good faith and for value is protected. § 2777, Code Civ. Pro. Where three years have been allowed to elapse proceedings should be taken under section 1844, Code Civ. Pro., and when so taken the resulting sale has a greater respect for the rights of those claiming under the heir or devisee than is given by the proceeding within three years before the surrogate. If the land has not been aliened the debt may be collected out of it, and the judgment as a lien has priority over a judgment against the heir or devisee for his individual debt or demand (§ 1852, Code Civ. Pro.), but the right of a purchaser in good faith and for value is explicitly saved and protected, although he claims under the heir or devisee (§ 1853, Code Civ. Pro.). Cunningham \. Parker, 146 N. Y. 29. ^ 796 When Action Therefor May be Brought. But an action to enforce the liability declared in the last section, cannot be maintained, except in one of the following cases: 1. Where three years have elapsed since the death of the decedent, and no letter testamentary, or letters of administration, upon his estate, have been granted \?ithin the State. 2. Where three years have elapsed, since letters testamentary, or letters of administration, upon his estate, were granted, within the State. § 1844, Code Civ. Pro. ISTo action can be brought agaiilst heirs until after three years have elapsed from the time of granting letters. Selover v. Ooe, 63 N. Y. 438. Land situate in Pennsylvania devised to legatees here and sold by them. Action by creditor to reach that fund — held, could not be maintained. Dego v. Morss, 30 App. Div. 56, 51 N. Y. Supp. 785. 569 Requisites to Recoveet. ^ 797 Statute of Limitations. An action brought under this section to recover upon a note or simple debt is deemed an action upon such note or debt and the six years' Statute of Limitations applies. Adams v. Fassett (149 N. Y. 61. This case seems to overrule Mortimer v. Chambers (63 Hun, 335), where the ten-year statute was held to apply. The effect of this section read with section 406, Code Civ. Pro., is to prevent the bar of the statute before the expiration of nine years from the time it began to run. Adams v. Fassett, 149 IST. Y. 61, affg. 73 Hun, 430, 56 IST. Y. St. Eep. 31, 26 N. Y. Supp. 447. When letters are not issued within three years from the death, the subsequent issue of letters does not compel the creditor to wait until three years after such issue. Adams v. Fassett, 149 N. Y. 61, 56 N. Y. St. Eep. 31, 26 N. Y. Supp. 447. Effect of application to sell real property under section 2749. Where it appears that, at the time of the commencement of such an action, a petition, seasonably presented as prescribed by law, praying for a, decree to dispose of real property of the decedent for the payment of his debts, was pending in a surrogate's court having jurisdiction, the proceedings in the action, subsequent to the complaint, must be stayed by the court, until the petition is disposed of, unless the plaintiff elects to discontinue. If a, decree to dispose of real property, pursuant to the prayer of the petition, is granted, the action must be dismissed, unless the plaintiil has alleged in his complaint, or alleges in a supplemental complaint, that real property, other than that included in the decree, descended or was devised to the defendants. If the plaintiff elects to proceed under such an allegation, he is entitled to a preference in payment, out of the real property, with respect to which the allegation is made; but he cannot share, as a creditor, in the distribution of the money, arising from the disposal of the real prop- erty, described in the decree; and the judgment in the action does not charge, or in any way affect, that property. § 1845, Code Civ. Pro. ^ 797 Requisites to Recovery Against Heirs. Where the action is brought against heirs, the plaintiff must show, either: 1. That the decedent's assets, if any, within the State, were not sufficient to pay the plaintiff's debt, in addition to the expenses of administration, and debts of a prior class; or 2. That the plaintiff has been unable, or will be unable, with due diligence, to collect his debt, by proceedings in the proper surrogate's court, and by action against the executor or administrator, and against the surviving hus- band or wife, legatees, or next of kin. The executor's or administrator's account as rendered to, and settled by, the surrogate, may be used as presumptive evidence of any of the facts, required to be shown by this section. § 1848, Code Civ. Pro. I 797 Action Against Hexes — Pkoof. 570 Requisites to recovery against devisees. Where the action is brought against devisees, the plaintiff must show, in addition to the matters specified in the last section, either that the real property of the decedent, which descended to his heirs, was not sufficient to pay the plaintiff's debt, or that the plaintiff has been unable, or will bj unable, with due diligence, to collect his debt by an action against the heirs. § 1849, Code Civ. Pro. The relief to be had is that the execution be satisfied out of the real estate remaining in the devisee or heir. Lawrence v. Grout, 112 App. Div. 241. Mere statements annexed to an account are not presumptive evi- dence of the facts therein contained — so held as to schedule of debts presented but not allowed and paid by the executor. Bead V. Patterson, 134 K Y. 128, affg. 55 Hun, 608. Proof required. Section 1848, Code Giv. Pro., prescribes that an executor's or administrator's account as rendered to, and settled by, the surro- gate may be used as presumptive evidence of lack of assets and inability to collect. The plaintiffs introduced in evidence what is called an " intermediate account " of the executor of decedent's estate, filed in the proper Surrogate's Court. No proof was made that this account was settled by the surrogate, or that any decree was entered thereon. So far as the record discloses, a paper was found on file in the Surrogate's Court purporting to be a state- ment by the executor of Lizetta Binninger that he had been unable to find any substantial assets belonging to her estate. Under what preceding the account was filed does not appear, nor was it settled by the surrogate, evidenced by formal decree or other- wise. It was found on file in the surrogate's office and was prop- erly received in evidence, but it should have been followed by some proof that the surrogate had passed upon it and settled it as presented, or otherwise. As the proof stood it was a mere declara- tion of the executor that he had been unable to find any assets with which to pay debts. The executor was not called to show the condition of the estate, and there was no other proof of this fact. This was a prerequisite to the liability of these defendants as devisees, and to the charging of the seal estate which descended to them, or the avails of it arising from condemnation proceed- ings, if that was chargeable at all. ISTor did the plaintiffs produce any proof sufficient to warrant the trial court in finding that they had been unable, or would be 5Tl Tax Liens and Dowek. | 798 unable, witli due diligence, to collect the debt by proceedings in the proper Surrogate's Court, or by action against the executor or legatees. They introduced the judgment which they had ob- tained against the executor, but they failed to show that they had made any attempt to collect it from the executor by calling him to account, or otherwise. The mere obtaining of a judg- ment against an executor is not sufficient to show that fact. Lawrence v. Grout, 112 App. Div. 241, 98 N. Y. Supp. 279. ^ 798 Tax Liens and Dower to be Deducted. " I have deducted the taxes for the reason that they were a lien on the land, and enforceable against the land only, as is the case with all land taxes in the city of ISFew York. Section 2719, Code Civ. Pro., prescribes the order in which the debts of decedents must be paid, making " Taxes assessed on the property of the deceased previous to his death," payable second. This section in terms applies only to debts of decedents, and, therefore, only refers to taxes which are such debts, and collectible by distraint of the debtor's chattels by the tax collector, or by other proceedings against him, and which are, therefore, valid claims against the executor or administrator. Under the general tax laws of the State, taxes are not levied on the land, but only assessed against the owner personally, except in the case of nonresident lands ; and the said Code provision embraces only the former, they being personal debts. Taxes levied on the land and not assessed against the owner are in the same category on the question being decided as local assessments on the land, which was the case presented in Matter of Hun (144 K Y. 472). " The defendant, having aliened the land devised to her, is liable to the creditors of her testator to the extent of the value of such land over the liens thereon at the time of the testator's death, and they may take judgments against her instead of against the land to that amount, each creditor being entitled to a judgment for his proportionate share, such value being less than the aggre- gate of debts. § 1854 et seq.. Code Civ. Pro. " But the defendant's dower interest must be ascertained and deducted from the value of the land in ascertaining the value for which she is liable. The devise to her of all of the real estate in fee was not in terms in lieu of dower, and did not put her to her election. It is not repugnant to her right of dower." Lewis v. Smith, 9 ]Sr. Y. 502 ; Lauhy v. Gill, 42 Misc. Rep. 334. f 799 Debts Which May be Enforced. 572 Counterclaim. Since the action is against the defendants jointly one of them cannot set up a counterclaim affecting his interests only. Morti- mer V. Chambers, 63 Hun, 335, 43 N. Y. St. Hep. 365, 17 IST. Y. Supp. 874. ^ 799 Classification of Debts to be Enforced Under This Article. Where the surviving husband or ■wife, next of kin, legatees, heirs, or devisees, are liable for demands against the decedent, as prescribed in this article they must give preference in the payment thereof, and they are so liable therefor, in the order prescribed by law, for the payment of debts by an executor or administrator. Preference of payment cannot be given to a. demand, over another of the saoa;e class, except where a similar preference by an executor or administrator is allowed by law. The commencement of an action, under any provision of this article, does not entitle the plaintiff's demand to preference over another of the same class, except as otherwise specially prescribed by law. § 1855, Code Civ. Pro. This article not applicable, where will charges real property, etc. This article does not affect the liability of an heir or devisee, for a debt of a testator, where the will expressly charges the debt exclusively upon the real property descended or devised or makes it payable exclusively by the heir or devisee, or out of the real property descended or devised, before resorting to the personal property, or to any other real property descended or devised. § 1859, Code Civ. Pro. Sale of undetermined share in an estate to collect debt from nonresident next of kin. An attachment having been issued, an action was brought by the sheriff in aid of the attachment — held, that the judgment and interest in the estate might be sold under the original execu- tion. Arhenhurgh v. Arkenburgh, 114 App. Div. 436. 5Y3 Mortgage, Lease, oe Sale of Eeal Estate. CHAPTER XXXVIII. Collection of Debts, Funeral Expenses, and Judgment Liens by Mortgage, Lease, or Sale of Real Estate of Deceased. 1[ 800. Debts which are payable from real estate, and property liable to pay the same. 801. Property purchased with pension money. 802. Power of sale should be enforced in Supreme Court. 803. What language charges debts. 804. Who may present petition. 805. Creditor's time to apply extended. 806. Contents of petition. 807. Proceedings where some facts are unknown. 808. Citation. 809. Hearing. 810. Effect of allowance of claim by representative. 811. Proof of claims. 812 Trial by jury may be ordered. 813. Necessary proof. 814. Decree to mortgage, lease, or sell. 815. Payment of expenses of administration. 817. Decree should fix costs. 818. Filing bond. 819. Failure to file bond or execute decree. 820. Effect of death on execution of decree. 821. Executing decree and applying proceeds. 822. Effect of irregularities on title. 823. Relief by purchaser on account of defective title. 824. Offset ef debt against bid on sale. 825. Decree may be refused if bond given. 825. Who may not purchase. 826. Effect of sale on title acquired from heir. 826. Effect of conveyance in case of contract for sale. 826. Effect of conveyance when deceased was part owner. 827. Presumption of appointment of special guardian. 828. Deposit of surplus moneys in Surrogate's Court. 829. Transferring fund from Supreme Court. 830. Proceeding to apply surplus to payment of debts. 831. Proceeds of sale in partition. 832. Proceeding by heirs or devisees to obtain surplus. ![ 800 Debts Payable feom Real Estate. 574 H 833. Right of dower may be ordered sold. 833. Etower interest in surplus. 834. Agreement for assignment of dower and its effect. ^ 800 Debts Which are Payable from Real Estate. a. Debts owing by deceased at the time of his death; b. Judgments which are liens upon his real estate at the time of his death; c. Funeral expenses which may include a reasonable charge for a suitable headstone. Property which is liable to pay the same. a. Real property situated in the State, of which the decedent died seized. b. Any interest of a decedent in such real property held by him under a contract for the purchase thereof made either with him or with a person from whom he derived his interest. The proceeding cannot be maintained where such real estate a. Is devised expressly charged with the payment of debts or funeral expenses, or, b. Is exempt from levy and sale by virtue of an execution as prescribed in Code Civ. Pro., §§ 1393-1404. § 2749, Code Civ. Pro., analyzed. What property subject to this title. Real property, of which a decedent died seized and the interest of a decedent in real property, held by him under a contract for the purchase thereof, made either with him, or with a person from whom he derived his interest, may be disposed of, for the payment of his debts and funeral expenses, or for the payment of judgment liens existing thereon at his death, as pre- scribed in this title; except where it is devised, expressly charged with the payment of debts or funeral expenses, or is exempted from levy and sale by virtue of an execution, as prescribed in title second of chapter thirteen of this act. The expression " funeral expenses," as used in this title, includes a reasonable charge for a suitable headstone. § 3749, Code Civ. Pro. Rents cannot be collected and applied. In many of the States, apart from any authority conferred by the will or by the consent of the heirs or the devisees, the executor or administrator is authorized to take possession of the real estate and collect the rents, pending the settlement of the estate, for the protection of the rights of creditors, to the end that, should it be necessary to draw on the real estate to pay the debts, the rents thus collected may render a sale of the realty unnecessary, and it would 575 Peopeety Subject to Debts. T[ 800 insure the appropriation of all the real estate to the payment of the claims of creditors, should that become necessary. Kline v. Moulton, 11 Mich. 370; Washington v. Black, 83 Gal. 290, 23 Pac. 300; Cox v. Ingleston, 30 Vt. 25 . In this State, however, that rule does not prevail, and there is no statute conferring upon administrators or executors authority to take possession of the realty and collect the rents, with a view to appropriating the same to the payment of the debts of the decedent. Undelivered deed. A deed made before death, but delivered and taking effect after death, does not impair the rights of creditors of the deceased, and their lien upon the land is prior to any right of the grantee in such deed. Bosseau v. Bleau, 131 IST. Y. 177. Property out of the county. A sale may be ordered of real estate situated out of the surro-^ gate's county. Long v. Olmsted, 3 Dem. 581. Proceeds of sale under a power. Proceeds of the sale of real estate realized by the executor under a power of sale cannot be reached in proceeding to sell real estate. Matter of Qedney, 30 Misc. Rep. 18, 62 E". Y. Supp. 1023; Matter of Coutant, 24 Misc. Rep. 350, 53 N. Y. Supp. 713. Dower interest. The dower interest which a widow has in lands of which her deceased husband had been seized is, although unmeasured, liable in equity for her debts. Payne v. Becker, 87 IST. Y. 153. Property devised to a widow in lieu of dower should not be sold until all other real estate has been disposed of. Matter of Dolan, 4 Redf. 511. Insurance by heirs. The heirs may insure their ovm interest in real estate coming to them by descent, and in case of fire, the insurance money will not be liable for debts of deceased owner. Hetkimer v. Bice, 27 '^. Y. 163. Insurance by representatives. Where an intestate does not leave personal estate sufficient to pay his debts, but leaves real estate, the administrator may insure the buildings thereon and if they bum, the insurance money is applicable to the payment of debts as though it were proceeds of the sale of real estate. Herkimer v. Bice, 27 N. Y. 163. \ 801 Peopeety Puechased with Pension Money. 576 C[ 801 Sale of Property Purchased with Pension Money. Keal estate purchased with pension money is not exempt from sale to pay debts and funeral expenses after death of pensioner. Matter of Liddle, 35 Misc. Rep. 173, 71 IST. Y. Supp. 474. The only express exemptions of real property from levy and sale by virtue of an execution prescribed by title 2 of chapter 13 of the Code of Civil Procedure are: First. A seat or pew occupied by the judgment debtor or the family in a place of public worship. Such interest, although in perpetuity, is a limited and usufructory one, and is enumerated in the statute as personal property. § 1390, Code Civ. Pro. Second. Lands set apart as a family or private burying ground when designated as prescribed by law to exempt the same. §§ 1395, 1396, Code Civ. Pro. Third. A iot of land, with one or more buildings thereonj not exceeding in value $1,000, and designated as prescribed by law as an exempt homestead. §§ 1397-1399, Code Civ. Pro. By section 1393 of the Code of Civil Procedure there is no express exemption of real property from levy and sale by virtue of an execution. That section of said Code in terms exempts a pension granted to a person in the military or naval service of the United States or of a State, and certain equipments. The Federal government, by which the decedent's pension was granted, pro- tects the pension money until it reaches the pensioner, or hi^ family in case of his death. See § 4747, U. S. R. S. Its protect- ing care extends no further, and such money becomes general assets in the hands of the person or persons receiving it. Prior to the decision of the case of Yates County National BanTc v. Carpenter (119 IST. Y. 550), it was quite uniformly held in this State that the exemptions from levy and sale by virtue of an execution, as stated in section 1393 of the Code of Civil Pro- cedure, did not extend to property, real or personal, purchased by the pensioner with the pension money. By the decision in Yates County National Banh v. Carpenter (supra), it was held that where pension money can be directly traced to the purchase of property necessary or convenient for the support and mainte- nance of the pensioner and his family such property is exempt. Apart from exemptions, property of which a person dies the owner is subject to the payment of his debts. Exemptions of property from levy and sale by virtue of an execution do not run with the property exempted, and are not incidents thereof, but are personal favors to the person exempted. The statutes provide 577 Proceeds of Pbopeety Taken by Condemnation, t 801 what property shall be deemed assets of a decedent to be inven- toried, and what property shall be set apart to a widow and the infant children of a deceased person, and real property, unless devised, descends to the heirs-at-law of the deceased. That it was not the intention of the Legislature to extend the exemptions of property purchased by pension money beyond the life of the pensioner is reasonably certain from the fact that it is not so stated in the statute and for the further reason that no provision is made for protecting a bona fide purchaser of the prop- erty from a stale claim of such exemptions. Express provision is made for a record in the office of the clerk or register of the county in the proper book for recording deeds of lands set apart as a family or private burying ground and for a record of exempt homesteads in a book kept for that purpose and styled the " Home- stead Exemption Book." By section 1400 of the Code of Civil Procedure it is also provided when the exemptions of a homestead shall continue after the owner's death, and the extent thereof. If we should hold that real property purchased with pension money remains exempt for the benefit of the widow and infant children after the death of the pensioner, what limit shall be placed upon such exemptions ? Would the exemption cease at the death of the widow and on the children arriving at the age of twenty-one years ? If it is the intention of the Legislature to ex- tend exemptions of real property purchased with pension money beyond the death of the pensioner, it should be so expressly fctafed, and provision should be made for giving notice thereof. "We are of the opinion that the real property of the decedent in this case was not, at the time of the filing of the petition, exempt from levy and sale by virtue of an execution, and that the Surro- gate's Court had jurisdiction of the subject-matter of the proceed- ing. Matter of Liddle, 35 Misc. Rep. 173 ; Beecher v. Barber, 6 bem. 129 ; Smith v. Blood, 106 App. Div. 319, 94 K Y. Supp. 687. Proceeds of property taken by condenmation. Damages awarded in condemnation and similar proceedings initiated before and after the death of the owner of the real estate so taken. Matter of Thompson, 89 Hun, 32 ; affd., 148 IST. Y. 743, no opinion; Magee v. Brooklyn, 144 id. 265, affg. 3 Misc. Eep. 620; 8imms v. Brooklyn, 87 Hun, 35 ; affd., 147 N. Y. 703, no opinion; Gates v. DeLamar, 142 id. 307; Matter of City of 37 T[ 802 Power of Sale — Debts Chaeged. 578 N. Y., 30 Misc. Eep. 296 ; Matter of City of Rochester, 110 N. Y. 159; Home Ins. Co. v. Smith, 28 Hun, 296; Hill v. Wine, 35 App. Div. 520, 54 JST. Y. Supp. 892. Devisee of real estate sold under condemnation proceedings sub- sequent to the making of a will is not entitled to proceeds thereof. Ametrano v. Downs, 170 IST. Y. 388, affg. 62 App. Div. 405, 70 N". Y. Supp. 833 ; which affd. 33 Misc. Kep. 180, 67 N. Y. Supp. 128. ^ 802 Power of Sale — How Enforced. Where there is an imperative power of sale, it should be en- forced in the Supreme Court and not in these proceedings. Holly V. Gibbons, 176 IST. Y. 520. Power of sale defeats proceeding. A creditor cannot be deprived of his statutory remedy against the real estate unless the will of the debtor has provided a remedy as efficient and as expeditious. Matter of Gantert, 136 I^. Y. 106- 110, affg. 63 Hun, 280. The power given must be imperative in terms and it must ap- pear from express direction or be clearly gathered from the pro- visions of the testament. It is not a matter of inference or implication. Parher v. Beer, 65 App. Div. 598, 72 K Y. Supp. 955 ; affd., 173 N. Y. 332. Where a power of sale is given by the will which is subject to the consent of any person, it must appear that such person has refused such consent before the proceeding will be entertained. Matter of Davids, 5 N". Y. St. Eep. 357. ^ 803 What Language Charges Debts. An insolvent testator cannot by charging certain debts on his real estate prefer one creditor over another in such a way as to deprive the general creditors of their right to have his real estate sold and distributed among them. Matter of Richmond, 168 N. Y. 385, affg. 62 App. Div. 624, 71 N. Y.'Supp. 1147. A direction to pay certain debts from " my estate " is not suffi- cient to charge such debts upon real estate. Lediger v. Canfield, 78 App. Div. 596, 79 N. Y. Supp. 558. " I authorize and empower such executors who act to sell and convey any real estate of which I die seized " is not such a power 579 Proceedings foe Sale — Petition. 1] 804 of sale as will deprive a creditor of a right to have sale for pay- ment of debts. Parlcer v. Beer, 173 N. Y. 332, affg. 65 App. Div. 598. Keal estate held not to be charged with the payment of debts, where there was a direction to pay debts and a power of sale given. Matter of Bingham, 127 ¥. Y. 296 ; Matter of Powers, 124 id- 361. There was given the executor the "management and control o£ my real estate with power to sell and convey same as I now possess (after my death)" — held si good power of sale to pay debts and that the proceedings could not be maintained. Matter of Rowley, 38 Misc. Eep. 622, 78 K Y. Supp. 215. Mere lack of personal estate to pay debts will not of itself show an intention to charge debts upon real estate. Matter of City of Rochester, 110 K Y. 159, revg. 46 Hun, 651. The formal words of a will, " after the payment of my debts," etc., do not charge the real estate with the payment of debts. Mat- ter of Van Vlech, 32 Misc. Eep. 419, 66 N. Y. Supp. 727 ; Matter of O'Brien, 39 App. Div. 321, 56 ]^. Y. Supp. 925. Devise subject to payment of debts and legacies with power of sale to executor. Devisee refused to take the real estate and pay the debts and legacies, and the executor cannot sell the same for sufficient to pay such charges - — - held, that where it was imprac- ticable to exercise power of sale the proceeding could be main- tained. Matter of Wood, 70 App. Div. 321, 75 N. Y. Supp. 272. ^ 804 Who May Present Petition. a. An executor or administrator whether sole or joined with an- other. b. A person holding a judgment lien upon decedent's real prop- erty at the time of his death. c. Any other creditor of the decedent, except that the proceed- ing cannot be instituted by a. A temporary administrator or b. A creditor by reason of a mortgage which is a lien upon the- decedent's real property. The petition must be presented before the expiration of three years after letters were first duly granted within the State and must be filed in the Surrogate's Court from which such letters were issued and must ask that such property or interest in real f 804 Peoceedings eok Sale — Petition. 580 property be mortgaged, leased, or sold at public or private sale for the purposes of the proceeding and that all necessary parties be cited to show cause why such a decree should not be made. § 2750, Code Civ. Pro., analyzed. Petition; when and by whom presented. At any time within three years after letters were first duly granted within the state, upon the estate of a decedent, an executor or administrator, whether sole or joined in the letters with another other than a temporary ad- ministrator, or a person holding a judgment lien upon decedent's real property at the time of his death, or any other creditor of the decedent, other than a creditor by a mortgage, which is a lien upon the decedent's real property, may present to the surrogate's court, from which letters were issued a written petition, duly verified, praying for a decree directing the disposition of the decedent's real property, or interest in real property, specified in the last section, or so much thereof as is necessary for the payment of his debts or funeral expenses or, if so decreed as hereinafter provided, for the payment of any judgment liens existing upon such land, or some portion thereof, at decedent's death, by the mortgage, lease or sale at public or private sale thereof; and that the parties named in the petition and all other necessary parties as prescribed in the subsequent sections of this title, may be cited to show cause why such a decree should not be made. § 2750, Code Civ. Pro. The word " debts " includes every claim and demand upon which a judgment for a sum of money, or directing the payment of money could be recovered in an action ; and the word " creditor " includes every person having such a claim or demand, any person having a claim for expense of administration, or any person hav- ing a claim for funeral expenses. From § 2514, subd. 3, Code Civ. Pro. This definition of a creditor must be considered in connection with section 2749, Code Civ. Pro., which specifies the class of creditors who may bring the proceeding, namely, those who were creditors of the deceased or those who have unpaid claims for funeral expenses. Before this amendment, extending the definition of creditor to include one who had a claim for funeral expenses, such a creditor could not bring the proceeding even though his claim could be paid from the proceeds when a sale was had upon the application of another. Matter of Corwin, 10 Misc. Eep. 196, 64 JST. T. St. Kep. 10, 31 ]Sr. Y. Supp. 426. But since the enlargement of the defini- tion such a person is a creditor and may institute the proceeding. 581 Time in Which to Apply. t 805 rUing of petition. The filing of a petition institutes the proceeding, and a citation may be issued at any time thereafter. § 2517, Code Civ. Pro. ; Matter of Van Yleck, 32 Misc. Eep. 419, 66 N. Y. Supp. Y2Y. Section 2593, Code Civ. Pro., giving the rule for computing time where there have been successive letters, applies to this pro- ceeding. Matter of Crowley, 33 Misc. Eep. 624, 68 N. Y. Supp. 939. The creditors' time to file the petition is also extended in cer- tain cases by section 2751, Code Civ. Pro. Matter of Bingham^ 127 K Y. 304. How three years computed. The three years' statute begins to run from the granting of the original letters and not from the time of granting letters de honis non. Slocum v. English, 62 IST. Y. 494. In respect to the time of limitation to sell real estate, the ad- ministration of an administrator de honis non is a mere continua- tion of that commenced by his predecessor. Matter of Kingsland, 38 ]Sr. Y. St. Eep. 590. Subrogation. Where the representative has paid the debts but has taken no assignment thereof, he vrill be held to be subrogated to the rights of the creditors and may maintain the proceeding. Matter of O'Brien, 39 App. Div. 321, 56 IST. Y. Supp. 925 ; Matter of Quat- lander, 29 Misc. Eep. 566, 61 IST. Y. Supp. 1064. ^ 805 Creditors' Time to Apply Extended in Certain Cases. Time during v^hich the action is pending in a court of record be- tween a creditor and executor or administrator of the estate is not a part of the time limited in the last section for presenting a peti- tion founded upon a debt which was in controversy in the action ; provided the creditor has, before expiration of the time so limited, filed in the clerk's ofiice of the county where the real property is situated a notice of the pendency of the action specifying, a. The names of the parties. b. The object of the action. c. If the creditor's debt is made the foimdation of a counter- claim the nature of the counterclaim. f 806 Time to Apply Extended. 682 d. A description of the property in that county to be affected thereby. e. A statement that such property will be held as security for any judgment obtained in the action. -■Kotice; how canceled. -A notice so filed must be recorded and indexed and may be can- '•celed as prescribed with respect to the notice of pendency of an action in section 1674, Code Civ. Pro. It may also be canceled in like manner, or a specified portion of the property affected thereby jnay be discharged from the lien by the order of the court in which the action is pending, made upon the application of the person laving an interest in the real property, upon notice to the cred- itor and upon such terms as justice requires. § 2751, Code Civ. Pro., analyzed. There is no provision for filing a lis pendens in the proceeding in Surrogate Court, but under this section one who brings an ac- tion in Supreme Court may so file. Olyphant v. Phyfe, 48 App. Div. 1, 62 JSr. Y. Supp. 688 ; affd., 166 N. Y. 630, revg. 27 Misc. Hep. 64, 58 N. Y. Supp. 217. Where any real property is owned by the deceased which is not mentioned in the lis pendens, and the petition is filed after the expiration of three years, the property not so mentioned cannot loQ affected by the decree of the surrogate. Matter of Bingham, 127 ISr. Y. 304. "Time extended where conveyance of property has been set aside. Whenever an executor, administrator, or creditor of a deceased person shall iave commenced or shall hereafter commence an action in any court of com- petent jurisdiction of this State for the purpose of setting aside any fraudu- lent conveyance of, or incumbrance upon any real estate of such deceased person, and such action shall have been decided in favor of such executor, administrator or creditor, such executor, administrator or creditor may at any time within three years after the final determination of such action, liave and maintain an action or proceeding against the proper parties in any court of competent jurisdiction of this State for a, sale of such real estate, and for a distribution of the proceeds among the creditors of such deceased person and other persons entitled to the same as may be directed by the judgment in such action. • From § 3751, Code Civ. Pro. This section in no way creates a limitation upon the express re- quirement of section 1538, Code Civ. Pro. Vhl v. Kohlman, 52 A-pp. Div. 455, 65 IST. Y. Supp. 197. 583 Contents of Petition. f . 806 Creditor's time to apply extended in certain cases. The time during which an action is pending in a court of record, between a creditor and an executor or administrator of the estate, is not a part of the time limited in the last section, for presenting a petition, founded upon a debt, which was in controversy in the action; if the creditor has, before the expiration of the time so limited, filed in the clerk's office of the county where the real property is situated, a notice of the pendency of the action specifying the names of the parties, the object ^of the action and if the creditor's debt is made the foundation of u, counter-claim, the nature of the counter-claim J containing a, description of the property in that county to be affected thereby; and stating that it will be held, as security for any judg- ment obtained in the action. A notice so filed must be recorded and indexed, and may be canceled, as prescribed, with respect to the notice of pendency of an action, in article ninth of title first of chapter fourteenth of this act. It may also be canceled in like manner, or a specified portion of the property affected thereby, may be discharged from the lien thereof, by the order of the court in which the action is pending, made upon the application of a person laving an interest in the real property, upon notice to the creditor and upon such terms as justice requires. Whenever an executor, administrator or creditor of a deceased person shall have commenced, or shall hereafter com- mence an action, in any court of competent jurisdiction of this State for the purpose of setting aside any fraudulent conveyance of, or incumbrance • upon, any real estate of such deceased person, and such action shall have been decided in favor of such executor, administrator or creditor, such executor, administrator or creditor may, at any time within three years after the final determination of such action, have and maintain an action or proceeding against the proper parties, in any court of competent jurisdiction of this State, for a sale of such real estate, and for a distribution of the proceeds of such real estate among the creditors of such deceased person and other persons entitled to the same as may be directed by the judgment in such action. § 2751, Code Civ. Pro. Petition need not alleged pendency of action. The pendency of an action between the creditor and the executor need not be set up in the petition but may be proved on the pro- ceeding. Matter of Bingham, 127 JST. Y. 296. ^ 806 Contents of the Petition. The petition must set forth the following matters as nearly as the petitioner can upon diligent inquiry ascertain them: a. The amount of the unpaid debts and funeral expenses of the decedent. b. That the personal estate is inadequate for the payment thereof. c. A general description of all the decedent's real property and interest in real property within the State which may be disposed of as prescribed in this title. f 806 Contents of Petition. 584: d. A statement of the value of each distinct parcel ; whether it is improved or not ; whether it is occupied or not ; and if occupied the name of each occupant. e. Whether it is incumbered by a mortgage, lien, or liens; a statement of the amount due or claimed to be due thereon. f. Where the interest of the decedent arises under a contract for the purchase of property the value of such interest must be stated and dso the value of the property itself and the other par- ticulars specified in this section relating to the real property to which the interest attaches. g. The names of the husband or wife of the decedent ; all the heirs of the decedent ; all of the devisees of the decedent, if he left a will devising such property ; of every other person claiming un- der them or either of them ; if such real estate has been sold in par- tition or under foreclosure the name or names of the purchaser or purchasers should be given. h. The names of any of such parties who are infants ; the age of each infant ; the name of his general guardian if an^ . i. The name of each executor or administrator where the peti- tion is presented by any other person. j. Where the petition is presented by an executor or adminis- trator it must show : The amount of personal property which has come to his hands and those of his coexecutors or coadministrators ; the application which has been made thereof; the amount which may yet be realized therefrom. k. A statement as to whether or not a notice to creditors has been duly published and whether or not the time for the presenta- tion of claims pursuant to such notice has elapsed and if such notice has been fully published proof of such publication should be attached. 1. If upon diligent inquiry all the matters required to be set forth cannot be ascertained by the petitioner, that fact should be set forth together with the facts showing due diligence in endeav- oring to ascertain them. m. Whether or not there has been an accounting or judicial set- tlement by the executor or administrator. § 2752, Code Civ. Pro., analyzed. Contents of petition. The petition must set forth the following matters, as nearly as the peti- tioner can, upon diligent inquiry, ascertain them: 1. The amount of the unpaid debts and funeral expenses of the decedent and that the personal estate is inadequate for the payment thereof. 585 Contents of Petition. f 806 2. A general description of all the decedent's real property, and interest in real property, within the State, which may be disposed of as prescribed in this title; a statement of the value of each distinct parcel; whether it is im- proved or not; whether it is occupied or not; and, if occupied, the name of each occupant; whether it is incumbered by a mortgage lien or liens together with a statement of the amount due or claimed to be due thereon. Where the petition describes an interest in real property, specified in section two thousand seven hundred and forty-nine of this act, the value of the interest must be stated, and also the value of, and the other particulars, specified in this section, relating to the real property to which the interest attaches. 3. The names of the husband or wife, and of all the heirs and devisees of the decedent, and also of every other person claiming under them, or either of them, stating who, if any, are infants; the age of each infant, and the name of his general guardian, if any; and also, if the petition is presented by a creditor or judgment lienor, the name of each executor or administrator. 4. If the petition is presented by an executor or administrator, the amount of personal property which has come to his hands, and those of his co- executors or co-administrators, if any; the application thereof, and the amoxmt which may yet be realized therefrom. § 2752, Code Civ. Pro. The petition. The allegations required by this section are jurisdictional and must be made in substance at least. Matter of Slater, 75 N. Y. St. Eep. 922. Occupants of the property should be named. Matter of Slater, 75 K Y. St. Eep. 922, 41 N. Y. Supp. 534. It is not necessary that the petition ask in the alternative for a mortgage, lease, or sale. Matter of Dolan, 88 IST. Y. 309. Where there is an averment that certain parties named are the heirs of deceased, and proof is furnished as to who are the heirs of deceased, the proceeding is not defective because the petition did not allege that the persons named were all the heirs. Green- hlatt V. Hermann, 144 N. Y. 13, revg. 69 Hun, 298, 53 N. Y. St. Rep. 421, 23 N. Y. Supp. 565. The petition need not allege that the property is not subject to a valid power of sale. Matter of Haig, 6 Dem. 454, 17 IST. Y. St. Eep. 827. The petition need not allege the date of issuing letters. Matter of Haig, 6 Dem. 454, 17 IST. Y. St. Kep. 827. The sale will be invalid if the petition and citation omits the name of one of the heirs-at-law, even though it is stated that such person is reported to be dead {Jenkins v. Young, 35 Hun, 659) ; or if the petition fails to state the ages of the infants interested or whether the property is improved or occupied [Dennis v. Jones, 1 Dem. 84) ; or to name in the petition and cite the known heirs-at-law {Matter of John, 21 Civ. Pro. 326). f 807 ASCEETAINING UNKNOWN FaCTS. 586 Jtirisdiction. The petition may be defective, but if it sets out all the facts showing the indebtedness of the decedent to the petitioner, it is sufBcient to confer jurisdiction upon the surrogate to act. Matter of Ihert, 48 App. Div. 510, 62 N. Y. Supp. 1051. Where the deceased would have had an additional interest in the property had a brother died and such brother did die after the proceedings to sell were begun — held, that the proceedings were not thereby made irregular. Matter of Haig, 6 Dem. 454, 17 ]Sr. Y. St. Rep. 827, 3 N. Y. Supp. 285. The pendency of another proceeding for the purpose of paying debts is a good answer to the application. Matter of Laird, 42 Hun, 136, 3 K Y. St. Eep. 376. Persons interested. A person who has purchased the real estate under a referee sale in partition between the heirs is a " person interested " and should be named in the petition and citation. Kammerrer v. Ziegler, 1 Dem. 177. One holding a chose in action not yet ripened into a lien upon or interest in the property is not entitled to be made a party. Rich- mond V. Freeman's Nat. B., 86 App. Div. 152, 83 JST. Y. Supp. 632. ^ 807 Proceedings Where Some of the Facts Are Unkown. If, upon diligent inquiry, any of the matters required to be set forth, as prescribed in the last section, cannot be ascertained by the petitioner, that fact must be shown to the surrogate's satisfaction, and the surrogate must, thereupon, inquire into the matter, as prescribed in article first of title second of this chapter. If the petition is presented by a creditor or judg- ment lienor the surrogate may, by order, require the executor or administrator to render such an account or other statement, as he deems necessary for the purpose of the inquiry. § 3753, Code Civ. Pro. The inquiry provided for in this section is to be found in sec- tion 2518, Code Civ. Pro., and consists of issuing a subpoena and taking the testimony of any parties who can give the required in- formation. If facts are shown requiring it the petition may be amended and necessary additional parties brought in. Matter of Ibert, 48 App. Div. 510, 62 N. Y. Supp. 1051. 6,87 Pkoceeding to Sell Eeal Estate — Citation. If 808 ^ 808 Must Issue a Citation According to the Prayer of the Petition. The place of residence of the parties as designated in the peti- tion governs the date on which the citation will be made returnable in conjunction with section 2520, Code Civ. Pro., which provides that service within the county or an adjoining county must be made eight days and within any other county of the State fifteen days before the citation is returnable. And if the party to be served is a nonresident it must be returnable not less than thirty days, if personal service is to be made in the United States, and not less than forty-two days if service is to be made by publica- tion. § 2524, Code Civ. Pro. If full and complete knowledge of names, 'etc., of necessary parties cannot be obtained on inquiry (§ 2518, Code Civ. Pro.), the citation must be directed generally to them or to a class and must be published. §§ 2518, 2523, Code Civ. Pro. Unless notice to creditors has been fully published the citation must be directed to all creditors as a class and must, therefore, be published. § 2523, Code Civ. Pro. Citation thereupon. Where the surrogate is satisfied that all the facts, specified in the last section but one, have been ascertained, as far as they can be upon diligent inquiry, and it appears to him that the debts, judgment, liens and funeral expenses, or either cannot be paid, without resorting to the real property, or interest in real property, he must issue a citation according to the prayer of the petition. If, upon the inquiry, it appears to the surrogate, that any heir or devisee, or person claiming an interest in the property under an heir or devisee, is not named in the petition, the citation must also be directed to him. Unless the executor or administrator has caused to be published, as prescribed by law, a notice requiring creditors to present their claims, and the time for the presentation thereof, pursuant to the notice, has elapsed, the citation must be directed generally to all other creditors of the decedent, as well as the creditors named. § 2754, Code Civ. Pro. Surrogate must be satisfied. The surrogate should not issue a citation where it appears that the debts, etc., caji be paid without recourse to the real estate. Matter of Davids, 5 Dem. 14. Persons to be cited. The executor or administrator of deceased owner should be cited. Kammerrer v. Ziegler, 1 Dem. 177. It is not necessary to make the holder of a mortgage upon the property to be sold a party if he is not a creditor by reason of his ]\ 809 Supplemental Citation. 588 bond. Matter of Eaig, 6 Dem. 454, 17 N. Y. St. Rep. 827, 3 N. Y. Supp. 285. Supplemental citation. If a necessary party has been left out a supplemental citation may be issued to bim at any time before decree is made. Matter of Wheeler, 48 Misc. Eep. 323. A supplemental citation should be issued upon proof made to the surrogate showing reasons why the party is interested. Mat- ter of Bingham, 127 N. Y. 306, modifying 38 N. Y. St. Eep. 765. Where a party named in citation dies before service thereof on him, a supplemental citation should be issued, for service on the legal representative not named in the citation will not give jurisdiction, neither will service upon tenants of the property not so named. Matter of Oeorgi, 35 Misc. Eep. 685, 72 N. Y. Supp. 431. Where a citation has been issued to parties interested, in3lud- ing creditors, before the termination of the publication of notice to creditors but has not been published as against unknown creditors and where on the return day of such citation such notice has been completely published, a supplemental citation may be issued to such creditors as have presented claims. Matter of Dusenhury, 33 Misc. Eep. 166, 68 N. Y. Supp. 372. Amendment. Where jurisdiction has been acquired the petition may be amended and supplemental citation issued after three years have expired. Matter of Ihert, 48 App. Div. 510, 62 N. Y. Supp. 1051. Publication of citation. Where the notice to creditors has not been fully published the citation must be issued to and served on all creditors by publica- tion. § 2523, Code Civ. Pro., Kammerrer v. Ziegler, 1 Dem. 177; In re Georgi, 60 K Y. Supp. 772, 44 App. Div. 182; affd., 162 N. Y. 660; Matter of Slater, 75 IST. Y. St. Eep. 922, 17 Misc. Eep. 474, 41 N". Y. Supp. 534; Kammerrer v. Ziegler, 1 Dem. 177. q 809 Hearing. Upon the return of the citation the surrogate must proceed to hear the allegations and proofs of the parties. 589 Hearing — Special Guardian. | 809 Persons not cited may make themselves parties to the proceeding. A creditor of the decedent, including one whose claim is not yet due, A person having a claim for unpaid funeral expenses, or An heir or devisee or a person claiming under an heir or devisee of the property. May appear in person and make himself a party to the pro- ceeding. Heir or devisee or person claiming under him may interpose a defense. An heir or devisee or person claiming under him may contest the necessity of applying the property for the payment of debts, funeral expenses, or the validity of a debt due or unpaid repre- sented as existing against the decedent, or the reasonableness of the funeral expenses. Effect of allowance or admission of claim. The admission or allowance by the executor or administrator of a claim or debt of any creditor against the decedent shall, for the purpose of such proceeding, be deemed an establishment thereof unless objection be made thereto by a party to the special proceeding. § 2755, Code Civ. Pro., analyzed. Hearing. Upon the return of the citation the surrogate must proceed to hear the allegations and proofs of the parties. A creditor of the decedent, including one whose claim is not yet due, or a person having a claim for unpaid funeral expenses, although not named in the citation, may appear, and thus make himself a party to the special proceeding. An heir or devisee, or a person claiming under an heir or devisee, of the property in question, although not named in the citation, may contest the necessity of applying the property to the payment of debts, judgment liens or funeral expenses, or the validity of a debt, due or unpaid, represented as existing against the decedent, or the reasonableness of the funeral expenses; may interpose any defense to the VFhole or any part thereof; and, for that purpose, may make himself a party to the special proceeding. The admission or allowance by the executor or administrator of a claim or debt of any creditor against the decedent shall, for the purpose of such proceeding, be deemed an establishment thereof, unless objection be made thereto by a party to the special proceeding. Where such a defense arises under the statute of limitations, an act or admission by the executor or administrator does not prevent the running of the statute, or revive the debt, so as to aflFect, in any manner, the real property or interest in real property in question, or to permit the creditor to participate in the funa arising therefrom. § 2755, Code Civ. Pro. Appointment of special guardian. An order to show cause why a special guardian for an infant should not be appointed cannot be made returnable in less than eight days in a real estate proceeding. § 2531, Code Civ. Pro. I 810 Effect of Allowance of Claim. 590 Surrogate may refer. Under section 2546, Code Civ. Pro., the surrogate may appoint a referee to state the facts with his opinion and he may rule upon such questions as may be presented. Matter of Walker, 43 Misc. Eep. 475, 89 ¥. Y. Supp. 459. Judicial settlement not necessary ; effect of, when had. The judicial settlement of the accounts of the administrator is not a jurisdictional requirement before instituting the proceeding; but when no such settlement has been had the administrator as- sumes the burden of showing affirmatively as a part of the case that there was not sufBcient personal estate, etc. Matter of Plop- per, 15 Misc. Eep. 202, 72 IST. T. St. Eep. 184, 37 N. Y. Supp. 33. Where there has been no judicial settlement the petitioner assumes the burden of proving want of assets to pay the debts ; or proper application of assets and a deficiency. Matter of Howard, II Misc. Eep. 231, 66 K Y. St. Eep. 552, 32 K Y. Supp. 1098. The decree on judicial settlement establishing certain debts does not bind the heirs or devisees of the estate, since they were not, as such, parties to the accounting. That proceeding is be- tween th J executor and the creditors, next of kin, and legatees, and is only conclusive as to the existence and validity of debts as claims against the estate, payable out of the personalty. O'Flynn V. Powers, 136 K Y. 412, 49 N. Y. St. Eep. 814, affg. 49 E". Y. St. Eep. 325, 21 IS. Y. Supp. 905 ; Long v. Long, 142 N. Y. 545, revg. 66 Hun, 595, 60 IST. Y. St. Eep. 311. ^ 810 Effect of Allowance of Claim by Representative — Burden of Proof of Claims. Where real estate devised or descended is sought to be charged with the debts of the decedent, the validity and existence of the debts ai>e open to contest by the heirs or devisees in the proceed- ing and the decree of the surrogate on the accounting does not conclude them and except in case of a judgment recovered against the executor or administrator on the merits is not even prima facie evidence of the existence of the debts. Long v. Long, 142 ]Sr. Y. 545, revg. 66 Hun, 595; O'Flynn v. Powers, 136 K Y. 412. Whether a claim presented bears the seal of the sanction of the executor or whether it comes into court unfathered and unpro- tected by his magic power it is treated the same. It must be run 591 Teial OF Claim — Eights of Ceeditoes ^ 811 through the same hopper, must be proved, established before the surrogate, and that, too, as I interpret the law, by common-law proof. Turner v. Amsdell, 3 Dem. 19. The fact that the executor has allowed the claim can have no weight with the court, since the allowance or rejection of the same by the executor has not the least relevancy in the matter whatever. Matter of Pfohls, 20 Misc. Eep. 627, 16 IST. Y. Supp. 1087. The allowance of a claim by the executor throws the burden of disproving the claim upon the party objecting thereto. Jones V. LeBarron, 3 Dem. 37. This is an old case which stands alone and is not considered to be in accordance with the present rule. Effect of recovery of judgment against representative. The recovery against the representatives of a judgment on a claim creates no lien upon the real estate nor precludes the heir- at-law from interposing any defense which he could interpose if no action had been brought against the representative. Matter of Knapp, 25 Misc. Kep. 133, 54 N. Y. Supp. 927.; Di Lorenzo v. Dragone, 25 Misc. Eep. 26, 54 JST. Y. Supp. 420. A judgment recovered against the administratrix may not be conclusive against the heirs. Matter of Neufeld, 50 Misc. Eep. 215. ^ 811 Rights of Creditors. A creditor is a party for the sole purpose of proving his own claim or contesting the claim of another creditor. He cannot raise an issue as to the necessity of the proceeding and, therefore, should not be allowed to file an answer or objection. Matter of Campbell, 66 App. Div. 478, 73 W. Y. Supp. 290. A creditor cannot object to evidence under section 829, Code Civ. Pro. Jones v. Le Barron, 3 Dem. 37. A husband conducting business for his wife is an interested party in proving a claim upon a note alleged to have been indorsed by the deceased. Matter of Neufeld, 50 Misc. Eep. 215. Jurisdiction to try rejected claim. The fact that a claim was presented to and rejected by the ad- ministrator does not deprive the surrogate of jurisdiction to deter- mine its validity in a proceeding for the sale of real estate to pay debts. Merchant v. Merchant, 25 IST. Y. St. Eep. 268, 6 N. Y. ^ 811 Tkial OF Claim — Defenses. 592 Supp. 875 ; Matter of Eaxtun, 102 IST. Y. 157 ; Turner v. Amsdell, 3 Dem. 19, disapproving Matter of Glann, 2 Redf. 75. Statute of Limitations on claims. From and after the time when a petition is presented to enforce payment of a claim the Statute of Limitations ceases to run, and the fact that an executor or administrator presents a petition for leave to sell real estate to pay such claim instead of the claimant presenting the petition does not change the rule. Matter of Bar- gent, 42 App. Div. 301, 59 1^. Y. Supp. 105. Any person interested in the estate as heir, devisee, legatee, or creditor may, without the concurrence of the executor, interpose the Statute of Limitations as a defense to a claim brought against the estate. Butler v. Johnson, 41 Hun, 206, 4 IST. Y. St. Eep. 151 ; affd.. Ill IS. Y. 204. The adjustment and allowance of a claim fixes a new period from which the Statute of Limitations would commence to run as against such demands, and, in the absence of any evidence as to when the claim was in fact allowed, the time will be fixed as the date when a petition for sale of the real estate is presented by the executor or administrator. Matter of Sargent, 42 App. Div. 301, 59 N. Y. Supp. 105. This proceeding is a special proceeding. § 2755, Code Civ. Pro. The period of three years within which the petition may be filed (§ 2750, Code Civ. Pro.) does not extend the Statute of Limitations on a claim. Church v. Olendorf, 49 Hun, 439, 19 Isr. Y. St. Eep. 700, 3 K Y. Supp. 557. Where such a defense arises under the Statute of Limitations, an act or admission by the executor or administrator does not pre- vent the running of the statute or revive the debt so as to affect in any manner the real property or interest in real property in ques- tion or to permit the creditor to participate in the fund arising therefrom. From § 2755, Code Civ. Pro. When proceedings may be discontinued. A surrogate may order a proceeding discontinued in case the owner of the property pays all debts and costs, section 2481, sub- division 11, Code Civ. Pro., being authority for such order. Row- ing V. Moran, 5 Dem. 56. Where the proceedings had been abandoned for ten years and in the meantime a partition sale had been had, the surrogate dis- missed the proceedings for laches — sustained. Matter of Baker, C2 jST. Y. Supp. 859. 593 Trial by Juet — Appeal — Costs. T 812 Proceeding does not abate. Failure to proceed on return day is not a termination of the pro- ceeding. Raven v. Norton, 2 Dem. 110. ^ 812 Trial by Jury of Controverted Question of Fact — Order — ^Review Appeal — Costs. The surrogate may, in his discretion, make an order directing the trial t>y jury, at a trial term of the supreme court to be held within the county, or in the county court of the county, of any controverted question of fact arising in a special proceeding for the disposition of the real property of a decedent, as prescribed in title fifth, of this chapter. The order must state distinctly and plainly each question of fact to be tried, and it is the only authority needed for the trial. ♦ » * Such issues of fact shall be tried by jury, and the verdict can be reviewed only by a motion for a new trial upon the minutes of the judge. Such motion must be made within ten days after the verdict is rendered. A new trial may be granted upon exceptions, or because the verdict was rendered upon insufficient evidence or is against the evidence or the weight of evidence. An appeal lies to the appellate division of the supreme court from the order granting or refusing a new trial. An appeal must be taken by serving written notice of appeal upon the clerk of the court, and upon the attorney for the respondent, within ten days after the service upon the attorney for the appellant of the order appealed from, and of written notice of the entry thereof. The appeal shall be heard upon a case containing all the evidence; and an error in the admission or exclusion of evidence, or in any other ruling or direction of the judge upon the trial may, in the dis- cretion of the court, be disregarded if substantial justice does not require that there should be a new trial. If a motion to set aside the verdict be not made, or if at the termination of the proceedings for its review, the verdict is sustained, the supreme court shall certify to the surrogate's court the verdict, which shall be final and conclusive upon the parties to the litigation and their privies. Thereafter all proceedings relating to the will and to the estate of the decedent shall be had in the surrogate's court. The original will shall be returned to the surrogate's court at the time the verdict is certified thereto. The costs shall be taxed in the surrogate's court and shall be the same, and shall be awarded in the same manner as if the proceedings had been heard by the surrogate. § 2547, Code Civ. Pro. Motion for new trial — Review — Verdict certified. A trial by jury pursuant to an order, made in a proceeding for the dis- position of the real property of a decedent made as prescribed in the last section, can be reviewed, in the first instance, only upon a motion for a new trial. A new trial may be granted by the surrogate or the court in which the trial took place, or, if it took place at a trial term of the supreme court by the supreme court, in a case where a new trial of specific questions of fact tried by a jury pursuant to an order for such trial made in an action, would be granted. The verdict of the jury must be certified to the surro- gate's court by the clerk of the court in which the trial took place. § 2548, Code Civ. Pro. 38 % 813 Peoof Necessary — Deceee. 594 Appeal f lom order granting or refusing new trial. An appeal may be taken from an order, made upon a motion for a new trial, as prescribed in the last section, as if the order had been made in an action, and with like effect. Costs of such an appeal may be awarded by the appellate court, as if the appeal was from an order or decree of the surrogate's court. § 2549, Code Civ. Pro. ^ 813 What Proof Necessary for a Decree. A decree directing the disposition of real property or of an interest in real property can be made only where after due examination the following facts have been established to the satisfaction of the surrogate. 1. That the proceedings have been in conformity to this title. 2. That the personal estate of the decedent is insufficient for the payment of his debts and funeral expenses. § 2756, Code Civ. Pro. The allegations of the petition miist be proved although there be no opposition. Matter of Lichtenstein, 16 Misc. Eep. 667, 39 N. Y. Supp. 174. Assets misapplied. Where there were sufficient personal assets but the representa- tive has misapplied them, the decree should be refused. Matter of Very, 24 Misc. Eep. 139, 53 N. Y. Supp. 389. Where an administrator received sufficient personal estate to pay debts and has applied it, leaving administration expenses unpaid, the real estate cannot be sold to pay such expenses. Matter of Quatlander, 29 Misc. Eep. 566, 61 IST. Y. Supp. 1064. If the administrator wastes or squanders the personal property so that it becomes insufficient to pay the debts, the only resort of the creditors is to such administrator to enforce his personal lia- bility therefor. Kingsland v. Murray, 133 IsT. Y. 170, affg. 60 Hun, 116. Debt due from an insolvent administrator is not in this pro- ceeding treated as cash on hand. Matter of Georgi, 21 Misc. Eep. 419, 47 ]Sr. Y. Supp. 1061 ; affd., 162 N". Y. 660, affg. 44 App. Div. 180. ^ 814 Decree to Mortgage, Lease, or Sell. Under the new practice there seems to be no definite provision that the decree shall contain any reference to the debts of the de- ceased as being proved and allowed or rejected. It has been sug- gested that possibly the correct practice would be to leave all questions regarding validity of debts to be determined on the ac- 595 Deceee to Moetgage, Lease oe Sell. Tf 814 counting of the representative, after he has made a sale and duly applied the proceeds so far as he was able, to determine the validity of the claims made. There are several valid objections to this method. Trial of claims on the accounting is not provided for, but such a trial is granted in section 2755, Code Civ. Pro., which prescribes the proceedings upon the hearing before the making of the decree. The discretion to be exercised by the surrogate as to hoW' much of the lands should be sold would not be soundly exercised if the amount of the valid claims was not fixed by the decree. If claims of any considerable amount were in dispute and the proceeds of sale small, the representative would not be justified in paying undisputed claims before the disputed ones were passed upon, which would result in further proceedings and further delay. Unquestionably the better practice is to determine the validity of all claims upon the hearing and set them up in the decree. The representative can then pay without delay all such claims, and upon his accounting nothing is to be determined except the distri- bution of the surplus if any exists. Decree to mortgage, lease, or sell. If it shall appear to the satisfaction of the surrogate that the personal estate of the decedent is insufficient for the payment of his debts and funeral expenses, the surrogate shall make a decree empowering the executor or admin- istrator to mortgage, lease or sell the whole or such part of the real property or interest of the decedent in real property as the surrogate shall deem neces- sary for the payment thereof. The surrogate may limit the amount to be sold and afterward extend the power to other parcels and direct the order of the sale of parcels and may direct whether the same be mortgaged, leased, or sold, for the purpose of preserving all the rights and equities of the parties and preventing any unnecessary disposition of such real property; and may limit the amount to be raised thereby. The decree must describe the property to be sold with common certainty. If it appears that one or more distinct parcels of which the decedent died seized has been devised by him or sold by his heirs the decree must provide that the several distinct parcels be sold in the following order: 1. Property which descended to the decedent's heirs and which has not been sold by them. 2. Property so descended which has been sold by them. 3. Property which has been devised which has not been sold by the devisee. 4. Property so devised which has been sold by the devisee. § 3757, Code Civ. Pro. What claims may be adjudged valid. Person claiming to be a creditor on a claim for a monument at the agreed price of $443 purchased by the administrator was al- lowed to institute the proceedings and have a decree of sale. Mat- ter of Laird, 42 Hun, 136, 3 K Y. St. Eep. 376. J, 815 Allowais'ce of Claims and Expenses. 596 Claim against the devisee. Where the widow was sole devisee, a claim against her husband is a claim against her on proceedings to sell her real estate so ac- quired. § 1843, Code Civ. Pro. ; Matter of Fielding, 30 Misc. Eep. 700, 64 K Y. Supp. 569. Amount due committee of a lunatic. The amount found to be due the committee of a deceased lunatic on accounting is a claim in proceedings to sell the real estate of the lunatic to pay his debts. Kowing v. Moran, 5 Dem". 56. When claims should he adjudged invalid. No sale of the real estate will be ordered to pay administration expenses alone, or any debts incurred by an executor or adminis- trator after the death of the testator or intestate, except funeral expenses. Matter of Quatlander, 29 Misc. Kep. 566, 61 N. Y. Supp. 1064. ^ 815 Pajmient of Expenses of Administration. The question will immediately arise under this section whether expenses of administration may be paid from the proceeds of the sale. It was settled under the former section 2793, Code Civ. Pro., that such disbursements could not be so repaid. Matter of Hatch, 182 ]Sr. Y. 320, revg. 97 App. Div. 496 ; Matter of Summers, 37 Misc. Eep. 575, 75 W. Y. Supp. 1050. There is some indication in Matter of Hatch that the court thought the rule had been changed by recent amendments to the Code, but the question was expressly left undecided. It may be argued that because section 2514, Code Civ. Pro., defines " creditor " as including " any per- son having a claim for expense of administration or any person having a claim for funeral expenses " such claim may be paid. This definition was added by the Laws of 1900, immediately after the decision In re Shxdtz (26 Misc. Rep. 688), which held that if an executor or administrator refused to pay the funeral expenses of the deceased, the surrogate could not make an order compelling him to do so, since the undertaker was not a " cred- itor" of the deceased and the claim was a personal one against the executor. The amendment was then made so that a person having a claim for funeral expenses and for administration expenses could have a standing in Surrogate's Court to enforce the payment of his claim from the personal estate. 597 Allowance of Claims and Expenses. t 815 The person holding a claim for funeral pxpenses had for many years been allowed to share in the distribution of the proceeds of real estate (§ 2749, Code Civ. Pro.), but before he was included in the definition of a " creditor " he could not institute the pro- ceeding (§ 2750, Code Civ. Pro.). There has been no recent amendment to section 2749, Code Civ. Pro., permitting the sale of real estate to satisfy any other class of charges than debts of the deceased and funeral expenses. While section 2749, Code Civ. Pro., remains unchanged it is difficult to see how a creditor can be paid a claim on which he could not found a proceeding. Matter of Hatch, supra. What was said in the Hatch case applies equally well to a dis- tribution under the amended practice, namely : " While real estate of a devisee cannot be sold to pay the expenses incurred by an executor in a contest over the will, H is cla^'med that when actually sold to pay debts, such expenses must be paid out of the proceeds before any part can be applied upon the debts, or even on funeral expenses. " This in effect would take the property of one person to pay the debts of another, for the devisee does not need probate of the will by the surrogate in order to establish his right to the land. Heal estate is a kind of property in which the executor has no in- terest and he cannot incur expenses on the credit thereof." Some of the cases which arose under the old section 2793, Code Civ. Pro.., may assist in settling the law under the new method of making distribution of the proceeds. Costs and charges of administration found due the adminis- trator, where there were no assets to pay, allowed from proceeds of sale of real estate. Smith v. MeaJcin (2 Dem. 129"), holding to the contrary, not followed. Shute v. Shute, 5 Dem. 1. Costs against representatives on contest over widow's dower are not debts payable from real estate. Matter of Wilcox, 11 Civ. Pro. 115. Costs on contested probate. Costs and allowances granted by a decree refusing probate of decedent's will cannot be paid from the fund arising upon a sale of real estate to pay debts, and such allowances are not within the contemplation of the language of subdivision 6 of former sec- tion 2793, Code Civ. Pro. Matter of Meakin, 2 Dem. 129. 1 816 Quantity to be Sold. 598 Judgment for costs. A judgment for costs granted in a suit begun in the lifetime of deceased and continued after his death by his executor is not a debt of deceased for the payment of which real estate may be sold. Matter of Foley, 39 App. Div. 248, 57 JST. Y. Supp. 131. Where judgment has been obtained- against a surviving partner, costs are not part of the debt to be paid by the real estate of the deceased partner. Matter of Stowell, 15 Misc. Kep. 533, 74 JST. Y. St. Eep. 296, 37 N. Y. Cupp. 1127. Costs included in a judgment are not preferred in payment, but are to be treated as part of the judgment. Shute v. Shute, 5 Dem. 1. Judgment for misappropriation. A judgment against the estate of a deceased executor for his misappropriation of funds has no preference over the other debts of the deceased executor on a distribution of the proceeds of the sale of real estate to pay debts, and costs included in such judg- ment are not payable from such fund. Matter of Estate of Fox, 92 K Y. 93. ^ 816 Quantity to be Sold. How much real estate shall be sold is in the discretion of the surrogate, and he may order more sold than enough to pay the debts where to order a sale of less would prejudice the interests of the heirs. Matter of Dolan, 88 'N. Y. 309. Appeal. A creditor may accept his share under the decree and appeal for the purpose of reducing the amount of expenses allowed. Higbie v. WestlaJce, 14 llT. Y. 281. ^ 817 Decree Should Fix the Allowances for Costs, Disburse- ments, and Commissions, Unless There Will be a Siu^jlus to be Accounted for. Since the decree directs the disposition of the whole proceeds of the sale except in cases where there will be a surplus, it is necessary to fix in the decree the amount of the expenses and commissions of the executor and administrator and of his allowances for counsel fee. By section 2761, Code Civ. Pro., the executor or administrator is entitled to commissions upon the settlement of his accounts as if he had acted under a power of sale. Since in most cases the 599 Allowance of Costs and Expenses. J 817 decree will direct the payment of the whole proceeds of sale to the creditors and a settlement of such account can only be had after such payments are made, the decree ought to contain a direction that when the amount of the proceeds of sale is deter- mined the usual commissions upon such sum shall be computed and retained by the executor or administrator. Allowances in lieu of commissions. It is provided in section 2563, Code Civ. Pro., that the executoi* or administrator must be allowed by the surrogate out of the proceeds brought into court his expenses and that he may be al- lowed out of the proceeds a reasonable sum for his own services not exceeding $5 for each day actually and necessarily occupied by him in disposing of the property, and it is provided in section 2564, Code Civ. Pro., that such allowances, if made and accepted, must be in lieu of .commissions. Counsel fee. Section 2563, Code Civ. Pro., provides that the surrogate may allow such a sum as the surrogate thinks reasonable for the neces- sary services of the attorney and counsel of such executor or ad- ministrator. Decree or later order may authorize sale upon credit. The surrogate may, in the order directing the execution of the decree, or in a separate order made before the sale, allow a sale to be made upon a credit, not exceeding three years, for not more than three-fourths of the purchase-money, to be secured by the purchaser's bond, and his mortgage on the property sold, except where the sale is that of an interest under a con- tract; in which case, the order may prescribe the security to be given. § 2771, Code Civ. Pro. Decree where action has been brought to collect debt from heir or devisee. Where it appears that, at the time of the commencement of such an action, a petition, seasonably presented as prescribed by law, praying for a decree to dispose of real property of the decedent for the payment of his debts, was pending in a surrogate's court having jurisdiction, the proceedings in the action, subsequent to the complaint, must be stayed by the court, until the petition is disposed of, unless the plaintiff elects to discontinue. If a decree to dispose of real property, pursuant to the prayer of the petition, is granted, the action must be dismissed, unless the plaintiff has alleged in his complaint, or alleges in a supplemental complaint, that real property, other than that included in the decree, descended or was devised to the defendants. If the plaintiff elects to proceed under such an allegation, he is entitled to a preference in payment, out of the real property, with respect to which the allegation is made; but he cannot share, as a creditor, in the distribution of the money, arising from the disposal of the real property, described in the decree; and the judgment in the action does not charge, or in any way affect, that property. § 1845, Code Civ. Pro. If SIS FiLiNe Bond — Execution of Decbee. 600 ^ 818 Duty of Executor or Administrator to Execute Decree After Filing Bond. It shall be the duty of the executor or administrator to execute the power conferred upon him by a decree directing that property be mortgaged, leased or sold; but he must first execute and file with the surrogate his bond, with two or more sureties, to the people of the state in a penalty fixed by the surrogate not less than twice the sum to be raised, or the value of the real property, or interest in real property, directed to be sold. The bond must be conditioned for the faithful performance of the duties imposed upon the principal by the decree and for the accounting by the principal for all moneys received by him whenever he is required so to do by a court of com- petent jurisdiction. § 2758, Code Civ. Pro. The proceeding to release a surety Tinder section 2600, Code Civ. Pro., does not apply to a bond given under this section. Matter of Lawyer's Surety Co., 25 Misc. Rep. 136, 54 K Y. Supp. 926. ^ 819 Proceedings upon Failure to Execute Decree or File Bond. Where there are two or more executors or administrators, if either of them fails, within such time as the surrogate deems reasonable, to give, or to join with his co-executors or co-administrators in giving a bond as prescribed in the last section, the surrogate may direct those who have given the bond to proceed to execute the decree. But if a sole executor or administrator, or all the executors or administrators, so fail, such failure shall be deemed ground for the revocation of his or their letters and the surrogate shall upon the application of any person interested, revoke such letters and grant administration to such person entitled as will execute such decree. He may revoke letters so granted from time to time, as the case requires, to obtain the proper execution of the decree. A person to whom letters are so granted shall have all the powers under the decree which were given to the executor or administrator at the time it was made; and must give bond required by such decree, as well as the bond required to be given upon issuing letters to him. § 2759, Code Civ. Pro. ^ 820 Execution of Decree Not Affected by Death. The death, removal or disqualification, before the complete execution of a decree, of all the executors or administrators does not suspend or affect the execution thereof; but the successor of the person who has died, been removed, or become disqualified, must proceed to complete all unfinished matters, as his predecessors might have completed the same; and he must give such security for the due performance of his duties as the surrogate prescribes. § 3760, Code Civ. Pro, 601 Application OF Pboceeds — Accounting. f 821 Actions, etc., when not to abate. An executor, administrator, or a person appointed by the surrogate, as prescribed in chapter eighteenth of this act, to dispose of the real property of a decedent, is deemed a, trustee, appointed by virtue of a statute, within the meaning of that expression, as used in section 766 of this act. § 1828, Code Civ. Pro. Death, etc., of public ofScer or trustee. Where an action or special proceeding is authorized or directed by law, to be brought by or in the name of a public oflBcer, or by a receiver, or other trustee, appointed by virtue of a statute, his death or removal does not abate the action or special proceeding; but the same may be continued by his suc- cessor, who mxist, upon his application, or that of a, party interested, be sub- stituted for that purpose, by the order of the court, a copy of which must be annexed to the judgment-roll. § 766, Code Civ. Pro. ^ 821 Effect of Decree — Manner of Executing, Applying Proceeds of Sale, and Accovinting for Same. Tlie executor or administrator must proceed to execute the decree in the same manner, and the execution thereof shall have the same effect as if he were acting as executor of the decedent under a like power contained in a will of the decedent duly executed and proved. How proceeds applied. He shall apply the proceeds of the real property, mortgaged, leased, or sold in the same manner as if he had acted under such a power of sale contained in a will. Enforcing the decree. All persons interested in the execution 'of the decree shall have the same remedies for the enforcement of the decree and the ap- plication of the proceeds that they would have had if the executor or administrator were acting under such a power. Account. The executor or administrator may account for such proceeds and may be compelled to account therefor and for his acts under such a decree. The surrogate may require a judicial settlement of the accounts of an executor where he has sold or otherwise disposed of any of the decedent's property or interest in real property, pursuant to a power contained in the will, where one year has elapsed since letters were issued him. He may also compel the judicial settlement of the account of a freeholder appointed to dispose of the decedent's real property for ^ 821 Application of Pboceeds — Accounting. 602 the payment of the debts or funeral expenses in like manner as where the same has been disposed of by the executor or administrator. Commissions. The executor or administrator shall be entitled to commissions upon the settlement of his accounts as if he had acted under such a power. § 2761, Code Civ. Pro., analyzed. Section 2563, Code Civ. Pro., provides for certain allowances for expenses and services and by section 2564, Code Civ. Pro., where the expenses and services are provided for by the allowances mentioned in section 2563, Code Civ. Pro., those are to be taken in lieu of commissions. The executor or administrator may be required to account where a decree for the disposal of real property or an interest in real property has been made as prescribed in section 2749, Code Civ. Pro., and property or a part thereof has been disposed of by him pursuant to the decree Prom § 2726, Code Civ. Pro. The executor or administrator must proceed to execute the decree in the same manner, and the execution thereof shall have the same eflfect, as if he were acting as executor of the decedent under a like power contained in a will of said decedent duly executed and proved. He shall apply the proceeds of the real property mortgaged, leased or sold in the same manner as if he had acted under such a power of sale contained in a will and all persons interested in the execution of the decree shall have the same remedies for the enforcement of the decree and the application of the proceeds that they would have had if the executor or administrator were acting under such a, power. The executor or administrator may account for such proceeds and may be compelled to account therefor and for his acts under such decree and shall be entitled to commissions upon the settlement of his accounts as if he had acted under such a power. § 2761, Code Civ. Pro. The fund arising from a sale has always been considered as in the hands of the executor or administrator as a trust fund for the heirs, and not in a representative capacity as executor or ad- ministrator. Stilwell V. Swarthout, 81 N. Y. 109. The surrogate has always been vested with the power to acquire an accounting of the proceeds of land sold under a power (§§ 2726, 2728, Code Civ. Pro.), and in settling such account he may con- strue a will so far as that is necessary. Baldwin v. Smith, 3 App. Div. 350, 73 ST. Y. St. Kep. 666, 38 'N. Y. Supp. 299, a% 91 Hun, 230, 72 N. Y. St. Eep. 60, 36 N. Y. Supp. 169. 603 Title Undee Decree. | 822 Liens upon shares of interested parties. A judgment against an heir is not a lien upon the proceeds of sale, unless docketed in the county before sale of the property. Oreen v. Oreen, 4 Eedf. 357. Statute of Limitations against accounting. The time when the Statute of Limitations will begin to run against an application to account is when the executor or adminis- trator received the money and if that is not shown then from the time he makes a report of sale. Matter of Sargent, 42 App. Div. 301, 59 ]Sr. Y. Supp. 105. ^ 822 Purchaser's Title Not Affected by Certain Irregulari- ties. The title of a purchaser in good faith at a sale pursuant to a decree made as prescribed in this title is not, nor is the validity of a mortgage or lease made as prescribed in this title, in any way affected, where a petition was pre- sented and the proper persons were duly cited and a decree authorizing a mort- gage, lease or sale was made as prescribed in this title, by any omission, error, defect or irregularity occurring between the return of the citation and the making of the decree, except so far as the same would affect the title of a purchaser at a sale made pursuant to the directions contained in a judgment rendered by the supreme court. § 2763, Code Civ. Pro. The absence from the surrogate's records of an order confirming a contract of sale and directing a conveyance — held not to invali- date the sale. Mott v. Ft. Edward W. W. Co., 79 App. Div. 179, 79 N. Y. Supp. 1100. This section does not affect the rights of persons not parties to the proceeding, i. e., remaindermen who might take the property at the death of a life tenant, yfilson Y.l^Ute, 109 N. Y. 59, revg. 39 Hun, 656. Relieving from purchase. Surrogate has no jurisdiction to determine certain questions between purchaser and executor selling. Application by purchaser for relief from purchase and refund of money, etc., denied. WoZf e v. Lynch, 2 Dem, 610 ; approved, 17 JST. Y. St. Eep. 10, 1 IST. Y. Supp. 276. A party will be relieved from his purchase where the petition did not show the jurisdictional facts required for issuing cita- tion to proper persons, and such persons were not in fact parties -to the proceeding. Matter of Slater, 1 Gibb. Sur. Eep. 8. X S23 Defective Title — Relief. 604 ^ 823 Relief by Purchaser in Surrogate's Court on Account of Defective Title. The purchaser from the representative is not a party to the pro- ceeding in Surrogate's Court and if he refuses to complete his pur- chase of the property he cannot be compelled by the surrogate so to do. The only course open to the person making the sale in such event would be either to abandon it and cause a resale or to bring an action in a court of general jurisdiction to compel a specific performance of the contract. On the other hand if the representative making such sale refuses to complete it, he could b^ punished by the surrogate for contempt ; or the purchaser could bring his action in the proper court to enforce like performance of the bargain and to recover his dam- ages for the breach thereof. The purchaser who objects to the title offered him cannot pro- ceed before the surrogate to recover his expenses and damages, since the power to hear and determine such controversies is no- where conferred upon Surrogate's Court. Neither can such relief be granted under section 2481, Code Civ. Pro., because the duty to refund such expenses or pay dam- ages is not imposed upon the executor by any statute and because the subject-matter is not within the jurisdiction of the Surrogate's Court. Wolfe v. Lynch, 2 Dem. 610; Matter of Bellesheim, 17 N. Y. St. Eep. 10. ^ 824 Allowance on Bid to Creditor Purchasing. If a creditor of the decedent becomes the purchaser of any of the dece- dent's real property, the surrogate may, upon his application, direct the amount of his claim to be allowed, in the first instance, upon the purchase price; and such purchaser shall only be required to pay the balance at the time of the sale. But, in case the proceeds of the decedent's real property shall be in- sufficient to satisfy the costs and expenses of administration and the debts and funeral expenses of the decedent, the purchasing creditor shall be allowed and credited, upon the judicial settlement of the accounts of the executor or ad- ministrator, only the amount he may be entitled to receive upon his claim and shall then pay the difference between the amount originally allowed and the amount he is entitled to receive. In case any purchaser has credit on his bid, as aforesaid, no deed shall be delivered to him until the judicial settlement of the accounts of the executor or administrator nor until he shall have paid the entire amount required under the provisions of this section. § 3764, Code Civ. Pro. 605 Effect of Conveyance. f 826 ^ 825 Sale to be Refused if Bond be Given. A decree empowering an executor or administrator to mortgage, lease or sell shall not be granted if any of the persons interested in the estate give bonds to the surrogate in such sum and with such sureties as he directs and ap- proves, with condition to pay all the debts, legacies and expenses of adminis- tration so far as the goods, chattels, rights and credits of the deceased are insufficient therefor, within such time aa the surrogate may direct. § 2765, Code Civ. Pro. Who not to purchase. An executor or administrator upon the estate, a freeholder appointed to execute a decree, or a general or special guardian of an infant, who has an interest in any of the real property to be sold, shall not, directly or indirectly, purchase, or be, or, at any time before confirmation, become interested in a purchase at the sale; except that a guardian may, when authorized so to do by the order of the surrogate, purchase, in his name of office, for the benefit of his ward. A violation of this section renders the purchase void. § 2774, Code Civ. Pro. An administrator through an agent may not purchase at the sale. Forbes v. Ealsey, 26 N. Y. 53. Where an executor acquires an interest in the property sold after sale and before confirmation the sale is void. Terwilliger v. Brown, 44 N. Y. 237. ^ 826 When Conveyance Not to Affect Purchaser or Mort- gagee from Heir, etc. A conveyance of real property, made pursuant to this title, does not affect, in any way, the title of a purchaser or mortgagee, in good faith and for value, from an heir or devisee of the decedent, unless letters testamentary or letters of administration, upon the estate of the decedent, were granted, by a surrogate's court having jurisdiction to grant them, upon a petition therefor, presented within four years after his death. § 2777, Code Civ. Pro. A sale carries the title of the decedent unaffected by the acts of heirs or devisees. Cunningham v. Parker, 146 N. Y. 29. If a mortgage be taken within the three years there is no legal presumption that simple contract debts of testator have been paid. Cunningham v. Whitford, 74 Hun, 273, 56 N. Y. St. Rep. 285, 26 K Y. Supp. 575. Effect of conveyance of decedent's interest. A conveyance of the decedent's interest in all the real property, held by him under a contract for the purchase thereof, operates as an assignment of the contract to the purchaser; and vests in him, his heirs and assigns, all the right, title and interest of all the persons entitled, at the time of the sale, in and to the decedent's interest in the real property. § 2783, Code Civ. Pro. 1 827 Lien on Sueplus Money. 606 Efiect of conveyance of part. A conveyance of the decedent's interest in a part only of the real prop- erty, held under such a contract, transfers to the purchaser all the decedent's right, title and interest in and to the part so sold ; and all rights, which would be acquired thereto, by the executor or administrator, or by any person en- titled, at the time of the sale, to the interest of the decedent therein, by per- fecting the title to the property contracted for, pursuant to the contract. Upon fully complying with the contract, the purchaser has the same right to enforce performance thereof, with respect to the part conveyed to him; and the executor or administrator, or his assignee, has the same right to enforce performance, with respect to the residue, as the decedent would have had, if he was living. Any title acquired by the executor or administrator, or his assignee, with respect to the part not sold, must be held in trust for the use of the persons entitled to the decedent's interest; subject to the dower of the widow, if any. § 3783, Code Civ. Pro. ^ 827 Presumption of Due Appointment of Special Guardian Where Records Have Been Removed. Where the records of the surrogate's court have been heretofore, or are hereafter removed from one place to another, in either the same or another county, and twenty-five years have elapsed after a sale or other disposition of real property, or of an interest in real property, as prescribed in this title, the due appointment of a guardian for each infant party to the special pro- ceeding must be presumed, and can be disproved only by aflBrmative record evidence to the contrary. § 2785, Code Civ. Pro. ^ 828 Surplus Money on Foreclosure and Other Sales When Paid to Surrogate. Where real property, or an interest in real property, liable to be disposed of as prescribed in this title is sold, in an action or in a. special proceeding specified in the last section, to satisfy a mortgage or other lien thereupon, which accrued during the decedent's lifetime, and letters testamentary or letters of administration, upon the decedent's estate were, within four years before sale, issued from a surrogate's court of the state having jurisdiction to grant them; the surplus money must be paid into the surrogate's court from which the letters issued pursuant to the provisions of section twenty-five hundred and thirty-seven of this code, and the receipt of the county treasurer shall be a sufficient discharge to the person paying such money. If the sale was made pursuant to the directions contained in a judgment or order the surplus remaining after payment of all the liens upon the property, chargeable upon the proceeds, which existed at the time of the decedent's death, must be so paid. If the sale was made in any other manner, the surplus exceeding the lien to satisfy which the property was sold, and the costs and expenses must within thirty days after the receipt of the money from which it accrues, be so paid over by the person receiving that money. § 2798, Code Civ. Pro. 607 Peoceedings to Apply Surplus Money. f 828 Deposit of surplus money in Surrogate's Court, and proceedings for its dis- tribution. The sections of the Code (§§ 2798, 2799), treat the surplus, in the cases there specified, in the same way as the proceeds of real estate sold under the order of the surrogate. They were intended to save the expense incident to the distribution of the surplus where the mortgagor is alive, and to facilitate the orderly settle- ment of the estates of deceased persons. Where such an order is made the Supreme Court under the law delegates its power to distribute the fund to the Surrogate's Court, and thereby the surrogate is invested with full authority to pass upon the priority of conflicting claims to the fund as between the heirs and devisees as distinguished from their validity. An answer which seeks to raise a question involving the title to real estate or the validity of the will does not oust the surrogate of jurisdiction. Matter of Stilwell, 139 N. Y. 337, affg. 68 Hun, 406, 23 N. Y. Supp. 65. After such sale of decedent's real estate, the surplus money re- maining is to be treated as real estate, and is subject to the lien of creditors of the decedent, and liable to have such debts of the decedent enforced therefrom as remain unpaid after exhausting the personal assets of the deceased. The object of the legislation seems to have been to guard the surplus money and to place the fund where the same may be subject to the action of the Surrogate's Court having jurisdiction of the estate of the decedent. Pelts v. Martin, 20 App. Div. 60, 46 ]Sr. Y. Supp. 741. There is no difference in principle between such surplus and a parcel of the realty remaining unsold after a sale of enough to satisfy the judgment of foreclosure. FUess v. Buckley, 22 Hun, 554. All the parties to the original action are bound by the direction in the judgment to pay the fund into Surrogate's Court, and if aggrieved thereby their remedy is to move to resettle the judgment or to appeal. Where the judgment does not direct payment into Surrogate's Court, the Supreme Court may upon proper notice amend the judgment or make a further order to that effect. Proceeds of a sale in partition need not be paid into Surrogate Court, but the final distribution of the fund remains with the Supreme Court. A proceeding may be begun in the Surrogate's Court and carried to a decree which shall establish the liens and I 829 Peoceedings to Apply Suepltjs Monet. 608 make proper findings of fact. Matter of Dusenbury, 34 Misc. Kep. 666, 70 K Y. Supp. 725. This section is constitutional. Matter of Btilwell, 139 N. Y. 337, a%. 68 Hun, 406, 23 IS. Y. Supp. 65. Where the real estate was subject to a valid power of sale to pay debts and the same has been sold in mortgage or partition proceedings, the surplus is still subject to such power, and the Surrogate Court has no jurisdiction to act. Matter of Coutant, 24 Misc. Eep. 350, 53 W. Y. Supp. 713 ; Matter of Gedney, 30 Misc. Eep. 18, 62 N. Y. Supp. 1023. The surplus arising on mortgage foreclosure must be paid into Surrogate Court by paying the same to the county treasurer pur- suant to section 2537, Code Civ. Pro. Coe v. Cohh, 50 App. Div. 80, 63 K Y. Supp. 439. Where there is an imperative power of sale for the payment of debts. Where the debts are charged upon the real estate and there is an imperative power of sale, the surplus should not be directed by the Supreme Court to be paid into Surrogate's Court, for under such circumstances the surrogate would have no jurisdiction to entertain proceedings for its distribution to creditors. Where a judgment of foreclosure has inadvertently directed the surplus in such a case to be paid into Surrogate's Court, the judg- ment should be amended and the surplus withdrawn from the Sur- rogate's Court and disposed of by the Supreme Court in accord- ance with the will of the deceased. Matter of Coutant, 24 Misc. Eep. 350, 53 IST. Y. Supp. 713. CI 829 Protection Against Irregular Payment Where surplus money needed to pay debts has not been ordered paid into Surrogate's Court and has been withdrawn from the county treasurer in surplus money proceedings the Supreme Court has jurisdiction to compel a restoration of the fund. Felts v. Mar- tin, 20 App. Div. 60, 46 N. Y. Supp. 741. Where real estate devised to an infant has been sold in pro- ceedings for that purpose, the fund in the hands of the special guardian cannot be ordered to be paid over in satisfaction of a debt of deceased without resort to the statutory proceedings for sale in Surrogate's Court. Long v. Long, 142 N. Y. 545, revg. 65 Hun, 595, 21 K Y. Supp. 871. 609 Teansfeeeing Fund feom Sxtpeeme Couet. ^ 830 Transferring fund from Supreme Court. An ex parte order transferring the fund from the Supreme to the Surrogate Court cannot be obtained by a person not a party to the foreclosure proceedings without notice to all the parties to the action. Washington L. Ins. Co. v. Clark, 79 App. Div. 160, 79 N. Y. Supp. 610. A judgment creditor cannot have his judgment paid in surplus money proceedings after mortgage foreclosure, but should apply to have the fund transferred to Surrogate Court and proceed there. Di Lorenzo v. Dragone, 25 Misc. Rep. 26, 54 IST. Y. Supp. 420 ; Powell v. Harrison, 88 App. Div. 228, 85 IST. Y. Supp. 452. ^ 830 Proceeding to Apply the Surplus to Pa5mient of Debts. If at the time the surplus is deposited a proceeding is pending in Surrogate's Court to sell the real estate, or if a petition is thereafter presented within three years after the grant of letters, the same practice must be pursued, so far as applicable, which Avould have been pursued if the real estate had not been sold. The last part of section 2799, Code Civ. Pro., has no application in such a case. From § 2799, Code Civ. Pro. Surplus money — How distributed. Where money is paid into a surrogate's court, as prescribed i'^ tlie last sec- tion, and a, petition for the disposition of property, as prescribed in this title, is pending before him; or is presented at any time before the distribution of the money; the decree may provide that the money be paid to the executor or administrator to be applied by him aa if it was the proceeds of the decedent's real property, sold pursuant to the decree. If such a petition is not pending or presented, or if a decree for the disposition of the decedent's property is not made thereupon, a, veriiied petition, praying for a decree, directing the dis- tribution of money among the persons entitled thereto, may be presented by any of those persons. Each person, who would be entitled to share in the distribution of the proceeds of a sale, must be cited to show cause, why such a decree should not be made. Service of the citation may be made upon all the persons designated therein, by publishing the same in two newspapers, designated as prescribed in article first of title second of this chapter, at least once in each of the four successive weeks immediately preceding the return day thereof, except that personal service must be made upon the husband, wife, heirs and devisees of the decedent, and also upon every other person claimino- under them, or either of them, who resides in this State. Upon the return of the citation, the rights and priorities of the persons interested must be established and a decree for distribution must be made. § 2799, Code Civ. Pro. 39 I 831 Peoceeds of Sale in Partition. 610 The money in court is for the purpose of the proceeding con- strued as real estate and where the proceeding has been com- menced before the sale of the real estate the papers do not need to be amended but at the next hearing the changed condition should be shown by introducing in evidence the judgment or order' of the Supreme Court directing the deposit of the funds subject to the order of the Surrogate. And also the certificate of the county treasurer showing the amount of the funds so deposited with him. All the jurisdictional facts which would be necessary to au- thorize a decree for sale of real estate must then be shown and a decree made in the initial form, except as such modifications are made necessary by the fact that the land has been changed into- money. Where the real property sold was acquired after all the judg- ments were docketed against deceased, it was held that the judg- ment first docketed acquired no preference. Matter of Hazard, 73 Hun, 22, 56 IST. Y. St. Kep. 82, 25 N. Y. Supp. 928; affd.,, 141 N". Y. 586. Lien upon surplus lost after three years. A claim or judgment against testator or his executor remains a. lien on his devised real estate for three years, and after that such claim is against the devisees personally and does not follow the real property devised by or descending from such devisees, and such a claim after three years cannot be paid from the proceeds of a partition sale. Piatt v. Piatt, 105 N. Y. 488. ^ 831 Proceeds of Sale in Partition. " I am now of the opinion that under Code Civ. Pro., section 1538, as it now stands, the final distribution of the fund must remain with the Supreme Court, but that this court must never- theless progress the present proceeding to determine the liens, if any, of creditors of the decedent. This new section 1538, Code Civ. Pro., is quite long, and its precise meaning is only to be gathered upon attentive perusal, but some fundamental purposes sought to be accomplished quite clearly appear. It is discre- tionary with the court to direct that the land be sold " free from the lien of every debt of such decedent or decedents, except debts which were a lien upon the premises before the death of such de- cedent or decedents." If such a direction is made, and the action 611 Peoceeds op Sale in Partition. f 831 is brought before three years have elapsed from the granting of letters of administration or letters testamentary of a decedent from ivhom the plaintiff derived his title, or of a deceased person who, if living, should be a party to the action, the share of the proceeds of the sale which would have belonged to such deceased person, or to his grantee, must be paid into court, " to await the further order in the premises." No final distribution of this money can be made until it is made to appear by the certificate of the surrogate that the time within which a proceeding could be brought in the Surrogate's Court for the mortgage, lease, or sale of the real prop- erty of said decedent for the payment of his debts or funeral ex- penses, or both, has expired, and that no such proceeding is pend- ing. Xo payment of any kind can be made from the fund until this certificate is obtained, except upon a bond to the people of the State of New York being furnished to the effect that the party withdrawing a part of the deposit will pay any and all claims when thereunto required by order of the court, or by order of the surrogate, or of the Surrogate's Court in a proceeding to mort- gage, lease, or sell the real property of such decedent. In the present ease the share of the decedent in the proceeds of the sale of real property in which he had an interest has been paid to the city chamberlain in pursuance of these provisions of law, because the time had not expired for the commencement of a proceeding in this court by a creditor to obtain satisfaction of his claim thereon. The deposit could have had no other purpose, and no other purpose is claimed. The certificate of a surrogate, upon which alone the fund can be distributed, cannot be given while this proceeding is pending. It must continiie pending until it is ended by an appropriate decree. The decree should be so framed as to enable a successful creditor to enforce a bond given as prescribed on the withdrawal of a part of the fund. Just as certainly it ought not to assume to direct the chamberlain to pay out money held by him subject solely to the orders of the Supreme Court. Matter of Dvsenbury, 34 Misc. Kep. 666, 104 N. Y. St. Kep. Y26. The recent amendments of section 1538, Code Civ. Pro., have made cases like Jouffret v. Lippen (20 App. Div. 455, 46 IST. Y. Supp. 810) and Matter of Gtidney (33 Misc. Kep. 160, 68 N". Y. Supp. 627), no longer applicable because there is now no authority in the Supreme Court to direct the surplus to be paid into Surro- gate's Court. t 832 DiSTEIBUTION OF SuEPLTJS. 612 ^ 832 Pi'oceedings by the Heirs-at-Law or Devisees to Obtain Surplus Where It Has Not Been Withdrawn for the Payment of Debts. It may happen that the surplus directed to be paid into the Surrogate's Court is not needed for the payment of debts. The creditors have a lien upon the fund for three years from the day of the grant of letters and after the expiration of that time if the fund still remains in coiirt the heirs or devisees, as the case may be, are entitled to receive the fund by means of the following proceeding. A verified petition may be presented by any of the heirs or devisees or by any person entitled to any part of the fund. A citation to show cause must then be issued to each person who would be entitled to share in the fund. Since the lien of creditors has expired by the three years' limita- tion the only persons interested would be the husband or wife, the heirs and devisees of the decedent, and such persons as claim under them. If any interests have been assigned, both the assignor and the assignee should be cited. Service of citation. Service of citation may be made upon all the persons designated therein : a. By publishing the same in two newspapers designated as pre- scribed in Code of Civil Procedure, section 2535, at least once in the four weeks immediately preceding the return day thereof. b. Except that personal service must be made upon the husband or wife, heirs and devisees of the decedent and also upon every other person claiming under them or either of them who reside in the State. This provision would seem to require publication of the citation even where all of the persons interested were known and where they all resided within the State and, therefore, must be served personally. It does not seem reasonable that the Legislature intended to make such a rule. As first drafted, the only service prescribed was by publication, and thereafter by an amendment, a provision for personal service was made and a reasonable construction would seem to be that where all the parties were known and could be 613 DiSTEIBUTION OF SuKPLUS. f 833 served personally within tlie State the publication might be dis- pensed with. The only construction by the courts which has been put upon that part of this section was made in the Matter of Solomon (4 Eedf. 509), where it was said that " may " should be construed as " shall " and that service by publication must be made. Hearing. Upon the return of the citation the rights and priorities of the persons interested must be established and a decree for distribu- tion made. § 2799, Code Civ. Pro., analyzed. Petition. The petition must show affirmatively who are the only persons entitled to share in the distribution of the proceeds. Matter of Schuersler, 49 Misc. Rep. 203. Distribution of surplus — Aliens. Under our treaty with Prussia all citizens of that country have a reasonable time within which to sell any land which would have descended to them except for alienage, and to withdraw the pro- ceeds, and so in a proper case they may be awarded their shares of the surplus from the sale of real estate. Matter of Beck, 31 X. Y. St. Eep. 965. q 833 Right of Dower. Where the widow of the decedent, or a party to the proceeding, has an existing right of dower in the real estate directed to be sold the court must consider a-nd determine whether a more advantageous sale can be made of such real estate by including the sale of such right of dower; and, if it shall be determined by the court that a larger sum will be realized on such sale, applicable to the payment of debts and funeral expenses, by including in such sale the right of dower, the interest of the party entitled thereto shall pass thereby; and the purchaser, his heirs and assigns, shall hold the property free and discharged from any claim by virtue of that right. The regulations and provisions of article two, title one of chapter fourteen of this act, prescribing the rules of practice in relation to the right of dower in actions for the par- tition of real estate, so far as the same may be applicable, shall govern and control the disposition of moneys realized on such sale which shall belong to the owner of said right of dower. § 2800, Code Civ. Pro. Dower of widow in surplus on mortgage foreclosure. Where, in a case specified in the last section, the mortgagee, or a person claiming under him, causes the land mortgaged to be sold, after the death of the husband, either under a power of sale contained in the mortgage, or by virtue of a judgment in an action to foreclose the mortgage, and any surplus 1 834 DiSTEIBUTION OF SuEPLUS DoWEE. 614 remains, after payment of the money due on the mortgage and the costs and charges of the sale, the widow is nevertheless entitled to the interest or income of one-third part of the surplus for her life, as her dower. Real Property Law, § 174 Tlie widow is entitled to have set apart for her use one-third of the gross proceeds of sale, as she is not compelled to contribute to expenses of sale. Higbie v. Westlake, 14 N. Y. 281. Dower in case of divorce. The relation of husband and wife, both actual and legal, is utterly destroyed, and no future rights can thereafter spring out of or arise from it. Existing rights already vested are not thereby forfeited, and are taken away only by special enactment as a punishment for wrong. But future rights dependent upon the marital relation and born of it there can be none. Thus, the wife's dower at the date of the decree is vested as an inchoate right, at least as against the husband, whether she be innocent or guilty, by the concurrence of marriage and seizin. It has fastened upon the land and follows it as an incumbrance and would become con- summate upon the death of the hxisband in either event, but for the express mandate of the statute which forfeits it where the wife is the guilty party. But the wife, although blameless, ac- quires no dower right in lands conveyed to the husband after the divorce because he was not seized during the coverture. Kade v. Lauber, 16 Abb. Pr. (N. S.) 288. The coverture is ended and cannot serve to found a new right after its destruction. The existing inchoate right remains, because it has already accrued, has not been forfeited by guilt, and does not depend upon the continuance of the marriage relation, but in- dependent of that continuance becomes consummate by the death of him who was the husband when it sprang into being. ^ 834 Agreement for Assignment of Dower and Its Effect — Descent Subject to Dower. Agreements between the parties constituting assignments or ad- measurements of dower are recognized by the courts as effectual for that purpose where the intention is clearly manifest. Aikman V. Harsell, 98 N. Y. 192. Where the husband takes land by descent from his father sub- ject to the dower of his mother in the same and the dower is after- 615 DlSTElBUTION OF SuEPLUS DoWEE. 1[ 834 ward assigned to her, sucli assigmnent relates back to the death of the father, so as to deprive the widow of the son who dies in the lifetime of his mother of dower even in the reversion of the third of the estate which is assigned to the mother for dower. Dunham v. Osborn, 1 Paige, 634; Howells v. McOraw, 97 App. Div. 460, 90 N. Y. Supp. 1. ^r 835 Legacies and Bequests. 616 CHAPTER XXXIX. Legacies and Bequests — Their Validity, Pa3mient, and Classification. If 835. Validity determined by what law. 836. When to be paid. 837. Obtaining funds for payment of. 838. Payable from personal estate. 839. Payable from both real and personal estate. 840. Classes and definitions. 841. General legacies. 842. Specific legacies. 843. Increase of specific legacies. 844. Distinction between specific and demonstrative legacies. 845. Ademption of legacies. 846. Demonstrative legacy. ^ 835 The Validity of a Legacy is Determined by the Law of the State or Country of Which the Decedent Was a Resident at the Time of His Death. Except where special provision is otherwise made by law, the validity and effect of a disposition of personal property situated within the State, and the ownership and disposition of such prop- erty where it is not disposed of by will, are regulated by the laws of the State or country of which the decedent was a resident at the time of his death. From § 2694, Co' Civ. Pro. There is no inconsistency between this section and section 2611, Code Civ. Pro. Matter of McMulUn, 5 i)em. 295, 5 IST. Y. St. Eep. 349. ^ 836 Payment of Legacies. It is the duty of the executor to convert the property and securi- ties of the estate into money so that he may have cash on hand to pay the pecuniary legacies at the end of one year from the time letters were granted to him. Such legacies when not paid at the end of such year begin to draw interest at the legal rate. It is not necessary or proper for the executor to postpone payment of pecuniary legacies until a final sei-tlemer ' as is too often done. The authority for the payment of legacies is not obtained from the surrogate but is obtained from the will itself. 617 Payment of Legacies. If 836 !N"o legacy shall be paid by the executor or administrator until after the expiration of one year from the time of granting let- ters testamentary or of administration unless directed by the will to be sooner paid. The specific legacies bequeathed by the will must also at the end of the year be discharged by the delivery thereof to the persons entitled to the same. Where legacies are directed by the will to be paid before the expiration of the year a bond should be required. If any legacy is directed by the will to be paid before the ex- piration of the year the executor may require a bond with two sufficient sureties conditioned that if debts against the deceased duly appear and there are not other assets to pay the same and no property sufficient to pay the other legacies, then the legatees will refund the leg'acy so paid or such ratable portion thereof with the other legatees as may be necessary for the payment of such debts and the proportional parts of such legacies, if there be any, and the costs and charges incurred by reason of the payment to such legatee and that if the probate of the will under which such legacy is paid be revoked or the will declared void that such legatee will refund the whole of such legacy with interest, to the executor or administrator entitled thereto. Abatement of legacies. If there are not sufficient assets, then an abatement of the gen- eral legacies must be made in equal proportions. Payment, how enforced. Such payments shall be enforced by the surrogate in the same manner as the return of an inventory (§ 2716, Code Civ. Pro.), wherein it is provided that the warrant of attachment may be issued for disobedience to an order and such person committed to jail. The surrogate may also enforce such payment by directing a suit to be brought on the bond of such executor or administrator. § 2721, Code Civ. Pro., analyzed. The proceedings to obtain a decree for the payment of a legacy are found in sections 2722 and 2723, Code Civ. Pro., 1[ 906. Payment of legacies. No legacy shall be paid by an executor or administrator until after the expiration of one year from the time of granting letters testamentary or of administration, unless directed by the will to be sooner paid. If directed to *i 837 Payment op Legacies. 618 be sooner paid, the executor or administrator may require a bond, with two sufficient sureties, conditioned, that if debts against the deceased duly appear, and there are not other assets to pay the same, and no other assets sufficient to pay other legacies, then the legatees will refund the legacy so paid, or such ratable portion thereof with the other legatees, as may be necessary for the payment of such debts, and the proportional parts of such other legacies, if there be any, and the costs and charges incurred by reason of the payment to such legatee, and that if the probate of the will, under which such legacy is paid, be revoked, or the will declared void, that such legatee will refund the whole of such legacy, with interest, to the executor or administrator entitled thereto. After the expiration of one year, the executors or administrators must discharge the specific legacies bequeathed by the will and pay the gen- eral legacies, if there be assets. If there are not sufficient assets, then an abatement of the general legacies must be made in equal proportions. Such payments shall be enforced by the surrogate in the same manner as the return of an inventory, and by a suit on the bond of such executor or ad- ministrator whenever directed by the surrogate. § 2721, Code Civ. Pro. A legacy payable " at the eonvemenee of the executor " does not leave the time of payment to the arbitrary will of the executor but is payable -when the condition of the estate warrants payment. Van Rensselaer v. Van Rensselaer, 113 IST. Y. 207. Where an instalment of a legacy is due, payment should be or- dered upon giving the proper bond, and it is not a defense to al- lege that the legatee has obtained possession of some bonds for- merly belonging to the deceased, the possession of which is in litigation. Matter of Selling, 5 Dem. 225. ^ 837 Sale of Personal Property for the Payment of Lega- cies. If an executor or administrator discover that the debts against a deceased person and the legacies bequeathed by him cannot be paid and satisfied with- out a sale of the personal property of the deceased the same so far as may be necessary for the payment of such debts and legacies must be sold. The sale may be public or private and except in the city of New York, may be on credit not exceeding one year with approved security. The executor or administrator is not responsible for any loss happening on the sale when made in good faith and with ordinary prudence. Articles not necessary for the support and the subsistence of the family of the deceased or not specifically bequeathed must first be sold, and the articles so bequeathed must not be sold until the residue of the personal estate has been applied to the payment of debts. § 2717, Code Civ. Pro. Sale upon credit. " It will be observed that the executor has no right to sell upon credit, except for the payment of the debts and legacies of the 619 Payment of Legacies. If 838 decease,d. In commercial dealings between private individuals and corporations, notes, bOnds, stocks, and other forms of contract may be taken for or as security for debts and other purposes, and may be recognized between the parties and by courts under the name of " securities ; " but in legal proceedings the law requires security of a different character, and over which the courts have control, — a security which makes the debt assured ; something which makes its payment certain, which makes sure the perform- ance of a contract, and prevents loss from insolvency or otherwise. " The settlement of estates is a special proceeding, under the supervision and control of the courts ; and though the Code says that an executor or administrator may sell on credit for certain purposes with approved security, we shall hold that in such cases approved security means national and State bonds and mortgages' on real estate, because it is an investment for the time being of the assets of the estate, and courts have held rigidly to the rule that if trustees, without express authority in some legal form, invest in notes, stocks, or bonds, they will be held responsible for all losses occasioned by such investments. The courts, in so de- ciding, have imposed no harsh nor unreasonable rule upon them in the discharge of their duties, but have given them a safe, sim- ple, and reasonable rule of conduct, easily complied with, and in obeying which they assume no risk, and the estate they represent can sustain no loss. We have said this note was not such a legal security as the executor was authorized to take because it was not such a one as the courts recognize and approve in the care and management of estates by trustees. We go further, and say that if the executor had a right to sell upon credit and take the notes of purchasers, he would still be liable for the loss, because the se- curity was not approved by the surrogate before it was accepted by him." Matter of Woodbury, YO IST. Y. St. Eep. 182, 35 IT. Y. Supp. 485. ^ 838 Legacies Are Payable from Personal Estate. When a person dies leaving a will and personal and real prop- erty, his debts and pecuniary legacies bequeathed by the will are to be paid from his personal property, and, in case of a de- ficiency of personal property, the legacies must abate, unless he charges his real estate with the payment. The charge upon the real estate may be made either by express directions to that effect in the will, or the intention to thus charge it may be implied from the whole will. Reynolds v. Reynolds, 16 N. Y. 259. f 839 Payment of Legacies. 620 Personal estate is the natural and primary fund to be first ap- plied in discharge of personal debts and general legacies. Hoes T. Van Hoesen, 1 JST. Y. 120 j Dunham v. Deraismes, 29 App. Div. 432, 51 N. Y. Supp. 1097 ; Bevan v. Cooper, 72 IST. Y. 317. When the personal estate is not exonerated. Where there is a direction that a devisee shall pay a legacy, such direction is in aid of the primary fund, the personal estate, and not in exoneration of it, unless there is an absolute disposition of all the personal estate of the testator. Hoes v. Van Hoesen, 1 IST. Y. 120 ; Kelsey v. Western, 2 id. 500. Intent to have real estate aid personal in paying legacies is shovm when there is given a power of sale which has no other use. Taylor v. Dodd, 58 N. Y. 335. Where in a will certain real property is set apart for the pay- ment of debts and the fee thereof given to the executors in trust for that purpose the personal estate is exonerated. Youngs v. Youngs, 45 N. Y. 254. ^ 839 Both Real and Personal Estate May be Made the Fund for Payment of Legacies. The personalty is not only the primary fund, but the only one liable for the payment of the general legacies unless they are charged on the realty by express direction, or by necessary impli- cation; such charge, however, may operate in aid of the person- alty, furnishing an additional fund for the payment of legacies upon exhaustion of the personalty, or where the two species of property are blended together by the terms of the will, rendering them both liable for payment of legacies pari passu. The courts of this State after much vacillation appear now to take the posi- tion that this blending of the realty and personal estate in the residuary clause is not sufficient in and of itself to charge the realty, yet it is a circumstance to be taken into consideration in ascertaining the testator's intention, and in connection with the other circumstances may be controlling. Matter of Spencer, 8 Misc. Pep. 193, 59 IST. Y. St. Eep. 480. ^ 840 Legatees and Legacies Classified and Defined. A legatee is a person who takes personalty under a will. Weeks y. Cornwell, 104 K Y. 341. 621 ' Legacies Defined. *j, 841 A general legacy is a gift of personal property by a last will and testament, not amounting to a bequest of a particular thing or money, or of a particular fund designated from all others of the same kind. A specific legacy is a bequest of a specified part of a testator's per- sonal estate distinguished from all other of the same kind. A demonstrative legacy -is a bequest of a certain sum of money, stock, or the like, payable out of a particular fund or security. For example, the bequest to an individual of the sum of $1,500 is a general legacy. A bequest of the proceeds of a bond and mort- gage, particiilarly describing it, is a specific legacy. A bequest of $1,500, payable out of the proceeds of a specified bond and mort- gage, is a demonstrative legacy. A demonstrative legacy partakes of the nature of a general legacy by bequeathing a specified amount and also of the nature of a specific legacy by pointing out the fund from which the pay- ment is to be made, but differs from a specific legacy in the par- ticular, that if the fund pointed out for the payment of the legacy fails, resort may be had to the general assets of the estate. Craw- ford V. McCarthy, 159 ]S^. Y. 518, revg. 21 App. Div. 481. In determining whether a legacy is general or specific evidence of circumstances may be received which tends to explain the mean- ing of the language used. Matter of Hastings, 6 Dem. 307. CI 841 General Legacies. Bequest of a certain amount of money " in government bonds " is a general legacy. Matter of Newman, 4 Dem. 65. " Paraphernalia " of a man held to include watches, jewelry, and clothing. Matter of Cooper, 5 Dem. 495. Where a testator gives two bequests of money to two sons and provides for their payment by another son against whom he holds a mortgage, such legacies are general and not specific and the executor may maintain an action to foreclose the mortgage. New- ton V. Stanley, 28 N. Y. 61. I give to A. twenty-five shares of the stock of the M. G. Co., or the proceeds of the same, should the same have been sold, is a general legacy. Osborne v. McAlpine, 4 Eedf. 1. Bequest of stocks and bonds in unequal proportions to various legatees, so that such stocks and bonds cannot be set off to each 1^ 842 Legacies Defined. 622 in such proportions, constitutes general legacies. Matter of Fisher, 93 App. Div. 186, 87 E". Y. Supp. 567. Cases showing an intention to make a general pecuniary legacy and not a specific legacy of stocks or securities. Dunning v. Dunning, 82 Hun, 462, 64 JST. Y. St. Eep. 397, 31 JST. Y. Supp. 719 ; Matter of Anderson, 19 Misc. Rep. 210, 43 N". Y. Supp. 1146 ; Matter of Hodgman, 140 N. Y. 421, affg. 69 Hun, 484. ^ 842 Specific Legacies. An executor, as such, takes the unqualified title of all personalty not specifically bequeathed. He holds not in his own right, but as a trustee, for the benefit (1) of the creditors of the testator, and (2) of those entitled to distribution under the will, or if not all bequeathed, under the Statute of Distributions. As to the chattels and choses in action specifically bequeathed, an executor has but a qualified title, the right to apply them in the discharge of debts after first exhausting all other property applicable to that purpose. If he consent to their delivery to the legatees they acquire a perfect legal title to the article or demand, and in case the remaining property of the testator is insufiicient to pay his debts the recipients of the specific legacies are liable under the statute to pay the amount of value of the legacies received by them. The title of one who takes the entire estate ufider the will stands on the same footing, and is just as absolute, and he, with the assent of the executor, can recover in his own name a chose in action, or make it available by way of counterclaim. The trust estate of a sole executor, who is also the sole devisee and legatee, is solely for the benefit of the testator's creditors, and when they are paid the trust estate sinks into and is merged with the beneficial interest, and the sole devisee and legatee becomes vested with the legal title of all the testator's estate. Blood v. Kane, 130 N. Y. 514, revg. 52 Hun, 225. Debt due testator and bequeathed by will. A discharge or bequest in a will of a debt or demand of the testator against an executor named therein or against any other person is not valid as against the creditors of the deceased, but must be construed only as a specific be- quest of such debt or demand; and the amount thereof must be included in the inventory, and, if necessary be applied to the payment of his debts; and if not necessary for that purpose must be paid in the same manner and pro- portion as other specific legacies. From § 2714, Code Civ. Pro. 623 Specific Legacies. 1 843 Gift of the proceeds of a certain bond and mortgage is equivalent to a gift of that bond and mortgage and is specific. Gardner v. Printup, 2 Barb. 83. A gift of two mortgages, one held by the testator at his death and the other directed by him to be purchased by the executors. Both treated as specific legacies in order to carry out the testator's intention. Cammann v. Whittlesey, 70 App. Div. 598, 75 N. Y. Supp. 702; affd., 173 N. Y. 618. A bequest of the interest of a mort- gage to one person for life and then the principal of the mortgage to the mortgagor does not extinguish the mortgage during the life of the life beneficiary. Hancock v. Hancock, 22 , N. Y. 568. " I direct my daughter out of the moneys belonging to me on deposit in her name to pay my said son the sum of $1,500 " constitutes a speci- fic legacy. Crawford v. McCarthy, 159 N. Y. 514, revg. 21 App. Div. 484, 47 N. Y. Supp. 436. A bequest of a mortgage held to carry the bond given with it. Klock V. Stevens, 20 Misc. Rep. 383, 45 N. Y. Supp. 603. " Stock or government annuities, or shares in public companies, may be specially bequeathed, but in order to make a bequest specific, the intention that it should be so must be clear, otherwise the bequests will be gen- eral, and the word my preceding stock, annuities, or shares, is adjudged sufficient to render the legacy speci- fic." " But it seems to be settled that the mere possession by the testator at the date of the will, of stock, or annuities of equal or larger amount than the bequest, will not, without words of reference, or an intention appearing upon the will that he meant the additional stock to which he was possessed, make such bequest specific." The gift of part of a debt due to testator is a specific legacy. Da/vis v. Crandall, 101 N. Y. 311. A gift of " all the money left in the W. S. Bank" is a specific legacy. The executor is not bound to invest such legacy and is not chargeable with interest for not investing the same. Larkin v. Salmon, 3 Dem. 270. The testatrix bequeathed " my diamond brooch." At her death there was found among the assets of her estate an article which answered the description of the legacy, and it seems that under the authorities it is of no importance that the brooch, which was the only diamond brooch owned by the testatrix at the time of her death, was not the particular one owned by her at the time her will was made. Waldo v. Hayes, 96 App. Div. 454, 89 N. Y. Supp. 69. A gift of " all my deposit of money in the E. S. S. Bank" is a specific legacy, and if such bank is liquidated the legacy attaches to the same fund in another bank. Matter of Howard, 46 Misc. Rep. 204. Bequests of certain sums of money, " par value of certain capital stock," enumerating it, was, when other language of the will was considered, held to be specific legacies. Cramer V. Cramer, 3.5 Misc. Rep. 17, 71 N. Y. Supp. 60. ^ 843 Increase of Specific Legacies. Specific legacies which are productive either in kind or in in- come carry with them all such increase accruing from date of death of testator. Unproductive specific legacies if improperly con- verted into cash by executor do not carry with them legal interest from the time of conversion, but only such income as the money has earned. Matter of Heyl, 1 Dem. 191; Matter of Dean, 1 Dem. 288. Where a legacy of stock is specific it carries dividends. Matter of Hastings, 6 Dem. 307. Tf 844 Demonsteative and Specific Legacies. 624 Assent of representative vests title. The assent of tlie executor once given to a specific legacy vests the interest at law irrevocably, and an action at law will lie against the executor to recover the thing bequeathed, and it will pass to the legatee's next-of-kin or under his will. Onondaga T. Co. v. Price, 87 IST. Y. 542. The assent of the executor may be expressed or implied, and the rule applies although the legatee is himself the executor. Linthi- cum V. Caswell 19 App. Div. 541, 46 N. Y. Supp. 610 ; affd., 160 ]Sr. Y. 702 ; Matter of Van Houten, 18 App. Div. 301, 46 ISr. Y. Supp. 190. A specific legacy vests on the death of the testator and the lega- tee is entitled to the income and profits that proceed from it. When the executor assents to it, the legacy ceases to be part of the testator's assets. But in case of deficiency of assets to pay debts, the executor cannot prudently or properly give such assent, and the specific legacy is subject to application thereof in behalf of creditors. Matter of Van Houten, 18 App. Div. 306, 46 N. Y. Supp. 350. Where an executor is given a specific legacy he has no right to assent to the appropriation of it by himself, if there is a deficiency of assets to pay creditors, and he will be charged with such prop- erty, but not with the income from it. Matter of Van Houten, 18 App. Div. 306, 46 IST. Y. Supp. 350. C[ 844 Distinction Betvireen a Demonstrative and Specific Legacy of Money. The distinction between a demonstrative and a specific legacy of money is lucid in theory but often confusing in application ; the former is defined as a bequest of a certain sum payable from a particular fund; if such fund, however, is insufficient, the defi- ciency is made good from the general funds of the estate. Craw- ford V. McCarthy, 159 IST. Y. 514, revg. 21 App. Div. 484, 47 jST. Y. Supp. 436. The peculiar characteristic of a specific legacy, however, is that if its subject-matter be destroyed, consumed, sold, exchanged, or in any manner disposed of, so that nothing remains in the estate to which the particular dispositive words are applicable at the death of the testator, then audi legacy is adeemed. Abemethy v. Catlin, 2 Dem. 341. 625 Ademption op Legacies. f 845 While legacies of this class usually relate to other species of property, money may be the subject. A bequest " of a sum of money in a bag, or in a chest, or on deposit in a bank or in a trunk, or in a safe-deposit vault " at the time of the execution of the will is a specific bequest and subject to be adeemed by the subsequent act of the testator. Lawson v. Stitch, 1 Atk. 507; Smith V. McKittrick, 51 Iowa, 548; Barber v. Davidson, 73 111. 441 ; Tolwey v. Lawsey, 106 Mass. 100 ; Beck v. McGillis, 9 Barb. 35. The courts, proceeding upon the presumption that the testator intends a real benefit to the legatee, are inclined to consider lega- cies general rather than specific where the language of the will admits of such construction. Giddings v. Seward, 16 N. Y. 365 ; Matter of Howard, 46 Misc. Eep. 204. ^ 845 Ademption of J-»egacies. Ademption — Defined. Ademption is the revocation of a grant, donation, or the like; especially, the lapse of a legacy, (1) By the testator's satisfying it by delivery or payment to the legatee before his death. (2) By his otherwise dealing with the thing bequeathed so as to manifest an intent to revoke the bequest. Century Dictionary. Ademption is the extinction or satisfaction of a legacy by some act of the testator, which is equivalent to a revocation of the bequest or indicates the intention to revoke. Bumham v. Com- fort, 108 K Y. 535. Gift of a mortgage — held to be specific and to be lost by its payment in the lifetime of the testator. Matter of Ahernethy, 2 Dem. 341, distinguishing 1 Bradf. 300. Where a legacy is given a church to pay off a mortgage thereon and at the time of the testator's death the amount of the mortgage has been reduced below the amount of the legacy, the legacy is not thereby adeemed. Matter of Oasten, 16 Misc. Kep. 125^ 74 N". Y. St. Kep. 538, 38 IST. Y. Supp. 948. Will speaks from date of death. The courts of this State have uniformly held that as to per- sonalty the will of a testator speaks as of the date of the death of the testator, and that any article of personal property which the testator owns at the time of his death, which answers to the 40 f 846 Demonstbative Legacy. 626 description of an article bequeathed, passes under the will to tlie legatee named therein, although such article may not be the iden- tical article owned by the testator at the time the will was executed. In the case of Brundage v. Brundage (60 N. T. 544), the court said : " It is a general rule that a will speaks from the time of the death of the testator. This rule is not excepted from, in the case of a general bequest of a particular description, as of an ascer- tained number of shares of a particular stock," ^ 846 Demonstrative Legacy. A legacy of $50 a month " out of the rents and income of her estate " is a demonstrative legacy. Florence v. Sands, 4 Redf. 206. Testator said : " I give and bequeath * * * the sum of $1,200 and interest on the same contained in bond and mort- gage " described in the will — held to be a demonstrative legacy, and not subject to ademption. Oiddings v. Seward, 16 IST. Y. 365. "Where an income or annuity is given from certain property to make that legacy demonstrative, a testator should specify certain property which he has, in kind, the income of which shall prodace the amount of the legacy. Walton v. Walton, 7 Johns. Ch. 268 ; Havila/nd v. Cocks, 6 Dem. 4. " I give $9,000 to M. which are invested as follows :" — held to be demonstrative and not specific. Olcott v. OssowsM, 34 Misc. Eep. 376, 69 K Y. Supp. 917. Insufficient fund. Where the fund is not sufBcient to pay a demonstrative legacy in full, the balance is a general legacy and is subject to abate- ment with other general legacies. Florence v. Sands, 4 Eedf. 206. 627 Legact to Widow in Lieu of Doweb. ^ 847 CHAPTER XL. Legacies and Bequests — Continued — Devise and Be- quest to Widow in Lieu of Dower — Abatement of Legacies. H 847. Dower may be barred by devise or bequest in lieu thereof. 847. Election between provision and dower. 848. When deemed to have elected. 849. When provision may be forfeited. 850. Abatement of legacy defined. 850. Legacy in lieu of dower does not abate. 851. Legacy in lieu of dower — No preference over debts. 852. Abatement of legacies for support. 853. Effect of death of legatee before actual payment. ^ 847 Devise or Bequest to Widow in Lieu of Dower. Tlie statute provides (Real Property Law [La-,vs of 189C, chap. 547], § 178) that " any pecuniary provision, made for the benefit of an intended wife and in lieu of dower, if assented to by her * * *, bars her right or claim of dower in all the lands of her husband." Pecuniary provision for the wife need not be made by will, but may be made by antenuptial agreement if it is expressed in the agreement that it is accepted in lieu of dower. Consult Antenuptial Agreement, f 1120. Election between devise and dower. If real property Is devised to a, woman, or a pecuniary or other provision is made for her by will In lieu of her dower, she must make her election whether she will take the property so devised, or the provision so made, or be endowed of the lands of her husband ; but she is not entitled to both. Real Property Law, § 180. The right of the wife to dower in the lands owned by the de- ceased during coverture is absolute ; and no provisions in the will for the benefit of the widow will be deemed to be taken in lieu of dower, unless there is an express declaration to that effect con- tained in the will, or the general scheme under which the will is drafted is so inconsistent with the claim of dower that it is ap- 'iparent the intention of the deceased was to give the same to the widow in lieu of such dower and, therefore, to compel her to elect which she would take. 1[ 848 Election Between Legacy and Dowee. 628 The courts will endeavor to sustain a claim of dower rather than to assume that any provision was intended in lieu thereof. Matter of Johnson, 50 Misc. Kep. 101. Where a will makes provision for the widow but does not state that such provision is in lieu of dower, and authority is given to the executor to sell the real estate not devised to the wife at a price fixed, the provision is inconsistent with a claim for dower. Ver- non V. Vernon, 53 1^. Y. 351. The claim of dower is inconsistent with the provisions of the will which requires the executor to rent, lease, repair, etc., the real estate out of which money is to be raised to pay the bequests to the widow; and, therefore, the widow cannot claim under the provisions of the will without relinquishing her right to dower. Tobias v. Ketchum, 32 IST. Y. 319. Where a. will creates a trust and vests the entire legal estate in the trustees, the provision made for the widow is inconsistent with the right of dower and she is bound to elect. Savage v. Burnham, 17 N. Y. 561. A devise of the whole of testator's estate to his widow for life with re- mainders over is not a provision in lieu of dower unless such intention be implied from other terms of the will. Lewis v. Smith, 9 N. Y. 502. A devise to a widow of a life estate in her husband's real estate does not put her to her election. Hopkins v. Cameron, 34 Misc. Rep. 688, 70 N. Y. Supp. 1027. Provision in will for wife will not ■be construed by implication to be in lieu of dower or other interest in his estate given by law. Sheldon v. Bliss, 8 N. Y. 31. The husband directed his executors to sell all his real and personal estate and divide the proceeds equally be- tween his wife and children — held that the widow was entitled to dower and was not put to her election. Eon- valinka v. Schlegel, 104 N. Y. 125. Bequest of money, furniture, and of the income of a trust fund of $50,000 with power of sale of real estate in executors — held not sufficient to make a bequest in lieu of dower. Kimbel v. Kimhel, 14 App. Div. 570, 43 N. Y. Supp. 900. Gift to wife of use of the whole estate subject to the payment of an annuity is not in lieu of dower. Purdy v. Purdy, 18 App. Div. 310, 46 N. Y. Supp. 215. Gift and devise to wife and two children equally of entire estate, is not in lieu of dower. Gloss v. Eldert, 30 App. Div. 338, 51 N. Y. Supp. 881. Where there was a devise to wife during life or widowhood — held that upon remarriage she would be en- titled to dower. Brown v. Brown, 41 N. Y. 507. Where a will gave the widow a sum in lieu of dower and of her distribu- tive share in the estate — held that there was an implied bequest of the amount of the distributive share, if she elected to receive it. Matter of Towers, 113 N. Y. 569 revg. 45 Hun, 418. Where a wife is given real estate and personal property in lieu of dower, she takes the real estate sub- ject to any mortgage or incumbrance. Meyer v. Cahen, 111 N. Y. 270. ^ 848 When Deemed to Have Elected. WTiere a woman is entitled to an election, as prescribed in either of the last two sections, she is deemed to have elected to take the jointure, devise or pecuniary provision, unless within one year after the death of her husband she 629 Abatement of Legacy. | 850 enters upon the lands assigned to her for her dower, or commences an action for her dower. But during such period of one year after the death of her said husband, her time to make such election may be enlarged by the order of any court competent to pass on the accounts of executors, administrators or testamentary trustees, or to admeasure dower, on an affidavit showing the pendency of a proceeding to contest the probate of the will containing such jointure, devise or pecuniary provision, or of an action to construe or set aside such will, or that the amount of claims against the estate of the testator cannot be ascertained within the period so limited, or other reasonable cause, and on notice given to such persons, and in such manner, as such court may direct. Such order shall be indexed and recorded in the same manner as a notice of pendency of action in the office of the clerk of each county wherein the real property or a portion thereof affected thereby is situated. Real Property Law, § 181. The widow is charged with the duty of informing herself of the condition of her husband's estate so as to maJse her election. Akin V. Kellogg, 119 IST. Y. 441, affg. 48 Hun, 459. A widow who dies during the year following her husband's death, not having elected between a legacy in lieu of dower and her dower, will be deemed to have elected to take the legacy. Flynn v. McDermott, 43 Misc. Kep. 513, 89 IST. T. Supp. 506; affd., 102 App. Div. 56; affd., 183 K Y. 62. Widow brought suit to have will declared invalid, and died within a year — held, that the statute gave her her legacy, she not having renounced it. Flynn v. McDermott, 102 App. Div. 56, affg. 43 Misc. Eep. 513, 89 N. Y. Supp. 506 ; affd., 183 N. Y. 62. ^ 849 When Provision in Lieu of Dower is Forfeited. Every jointure, devise and pecuniary provision in lieu of dower is forfeited by the woman for whose benefit it is made in a case in which she would for- feit her dower; and on such forfeiture, and estate so conveyed for jointure, or devised, or a pecuniary provision so made, immediately vests in the person or legal representatives of the person in whom they would have vested on the determination of her interest therein, by her death. Real Property Law, § 182. ^ 850 Abatement — Definition. Abatement is the reduction of a general legacy made necessary by lack of assets to pay all legacies of its class in full. Legacy to widow in lieu of dower does not abate. " This bequest to the widow was expressly declared to be in lieu of dower and distribution. Such a bequest is more than a mere gratuity — it is in the nature of a contract to purchase. The 1[ 850 ABATEMEWf OP Legacy. 630 widow was required to make an election between her right to bs endowed of the lands of her husband and the pecuniary provisions made for her by the will (R. S., tit. 3, § 12 ; Real Property Law, § 180), and having failed within one year after the death of her husband to enter upon the lands to be assigned to her for her dower, or to commence proceedings for the recovery or assignment thereof, she is deemed to have accepted such bene- ficiary provisions (R. S., tit. 3, § 14; Real Property Law, § 181). The law is well settled that where a legacy is given in considera- tion of the relinquishment by the legatee of some subsisting right or interest, as to a creditor in satisfaction of a debt or to a wife in lieu of dower, such legacy is entitled to priority over general legacies which are mere bounties, for in such cases the legatee stands in the situation of a purchaser and not a mere volunteer. Williamson v. Williamsonj, 6 Paige, 298 ; Matter of Dolan, 4 Redf. 511 ; Isenhart v. Brown, 1 Edw. Ch. 411 ; Blower v. N arret, 2 Ves. Ch. 421. Such is the rule, though the value of the legacy greatly exceeds the value of the rights relinquished. Matter of Dolan, supra; Heath v. Dendy, 1 Russ. 543 ; Famum v. Bascom, 122 Mass. 282 ; Reed v. Reed, 9 Watts (Pa.), 263 ; Howard v. Francis, 80 K J. Eq. 444; Warren v. Morris, 4 Del. Ch. 289. In the opinion in the case of Williamson v. Williamson, above cited, the chancellor says : " Indeed, a legacy to the widow in lieu of dower is viewed in a more favorable light than a legacy to a child, the widow taking the bequest as an equivalent for her relinquishment of a right, and the child taking it as a mere bounty of the testator. Eor this reason the legacy of the wife given in lieu of dower does not abate ratably with others, if the fund is insufficient to satisfy all." In the case of Isenhart v. Brown, above cited, the vice-chan- cellor says : " The legacies given to her by this will are partly specific and partly pecuniary; and they constitute the provision made for her by the testator in lieu of her right of dower in his estate. It is the price put by the testator himself upon that right, and which she is at liberty to accept. Her relinquishment of dower forms a valuable consideration for the testamentary gifts. In this point of view she becomes a purchaser of the property left to her by the will. So, on the other hand, the husband offers a price for his wife's legal right of dower which he proposes to extinguish ; and if she agrees to the terms, she relinquishes it and €31 Abatement of Leoacy. f 852 is entitled to the price. It is, therefore, a matter of convention or contract between them; and what she thus becomes entitled to receive is not by way of bounty, like other general bequests, but as purchase money for what she relinquishes and which, con- sequently, must be paid in preference to other legacies — they being merely voluntary. Matter of Woodbury, 40 Misc. Eep. 143, 81 K Y. Supp. 503. A legacy to a widow in lieu of dower must be paid in preference to other general legacies. Brink v. Masterson, 4 Dem. 524. ^ 851 Legacy to Widow in Lieu of Dower Does Not Have Preference over Debts. A bequest to a widow in lieu of dower, when accepted by her, is entitled to preference of payment over other legacies, but not over debts due creditors. A legacy to a widow in lieu of dower cannot be taken from her and applied to the payment of debts until the balance of the estate lias been used for such purpose. Matter of Dolan, 4 Eedf. 611. A widow who has accepted a bequest in lieu of dower is not en- titled as against creditors to priority of payment even to the extent of her dower interest. Beekman v. Vanderveer, 3 Dem. 619 ; Mat- ier of Nagel, 35 N. Y. St. Rep. 245, 12 N. Y. Supp. 707. A bequest to a widow in lieu of dower is a legacy and she is a legatee and shares in other bequests made to the legatees named in the will. Orton v. Orion, 3 Keyes, 486. By a legacy given to the widow in lieu of dower, and its accept- ance by her, her interest in the estate becomes that of a creditor. The legacy was the price tendered to her for the purchase of her interest in the realty. By accepting it she became entitled to the price. It was a debt against the estate, payable like other debts, first out of the personalty, and if that is insuiBcient, then out of the realty. Wilmot v. BoUnson, 42 Misc. Eep. 244, 86 IST. Y. Supp. 575. ^ 852 Legacies for Support and Maintenance of Near Rela- ' tives do Not Abate. Legacies for support and maintenance of wife and child, other- •wise unprovided for, do not abate with general legacies. Stewart V. Charnbers, 2 Sandf. Oh. 393. The principle has been extended to the analogous case of a bequest by a wife for the support of ier husband (Scofield v. Adams, 12 Hun, 366), and further ex- I 853 Death of Legatee Befoee Payment. 632 tended to bequests for the maintenance of minors who are near relatives of the deceased. Petrie v. Petrie, 7 Lans. 93 ; Bliven v. Seymour 88 N. T. 469. A gift for use of husband for his life held not to abate. Sco- field V. Adams, 12 Hun, 366. Legacies which do ahate. of deficiency of assets th-^ legacies T> 1.1 (U/i rvriA • i.„>4. f„- "hereinbefore mentioned" should Bequest of $4,000 in trust for _ ^^^^ ^^^ brother's support -held that such the%.idow abated with the others, legacy had no preference over a . „ . legacy of the same amount given di- ^^^^^ft of a trust fund for use of reotly t» a sister. Matter of Hinman, , ^"Ji °* ^ .,., ^^^1 ,?\ '^^T + 32 Misc. Rep. 536, 67 N. Y. Supp. 459: daughter during life -held to abate Legacy of a fAnd to be set apart ^}^^ "^^^ ^^S^f ««• ^"^^'^^ ^- ^''^■ for use of wife and daughter, but "''5*' •* ^*™- f.?- , , , , , , not stated to be in lieu of dower- ^^^^^7^ *« children - /.eZd to abate held must abate with general legacies. 7^"« "^^^ ^.^.''^ otherwise provided Matter of Williams, lEedf. 208. ^""^ ,^^}^ ™ ^^? ^^ " f?id "^^ *^«^^ Gift of a gold watch to one daugh- S?^V*.'°° ^ ''^fl, ^.fT v^ « *■' ter and immediately following it a ^4 Misc. Kep. 143, 53 N. Y. Supp. gift of " $35 in money " to an- ^^5; i. .*„„„„ ^ x. c ^ other daughter -/leJd that the lat- , Bequest of $2,000 to each of five ter bequest was general, and abated. families of grandchi dren. On defi- Blivenv. SeymoZr, 88 N. Y. 469. «i'="«3: of j^^^e^;^ - ^'.f,.*^^*, ^1./,%%" A widow was given a legacy in ?L«« ^^^*«d- . //^ 'l^o ^^"'"^ ^'\^ lieu of dower which she accepted. ^"<=- ^«P- '^^' ^9 N. Y. Supp. 606. There was a provision that in ease ^ 853 Death of Legatee Before Actual Payment of Legacy in Case Where Gift is Apparently Made to Depend on the Legatee Surviving to Time of Pajmient. In Finley v. Bent (95 IST. T. 364), the provision was, " Should either of my children die before the full payment of the whole of his or her share of such residiae, then my executors shall pay the share of the child so dying, or so much thereof as shall remain unpaid, to his or her lawful issue then surviving." One of the daughters died after the expiration of five years — held, that her legacy had vested. In Matter of Wiley (111 App. Div. 590), the will devised the residuary estate to the testator's wife and to specifically named sisters, nephews, and nieces, share and share alike; and then pro- vided that, in case of the death of either before the whole estate shall be divided, it shall be distributed among the survivors only, share and share alike. One of the nephews was killed after the death of the testator and before any part of the residuary estate had been divided by the executors among the residuary legatees- It was held that he having died before the period of distribution arrived, the limitation over took effect, but this case was reversed in 188 K Y. 579. 633 Death of Legatee Befoee Payment. ^ 853 The great weight of authority, especially the recent cases, sup- port and approve the rule laid down in Johnson v. Crook, and some of the cases criticise the conclusion reached by Lord Thur- low with reference to the provision being sufficiently definite and certain for him to act upon. It may further be conceded that imder the provisions of a will containing a gift over in case of the death of a legatee before payment, that actual payment is not essential in order for it to vest absolutely in a legatee; that the divesting clause ought not to extend beyond the period in which the legacy is de jure receivable, or becomes due and payable, thus avoiding the power of an executor, through delay, caprice, or acci- dent, from preventing an absolute vesting of a legacy. With this limitation no reason is apparent, either in law, public policy, or morals, why the testator may not make his bequests subject to a provision, clearly and definitely stated, that in case his legatee should die before his legacy become due and payable under the administration of his estate, it shall go over to the child or chil- dren of such deceased legatee, and thus prevent its going to the creditors of the legatee or to strangers to the testator or to his blood. March v. March, 186 IST. Y. 99. I 854 Legacy to Certain Coepokations. 634 CHAPTER XLI. Legacies and Bequests — Continued — Restriction supon Certain Corporations as to Taking ~ Legacies to Cred- itors and to Next of Kin. T 854. Bequests to certain corporations — Effect of making will within two months prior to death. 855. Bequests to certain corporations of more than one-half of an estate. 856. Who may raise the objection. 857. Ascertaining value of estate — Dower. 858. Legacy to a creditor. 859. Legacy to two or more persons. 860. Legacy to creditor — Conditions annexed. 861. Legacy to heirs or next of kin. 862. Extent to which certain corporations may take gifts. ^ 854 When Bequest Made Within Two Months of Death to Certain Corporations is Invalid. Take property by devise. Any corporation formed under this act, shall be capable of taking, holding or receiving any property, real or personal, by virtue of any devise or be- quest contained in any last will and testament of any person whatsoever, the clear annual income of which devise or bequest shall not exceed the sum of ten thousand dollars ; provided no person leaving a wife, or child, or parent, shall devise or bequeath to such institution or corporation more than one-fourth of his or her estate, after payment of his or her debts, and such devise or bequest shall be valid to the extent of such one-fourth, and no such devise or bequest shall be valid in any will which shall not have been made and executed at least two months before the death of the testator. Section 6, Laws 1848, chap. 319. The act mentioned was a general act providing for the incor- poration of benevolent, charitable, scientific, and missionary socie- ties; and by section 6 no devise or bequest to a corporation " formed under this act * * * shall be valid in any will which shall not have been made and executed at least two months before the death of the testator." All of the act has been repealed except section 6, which is still in force. Matter of Lampson, 161 'N. Y. 511, 516 et seq. ; Membership Corporations Law (Laws of 1895, chap. 559), § 147; Laws of 1903, chap. 623; Pearson v. Collins, 113 App. Div. 657. 635 Will Mabe Within Two Months of Death, f 855 It will be noted that the limitation only affects corporations organized under this act, and this limitation has been recognized by authority. Stephenson v. Short, 92 N. Y. 433; Matter of Lampson, 161 id. 511, 516 et seq.j Hollis v. Drew Theological Seminary, Id. 166; Matter of Codney, 112 App. Div. 659. Gift to Yale College held not to be Kirsch, 58 App. Div. 332, 68 N. Y. invalid because made within two Supp. 1049; affd., 171 N. Y. 637. months prior to testator's death. Gift to Drew Theological Seminary Matter of Lampson, 161 N. Y. 511, held not to be invalid because made affg. 33 App. Div. 49, 53 N. Y. Supp. within two months prior to testator's 531. death. Hollis v. Drew Theo. Sem., The Society of St. Vincent de Paul 95 N. Y. 166. is by its special charter not subject A secret trust for the purpose of to the two months' provision. Matter evading this statute is void. Fair- of Fitzsimmons, 29 Misc. Rep. 731, child v. Edson, 154 N. Y. 199, affg. 62 N. Y. Supp. 1009 ; Pritchard v. 77 Hun, 298. Corporations to which this act has been held to apply. St. Bernard's Seminary of the town A church incorporated under chap- of Greece, N. Y.; St. Ann Home for ter 60 of the Laws of 1813 is not the Aged of Rochester, N. Y. Matter affected by the provision of section 6, of Cooney, 112 App. Div. 659. chapter 319, Laws of 1848. Matter of The College of St. Francis Xavier Foley, 27 Misc. Rep. 77, 58 N. Y. is brought under this law by the Supp. 201. amendment to its charter (chapter The American Home Missionary 146, Laws of 1870). Matter of Fite- Society now known as the Congrega- simmoTis, 29 Misc. Rep. 731, 62 N. Y. tional Home Missionary Society in- Supp. 1009. corporated under chapter 21, Laws of Orphans' Home and Asylum of the 1871, is excluded from taking a be- Protestant Episcopal Church, Roose- quest under this act. Simmons v. velt Hospital, Children's Aid Society, Burrell, 8 Misc. Rep. 405, 59 N. Y. Mount Sinai Hospital, Sydenham St. Rep. 560. Hospital, and Presbyterian Hospital. Matter of Pearson, 52 Misc. Rep. 273. Corporations to which this act has been held not to apply. First Church of Christ, Scientist Society for the Relief of Half Or- (New York city) incorporated as a phan and Destitute Children. Matter religious society under law of 1813 of Pearson, 52 Misc. Rep. 273. is not subject to section 6 of law The American Missionary Associa- of 1848. Matter of Brush, 35 Misc. tion may take. Simmons v. Burrell, Rep. 689, 72 N. Y. Supp. 421. 8 Misc. Rep. 405. ^ 855 Gift to Certain Corporations of More Than One-Half of Testator's Estate, Chapter 360, Laws of i860. Persons having relatives may not devise property by will, to benevolent or other societies beyond one-half. No person having a husband, wife, child or parent, shall, by his or her last will and testament, devise or bequea,th to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of one-half, and no more. f 856 Legacy of Ovee Ojte-Hai-f of Estate. 636 The whole estate must be considered as converted into money at testator's death and the money value of the portion or interest so given ascertained, and if this is not more than one-half the whole the statute has not been violated. Where a legacy was given to a church which was more in amount than one-half of the estate, the balance does not pass under the residuary clause, but becomes undisposed-of assets. Matter of Counrod, 27 Misc. Eep. 475, 59 K Y. Supp. 164. To ascertain whether the gift is more than one-half the estate the value at the death of deceased must be obtained and the com- puted value of life estate deducted. Hollis v. Drew Theo. Sem., 95 N. Y. 166. This act applies to corporations created after the death of tes- tator. Allen v. Stevens, 33 App. Div. 485, 54 IST. Y. Supp. 8, revg. 22 Misc. Eep. 158, 49 IST. Y. Supp. 431. Does not apply to a devise or bequest to individuals in trust for charitable purpose. Allen v. Stevens, 161 N. Y. 122-148, revg. 33 App. Div. 485, 54 N. Y. Supp. 8. A testator leaving a wife cannot give more than one-half of his estate to charitable corporations. Jones v. Kelly, 170 N. Y. 401, a%. 63 App. Div. 614, 72 IST. Y. Supp. 24. Where testator owned land in a foreign country which was not disposed of by his will, but by the laws of that country, it was held that the whole estate must be considered in determining whether more than one-half had been disposed of. Matter of Moderno, 5 Dem. 288, 5 JST. Y. St. Eep. 362. ^ 856 Who May Raise the Objection. A husband who is sole next of kin may by antenuptial agree- ment waive the statutory provision, and the next of kin not en- titled to the estate cannot raise the statute. Matter of Stilson, 85 App. Div. 132, 83 1^. Y. Supp. 67. Forty years ago in Harris v. American Bible Society (2 Abb. Ct. of App. Dec. 316), this court held that the provision of the statute may be insisted on by any person who derives a benefit therefrom, although not one of the relatives designated in the statute. The case has been repeatedly followed and its au- thority has never been questioned. As late as the 136th New York this court said in Matter of Will of Walker (p. 20), that a will is to be read as if the statutory restriction was part of it and it had in terms provided that the legacies or devises given by it to 637 Legacy of Ovee One-Half of Estate. T 857 charitable corporations should not exceed one-half of the estate. Bohb V. Wash. & Jeff. Col., 185 N". Y. 485, modifying 103 App. Div. 327. A cousin if the nearest next of kin may take advantage of the statute. Moser v. Talman, 114 App. Div. 850. Kalesh v. Kalesh (45 App. Div. 528) was reversed in 166 N. Y. 371. Relatives or heirs not named in the law have no standing in court to insist on its enforcement, although they would benefit thereby. Allen v. Stevens, 22 Misc. Rep. 158, 49 IST. Y. Supp. 431 ; revd., 33 App. Div. 485, 54 N. Y. Supp. 8 ; which was revd., 161 N. Y. 122. Only the persons named and those benefited through them can invoke the protection of the act, and its protection can be waived or relinquished by those entitled thereto. Amherst College v. Bitch, 151 ]Sr. Y. 282, affg. 91 Hun, 509, 36 N". Y. Supp. 576, 71 1^. Y. St. Rep. 607; which affd. 10 Misc. Rep. 503, 31 E". Y. Supp. 885, 64 ]Sr. Y. St. Rep. 758. Any person who would take a part of the residue may take ad- vantage of the statute. Bobb v. Washington & Jeff. Col., 103 App. Div. 327 ; modified in 185 IST. Y. 485. ^ 857 Ascertaining Value of Estate — Dower. It is unquestionably true, as a general proposition, that in deter- mining how much a testator may lawfully give to charities the value of the widow's dower must be deducted from the gross value of the estate, because, at the time of death, the dower right is the property of the widow and not of the testator, and is, therefore, not devisable. Chamberlain v. Chamberlain, 43 IS. Y. 424. Dower is, however, a right or interest in the testator's real estate which may be released by the widow, and it is deemed to be re- leased when she accepts a provision made for her by the will and therein declared to be given in lieu of dower. Where the widow has, by acceptance of the provision of the will, released to the estate her right of dower, this release must be held to date back to the testator's death. The reason for the rule that the value of the dower must be excluded in estimating the amount of the devis- able estate, therefore, disappears, and the rule itself is rendered inapplicable, and the question must be considered as if the whole estate left by the testator, excluding his debts, but including the Talue of the widow's dower, was disposed of by the will. Lord v. Lord, 44 Misc. Rep. 530, f 858 Legacy to Ceeiditoe. 638 ^ 858 Legacy to a Creditor is Not a Payment of the Debt Unless the Will Can be so Construed. The rule as stated in Williams v. Crary (5 Cow. 368), that a legacy given by a debtor to his creditor which is equal to of greater than the debt, shall be considered as a satisfaction of it, has been repeatedly recognized. But dissatisfaction with this rule is frequently expressed and slight circumstances have been eagerly seized upon to make an ex- ception in its application. Williams v, Crary, supra; S. C, 4 Wend. 444 ; Mulheran's Executors v. Gillespie, 12 id. 349 ; Eatorb V. Benton, 2 Hill, 576 ; Reynolds v. Bohinson, 82 N. Y. 103 ; Ad- ams v. Olin, 61 Hun, 318; Sheldon v. Sheldon, 133 N. Y. 1. The rule is a mere presumption, but as a presumption we* do not understand that it has been abandoned. In Sheldon v. Sheldon (supra), the court, referring to the facts in that case, say : " The legacy given to the plaintiff by the will of the husband did not operate as payment. The will contains no words from which any intent can be inferred or found to extin- guish any pre-existing debt by means of the bequest. It was an absolute gift, apart from any debt due by the testator to his wife, and no debt is even mentioned or referred to in the will. A legacy to a creditor is not to be deemed in satisfaction of his debt unless so intended by the testatov." Boughton v. Flint, 74 id. 476.^ Declaration of testator. It is not competent to show by the declarations of a testator, made when the will was drawn, that a legacy was intended as pay- ment for services rendered. Reynolds v. Bohinson, 82 'N. Y. 103 ; Phillips V. McComle, 53 id. 494. Carries interest. A legacy in satisfaction of a debt carries interest from the death of testator. Parkinson v. Parkinson, 2 Bradf. 77. ^ 859 Legacy to Tv^o or More Persons. The rule that a legacy to two or more persons named, without further qualifications, constitutes a legacy to them as tenants in common, and not as joint tenants, is now well settled in this State; and upon this question the early cases of Putnam v. Putnam (4 Bradf. 308) and Gardner v. Printup (2 Barb. 83) must be re- garded as overruled. Matter of Hunter's Will, 19 Misc. Kep. 201, 44 ]Sr. Y. Supp. 605. 639 Legacy to Next of Kin. If 862 ^ 860 Legacy in Payment of a Debt Must be Accepted with All Its Conditions, if at All. The courts have held that a legacy to a creditor is not to be deemed a satisfaction of his claim unless so intended by the tes- tator, inasmuch as a legacy implies a bounty and not a payment. But when it appears that the legacy is intended as a payment of all indebtedness the legatee accepting must conform to all its pro- visions and renounce every right inconsistent with it. Havens v. Sacketts and Havens, 15 E". Y. 369. Courts of equity proceed upon the rule that there is an implied condition that he who accepts a benefit under the instrument shall adopt the whole, and conform to all its provisions, and renounce every right inconsistent with it. Chipman v. Montgomery, 63 K Y. 234; Matter of Morey, 16 N. Y. St. Eep. 777. ^ 861 Devise or Bequest to Those Persons Who Would Take the Estate by the Law^s of Intestacy. Such language constitutes a devise or bequest as though the par- ties and the extent of their shares had been mentioned. Caumont V. Bogert, 36 Hun, 382-391 ; Bowran v. Kent, 51 Misc. Eep. 136. A bequest, after a life estate, to those persons who, if testator's death occurred at the death of the life beneficiary, would then be testator's heirs-at-law by blood, vests title in a son of testator from testator's death. Minot v. Minot, 17 App. Div. 521, 45 :Nr. Y. Supp. 554. ^ 862 Taking of Devises and Bequests by Certain Coqjora- tions. Corporations formed Tinder chapter 368, Laws of 1865. Any corporation formed under this act shall be capable of taking, holding, or receiving any property, real or personal, by virtue of any devise or bequest contained in any last will or testament of any person whatsoever, the clear annual income of which devise or bequest shall not exceed the sum of $10,000 ; pro- vided no person leaving a wife, or child, or parent, shall devise or bequeath to such institution or corporation more than one-fourth of his or her estate, after payment of his or her debts, and such devise or bequest shall be valid to the extent of such one-fourth, and no such devise or bequest shall be valid in any will which shall not have been made and executed at least two months before the death of the testator. I 862 Legacy to Ceetain OoEPORAXioiirs. 640 Corporations formed under chapter 267, Laws of 1875. Any corporation formed under this act shall be capable of taking, holding, or receiving any property, real or personal, by virtue of any devise or bequest contained in any last will or testament of any person whatsoever, the clear annual income of which devise or bequest shall not exceed the sum of $10,000 ; pro- vided, no person having a wife, or child, or parent, shall devise or bequeath to such institution or corporation more than one-fourth of his or her estate, after payment of his or her debts, and such devise or bequest shall be valid to the extent of such one-fourth, and no such devise or bequest shall be valid in any will which shall not have been made and executed, at least two months before the death of the testator. 641 Legacy fob Bueial Expenses. 5 ^^^ CHAPTER XLII. Legacies and Bequests — Continued — Bequests for Funeral Expenses, Monuments, Cemetery Lots, Masses, and Religious Societies — Literest on Legacies. 1 863. Bequests for funeral expenses, monuments, and cemetery lots. 864. Bequests for masses. 864. Bequests to foreign religious corporations. 865. Bequests for charitable purposes. INTEREST ON LEGACIES. 866. From what time legacies draw interest. 867. Interest on general legacies. 868. Interest on legacy to widow in lieu of dower. 869. Interest on legacy to a child. 870. Interest on legacy payable after death of life beneficiary. 871. Rule for computing after partial payments. 872. From what time interest or income belongs to life beneficiary. ^ 863 Bequests for Funeral Expenses, Monuments, and Cemetery Lots. Bequest of residue to executor in trust to invest, pay the principal and income thereof toward the purchase of a cemetery lot and to the erection of a monument and the care of said lot and monument is void. Matter of Murray's Will, 34 Misc. Rep. 39, 69 K Y. Supp. 491. The will of an illiterate person provided that after the payment of dehts the balance of the estate should be expended in the build- ing of a monument and a suitable fence and fixtures — held, that testator intended to give from the balance only a reasonable amount for such purpose. Matter of Boardman, 46 IST. Y. St. Eep. 444, 20 I^. Y. Supp. 60. Testator gave to his executor all his property, amounting to about $1,200, for his funeral expenses and monument — held, that the deceased did not intend to give all, but only such an amount to be expended for a monument as would be desirable, and allowed $150 for such purpose. Emans v. Bichman, 12 Hun, 425. A bequest of the residue of the estate to the executor in con- sideration of his defraying funeral expenses and keeping a burial 41 T[ 864 Legacy toe Bueial Expenses. 642 lot in order is good. Matter of Badb, 42 App. Div. 141, 58 N. Y. Supp. 1043. Estate of $2,410. Provision in tlie will authorizing the executor to purchase a lot and a monument of New England granite, etc.,, and to erect a suitable fence. The executor spent $1,050 and the court said it was too much, considering the amount of the estate. Matter of Bmith, 75 App. Div. 339, 78 IST. Y. Supp. 130. Will directed the expenditure of a sum not to exceed $2,000 in repair of a cemetery lot. The executors built a sarcophagus, ex- changed a monument for a better one, and erected headstones and coping — held within their authority. In re Frazer, 92 N. Y. 239. C| 864 Bequests for Masses. Bequest to the priest of St. Mary's Church of Lancaster, N. Y.y of $600 for masses, etc., estate of $1,700 — held, that the priest would become entitled to the bequest by showing that he had per- formed the duty. Matter of Zimmerman, 22 Misc. Rep. 411, 50 N. Y. Supp. 395. Will directed that the executor take " $100 for the purpose that masses be read for my poor soul " — held valid. Matter of Hagenmeyer, 12 Abb. K C. 432, 2 Dem. 87. A gift to an organization for the benefit of the purgatorial fund is not a trust and is valid. Johnston v. Hughes, 187 IN". Y. 524^ revg. 112 App. Div. 524. Bequest of $500 to executor to be expended by him for masses —held void. O'Conner v. Gifford, 117 IST. Y. 275. Bequest for masses, void. Schwartz v. Bruder, 6 Dem. 169y 20 ]Sr. Y. St. Eep. 363 ; Holland v. Alcoch, 108 N. Y. 312. To foreign religious corporation. A bequest to a foreign religious body will be held valid if ths body is authorized to take by the law of the State of its location, even if it would not be authorized to take under our laws. Matter of Bulloch, 6 Dem. 335, 11 K Y. St. Eep. 700. ^ 865 Grants and Devises of Real Property for Charitable Purposes. A conveyance or devise of real property for religious, educa- tional, charitable, or benevolent uses, which is in other respects valid, is not deemed invalid by reason of the indefiniteness or un- 643 Legacy foe Charitable Uses. t 865 certainty of the persons designated as the beneficiaries thereunder in the instrument making such conveyance or devise. If in such instrument, a trustee is named to execute the same, the legal title to the real property granted or devised shall vest in such trustee. If no person is named as trustee, the title to such real property vests in the Supreme Court, and such court shall have control thereof. The Attorney-General shall represent the beneficiaries in such cases and enforce such trjasts by proper proceedings. Eeal Property Law, § 93. An act to regulate gifts for charitable purposes. — Laws of 1893, chap. 701. No gift, grant, bequest or devise to religious, educational, charitable, or benevolent uses, which shall, in other respects be valid under the laws of this state, shall be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the same. If in the instrument creating such a gift, grant, bequest or devise there is a trustee named to execute the same, the legal title to the lands or property given, granted, devised or bequeathed for such purposes shall vest in such trustee. If no person be named as trustee then the title to such lands or property shall vest in the supreme court. § 1. Control over gifts. The supreme court shall have control over gifts, grants, bequests and devises in all cases provided for by section one of this act and, whenever it shall appear to the court that circumstances have so changed since the execution of an instrument containing a gift, grant, bequest or devise to religious, educational, charitable or benevolent uses as to render imprac- ticable or impossible a literal compliance with the terms of such instrument, the court may, upon the application of the trustee or of the person or cor- poration having the custody of the property, and upon such notice as the court shall direct, make an order directing that such gift, grant, bequest or devise shall be administered or expended in such manner as in the judg- ment of the court will most effectually accomplish the general purpose of the instrument, without regard to and free from any specific restriction, limitation or direction contained therein; provided, however, that no such order shall be made until the expiration of at least twenty-five years after the execution of the instrument or without the consent of the donor or grantor of the property, if he be living. The attorney-general shall repre- sent the beneficiaries in all such cases, and it shall be his duty to enforce such trusts by proper proceedings in the court. (As amended hy ch. 291 of Laws of 1901.) § 2. The obvious intention of the Legislature was not to provide for trusts to be created for the benefit of the institutions of another State, but to foster permanent trusts for religious, educational, charitable, and benevolent purposes within our own State, and this view finds support in Allen v. Stevens (161 E". Y. 122, 141), t 866 Inteeest on Legacies. 644 where Parker, Ch. J., after reviewing the conflicting decisions respecting charitable uses, sets forth the statute and says : " Read- ing the statute in the light of the events to which reference has been made, it seems to me very clear that the Legislature intended to restore the law of charitable trusts as declared in the Williams case (8 ]Sr. Y. 525) ; that having discovered that legislative enact- ment had operated to take away the power of the courts of equity to administer trusts that were indefinite as to beneficiaries, and had declared a permanent charity void unless the devise in trust was to a corporation already formed or to one to be created, it sought to restore that which had been taken away through another enactment." Catt v. Catt, 118 App. Div. Y42. ^ 866 From What Time Legacies Draw Interest. The general rules, in regard' to the payment of legacies, where no time is fixed or indicated by the will, together with the interest thereon, may be stated thus : 1. Specific legacies are considered as severed from the bulk of the testator's property, by the operation of the will, from the death of the testator, and as specifically appropriated, with the income and the increase thereof, for the benefit of the legatee, from that period ; and interest is computed thereon from the death of the testator. 2. By statute general legacies are not payable until one year from the issuing of letters testamentary, and they do not begin to draw interest until that time. 3. A legacy given to a widow, in lieu of dower, where the testator died seized of real estate of which she was dowable, draws interest from the death of the testator. 4. A legacy given in satisfaction of a debt draws interest from the testator's death. 5. A legacy given to a child of the testator, or one to whom the testator has placed himself in loco parentis, will, if sucsh child is an infant, and is not otherwise provided for by the tes- tator's bounty, or in some other way, draw interest from the testator's death, to provide means for the support and maintenance of such infant child ; the amount of interest for the first year to be fixed by the court according to circumstances, not, howev.jr, to exceed the amount necessary for the proper support, education, and maintenance of such infant during the year succeeding the testator's death. 645 Interest on Legacies. If 867 6. An annuity draws interest from the death of the testator, in the absence of any direction contained in the will, to the con- trary. 7. A general legacy of the specific amount, bequeathed to one for life, with remainder over, on the death of the life tenant, will begin to draw interest at the end of twelve months from the death of the testator ; and the first payment of interest will become due thereon at the expiration of the second year. 8. A life tenant of the residue of the testator's estate will be entitled to the net earnings of such residue from the testator's death, after providing for the payment of debts and other legacies. Carr v. Bennett, 3 Dem. 458; Matter of McKay, 5 Misc. Eep. 123, 25 N. Y. Supp. 725; Thorn v. Garner, 113 N. Y. 198. It is now settled by the Court of Appeals that since, under sec- tion 2721 of the Code, general legacies are not payable until one year after grant of letters, such a legacy does not begin to draw interest until that time. Matter of McOomam,, 124 E". Y. 526, revg. 32 N. Y. St. Rep. 226. This case overrules Carr v. Bennett (3 Dem. 459) ; Dustan v. Carter (3 Dem. 149) ; Clark v. Butler (4 Dem. 378) ; Matter of Gibson (24 Abb. IST. C. 45), and other cases in so far as they hold that such a legacy begins to draw , interest one year after the death of testator; aisu' Fisher's Estate (1 Bradf. 335). " Letters testamentary " or " of administration " include temporary letters, and so, where such letters have been granted pending proceedings for the probate of a will, interest upon a general legacy begins to run one year after the date of the issue of such letters. Matter of McGowan, 124 N. Y. 526, revg. 32 :^. Y. St. Eep. 226. ^ 867 Interest on General Legacies. At the time the will went into Whether the assets of the estate eflfect and for some years thereafter have been fruitful or unproductive the estate was subject to a life estate does not aSect the right of the in another. Held that the legacies legatee. He is in the same position were not due until the death of the as a creditor and entitled to be life tenant and did not begin to draw awarded interest at the legal rate for interest until that time. Wheeler v. such time as he is kept out of his Buthven, 74 N. Y. 428. legacy after one year from the grant- A legacy bears interest at the legal ing of letters. Matter of Austin, 45 -Irate from the time it becomes pay- N. Y. Supp. 984; Clark v. Butler, 4 ' able, and the fact that the money Dem. 378. of the estate has not been invested Legacies are payable one year from at the legal rate of interest does not granting letters and bear interest change the rule. Hoffman V. Perm after that time, unless directed by Hospital, 1 Bern. 118. the will to be sooner paid. In this f 868 Legacy in Lieu of Dowek. 646 case it was held that interest from interest only from the time the con- date of death was not due. Bradner teat was dismissed. Foster v. Wet- V. Faulkner, 12 N. Y. 472. more, 37 N. Y. St. Rep. 667, 14 N. Y. An executor who is a legatee and Supp. 194. has funds in hand sufiBeient to pay A bequest to be equivalent to the his legacy cannot have interest upon rent of certain premises for four the same. Matter of Gerard, 1 Dem. years — held not to be due and not 244. to draw interest until the end of the A general legacy of stock or bonds four years. St. F. X. College v. does not carry the interest or divi- Doherty, 5 Eedf. 526. dends accruing before delivery to the Where a trust was to be made up legatee. Tifft v. Porter, 8 N. Y. 516. of the proceeds of certain property A contest over a will was being to be converted into cash — held that made in the interest of one who was interest did not begin to run until a legatee. Upon that failing the such conversion, if made within a legatee demanded interest on the year. Foster v. Wetmore, 37 N. Y. legacy — held that she was entitled to St. Rep. 667, 14 N. Y. Supp. 194. ^ 868 Interest on Legacy to Widow in Lieu of Dower. Whether a legacy to a widow in lieu of dower shall bear interest from date of death of testator, or from one year thereafter, is often an important question, and has lately been discussed in two cases seemingly holding opposite views. These cases are: Matter of Barnes, 7 App. Div. 13 ; affd., 154 N. Y. 737, and Stevens v. Melcher, 80 Hun, 514; affd., 152 K Y. 551. In the Barnes case the testator gave to his widow absolutely a legacy of $150,000 " in lieu of all other interest, dower, or distributive share, of my estate." Mr. Justice Ingraham, writ- ing for the court, after considering a number of cases in this and other States, reached the conclusion that where a gross sum is given to a wife, in lieu of dower, over which she has the absolute right of disposition, such gross sum takes the place of the dower interest; and such legacy does not become due and payable or draw interest until the expiration of one year from the date of the issue of letters testamentary, in the absence of a contrary intention of the testator, plainly expressed in the will, that the legacy should be paid before the time fixed by law for its payment. The distinction between these cases is apparent and plain. The language used by the testator in the Stevens case, " To be paid to her out of my estate as soon as practicable after my decease," clearly evinces an intention on the part of the testator to make the legacy payable before the expiration of the year, removed the case from the operation of section 2721 of the Code of Civil Procedure, and explains the statement of Presiding Justice Van Brunt in the Barnes case that " interest is a penalty imposed because of a default in the payment of money which is due." 647 Legact to a Son oe Daughter. I 869 The testator's estate being such that it was " practicable " to pay the legacy immediately on his decease, it then became due and payable, and interest from that time was properly allowed. These facts make clear the reasons which led the Court of Appeals to negative the contention of appellant's counsel in the Barnes case that its decision in the Stevens case furnished reasons for a re- argument and reversal. Matter of Martens, 106 App. Div. 50. A legacy to a widow in lieu of dower draws interest from the death of testator. Parkinson v. Parkinson, 2 Bradf. 77; Seymour v. Butler, 3 id. 193; Stevens v. Melcher, 80 Hun, 514, 62 N. Y. St. Rep. 599, aflfd., 152 N. Y. 551 ; Heplurn v. Hep- hum, 2 Bradf. 74; Bullard v. Benson, 1 Bern. 486. To entitle the widow to the bene- fit of this rule it must appear ex- pressly or by fair inference from the ■will itself that the legacy is given in lieu of dower. Matter of Williams, 1 Eedf. 208. A legacy to a testator's widow in lieu of dower carries interest from ■the testator's death although its value exceeds that of the dower in- terest. Matter of Combs, 3 Dem. 348. A legacy to widow in lieu of dower ■will not begin to draw interest until she elects to receive it in lieu of dower. Matter of Eodgman, 52 N. Y. St. Rep. 727, 69 Hun, 484; affd., 140 N. Y. 421. Almost one-half of testator's large estate was given to the widow, and it did not appear that testator left any real estate, and it was held that it was not a case for allowance of in- terest from the death of testator. Matter of Barnes, 7 App. Div. 13; aflfd., 154 N. Y. 737. Widow being given legacy in lieu of dower — held to be entitled to in- terest from date of testator's death. Matter of Benson, 96 N. Y. 499. Where a, testator makes an ante- nuptial agreement to pay a certain sum to his intended wife at death in lieu of dower, and by his will in- creases that sum, such increase is not in lieu of dower but is a general legacy drawing interest only after one year from grant of letters. Matter of Bostwick, 49 Misc. Rep. 186. It was said in Matter of Bostwick (49 Misc. Rep. 186), that it is now well settled that an absolute legacy to a, wife in lieu of dower does not draw interest until one year from the issuance of letters testamentary, and it is only where the interest of a trust fund is given in lieu of dower that it runs from the testator's death. Matter of Barnes, 7 App. Div. 13; affd., 154 N. Y. 737. ^ 869 When Legacy to a Child Begins to Draw Interest. A legacy to an adopted daughter for whom no provision was made for immediate support was held to draw interest from date of death. Matter of Williams, 1 Redf. 208. Legacy of $1,000,000 to an adult son in feeble health — held did not draw interest from date of death of testator. Thorn v. Oarner, 113 N. Y. 198. A legacy to a grandchild to whom the testator stood in loco parentis, said legatee being an infant and with- out other property, draws interest from date of testator's death. Brown y. Knapp, 79 N. Y. 136. Adopted children being left the in- come of certain funds until they ar- rived at age are entitled to that income or interest from date of death of testator. Matter of Devlin, 1 Tuck. 460. No evidence that the grandfather had assumed the relation of a parent, and interest from death not allowed. Harward v. Hewlett, 5 Redf. 330. Real property converted is so con- verted as of date of death, and in- terest will be allowed to minor adopted daughter from date of death. Keating v. Burns, 3 Dem. 233. Legacy to daughter payable " as Tl 870 Payment Defekeed. 648 soon as practicable" after testator's on the ground of needing additional death draws interest after one year. income for a better style of living. Yernet v. Williams, 3 Dem. 349. Morgan v. Valentine, 6 Dem. 18, 19 Upon a legacy to an adopted N. Y. St. Eep. 515. daughter payable when she became The test is not whether the child twenty-five years of age, interest was has any other property applicable not allowed until she reached that to its maintenance, but whether any age. Lyon v. /. S. Assn., 127 N. Y. other provision is made for it in the 402. will. Neder v. Zimmer, 6 Dem. 180, Legacy to a child married and with 20 N. Y. St. Rep. 353 ; Brown v. grown sons will not draw interest Knapp, 79 N. Y. 136-141. ^ 870 When Legacy Begins to Draw Interest Which is to be Paid from Proceeds of Sale of Real Estate After Death of Life Tenant. The theory upon which interest is allowed by law on general legacies is because of the deprivation of the sanie beyond a period when it is payable, either by the terms of the will or the time fixed by statute. It follows, therefore, that interest is payable from the time when a legacy ought to be paid to the time when actual payment is made, and that time is one year after the issue of letters, unless the will appoints and fixes a different time. The testator may upon proper directions annex interest on the principal from any point of time he desires, but in the absence of such direction the rule is as stated. When pecuniary legacies are payable after the intervention of a life estate out of the proceeds of the sale of real and personal property, the law does not require a sale instanter, but a reason- able time will be allowed for the conversion of assets into a fund from which to pay, and interest will not be given until the sale, since the legatees suffer no deprivation or damage, which is the basic principle upon which interest is allowed; nor can interest be demanded until interest is payable, which would be after the sale of the real property, since the funds for the payment of the legacies were to be derived from the sale of lands, and in no other manner. Matter of Schahacher, 46 Misc. E,ep. 219. Legacy payable from proceeds of sale of real estate becomes payable when sufficient sum is realized from such sales and interest begins from that time. Van Rensselaer v. Van Rensse- laer, 113 N. Y. 207. But see Matter of Maine, 62 Hun, 334, 42 N. Y. St. Eep. 195. 649 Computing Interest on Legacy. H 872 ^ 871 Rule for Computing Interest on Legacy Where Partial Payments Have Been Made. The rule to be applied was settled nearly a hundred years ago, in Connecticut v. Jackson (1 Johns. Ch. 17). It was stated as follows : " The rule for casting interest, when partial payments have been made, is to apply the payment in the first place to the discharge of the interest then due. If the payment exceeds the interest the surplus goes toward discharging the principal and the subsequent interest is to be computed on the balance of prin- cipal remaining due. If the payment be less than the interest, the surplus of interest must not be taken to augment the prin- cipal, but interest continues on the former principal until the period when the payments taken together exceed the interest due and then the surplus is to be applied toward discharging the principal, and interest is to be computed on the balance as afore- said." It has since been followed. Young v. Hill^ 67 N. Y. 162 ; Peyser v. Myers, 135 id. 599 ; Matter of Erving, 103 App. Div. 501. ^ 872 From What Time a Legacy of Income Draws Interest or Carries the Accruing Income. The beneficiary is entitled to interest on a legacy left for his use, from the date of testator's death, where it appears clearly to have been the intent of the testator that the legacy should be paid by a transfer of bonds and mortgages bearing interest at the time of his death. Coohe v. Meeker, 36 N. Y. 15 ; approved in 135- id. 292. A gift of the income of an estate gives the income from the testator's death. Matter of 8locum, 60 App. Div. 438; affd., 169 X Y. 153. Where the estate is sufficient for the liquidation of debts and other charges, and is so invested as to be productive of income from the death of the testator, a bequest of income to a legatee for life must be construed to invest him with a title to such in- come from the date of the testator's demise, unless there is some provision in the will from which a contrary intention is to be inferred. Matter of Stanfield, 135 N. Y. 292. In Cooke v. Meeker (36 IST. Y. 15), the court say: "The authorities would seem abundant, therefore, to sustain the doctrine, that when a sum is left in trust, with ia direction that the interest and income I 872 Legacy of Income. 650 should be applied to the use of a person, such person is entitled to the interest thereof from the date of the testator's death." See also Matter of Baker, 57 App. Div. 44; Powers v. Powers, 49 Hun, 219, 1 N. Y. Supp. 636, 16 N. Y. St. Kep. 770; Conklin v. Clark, 48 Misc. Eep. 432. Income of a trust fund given for benefit of a sister of testator — held that interest began on death of testa- tor. Matter of Wood, 1 Dem. 559. A legacy in trust for the support and education of a granddaughter draws interest from testator's death. Nahmens V. Gopely, 2 Dem. 253. Where the whole estate was given to the executor to invest and pay the income to wife and child, and most of such estate was invested in a busi- ness, the income from such business from the death of testator was held to belong to the beneficiary and not to the remainderman. That it was income not corpus. Matter of Slo- cum, 169 N. Y. 153. Where a gift is made of the income of an estate the income is to be reckoned as commencing immediately upon the testator's death. Testator was member of a partnership and his interest was left in the firm for a time after his death — held that all the profits thereon went to the life tenant. Matter of Rogers, 37 Misc. Rep. 54; affd., 80 App. Div. 362. Where a will directs the income of testator's property to be paid to certain persons for life, remainder over, and that certain property be converted, the income for the first year goes to the life tenant and not to the estate. Austin's Will, 60 App. Div. 445, 69 N. Y. Supp. 1036; aflfd., 169 N. Y. 153. Where the income from an estate or of a designated portion thereof is given to a legatee for life he becomes entitled to whatever income accrues thereon from and after the death of testator, unless there is some pro- vision in the will from which a con- trary intent can be inferred. Matter of Stanfield, 135 N. Y. 292, affg. 64 Hun, 277, 46 N. Y. St. Rep. 346, 8 N. Y. Supp. 913. Where the personal estate was not sufficient to pay the debts and the real estate was unproductive, interest from testator's death was not allowed the mother who was given the life use of the estate. In re O'Hara's Exrs., 19 Misc. Rep. 254, 44 N. Y. Supp. 222. Trust fund created with income to H. — That fund in fact was made up of property held by deceased in his life time which was earning 8 per cent. — held that the beneficiary was only entitled to such rate of interest as might be reasonably earned thereon. Southgate v. Gont. T. Co., 74 App. Div. 150; aflfd., 176 N. Y. 588, no opinion. Testator provided for a fund to be made up of certain securities and held by trustees — that such fund should be divided into three parts, and from one of such third parts he provided that in a certain event certain persons should have a speci- fied portion thereof — held that such legacies were general and bore in- terest from the death of the person who had the life use thereof. Smith V. Lansing, 24 Misc. Rep. 566, 53 N. Y. Supp. 633. 651 Legacy — Power of Absolute Disposition. 1 873 CHAPTER XLIII. Legacies and Bequests — Continued — Absolute and Limited Legacies — Right to Deduct Debt Due from Legatee — Vested and Lapsed Legacies. H 873. Effect of giving power of disposition to legatee. 874. Absolute gift may be limited upon a contingency. 875. Under power of disposition parties take equally, unless otherwise specified. 876. Right of retainer where legatee owes debt to testator. 877. When legatee denies the debt. 878. Eight to retain income from trust fund. 879. General rules regarding vesting of legacies. 880. Lapsed devises and legacies. 881. Devise or bequest to descendant does not lapse. 882. Evidence of relationship to testator by proof of pedigree. 883. Effect of death of one person included in a class of legatees. ^ 873 Effect of Giving Power of Absolute Disposition of Legacy to Legatee. When the Legislature adopted the Revised Statutes it intended to make the article with regard to powers a complete and exclusive code upon the subject and that article is applicable as well to powers concerning personal property as to those affecting real estate. Cutting v. Cutting, 86 N. Y. 522 ; Hutton v. Benhard, 92 id. 295 ; N. Y. L. I. Co. v. Livingston, 133 id. 125 ; Cochrane V. 8chen, 140 id. 534, affg. 64 Hun, 576. A bequest for life with power to dispose of the fund at death with no remainder over is a general and beneficial power, and the grantee takes an absolute fee. Hume v. Randall, 141 E". Y. 499, revg. 65 Hun, 437 ; Deegan v. Wade, 144 N. Y. 573, affg. 75 Hun, 39; Matter of Moehring, 154 IST. Y. 423, affg. 19 App. Div. 629, 46 N. Y. Supp. 1097. Bequest for life " to be disposed of by her at her death among her lawful issue in such proportions as she shall direct and ap- point " — held, not to vest absolutely in life beneficiary, but to be a valid power and remainder. Matter of Welch, 2 Dem. 124. Absolute gift to wife, requesting her to make certain disposition of the property at her death, does not limit the gift. Foose v. Whitmore, 82 IST. Y. 405. II 873 PowEE OF Absolute Disposition. 652 My conclusion is, therefore, that the wife, Matilda, took an estate in fee and that the words " as she may deem best for the comfort and maintenance of the family," imported no limitation upon the estate which she took, and were but an expression of the testator's reasons for making the gift, explanatory of his purpose, but not affecting the actual duties of the devisee. Clark v. Leupp, 88 K Y. 228; Banzer v. Banzer, 156 id. 432, 435, affg. 11 Misc. Eep. 310; Laidlaw v. Laidlaw, 47 id. 232. In Campbell V. Beaumont (91 N. Y. 464), the primary devise was, or was deemed to be, absolute, and the ques- tion was whether it was limited by subsequent expressions. It was held not. So in Leggett v. Firth (132 N. Y. 7 ) , the primary devise to the widow was absolute, but there was a pro- vision that on the decease of the widow " the remainder thereof, if any," should go to other parties. It was held (p. 22) that the widow took only a life estate with a power of sale to be exercised during her life for her own benefit. In Terry v. Wiggins (47N. Y. 512), there was a residuary devise to the wife " for her own personal and in- dependent use and maintenance, with full power to sell or otherwise dis- pose of the same, in part or the whole, if she should require it or deem it expedient to do so." It was said (p. 516), "the power could only be exercised under the will in case the wife should require it or should deem it expedient; that is, with a view to her ' personal use and main- tenance,' the purposes for which it was given." In Matter of Cager (111 N. Y. 343 ) , there was a gift to the wife of all the estate, real and personal, " to be used and enjoyed, and at her dis- posal during the term of her natural life." Any that might remain at her decease was given to other parties. It was held that the widow had power to dispose of the corpus of the estate, but that this power was not intended to be absolute and unconditional, "but was limited by the language devising the property for her use and enjoyment during her life, and did not give her the power of disposing of it by will." In Wells V. Seeley (47 Hun, 109, 13 N. Y. St. Rep. 239), there was a residuary devise to the wife " to be held and used by her as she shall see fit and proper, during the full term of her life, and at her death, if any part of my said estate shall remain unexpended," then over to others. It was held to be the intention to give to the wife the use of the property during her life, with the power to use such portion of the principal as should, in her opinion, be necessary for her support and to carry out the provisions of the will. In Greyston v. Clark (41 Hun, 125, 4 N. Y. St. Rep. 4), there was pri- marily an absolute gift to the wife, and for this reason it was held (p. 132) that the widow, during her life, could dispose of the property, although it was not for her support and main- tenance. In Thomas v. Wolford (49 Hun, 145, 16 N. Y. St. Rep. 764), a bequest for life with remainder over of what might be left was held to give the widow the power, during her life, to consume or dispose of the corpus of the estate as might become expedient or necessary to secure for her its beneficial enjoyment. Where distribution was postponed and the will directed that if any lega- tee was not alive when the time for distribution of the whole estate came, his share should go to the survivor — held a valid limitation of the prior absolute gift. Matter of Wiley, 111 App. Div. 590. 653 LiMiTATioisr upon Legacy. f 874 ^ 874 An Absolute Gift May be Defeated by Words of Lim- itation to Take Effect upon the Happening of a Con- tingency. It is settled beyond question that where there is a devise or bequest to one person in terms which would pass the fee or an absolute estate, if there were no words of limitation, and there is a subsequent provision giving the same estate to another upon the happening of a contingency, the devise or bequest over will take effect. In N orris v. Beyea (13 E". Y. 273), it was held that " There is in truth no repugnancy in a general bequest or devise to one person, in language which would ordinarily convey the whole estate and a subsequent provision that upon a contingent event the estate thus given should be diverted and go over to an- other person. The latter clause in such cases limits and controls the former, and when they are read together, it is apparent that the general terms which ordinarily convey the whole property are to be understood in a qualified and not an absolute sense. * * * So familiar is the doctrine that a limitation may be engrafted upon a devise in fee, that it is that circumstance which forms the distinction between remainders and executory devisees." In Tyson v. Blake (22 IST. Y. 558), it was said: " A general bequest of personal estate, like a fee in lands, can be subjected to a limi- tation over on a condition which is not too remote. If the direc- tion is that it shall go to another beneficiary on a contingency which must happen at the death of the first taker, the limitation is within the rules of law and will be sustained." In Oxley v. Lane (35 N. Y. 340), the will read: " I will, order, devise, and bequeath that if either of my said sons or daughters, or if both of my said grandchildren shall die without issue before the final distribution of my estate at the end of twenty-five years after my decease as aforesaid, that the share of the party or parties so deceased shall be shared equally among all my other children, share and share alike." The court said : " It qualifies the abso- lute title and estate previously given to such deceased child or grandchildren by a conditional limitation in favor of all the children of the testator then surviving. * * * This subse- quent limitation over is not repugnant to the prior devises and be- quests, although they are in language denoting an absolute gift of the whole estate in fee, and it will be sustained as a valid executory gift * * *." ^ 875 DisTPaBUTiois Uxdee Powee. 654 Repugnancy. There is no repugnancy in a general bequest or devise to one person in language whicli would ordinarily convey the whole estate, and a subsequent provision that upon a contingent event the estate thus given should be diverted and go over to another person. Norris v. Beyea, 13 IST. Y. 273 ; Tyson v. Blake, 22 id. 558. A testator may make a gift dependent upon the happening or not happening of any event in the future, whether in the testator's lifetime or afterward. So held in regard to an advancement made to the legatee in testator's lifetime. Langdon v. Astor's Est, 16 ISr. Y. 9. Where an estate is given in one part of the will in clear and decisive terms, it cannot be taken away or cut down by raising a doubt as to the meaning or application of a subsequent clause, nor by any subsequent words which are not as clear and decisive as the words giving the estate. Banzer v. Banzer, 156 N. Y. 429, affg. 11 Misc. Eep. 310; Goodwin v. Coddington, 154 ¥. Y. 283, revg. 84 Hun, 605 ; Clarke v. Leupp, 88 IST. Y. 228 ; Bose- ioom V. Rosehoom, 81 id. 356; Brynes v. Stilwell, 103 id. 453; Washhon v. Cope, 144 id. 287, revg. 67 Hun, 272 ; Mee v. Gordon, 187 N. Y. 400, revg. 104 App. Div. 520. A bequest with power of disposition during life, and a gift over of the remainder, is not an absolute gift so that the remainder can be disposed of by will. French v. French, 52 Hun, 303, 23 K Y. St. Eep. 450. f^ 875 Distribution Under Power. Where a distribution under a power is directed to be made to, among, or between, two or more persons, without any specifica- tion of the share or sum to be allotted to each, all the persons designated shall be entitled to an equal proportion ; but when the terms of the power import that the estate or fund is to be dis- tributed among the persons so designated, in such manner or pro- portions as the grantee of the power thinks proper, the grantee may allot the whole to any one or more of such persons in ex- clusion of the others. Keal Property Law, § 138. ^ 876 Legacy — Right of Retainer Where Legatee Owes Debt to Testator. Where a debt exists from the legatee to testator, the executor is justified in refusing to pay the legacy and in applying it in part 655 Legacy — Eight of Eetainek. f 878 satisfaction of the debt. Smith v. Murray, 1 Dem. 34; revd. in Matter of Eudd, 4 Dem. 335 ; Matter of Colwell, 15 N. Y. St. Eep. 742. A note against a niece of testator was set off against a legacy althongh the will stated that all money any legatee might have re- ceived from testator in his lifetime should be considered a gift and not an advancement. Matter of Cramer, 43 Misc. Eep. 494. May be retained where Statute of Limitations has run against the debt. That an executor has an equitable lien upon and the right to retain out of a legacy an amount due from the legatee to the testator, and that this right is unaffected by the fact that such debt is barred by the Statute of Limitations, is well established. Matter of Foster, 15 Misc. Eep. 175, 72 ^. Y. St. Eep. 140, 37 ]Sr. Y. Supp. 36. On judicial settlement of the executor's accounts he was charged with a judgment and a note held by testator against a legatee against both of which the six-year statute had run and the right of retainer declared to exist. Rogers v. Murdoch, 45 Hun, 32, 9 ]^. Y. St. Eep. 660. ^ dill When the Legatee Denies the Debt. When the legatee denies the validity of the debt sought to be retained, the surrogate has no power to determine the question, nor to gainsay the correctness of the position taken by the exec- utors, and, therefore, in a proper case a provision for its reserva- tion will be inserted in the decree on judicial settlement. Matter of Colwell, 15 N. Y. St. Eep. 742 ; Matter of Foster, 15 Misc. Eep. 175, 72 N. Y. St. Eep. 140. Bequest of $50 and attempt on judicial settlement to offset such bequest against an alleged claim of the deceased against the leg- atee — claim disputed by legatee — held, that the surrogate had no jurisdiction to determine the question of the existence of the debt. Matter of Schmidt, 58 N. Y. Supp. 595. ^ 878 Right to Retain Income of Trust Fund. While it is well settled that a debt due from a legatee may be retained out of a legacy, there seems to be some difference of opinion whether the income from a trust fund established by the testator for the benefit of such debtor can be retained and applied % 879 Vesting of Legacies. 656 upon the debt. In Matter of Foster (38 Misc. Kep. 347), such retainer was allowed upon the judicial settlement of the accounts of the executors, the surrogate saying : " The principle upon which the right of retainer depends must be the same whether the legacy is general, or is the income of a fund placed in trust." The same question arose later on a motion before the surrogate to compel a trustee named in the will who was also the executor to pay over the income of the trust fund to the debtor. In that case (Matter of Bogert, 41 Misc. Kep. 598), the surrogate felt con- strained to take the opposite view and said : " It stands conceded that this income is exempt from the attack of a creditor, yet it must be remembered that an executor of an estate simply stands' in the light of a creditor, and if the estate can reimburse itself by retaining this income until the debt is paid then the estate would have a preference over the ordinary creditor. * * * The theory of retainer is that it is the executor's duty to collect all debts due the estate, and that such debts are assets due the estate which it is the executor's right to retain and offset against a legacy, but a trustee has no such powers. His duties are confined exclusively to investing and caring for the trust funds and applying the same as directed by the trust." The reasoning in the Bogert case was approved in Matter of Knihis (45 Misc. Eep. 83). In that case the executors' and trus- tees asked to retain the income of a trust fund to pay judgments held by them against the legatee for costs granted them in litiga- tion brought by the legatee, and such request was denied. This decision was affirmed in 108 App. Div. 134. ^ 879 Three General Rules Regarding Vesting of Legacies. 1. It is a general principle that where the gift is absolute and ' the time of payment only postponed, time not being of substance of the gift, but relating only to the payment, does not suspend the gift, but merely defers the payment. 2. Where there is no gift but by direction to executors or trustees to pay or divide, and to pay at a future time, the vest- ing in the beneficiary will not take place until that time arrives. 3. Where the gift is to be severed instanter from the general estate for the benefit of the legatee, and in the meantime the in- terest thereof is to be paid to him, that is indicative of the intent of the testator that the legatee shall at all events have the princi- pal and is to wait only for the payment until the day fijsied. War- ner V. Durant, 76 IST. Y. 133. "657 Vesting of Legacieb. 1 879 Vesting of legacies or devises. It is not the uncertainty of enjoyment in the future but the un- certainty of the right to that enjoyment which marks the difference between a vested and a contingent interest. Where the words are "assign and Div. 38, 74 N. Y. St. Rep. 402, 37 pay" vesting is postponed, except N. Y. Supp. 1107; affd., 158 N. Y. where such postponment is for the 679. benefit of the estate. Kunhardt v. Bequest of residue in trust for the Bradish, 39 Misc. Rep. 103, 78 N. Y. life of the widow to pay her income. Supp. 902. At death of widow, whole estate to Held vested, Hennessy v. Patterson son. Son died before widow. Held, (85 N. Y. 92), where subject is dis- that the estate vested in the son at cussed. Loder v. Hatfield, 71 N. Y. testator's death. Van Gamp v. 92. Fowler, 59 Hun, 311, 36 N. Y. St. Vested remainder subject to being Rep. 580, 13 N. Y. Supp. 1. opened or defeated. Moore v. Littel, Remainder held vested. Roome v. 41 N. Y. 66. Phillips, 24 N. Y. 463. Leading case on vesting, perpetu- See another phase of same case, ties, etc. Manice v. Manice, 43 N. Y. 27 N. Y. 357. 303. Time referred to was time the will Death referred to was not a death took eflfeet after the death of the in the lifetime of the testator. Mat- life tenant. Scott v. Guernsey, 48 ter of Denton, 137 N. Y. 428; Van- N. Y. 106. derzee v. Slingerland, 103 id. 47 ; Will created a trust for life, and Mead v. Mahen, 131 id. 255. then gave estate to nephews and Devise to son for life and then to nieces — held that the will spoke as grandchildren if son left no children. of the time of the death of testator Son left no children. Held, that title and not as of the date of the termi- vested in grandchildren at death of nation of the trust. Matter of Wool- testator. Sage v. Wheeler, 3 App. sey, 49 Misc. Rep. 201. Trust during limited period. " Each share is then held in trust for a specific, named benefi- ciary, a child of the testatrix, and each such child is entitled to an equal share of the rents and profits, or in the case of its death, that share is to go per stirpes. Not only is the statutory definition of vesting satisfied (1 K. S. 723, § 13; Moore v. Littel, 41 ~S. Y. 80), but I believe construction is not being stretched in saying that the amount of the gift is practically severed from the estate, and with a provision that the interest thereon be paid to the beneficiary until the time of distribution. This constitutes a present gift. Warner v. Durant, 76 IST. Y. 133 ; Steinway v. Stein- way, 163 id. 183; Dougherty v. Thompson, 167 id. 472; Ogden V. Ogden, 40 Misc. Kep. 473. The estate in the trustees is only so large as is necessary to satisfy the trust. Beyond that they have a power for the purposes of distribution, but the existence of such a power does not prevent vesting. Matter of Brown, 154 ]Sr. Y. 313. I do not think it was the intention of the testatrix that in the event of the death of one of her children during the 42 if 880 Lapsed Devises and Legacies. 658 five-year period that share was to be divested in favor of anybody but his or her own issue. The provision as to rents clearly shows that. In my opinion this clause should be construed to vest in each child an estate as of the death of the testatrix, that the rents, issues, and profits were to be paid to such child during the five- year term, and that, in the event of the death of a child, issue were to take by substitution." Clark v. Goodridge, 51 Misc. Kep. 147; 52 id. 239. ^ 880 Lapsed Devises and Legacies. The rule of the common law that a legacy or devise, given with or without words of limitation lapses in case of the death of the devisee or legatee before the testator, in the absence of express words to prevent a lapse, or of something in the context of the will indicating a contrary intent, is still in force in this State save so far as modified by statute. The rule as to lapsed devises has become the same as applies to lapsed legacies. Gruikshank v. Home for the P., 113 N. Y. 337; Youngs v. Youngs, 45 id. 254. Bequest to each child who shall have arrived at the age of twenty- five years — one of such children died before the execution of the will — held, that her sole issue was not entitled to the legacy. Pimel v. Betzemann, 183 N. Y. 194, revg. 99 App. Div. 559. The words " shall die " are not to be construed as referring to a time intermediate the making of the will and the death of testator. Barnes v. Huson, 60 Barb. 598. A legacy does not lapse though the legatee die before a person upon whose death the legacy was made payable. Matter of Weinstein, 43 Misc. Rep. 577, 89 N. Y. Supp. 535. Bequest to trustee for the support of mother and sister during mother's life and then to sister. Sister died before mother — held, legacy did not lapse but vested at death of testa- trix. Mitchell V. Knapp, 54 Hun, 500, 27 N. Y. St. Eep. 604 ; aflfd., 124 N. Y. 654. Bequests to four persons for life, and as they respectively should die, principal should be paid to the chil- dren of each; one died childless — held, such legacy lapsed. Palmer v. Dunham, 24 N. Y. St. Rep. 997, 6 N. Y. Supp. 262. A devise to a man and his " heirs " is a gift with limitation and not as a purchase, and consequently is not a devise to the " heirs." Van Beuren V. Dash, 30 N. Y. 393. The fact that the testator knew of the death of a legatee several years before his own death and did not change his will, supposing that the legacy would go to the descendants of the legatee, does not change the application of the general rule as to lapse of a legacy. Roterts v. Bos- worth, 107 App. Div. 511. " Descendant " means a person who proceeds mediately or immediately from the body of the person of whom it is predicated in the course of gen- eration, and does not include col- laterals. Van Beuren v. Dash, 30 N. Y. 393. " Shall die " often held, to refer to persons who were dead at the time of the making of the will. Ahhey v. Aymar, 3 Dem. 400. A gift to N. T. S. " and his heirs " to be paid to him " or to his heirs " indicates a gift in fee to N. T. S. and not a gift to his heirs if he dies be- fore testator, and, therefore, the 659 Legacy in Common oe Joint Tenancy. If 882 legacy lapses. Matter of Smith, 33 A devise to widow and sister who. rru" -■ ^^P- ^^®- died before testator lapsed as did a Ihe interest of a daughter, a life estate on the residue, where the devisee, who died after the testator, beneficiary of the life estate died dur- goes to her heirs-at-law and does not ing the lifetime of the testator. Oill lapse. Rauchfuss v. Rauchfuss, 2 v. Broimer, 37 N. Y. 549, approving ^em. 271. 30 id. 393. ^ 881 Devise or Bequest to Descendant Does Not Lapse. Whenever any estate, real or personal, shall be devised or be- queathed to a child or other descendant of the testator, and such legatee or devisee shall die during the lifetime of the testator, leav- ing a child or other descendant who shall survive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in the surviving child or other descendant of the legatee or devisee as if such legatee or devisee had survived the testator and had died intestate. R S., pt. 2, chap. 6, tit. 1, art. 3, § 52. This statute canot be avoided by adding the words " to have and to hold the same to them, their heirs, and assignees forever." Mat- ter of Wells, 113 ]Sr. Y. 396. ^ 882 When Legatees Take in Common or in Joint Tenancy. Every estate granted or devised to two or more persons in their own right shall be a tenancy in common, unless expressly declared to be in joint tenancy; but every estate vested in executors or trustees, as such, shall be held by them in joint tenancy. This section shall apply as well to estates already created or vested as to estates hereafter granted or devised. Real Property Law, § 56. This statute applies to personal as well as real estate. Mills v. Husson, 140 ]^. Y. 99. Gift to a class. A gift to a class is a gift of an aggregate sum to a body of per- sons uncertain in number at the time of the gift, to be ascer- tained at a future time, who are all to take in equal or in some other definite proportions, the share of each being dependent for its amount upon the ultimate number. Matter of Eimherley, 150 K Y. 90. II 883 Death Befoeb Makikg Will. 660 ^ 883 Legacy to a Class — Death of One Legatee Before Making of the Will. 'The clear weight of authority is in favor of the proposition that a bequest to a class does not include persons dead before the mak- ing of the will, who, had they survived till that time, would have fallen within the description given to the class, of course, in the absence of something in the will or surrounding circumstances to show a different intent. There can be no question as to the evil intended to be remedied by this legislation. It was to abrogate in the case of the death of a child before that of the testator the -common-law rule that a devise or legacy to him lapsed and to ■substitute the children of the deceased child for the primary ob- ject of the testator's bounty. Pimel v. Betjemann, 183 N. Y. 194, revg. 99 App. Div. 559. When time of distribution is designated and a bequest is made to such persons as answer a necessary and certain description ^' at the time of making the payment or distribution " — held to mean at the time when the shares were legally payable and not when they were actually paid. Matter of Coolidge, 85 App. Div. ■295, 83 N. Y. Supp. 299 ; affd., 177 N. Y. 541. Where the bequest is to a class to take at a certain time, the Tule seems to be that where some of such j -rsons are incompe- tent to take either by death, alienage, or other disability, the re- mainder of the class takes what was intended for all. Yan Cort- land V. Laidley, 59 Hun, 161, 32 IST. Y. St. Kep. 585, 11 K Y. Supp. 148. 661 Void Legacy. | 884 CHAPTER XLIV. Void and Lapsed Legacies— Disposition thereof —Legacies Charged upon Real Estate or upon Devisee. H 884. Void legacies. 885. Effect of misnomer. 886. Disposition to be made of void and lapsed legacies. 889. Legacy charged upon land devised. 893. Proceeds of sale remains real estate. 894. Legatees may defeat power of sale by electing t» take the land. 896. Payment of legacy charged upon devisee. 897. Intention of testator to charge legacy on land may be considered. * 898. Residuary legacies. 898. Legacy of an annuity. ^ 884 Void Legacies. A void legacy is one which cannot take effect by reason of some- matter inherent in the gift itself. Am. & Eng. Encyc. of Law (2d ed.), voL 18, p. 747. A legacy to the person who " takes care of me in my last ill- ness " and " remain with me and prepare me for a Christian death," is void for indefiniteness and uncertainty. Harrington v.. ATberton, 115 App. Div. 177. Bequest to unincorporated religious society declared void.. Lutheran Ref. Church v. Mook, 4 Eedf. 513. Bequest of furniture, etc., " to A. & B., to be distributed as I may designate and direct them while living " — held void. Imd- lam, V. Holman, 6 Dem. 194. Where testator had based a legacy in his will upon a partner- ship agreement, and after making such will the agreement had been materially changed — held, that the legacy was void. Wal- ker V. Steers, 38 IST. Y. St. Eep. 654, 14 N. Y. Supp. 398. Where a person named as legatee is dead at the time the will is made the legacy is void as there is no one in being to take the- same. Meeker v. Meeker, 4 Eedf. 29. A legacy is vcid where the power of alienation is unlawfully suspended. Amory v. Lord, 9 IST. Y. 403. A bequest to an unincorporated religious society which does not name the purpose for which it is made is void. Matter of Scott, 31 Misc. Kep. 85, 64 IST. Y. Supp. 577. 1 885 Void Legacy. 663 ^ 885 Misnomer. A misnomer or misdescription of a legatee or devisee, whether a natural person or a corporation, will not invalidate the provision or defeat the intention of the testator if, either from the will it- self, or evidence dehors the will, the object of the testator's bounty can be ascertained. Lefevre v. Lefevre, 59 N. Y. 434. The surrogate decided that a bequest to the Hebrew Orphan Asylum should be paid to the Hebrew Benevolent Orphan Asylum Society ; and that a bequest to the Protestant Orphan Asylum of New York was intended to be for the Orphans' Home and Asylum of the Protestant Episcopal Church ; and that a bequest to the New York Catholic Orphan Asylum was intended for the Koman Catho- lic Orphan Asylum Society of the city of New York. Matter of Pearson, 52 Misc. Eep. 273. Gift to St. Francis Hospital — held to be intended for The Sisters of the Poor of St. Francis, who conducted a hospital by that name. Johnston v. Hughes, 187 N. Y. 446, revg. 112 App. Div. 524. Proof may be taken as to all matters which will assist the sur- rogate in determining to which of two or more institutions the deceased intended to make the bequest. Matter of North, 52 Misc. Eep. 429. ^ 886 Disposition to be Made of Void and Lapsed Legacies. Makes up deficiency in general legacies. A void legacy held to go to make up deficiency in other general legacies, and not to the residuary legatee. Matter of Botsford, 23 Misc. Kep. 388, 52 N. Y. Supp. 238 ; affd., 37 App. Div. 73, 55 ISr. Y. Supp. 495. A legacy which is void or lapses does not pass to the residuary legatee until all general legacies are paid in full. Wetmore v. 8t. Luke's H., 56 Hun, 313, 31 N. Y. St. Eep. 334, 9 N. Y. Supp. 753. Does not make up deficiency where a trust is established. Legacy given in trust and upon the termination of the trust to fall into the residuary estate does not go to make up the de- ficiency in general legacies, but goes to the residuary legatees. Wetmore v. St. Luke's H., 56 Hun, 313, 31 N. Y. St. Eep. 334, -9 N. Y. Supp. 753, modifying 18 N. Y. St. Eep. 732. 663 Void oe Lapsed Legacy — Disposition. | 887 ^ 887 Not into Residue. A lapsed or void devise or legacy will not fall into the residue if a proper construction of the will shows a clear intention of the testator to limit the residue. Beehman v. Bonsor, 23 N. T. 298 ; Kerr v. Dougherty, 79 id. 327 ; distinguished in 176 id. 535. In Langley v. Westchester Triist Co. (180 IST. Y. 331), the case of Kerr v. Dougherty was limited, the court saying: " The executors are to pay the specific bequests from the fund, but if they are unable to pay some of them because of their invalidity, then the moneys remaining in their hands are so much of the fund as had not been used or drawn upon for the purpose of pay- ing the specific bequests. In Biker v. Cornwell (113 IST. Y. 115), a case where the words were ' after payment of all the legacies and carrying out all the trusts and provisions made,' it was argued that they were indicative of an intention to give only a specific residue. We held otherwise and we considered those words as words of description rather than of exclusion and limitation." In the case of Moffett v. Elmendorf (152 IST. Y. 475), the testator gave " all my real estate, except the portions thereof hereinafter otherwise given or disposed of," to his wife. There followed specific devises of real estate to other persons, some of which provisions lapsed. Vann, J., in discussing this clause of the will, says : " So the gift of all but certain excepted portions ' otherwise given or disposed of ' may refer to gifts effectually made, as distinguished from those which might lapse. By gen- eral rule the will speaks from the death of the testator, and as to the second and tenth clauses this is necessarily the result, at least in part, independent of the rule, for until that time it could not be known whether he would leave any children or not or who would be his ' heirs-at-law.' Speaking as of that date lapsed legacies would be ignored the same as if they had not been made. Moreover, a gift of ' all other land,' or of ' all land not hereinbe- fore devised,' is regarded as. a devise of the residue and not as indicating an intention to exclude specific gifts." See also Hind- man V. Haurand, 2 App. Div. 146 ; affd., 159 'S. Y. 546 ; Lamh V. Lamb, 131 id. 227. It is contended that a different conclusion was reached in the case of Kerr v. Dougherty {supra). In that case the attention of the court was directed to another question which had been elabo- rately discussed, and then followed a declaration of Miller, J., to the effect that there was no error on the part of the trial courts in f 887 Void oe Lapsed Legacy — Disposition. 664 the conclusion arrived at that the sums bequeathed by the void legacies were undisposed of by the will and that the amount passed to the widow and next of kin. No further consideration appears to have been given in the opinion to that clause of the will. Under another clause he, however, states that " The general rule is that in a will of personal property the general residuary clause carries whatever is not otherwise legally disposed of but this rule does not apply where the bequest is of a residue of a residue and the first disposition fails." These views met with a vigorous protest by Earl and Eapallo, JJ". ; Andrews, J., being absent. Appar- ently, the later cases have given the matter more careful consid- eration and if the Kerr case is in conflict upon this point it must be deemed to have been overruled. Into residue. Testator gave his widow a legacy in lieu of dower and of all claims against his estate as widow. She having accepted the legacy — held, that she took no part of two lapsed legacies, but that such lapsed legacies fell into the residuary. Matter of Benson, 96 K Y. 499. A devise which is void for indefiniten^ss will pass to the re- siduary devisee as would a lapsed legacy or devise. Gallavan v. Gallman, 57 App. Div. 320, 68 IST. Y. Supp. 30, affg. 31 Misc. Eep. 282, 64 IST. Y. Supp. 329. Where a particular bequest follows a residuary clau£3, the be- quest is not void, but will be considered as excepted from the residuary clause, but if the bequest lapses it will be held to fall into the residuary. Morton v. Woodbury, 153 JST. Y. 243. Case where it was held that void trust fell into the residue. Trunkey v. Van Sant, 176 IST. Y. 535, revg. 83 App. Div. 272, 82 ]Sr. Y. Supp. 94. In the case of Carter v. Board of Education of the Presbyterian Church (144 'S. Y. 621), the will, after giving certain specific legacies, provided that " whatsoever moneys may remain in the hands of my said executors after paying the foregoing bequests " should be paid to the parties particularly specified. Two of the legacies were declared to be invalid and the contention was that the words " after the payment of the foregoing bequests " in- dicated an intention not to include in the residuary estate the invalid bequests, and that he, consequently, died intestate as to those items. It was, however, held that the invalid bequests passed 665 Effect of Lapse of Legacy. f 889 into the residuary estate. Gray, J., in delivering the opinion of the court, said : " While the words ' after the payment of the fore- going bequests ' in the residuary clause might, in some cases, be deemed to circumscribe and confine the residue, so that a residuary legatee would not be entitled to any benefit accruing from lapses, that effect would be given to them because they would illustrate an intention which was apparent from the will. Judge Earl's observations in Matter of Accounting of Benson (96 IST. Y. 499) are to be taken, not as laying down an absolute rule that a residuary clause is necessarily circumscribed by the insertion of such words, but as suggesting that they might evidence an inten- tion on the part of the testator that the residue is to be confined to so much only as would remain after deducting from the estate the aggregate amount of all previous bequests. Langley v. West- chester Trust Co., 180 E". Y. 326. ^ 888 Effect of Lapse. Devise in trust with legacy charged on the land and trustee directed to pay the same, the legatee died before testator — held, that the legacy lapsed and the land was discharged from its pay- ment. Matter of Smith, 33 IST. Y. St. Eep. 586; Kerr v. Dougherty, 79 IST. Y. 327 ; .distinguished in Matter of Benson, 96 id. 499. Descends subject to powei of sale or other burden. A person who takes as heir-at-law premises which descended to him as intestate property by reason of the failure of the testator to make a valid disposition thereof by his will, takes such property subject to any burden imposed thereon by the necessity of carrying out to the best advantage the valid provisions of the will. Down- ing V. Marshall, 4 Abb. Ct. App. Dec. 662. The real estate may be so situated as to require a sale of all of it in order to execute the valid portions of the will, and thus it will be turned into money in fact, but for the purposes of disposi- tion under the statute as intestate property it will retain its char- acter as real estate. Bender v. Paulu, 118 App. Div. 23. ^ 889 When the Pajmient of a Legacy is or is Not Charged upon Land Devised. Where, in a will, general legacies are given, followed by a gift of all the rest and residue of the real and personal property of the f 889 Legacy Charged on Land. 666 testator, by a residuary clause in the usual form and nothing more, it must now be regarded as the established rule in this State that the language of the will alone, unaided by extrinsic circumstances, is insufficient to charge the legacies upon lands included in the residuary devise. This was clearly the opinion of Chancellor Kent in the leading case of Lupton v. Lupton (2 Johns. Ch. 614), as appears by his comment on the case of Brudenell v. Boughton (2 Atk. 268), although his judgment in that case rested in part upon the circumstance that in the will then under considera- tion, there was a prior devise which easily permitted an inter- pretation "reddendo singula singulis," of the residuary clause. In Hoyt V. Hoyt (85 N. Y. 142), Folger, 0. J., referring to Lupton V. Lupton and other cases, justly stated that they asserted the doctrine that, " unaided and alone, the words that make up the usual residuary clause of a will are not enough to evince an intention in the testator to charge a general legacy upon real estate," but the question was not passed upon in that case. The courts, however, have held that a gift of general legacies, followed by a general residuary clause, is not inconsistent with an inten- tion on the part of a testator to charge the legacies on the land. They have, therefore, permitted extrinsic circumstances to be con- sidered for the purpose of ascertaining the actual intention of the testator and in some cases, by reading the language of the will in the light of the circumstances, have inferred an intention to charge legacies on the land and given efFect to such intention, al- though the language considered, independently of the circum- stances, would not alone justify such an inference. The cases of Wiltsie v. Shaw (100 N. Y. 191) and McCorn v. McCorn (id. 511), illustrate very clearly the attitude of the Court of Appeals upon the subject. Both we^e cases substantially of wills giving general legacies, followed by the usual residuary clause. Li each the question was whether the legacies were charged on the land. In Wiltsie v. Shaw, it appeared that the testator left a large personal estate, ample for the payment of debts and legacies, and no other circumstance appearing, it was held that a legacy given by the testator in his will, in trust for a son, was not a charge on the lands, which passed to the testator's daughter under the residuary clause. In McCorn v. McCorn, the legatees were the wife and son of the testator, and the gift of the legacies was followed by the usual residuary clause, under which all the testator's real estate passed to four other children. It ap- peared that the will was made the day before the testator's death. 66Y Legacy Charged on Land. f 890 and that his personal estate was insufficient to pay his funeral expenses. The legacies to the testator's wife and son were mere pretenses " unless meant to be a charge on the real estate." Under these circumstances the court held that the legacies were intended to be charged on the realty, and sustained the claim of the legatees. The cases in this State establish these two propositions : First, that general language in a will, giving legacies, followed by the usual residuary clause, is alone insufficient to charge the legacies on the realty; and, second, that such language will justify such charge if it is made to appear by extrinsic circumstances, such as may under the rules of law be resorted to, to aid in the interpre- tation of written instruments, that it was the testator's intention that the legacies should be charged on the land. The rule in Eng- land and in some of the States in this country and in the Supreme Court of the United States is different from the rule in this State. Brill V. Wright, 112 I^. Y. 129. ^ 890 When Charged on Land. The mere making of a provision for the payment of debts or legacies out of the real estate does not dis- charge the personalty. There must be an intention not only to charge the realty, but to exonerate the per- sonalty. Hoes V. Van Hoesen, 1 N. Y. 120. The intention and purpose of the testator to be determined was that which was found to exist at the time of the execution of the will and can- not be varied or changed by any after-occurring events. Morris v. Sickly, 133 N. Y. 456. See also 137 id. 604. Legacy charged upon land and not made a personal obligation of the devisee. Van Dyke v. Emmons, 34 N. Y. 186. A devise of land "on conditions and proviso" that devisee pay cer- tain legacies makes them a charge upon the land so devised. Loder v. Hatfield, 71 N. Y. 92. See also Hutchins v. Hutchins, 18 Misc. Eep. 633, 42 N. Y. Supp. 601. Whether a legacy is charged upon the real estate of a decedent is al- ways a question of the testator's in- tention. Primarily, the lan^age of the will is the basis of the inquiry, but extrinsic circumstances which aid in the interpretation of the lan- guage employed and help to disclose the actual intention are also to be considered. Le Fevre v. Toole, 84 N. Y. 95; Hoyt v. Hoyt, 85 id. 142; Scoit v. StehUns, 91 id. 605, affg. 27 Hun, 335; McCorn v. McCorn, 100 N. Y. 511, 513. Legacies may be charged on real estate without express direction in the will, if the intention of the tes- tator so to do can be fairly gathered from all the provisions and extrane- ous circumstances. Hoyt v. Hoyt, 85 N. Y. 142. Will made day before death — legacies to wife and one son, residue to his children — he had no surplus of personal estate — held, that the legacies were charged on the real es- tate. McCorn v. McCorn, lOO N. Y. 511. Insufficiency of personal estate and the investment of some of it in real estate after the making of the will — held, to make legacy a charge on real estate. Briggs v. Carroll, 117 N. Y. 288, affg. 50 Hun, 586; Irwin v. Teller, 188 N. Y. 25, affg. 115 App. Div. 17. One thousand dollars personal and $4,000 legacies — held, legacies charged on real estate. Matter of Pettit, 6 Dem. 391, 13 N. Y. St. Eep. 184. 1 891 Effect of Powee of Sale. 668 Where testator after making his charged on all the land descending will invested nearly all his personal and not on the share that descended estate in real estate, and there was to the heirs of the son. Young v. a power of sale — held, that a legacy Young, 102 App. Div. 444; affd., 183 to the son was charged on the real N. Y. 550. estate. Scott v. Stebbins, 91 N. Y. This conclusion (to charge the 605, affg. 27 Hun, 335. legacies) is not impaired by the fact Where legacies are given " if there that the property devised and be- is that for them when I and my wife queathed to the daughters was so de- get done with the property " — held, vised and bequeathed subject to the charged on real estate. Eogan v. payment by each of an annuity to Kavanaugh, 138 N. Y. 417. Elisha, which the testator directed Where a testator had disposed of each of them to secure by setting all his personal estate by deposits in apart " out of the personal property trust, and then gave legacies, etc., hereby bequeathed to her the sum of by his will, it was held, that such $2,500, and invest the same and hold legacies were charged upon his real it in trust " for his benefit, as that estate. McManus v. McManus, 179 provision related only to the annuity N. Y. 338, affg. 86 App. Div. 240. and not to the gift over of the prin- Laiid devised to son charged with cipal to the next of kin of Elisha. payment of debt due from son to Irwin v. Teller, 115 App. Div. 23; testator. Son refused to accept the affd., 188 N. Y. 25. devise — held, that the debts were ^ 891 Legacies Not Charged. Except for extraordinary expenses of tlie estate there would have been enough, personal estate to pay all debts and legacies — held, legacy not charged on real estate. Brill v. Wright, 112 N. Y. 129. Legacies of $2,000. At death personal amounted to only $500 — investment having been made in real estate after making the will - — held, legacies not charged on real estate. Morris v. Sickly, 133 K Y. 466. Will read, "All the rest of my property, after paying all the legacies and my lawful debts, I give, together with my farm to my son J." If the executor had collected the outstanding debts, the personalty would have sufficed to pay the legacies. Held, that they were not charged on the real estate. Purdy v. Purdy, 36 App. Div. 535, 57 E". Y. Supp. 166. Legatees whose shares of the personal estate of the testator have been wasted by the executor have no lien upon the real estate de- vised to such executor to make good their loss. Wilkes v. Harper, 1 K Y. 586. ^ 892 Effect of Power of Sale. The fact that the will contains a power of sale which to become useful must be employed to obtain funds to pay legacies raises a strong presumption that legacies are charged upon such fund. Taylor v. Dodd, 58 N. Y. 335; Kalhfleisch v. Dodd, 67 id. 354. 669 Proceeds Remain Real Estate. f 894 It is a natural inference that a power of sale is given for the purpose of raising money to pay legacies. Hoyt v. Hoyt, 85 IST. Y. 142. ^ 893 Proceeds of Sale to Pay Debts or Legacies Remain Real Estate and Pass as Such. " The real property within this State passes under the will and is controlled by our law. The power to sell for the purpose of paying legacies is valid. When so sold the proceeds become assets for the payment of debts and expenses of administration, and any deficiency of personalty for such purposes may be supplied from such proceeds. Matter of Bolton, 146 N. Y. 257 ; Cahill v. Rus- sell, 140 id. 402. The doctrine of equitable conversion cannot be invoked to require the proceeds of such sale to be treated as per- sonalty at the time of the death of the testator, and, therefore, to pass to the persons claiming against the will and as heirs-at-law. The equities that required the conversion were the equities of the persons for whose benefit the sale was directed, and the sale was lawful only in order to satisfy their claims. So far as all other persons are concerned there was no equitable conversion. The pro- eeeds of the sale will, therefore, be paid pursuant to the directions and wish of the testator as set forth in his will." Matter of Barandon, 41 Misc. Rep. 383, 84 IST. Y. Supp. 937. Proceeds of real estate sold under power to sell to pay legacies are personal estate to the extent of the legacies, but the surplus over the legacies not disposed of by the will should be distributed as real estate. Matter of Weinstein, 43 Misc. Rep. 577, 89 IST. Y. Supp. 535 ; PatTcer v. Linden, 113 K Y. 28. A gift of land with power of sale in executors differs from a gift of the proceeds of the sale of land; in the former case the proceeds remain real estate, and in the latter case they become personal estate. Matter of McComb, 117 IST. Y. 378 ; Glacius v. Fogel, 88 id. 444; Hood v. Hood, 85 id. 561; Kinnier v. Rogers, 42 id. 531. ^ 894 Beneficiaries May Elect to Take the Land. Where real estate is converted into personal estate by a power of sale which has been exercised, the beneficiaries, being of full age, may elect to have a reconversion into realty and to take it as land. Greenland v. Waddell, 116 IST. Y. 234. I 895 PowEE OF Sale Meeged. 6Y0 Where there is a conversion of realty into personalty the bene- ficiaries cannot in aU cases have the right of election to take the land. Smith v. A. D. Farmer T. Co., 16 App. Div. 438, 45 N. Y. Supp. 192, revg. 18 Misc. Eep. 434, 41 N. Y. Supp. 788 ; which modified 17 Misc. Eep. 311, 40 IST. Y. Supp. 356. Where there is an imperative power of sale, and the bene- ficiaries desire to take the land, all must join in the election. McDonald v. O'Hara, 144 IST. Y. 566, affg. 9 Misc. Eep. 686, 62 N". Y. St. Eep. 122, 30 N. Y. Supp. 545. Conveyance of the land by the beneficiaries held to extinguish the power of sale. Hetzel v. Barber, 69 E". Y. 1. A slight expression of intention is sufficient to show an elec- tion on the part of those interested to take the land and to cause a reconversion. Prentice v. Janssen, 79 ]^. Y. 478, affg. 14 Hun, 548 ; Hayes v. Kerr, 19 App. Div. 91, 45 N. Y. Supp. 1050. Will provided : I give full power and authority and control to sell my property in B. to my sister Mrs. C, and to receive the rent of it — held, that the power of sale did not prevent the vest- ing of the fee in the sister. Jennings v. Conboy, 73 N. Y. 230. An election by one of the beneficiaries without the concurrence of the others will not defeat a power of sale. Mellen v. Mellen, 139 N. Y. 210, affg. 47 N. Y. St. Eep. 930. ^ 895 An Imperative Power of Sale Not Exercised May Become Merged in the Fee. The imperative power of sale not having been exercised, the beneficiaries of the proceeds of the power of sale may claim the land itself, and the power of sale will be held to have merged in the fee. Matter of Bathyen, 115 App. Div. 645. In Forman v. Marsh (11 IST. Y. 544, 549), the court says: " It is a general rule that where equity impresses a different quality upon property from that which it has in fact, such impression ceases whenever the possession of the estate and the right to it in each quality meet in the same person; that is, when there is no other person than the one who has the actual possession, who has an equitable interest in retaining the fictitious character of the estate. Thus, when real uses have been impressed upon per- sonal property, and the personal fund and the uses come together in the same person, the uses are considered as discharged and merged, for there is no person to call for their application." 671 Chaeged upon Devisee. f 897 ^ 896 Devisee Charged with Payment of Legacies. Where a testator devises all his real and personal estate and charges the devisee with the payment of his debts and legacies, the devisee, if he accept the devise and bequest, is personally liable for such payments. Gridley v. Qridley, 24 N. Y. 130. Where the legacy is directed to be paid by the executor who is a devisee of real estate, such estate is charged with the payment of the legacy; and the devisee upon accepting the devise becomes personally bound to pay the legacy, even though the land devised to him proves to be less in value than the amount of the legacy. Brown v. Knapp, 79 N. Y. 136. Devise of real estate upon condition that the devisee pay a legacy — held^ that the devisee was personally liable therefor and that the six years' Statute of Limitation applied. Zweigle v. Hohman, 75 Hun, 379, 58 N. Y. St. Eep. 660, 27 IST. Y. Supp. 111. Where the devisee did not accept the uevise the legatee was de- nied judgment for his legacy. Damuth v. Lee, 29 App. Div. 30, 51 N. Y. Supp. 648 ; which affd. 20 Misc. Eep. 439, 46 K Y. Supp. 286 ; aflfd., 163 N. Y. 478. Where a will devises the real estate to a person " on condition and proviso that he pay " certain legacies within four years from the death of testator and such real estate is charged with the pay- ment of the same, and such legacies are not paid, such failure does not work a forfeiture, unless there is a provision for for- feiture or re-entry. Cunningham v. ParTcer, 146 N. Y. 29. ^ 897 Evidence of Intention of Testator to Charge Legacy on Land May be Considered. When trying to determine whether the testator charged lega- cies upon the real estate or upon the devisee, extrinsic facts may he considered. The general rule of evidence as to the nonintro- duction of extrinsic facts has been construed very liberally when applied to such an intention and the courts have given weight to such facts as might be properly taken into consideration in each particular case and, therefore, the amount of his personal estate as compared with the amount of the legacies ; and the fact that the testator did not specifically devise his real estate; and the fact that the legatees were minors and that there was a direction in the ^ 898 Eesiduaey Legacies. 672 will to pay them the interest on their legacies half yearly have all been taken into consideration. Matter of Pettit, 13 N. Y. St. Eep. 184. ^ 898 Residuary Legacies. No particular mode of expression is necessary to constitute a residuary legatee. It is sufficient, if the intention of the testator is plainly expressed in the will, that the surplus of his estate, after payment of debts and legacies, shall be taken by a person there designated. While the residuary clause in wills is usually the last of its disposing provisions, still, the mere fact that it is not the last is not of controlling consequence and can have no effect except as it bears upon the question of the intent of the testator. Though the residuary clause is usually, it need not necessarily be, the last in the will, and any particular bequest which follows that clause may, if made to different legatees, reasonably be read as an exception out of the property comprised in it. Morton v. Woodbury, 153 IST. Y. 251. Bequest by implication. Bequests and devises by implication are not infrequent. Where land is devised to the heir after the death of A, although no specific life estate is conferred upon A, he takes one by implication. In King v. Barker (3 Bradf. 126) the testator devised and bequeathed the residue of his estate to children of his deceased brothers as tenants in common, and provided as follows: "And should either of the said seven children die before me, without leaving any child or other descendant, I hereby give, devise, and bequeath the residuary share or portion of the one so dying to her or his surviving brothers or sisters." One of the residuary legatees having died before the testator leaving children, it was held by the surrogate, although there was no express gift, that there was an implied gift to such children. The opinion in the above case is a logical and learned one, and refers to the authorities sustaining the holding at hand at the time it was written. The question does not appear to have been con- sidered by any other of the courts of this State. In England, however, the question has been ccmsidered in several cases. Matter of Disney, 118 App. Div. 378. 673 Legacy of an Annuity. t 899 ^ 899 Legacy of an Annuity. A legacy may consist of the grant of an annuity to a person for life or for a term of years. This is the right to be paid a certain sum of money at stated periods from the general estate or from a certain fund to be set apart. The payment thereof may be a charge upon the income of such estate or fund or it may be charged upon a legatee or devisee of particular property. "When so charged the legatee or devisee by accepting the gift assumes and agrees to pay the annuity according to its terms. Unless otherwise stated the first payment of a legacy of an annuity is due one year from the date of the death of the testator and if not paid at that time it will draw interest from the date it is due. The present value of a legacy of an annuity is computed on the same principle as is the value of dower or curtesy. 43 f 900 Annuity Defined. 674 CHAPTER XLV. Annuities. T 900. Anmiity defined. 901. A charge on land. 902. Making up deficiency. 903. First payment — When due. 903. When alienable. 904. Determining sum to be set apart. 905. Apportionment of annuity. ^ 900 Annuity Defined. An annuity is defined to be a periodical payment of money, amounting to a fixed sum in each year, the moneys paid being either a gift or in consideration of a gross sum received. Century Dictionary. In general terms an annuity is a yearly payment of a certain sum of money granted to another in fee for life or for years. Kearney v. Cruikshank, 117 IST. Y. 95, revg. 46 Hun, 219. An annuity may be made payable semi-annually or quarterly. Cochrane v. Walker, 4 Dem. 164; Stewart v. Chambers, 2 Sandf. Oh. 382. The giving of an annuity does not constitute a trust in all cases or a power in trust. The annuitant takes no life estate in the property held by the executors, but simply has the right to be paid the annuity out of the funds in their hands. Clark v. Clark, 147 N. Y. 639, affg. 84 Hun, 362. Annuity or income. It becomes important to determine whether a bequest is an an- nuity or the income of a fund. The question in each case is whether the testator intended to give a specific sum of money annually, or the income from specific property. Where a testator directs his executor to invest sufficient of his estate on bond and mortgage to produce interest enough to pay the annuity, the legacy is general. Haviland v. Cocks, 6 Dem. 4, 19 ]Sr. Y. St. Rep. 524. Bequest of income and not of an annuity. Gift to wife for life of the use of $10,000, " directing my executors to semi-annually pay to her the lawful interest of the 675 Annuity Chaeged on Land. f 901 said sum " — held, a bequest of ineome. Whitson v. Whitson, 53 N. Y. 479. Bequest of income of a particular fund is not an annuity. Stubbs V. Stubbs, 4 Kedf. 170. D. bequeathed to his wife " the interest upon the sum of $10,000, to be paid to her annually during the period of her natural life " with a devise over of the principal sum — held, that the bequest was of the income of the sum specified and not an annuity of $720. Matter of Dewey, 153 E". Y. 63. Gift of the interest upon $1,500 payable annually — held, to be a legacy and not an annuity. Booth v. Ammerman, 4 Bradf. 129. Payment of taxes and expenses. Taxes and expenses cannot be taken from an annuity, but may be taken from a bequest of an income from a fund. Stubbs v. Stubbs, 4 Redf. 170. As to paying taxes and expenses out of the fund there is a difference between a legacy of income and a clear annuity. In the former case such taxes and expenses are payable from the fund, but not in the latter case. Whitson v. Whitson, 53 N. Y. 479; Matter of McComb, 4 Barb. 151. ^ 901 A Charge on Land. An annuity given by will is a charge on testator's land, where testator left practically no personalty, and the will, which was made two days before her death, devised the rest of the property subject to another legacy. Arthur v. Dalton, 14 App. Div. 108, 43 N". Y. Supp. 583, 77 JST. Y. St. Eep. 583. An annuity charged upon land exonerates the personalty, al- though such intention be not stated. Matter of Boury, 49 Misc. Eep. 389. Devise of real and personal to trustees and direction to pay annuities, and gift of remainder over — held, that the annuities were not charged upon the real estate. Rothschild v. Roux, 78 App. Div. 282, 79 N. Y. Supp. 833. Without any proof as to the actual amount of personal property which the testator owned at the time he made his will and at the time of his death, or of any other circumstances outside the will, the will itself does not disclose any intention upon the part of the testator that an annuity should be made a charge upon real estate. ^ 902 Annuity, Making up Deficiency. 676 Morris v. Sickly, 133 N. Y. 456; Bohinson v. Kelso, 53 Misc. Hep. 91. An annuity held to be charged on land when it was directed tkat it should be paid from rents and profits until a son arrived at ■twenty-one, at which time the real estate was devised to the son. Dunham v. Deraismes, 165 N. Y. 65, revg. 29 App. Div. 432, 51 K Y. Supp. 1097; which revd. 22 Misc. Eep. 568, 60 N. Y. Supp. 742. Where real estate is charged with an annuity so far as personal obligations were created by the acceptance of the devise, each devisee is only liable for the same aliquot share of the annuity as is devised to him of the estate. Dunham v. Deraismes, 166 1^. Y. 607. ^ 902 Principal May be Used to Make up Deficiency. Bequest of an annuity to widow to be paid out of income, with talanee of income going to other persons — held, that the annuity ■was to be paid in full even if there was not sufficient annual in- come for such purpose. Pierrepont v. Edwards, 25 IsT. Y. 128. One-half of the residuary estate was directed to be put at in- terest and $100 a year paid to A. — held, that the annuity was not limited to the interest received and that any deficiency should be made up from principal. Bliven v. Seymour, 88 'N. Y. 469. Under a will which directed the setting apart of a sum which invested at the rate of 6 per cent, would produce the annuities, it was held, that sum to be set apart must be determined by the rate of interest specified and not by the present prevailing rate. Matter of Sproule, 42 Misc. Eep. 448, 87 N. Y. Supp. 432. Direction to executors to invest sufficient sum to pay widow $1,000 a year. The bulk of the estate was divided among the re- maindermen, and the sum set apart became reduced so that the income did not meet the annuity. Held, that the principal of the sum set apart was applicable to the payment of the annuity. Cochs V. Haviland, 49 Hun, 301, 17 N. Y. St. Kep. 639. Deficiency not made up from principal. It is a well-settled rule that where a legacy or annuity is pay- able solely out of income and the fund fails to produce the sum required the legacy abates in proportion to the loss of capital or fund. 677 Annuity, Fiest Payment. ^ 903 Such rule is not universally applicable to all annuities given to be paid out of income. If from the will an intention can be dis- covered that the legacy shall be paid at all events, the intention will not be permitted to be overruled by the direction that the annuity is to be raised out of particular fund — held, that in this case a deficiency in income so that the annuity could not be paid from it in full did not authorize the payment of the deficiency from corpus. Delaney v. Van Aulen, 84 N. Y. 16. Deficiency in income in foimer yeais may be made good. Bequest of an annuity to an adopted son from income, balance of income to husband, l^o bequest of corpus or balance of income after death of husband. For some years there was not enough income to pay annuity to son, but later there was a surplus — held, that the deficiency arising in former years should be made good from such surplus. Matter of Chauncey, 119 IST. Y. 77. An annuitant is entitled to have, in certain cases, all arrearages of lean years satisfied out of the income of after years that are full. Cochrane v. Walker, 4 Dem. 164. ^ 903 Annuity First Payment. The first payment on an annuity is due at the end of a year after testator's death. Lawrence v. Emhree, 3 Bradf. 364; Booth v. Ammerman, 4 Bradf. 129. Where an annuity had been paid yearly and just before the ex- piration of the year the annuitant died, her administrator was not apportioned any part of the yearly annuity. Kearney v. Cruik- shanh. 111 IST. Y. 95, revg. Beed v. Cruihshanh, 46 Him, 219, 11 K Y. St. Rep. 569. When an annuity is alienable. At) annuity charged upon both corpus and income, and not being connected with any trust, is an interest which the law regards as alienable at the pleasure of the beneficiary, and is not, therefore, under the ban of the Statute of Perpetuities, Matter of Tilford, 5 Dem. 524. An annuity is not a " sum in gross " which can be assigned under 1 E.. S. 730, § 63, where it is dependent upon a trust. Cochrane v. Schell, 140 K Y. 516. A trust to pay annuities may lawfully be created under sub- division 3 of section 76 of the Real Property Law (Laws of 1896, I 904 Ajstnuity — Appoktionment. 678 chap. 547), and calling it an annuity does not make the interest of the annuitant assignable. This proposition was determined by the Court of Appeals after a learned and exhaustive discussion by Chief Judge Andrews in the case of Cochrane v. Bchell (140 E". Y. 516), and the rule thus established was applied by the Supreme Court and the Court of Appeals to a provision for the wife in lieu of dower in Hooker v. Hooker (41 App. Div. 235, 166 ]Sr. Y. 156), and was expressly reaiErmed in the case of Herzog v. Title Guarantee & Trust Co. (177 E". Y. 86, 100). BothscMld V. Boux, 78 App. Div. 282, 79 N. Y. Supp. 833. An estate given in trust to pay an annuity from the income with the corpus given during the lives of two persons vests upon the death of the survivor of the two persons, subject to the annuity, and is so not subject to the rule against perpetuities. People T. Co. V. Flynn, 188 ¥. Y. 385, revg. 113 App. Div. 683. See also 44 Misc. Rep. 6, 106 App. Div. 78. ^ 904 Determining Sum to be Set Apart. A decree fixing a sum to be set apart to produce an annuity is binding upon a party afterward raising an issue that the sum so set apart is excessive, if said decree has not been appealed from. Griff en v. Keese, 115 App. Div. 264; modified in 187 N. Y. 454; former app. Matter of Willets, 42 Hun, 658, 44 id. 629, 112 IST. Y. 289. ^ 905 Provision for Apportionment of Annuities. All rents reserved on any lease made after June seventh, eighteen hundred and seventy-five, and all annuities, dividends and other payments of every description made payable or becoming due at fixed periods under any instru- ment executed after such date, or, being a last will and testament that takes effect after such date, shall be apportioned so that on the death of any person interested in such rents, annuities, dividends or other such payments, or in the estate or fund from or in respect to which the same issues or is derived, or on the determination by any other means of the interest Of any such person, he, or his executors, administrators or assigns, shall be entitled to a proportion of such rents, annuities, dividends and other payments, according to the time which shall have elapsed from the commencement or last period of payment thereof, as the case may be, including the day of the death of such person, or of' the determination of his or her interest, after making allowance and deductions on account of charges on such rents, annuities, dividends and other payments. Every such person or his executors, admin- istrators or assigns shall have the same remedies at law and in equity for recovering such apportioned parts of such rents, annuities, dividends and 679 Annuity — Appoetionment. ^ 905 other payments, ■when the entire amount of which such apportioned form part, become due and payable and not before, as he or they would have had for recovering and obtaining such entire rents, annuities, dividends and other payments, if entitled thereto; but the persons liable to pay rents reserved by any lease or demise, or the real property comprised therein shall not be resorted to for such apportioned parts, but the entire rents of which such apportioned parts form parts, must be collected and recovered by the person or persons wno, but for this section, or chapter five hundred and forty-two of the laws of eighteen himdred and seventy-five, would have been entitled to the entire rents; and such portions shall be recoverable from such person or persons by the parties entitled to the same under this section. This section shall not apply to any case in which it shall be expressly stipulated that no apportionment be made, or to any sums made payable in policies of insurance of any description. § 2720, Code Civ. Pio. f 906 Enfoecing Payment of Debts. 680 CHAPTER XLVI. Proceedings to Compel Pa3mient of a Debt, Legacy, or Distributive Share. If 906. Scope of the proceeding. 907 When proceeding may and may not be maintained. 909. The answer. 910. Defense of Statute of Limitations. 911. What may be determined. 912. Partial payment may be ordered. 913. EflFect of release or assignment of legacy. 914. Decree and its effect. 914. Decree on giving security. 915. Decree cannot provide for support of infant. ^ 906 Proceedings to Compel Pajmient of a Debt, Legacy, or Distributive Share, Application may be made by 1. A creditor after six months from grant of letters. 2. A legatee, widow, or next of kin after one year from grant of letters. The proceeding must be dismissed 1. When the executor or administrator files a sufficient answer. 2. Where the proof is not sufficient. From § 2722, Code Civ. Pro. Although the surrogate entertains the petition, he is not as of course to direct payment of the amount asked, but " is to make such a decree in the premises as justice requires." By subdivision 3 of section 2725, Code Civ. Pro., the surro- gate is authorized to require an intermediate account when a hearing is had on the petition, and resort should be had to such an accounting in most cases in order that the rights of all parties may be preserved. The petitioner is neither required to state the facts which go to make out his claim, as if stated he would not be permitted to establish them. Jurisdiction of the surrogate is confined to un- disputed claims. The citation brings in the executor or admin- istrator so that it may be known whether or not the claim is dis- puted. 681 Enforcing Payment of Debts. ^ 906 Is not a proceeding for an accounting. The petition should not pray that the executor be required to account, neither should the citation require him to so account. Where an accounting is deemed advisable by the surrogate he may order it under section 2725, Code Civ. Pro. Baylis v. Swartwout, 4 Kedf. 395. Scope of section. " The object of this section is to provide a way whereby creditors and others having claims against the estate of a decedent, or en- titled to share therein, may obtain payment thereof, in whole or in part, in advance of the final accounting and distribution, in cases where such contemplated payment may be made consistently with the rights of all parties interested in the estate. " When application is made by a creditor for the payment of his debt under this section, the surrogate, before making' a decree therefor, must necessarily inquire as to the condition of the estate, the amount of the assets, and of the debts. If it appears from the proofs presented, that the relief asked may be granted without prejudice to other creditors, the surrogate may make the decree, and the executor or administrator acting in good faith will be protected in paying the debt in full, pursuant to the decree, al- though it may finally turn out that by reason of losses, deprecia- tion of values, or other causes, the remaining assets are insufiicient to fully pay the other creditors. It is quite possible that this result may happen, and it often will happen, unless great care is taken by the surrogate in exercising this jurisdiction. The ap- plication may be made before the executor or administrator has been able to ascertain, by advertisement, the amount of debts owing by the decedent, and many contingencies may happen to impair the value of the estate between the decree and the final accounting and distribution. Matter of Miner, 39 Misc. Eep. 60S, 80 N. Y. Supp. 643. Petition to compel payment; hearing; decree. In either of the following cases a petition may be presented to the sur- rogate's court, praying for a decree, directing an executor or administrator to pay the petitioner's claim, and that he be cited to show cause why such a decree should not be made: 1. By a, creditor, for the payment of a debt, or of its just proportional part, at any time after six months have expired since letters were granted. 2. By a person entitled to a legacy or any other pecuniary provision under the -will, or a distributive share, for the payment or satisfaction thereof, or- of its just proportional part, at any time after one year has expired since letters were granted. T 907 Collection of Distkibutive Shakes. 682 On the presentation of such a- petition, the surrogate must issue a citation accordingly; and on the return thereof, he must make such a decree in the premises as justice requires. But in either of the following cases the decree must dismiss the petition without prejudice to an action or an accounting, in behalf of the petitioner: 1. Where an executor or administrator files a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner's claim is valid and legal, and denying its validity or legality, absolutely, or on information and belief. 2. Where it is not proved, to the satisfaction of the surrogate;, that there is money or other personal property of the estate, applicable to the payment or satisfaction of the petitioner's claim, and which may be so applied, without injuriously affecting the rights of others, entitled to priority or equality of payment or satisfaction. § 3722, Code Civ. Pro. ^ 907 When the Proceeding May be Maintained. An application may be maintained to compel executors to pay interest on legacies due minor, even though real estate converted into personalty by the will must be sold to make such payment. Matter of Travis, 10 Misc. Rep. 298, 64 N. Y. St. Rep. 310; affd., 85 Hun, 420. Where a legacy is given a widow in lieu of dower it carries interest from date of testator's death, and such interest may be ordered paid where there has been delay in probate and the widow has no other means of support. Seymour v. Butler, 3 Bradf. 193. May be maintained against temjwrary administrator. This proceeding may be maintained against temporary admin- istrators, and if the party to be cited appears he will be deemed to have waived the issue and service of a citation. See § 2674, Code Civ. Pro., | 499. Matter of Hitchler, 21 Misc. Rep. 417, 47 N. Y. Supp. 1069. Relief may be granted pending probate. While a contest of a will was in progress, the widow applied for an advancement on her interest and the same was granted upon her executing a proper bond as provided in section 2723, Code Civ. Pro. Matter of Hitchler, 21 Misc. Rep. 417, 47 IST. Y. Supp. 1069. Where the executor had delayed settlement and then brought a dilatory action to construe the will, the surrogate was upheld in directing payment of a legacy pending such action. Matter of Scheidler, 75 Hun, 185, 58 K Y. St. Rep. 596, 27 E". Y. Supp. 7 ; affd., 142 K Y. 668. 683 Requisites of Peoceeding. ^ 909 €il 908 When the Proceeding May Not be Maintained. A party holding a judgment against an administratrix recov- ered upon a claim which did not exist at the time of decedent's death is not a " creditor " of the estate within the meaning of sec- tion 2722, Oode Civ. Pro. Matter of Mahoney, 37 Misc. Rep. 472, 75 ]Sr. Y. Supp. 1056. Costs recovered against an administrator do not constitute a debt so that the person entitled to them is a creditor who can maintain the proceeding. Hall v. Dusenbury, 38 Hun, 125. The claim must be one contracted by the deceased in his life- time, and not one for the education of a minor pursuant to direc- tions in the will. Bulkley v. Staats, 4 Redf. 524. This proceeding cannot be used to compel the executor or ad- ministrator of a deceased executor or administrator to pay money in his hands to a legatee of the first estate. Matter of Trask, 49 N. Y. Supp. 825. Claim for services rendered an executor in probating will, etc., is against the executor and not the estate and cannot be made the basis of an application under this section. Budlong v. Clemens, 3 Dem. 145. When proceeding may not be maintained against an administrator cum testamento annexe. A creditor of a son of deceased made application to have his claim paid from the distributive share which would go to the son under the laws of France where the testator resided. An answer was filed alleging facts tending to show that the validity or legality of the claim that the son had an interest in the estate was doubtful — held, that the surrogate properly dismissed the proceedings. Matter of Dunn, 39 App. Div. 510, 57 IST. Y. Supp. 444. ^ 909 The Answer. An objection to the want of verification of the answer must be made at the hearing. An allegation that the estate is insolvent, that the claim has been settled and satisfied and is not a legal claim, is sufiicient. Matter of Corhett, 90 Hun, 182, 70 IsL Y. St. Rep. 661, 35 N. Y. Supp. 945. An oral answer is not sufficient to oust the court of jurisdiction. Matter of McKiernan, 4 Civ. Pro. 218. If 910 Statute of Limitations. 684 Where an answer raises an issue as to tlie possession of suffi- cient assets that can be applied, there should be evidence taken upon that issue and a decision and findings made. Matter of Sherwood, 75 App. Div. 342, 78 JST. Y. Supp. 186. An answer which alleges lack of assets does not require dis- missal of the proceedings. There must be proof of that fact. Brown v. Phelps, 48 Hun, 219; affd., 113 IST. Y. 658. An allegation that the legacy is not due does not raise an issue, and does not require the dismissal of the proceedings. A ques- tion of construction is raised which is within the surrogate's juris- diction as incidental to the performance of his duty. Steinele v. Oechsler, 5 Eedf. 312. lUvstration of statement of facts or legality of the claim. Lambert v. which require denial of petition. Craft, 98 N. Y. 342. Allegation of assignment and bank- An answer which denies that the niptcy. Guthbert v. Jacobson, 2 claim has been admitted is a denial Dem. 134. of its validity, and requires a dis- The issuing of a citation does not missal of the proceedings, but an ac- exhaust the discretion of the surro- counting may be ordered. Matter of gate and he may, after answer filed, Cowdrey, 5 Dem. 453, 8 N. Y. St. dismiss the proceedirig. Matter of Rep. 774. Stevenson {Cohen), 77 Hun, 203, 28 An answer that the claim is ex- N. Y. Supp. 362, 59 N. Y. St. Rep. cessive in amount is good to oust 765. the surrogate of jurisdiction. Koch An answer which denies the valid- v. Alker, 3 Dem. 148. ity of the claim without alleging the An allegation by the executor that facts, or alleges the facts without the legatee was indebted to the tes- denying the validity or legality of tator in a sum greater than the the claim, is insufficient. Matter of legacy is a sufficient denial of the McClouth, 9 Misc. Rep. 386, 61 N. Y. validity and legality of petitioner's St. Rep. 680, 30 N. Y. Supp. 274. claim, and requires the dismissal of The answer must set forth facts the petition. Smith v. Murray, 1 tending to show that the claim is Dem. 34. doubtful. Matter of Macauley, 94 Eeld, that the answer was not suf- jST. Y. 574. ficient to oust the court of jurisdic- The answer must deny the validity tion. Matter of Muller, 25 App. Div. 269, 50 N. Y. Supp. 786. ^ 910 Defense of the Statute of Limitations. A proceeding to compel an executor or administrator to account and pay a legacy or distributive share is a proceeding to enforce an obligation or liability not arising on a judgment or sealed in- Btrument and, therefore, the six years' statute (§ 382, Code Civ. Pro.) applies thereto. Matter of ElUns, 74 IST. Y. St. Eep. 299; Church V. Olendorf, 49 Hun, 439, 19 IST. Y. St. Rep. 700, 3 ISr. Y. Supp. 557. The right accrues at the end of one year from the grant of letters at which time a judicial settlement may be required 685 Peoof op Assets. f 910 (§ 2726, Code Civ. Pro.), unless by some act on the part of the executor or administrator the case is taken out of the statute or the provisions of the statute have been waived. Matter of Elkins, 14: N. Y. St. Kep. 299 (Chant. Co. S.). All the proceedings in the Surrogate's Court are regarded as special proceedings within the meaning of the Code of Proce- dure, and the rule of limitation prescribed by section 382, Code Civ. Pro., is by force of the provision of section 414, Code Civ. Pro., made applicable to such proceedings. Matter of Elkins, 74 K Y. St. Eep. 299 (Chant. Co. S.). Application by next of kin to have administrator account and make distribution about nineteen years after his appointment. Although it was claimed that by certain acts the administrator had recognized his liability to the next of kin within six years before the making of the petition, it was not shown that he had so recog- nized his liability to the petitioner, and the defense of the statute was allowed. Matter of Elkins, 74 IST. Y. St. Rep. 299 (Chant. Co. S.). Where a legatee was a minor and no special guardian was ap- pointed, the right to demand payment of the legacy accrued one year after letters granted, and section 1819, Code Civ. Pro., does not apply. Matter of Cooper, 51 Misc. Eep. 381. Section 1819, Code Civ. Pro., applies to an application for the payment of a legacy and for an accounting so that the Statute of Limitations does not begin to run until an accounting is had. Collins v. Waydell, 3 Dem. 30. Proof of assets. The petitioner has the burden of showing that there is money or other personal property of the estate which may be applied to the payment of the debt or claim. Lynch v. Patchen, 3 Dem. 58. The surrogate should require proof that there are assets suffi- cient to warrant the order asked for, and to that end he may con- sider the inventory and other papers on file in his office. The surrogate holds a peculiar position with reference to estates administered through his office, and in a sense every step before him in the administration of an estate may be considered as one move in the one general proceeding for the administration of the estate ; so that, when the surrogate is called upon to act in the administration of an estate, the records of his office under his im- mediate charge are before him and cannot be entirely disregarded. Matter of De Forrest's Will, 104 IST. Y. Supp. 342. ^ 911 Issues to be Teibd. 686 C| Q^^ Questions Which May and May Not be Determined. The surrogate may decide and determine in _the proceeding whether or not the claim has in fact been rejected or allowed, and if allowed he may direct its payment, even though the usual answer is filed. Matter of Miles, 170 IST. Y. 75, revg. 61 App. Div. 562, 71 N. Y. Supp. 71; which revd. 33 Misc. Rep. 147. A surrogate has power to direct payment to a legatee of part of his legacy in anticipation of the final accounting. Oilman v. Gilman, 63 IT. Y. 41. The will gave the residue of the estate to that person who should last take care of testator's father before his death. Petition by a person claiming to be that person for payment of the residue — held, that the surrogate had no jurisdiction to determine the fact in such a proceeding. Fiester v. Shepard, 92 N. Y. 251. Where the right to payment depends upon a construction of a will the surrogate has no jurisdiction to determine disputed ques- tions of construction since all the interested parties are not before the court and the Code does not grant such power in the proceed- ing. Biggs v. Cragg, 89 N. Y. 479. While a surrogate has power to construe a will on probate and on judicial settlement, he has no such power in a special proceeding to compel payment of an alleged legacy. Matter of McClouth, 9 Misc. Eep. 386, 61 N. Y. St. Eep. 680, 30 N. Y. Supp. 274. An agreement hj the widow with the executor for increased allowance from the estate for the consideration of withdrawal of contest and release of dower cannot be enforced in Surrogate's Court, but it is no bar to a proceeding to enforce a payment under the will. Howard v. Howard, 3 Dem. 53. Legal incorporation of legatee. In Matter of Trustees of Congregational Church, etc. (131 'S. Y. 1), the church had petitioned the surrogate to compel the payment to it of a legacy under a will. The court said : " Even if a cause of forfeiture appears that cannot be taken advantage of or enforced in a proceeding like this. That question can be raised only by the sovereign power to which the corporation owes its life, in some proceeding for that purpose by or in behalf of the sovereignty itself." To the same effect are People v. Ulster & Delaware R. R. Co. (128 N. Y. 240), Coxe v. State (144 id. 396) and Smith v. Havens Relief Fund Soc. (118 App. Div. 678, affg. 44 Misc. Eep. 594). 687 Issues to be Tried. | 913 ^ 912 Partial Payment May be Directed Even Where tlie Estate is Insolvent Wliere the debts against an estate have not been ascertained by the publication of a notice as required by the statute and it ap- pears thi»t the estate is insolvent, a decree should not be granted until either a settlement is had or the debts have been ascertained and become liquidated demands against the estate. But, on the con- trary, when the debts against the estate have been ascertained and become liquidated demands against the estate, and there is money in the hands of the administrators applicable to the payment of such claims either in whole or in part, as in this case, I not only think that the authority and jurisdiction of the court exists to decree partial payment but that the court should exercise such authority. Matter of Miner, 39 Misc. Eep. 609, 80 IST. Y. Supp. 643. ^ 913 When the Legacy Has Been Satisfied or Assigned the Legatee Cannot Compel Payment of Legacy Under Section 2722. The assignee of the legacy has no standing in court to petition for payment thereof, and neither under such condition can the original legatee petition. Peyser v. Wendt, 2 Dem. 221. An assignee of a claim is a creditor within the meaning of this section. Matter of Moderno, 63 Hun, 261, 43 JST. Y. St. Kep. 371, 17 :Nr. Y. Supp. 781. Answer to the petition alleged that the petitioner had given a receipt and release in full — held, that the petition should be dismissed as the surrogate had no power to try and determine the question whether the release had been obtained by fraud or given by mistake. Matter of Langdon, 92 Hun, 480, 72 IST. Y. St. Eep. 414, 36 K Y. Supp. 1074. A verified answer alleging payment to assignee of legacy is sufficient upon which to dismiss proceeding. Mumford v. Codr dington, 1 Dem. 27. The assignee of a residuary legatee cannot maintain this pro- ceeding for the turning over of the residuary estate. Matter of Wood, 38 Misc. Kep. 64, 76 IST. Y. Supp. 967; Peyser v. Wendt, 2 Dem. 221. Cannot determine validity of release. Matter of Read (41 Hun, 95), holding that the validity of a release could be determined was based upon Earris v. Ely (25 f 914 Deceee and Its Effect. 688 !N^. Y. 138), which doctrine was disapproved in Bevan v. Cooper (72 N. Y. 317). q 914 The Decree and Its Effect. An executor or administrator acting in good faith will be pro- tected in paying a debt in full pursuant to an order, although it may finally turn out that the remaining assets are insufficient to fully pay the other creditors. But where the order has not been carried out, and a deficiency of assets appears, its execution cannot be insisted upon by the creditor. Thomson v. Taylor, 71 N. Y. 217. Partial payments to creditors may be made, although the estate can never pay in full, and the surety on the bond of the admin- istrator has no standing in court to object to such an order. Mat- ter of Miner, 39 Misc. Kep. 605, 80 IST. Y. Supp. 643. Decree for payment of legacy, etc., on giving security. In a, case specified in subdivision second of the last section, the surrogate may, in his discretion, entertain the petition, at any time after letters are granted, although a year has not expired. In such a case, if it appears, on the return of the citation, that a decree for payment may be made, as pre- scribed in the last section; and that the amount of money and the value of the other property in the hands of the executor or administrator applicable to the payment of debts, legacies and expenses, exceed, by at least one-third, the amount of all known debts and claims against the estate, of all legacies which are entitled to priority over the petitioner's claim and of all legacies or distributive shares of the same class; and that the payment or satisfaction of the legacy, pecuniary provision or distributive share, or some part thereof, is necessary for the support or education of the petitioner; the surrogate may, in his discretion, make a decree directing payment or satisfaction accordingly,