m **»^'j^ ,gPpK- iiii Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SOHOOL By his Wife and Daughter . A. M. BOARDMAN and ELLEN D. WILLIAMS iyi-.,.--.-^RSr™" University Librai7 KFN5205.M12 1880 Practice in Surrogates' couils :beiin 3 1924 022 809 952 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/cu31924022809952 PRACTICE IN SURROGATES' COURTS: BEING A TREATISE ON THE JURISDICTION OF THE COURTS m THE REMEDIES OFFERED THEREBY; OOMPHISING, ALSO, THE LAW OF WILLS, EXECUTORS, ADMINISTRATION, LEGACIES, GUARDIANS AND DOWER, WITH COMPLETE FORMS FOR PRACTICE. SECOND EDITION. CONFORMED TO THE CODE AND GREATLY ENLAEGED, BY ROBERT H. McCLELLAN, COUNSELOR AT LAW, AND FORMER SITRROGATE OF RENSSELAER COUNTY. ALBANY, N. Y. : VV. 0. LITTLE & CO. 1880. icording to 1 Entered according to Act of Congress by ROBERT H. MoCLELLAN, In the office of the Librarian of Congress, 1880. /Wo c. / PREFACE TO FIEST EDITION. To most of the profession, the practice in the Surrogate's Court is a mystery, passed over in their preparatory studies, and, in consequence, not followed in after years. Therefore the practice is confined very much to the court itself, and to a few of the profession in each county, few others caring to master a theory and practice differing so much from that laid down and regulated by the Code. \ In the preparation of this work, I have assumed that my brethren do not want a treatise to give them elementary instruction, but a book of ready reference, in which, in each case, they can find clearly pointed out, the rights and remedies offered by the Probate Courts, with forms easily adapted. Such a work I have endeavered to prepare, and here present. It Preface:. In the preparation of the forms, I have used those familar to every surrogate, in the main, but have endeavored to render them more concise and pointed, and have given more, I believe, than were ever before printed. I bespeak especially a con- sideration of this feature of the book. I trust that my professional brethren will find this book useful to them. ROBERT H. McCLELLAN. Troy, Fehruary I, 1875 PREFACE 1^0 THE SECOND EDITION. The numerous and important changes which have recently been made in the law and practice in Surrogate's Courts in the State of New York, by the final passage of the last nine chapters of the Code of Civil Procedure, render a new edition of this work an absolute necessity. Anticipating the result which has been reached by this legislative enactment, I have, during the past year, been engaged in gathering together a great number of notes and references bearing upon ■ffie subject and bringing the text down to the present time, have added whatever was necessary to accomplish this object, besides changing the statements wherever it was required to conform to the present practice in these courts. 9 The kind and appreciative reception which was given by the profession to th<^ first edition of this vi Preface. work was a source of tnach gratification to the author and publishers. It is confidently believed that this second edition will be regarded as a greatly improved one, even aside from the changes ren- dered necessary by the new Code. The iidditional forms required by the changes in the Statute will be be found incorpoi'ated in their proper places in the body of the work. I shall be glad to be notified of any errors or omissions that may be found by my professional brethren in their use of this edition. ROBERT H. McCLELLAN. Tvoij, N. Y., Sept. 1, 1880. TABLE OF CONTENTS CHAPTER I. PAQB. Of the Surrogate's Court, and the Powers and Duties of the Surrogate generally, 1 CHAPTER II. - Pleading in Surrogate's Court, and Process and Service thereof, and how Moneys cared for, 36 CHAPTER HI. Hearing. Trial by Jury. Reference, 90 CHAPTER IV. Of Wills, their Execution and Probate, 102 CHAPTER V. How an Executor is appointed, and the power of the Executor before Probate, 133 CHAPTER VI. Proof of Wills and Issuing of Letters Testa- mentary, 139 CHAPTER VII. Of Mental Unsoundness, 188 CHAPTER Vni. Letters Testamentary,....,,.,,,,.,,, 208 viii Table of Contents. FAGS. CHAPTER IX. Probate of Heirship, 262 CHAPTER X. Administration , 271 CHAPTER XI. General Provisions in regard to Letters Testa- mentary and of AdministratioE, for what cause Letters are Revoked, etc., 321 CHAPTER XII. Discovery and Recovery of Assets, 359 CHAPTER XIII. Appointment of Appraisers and the Inventory,... 371 CHAPTER XrV. Of the Collection and Care of the Estate ; Cora- promising Debts due the Estate, 407 CHAPTER XV. Advertising for Claims and Reference of Disputed , Claims, 436 CHAPTER XVI. Funeral Expenses and Debts, 458 CHAPTER XVn. G-ifts and Legacies and Distributive Shares and Payment thereof, 535 Table of Contents. ix PASB. CHAPTEE XVIII. Accountiug and Settlement, 568 CHAPTER XIX. The Effect of the Decree and how it may be Enforced, 667 CHAPTER XX. Of the Mortgage, Lease or Sale of Real Estate,... 705 CHAPTER XXI. Statutory Provisions as to Sales by Executors under Power given in the Will, and as to conformation of Sales originally made under Surrogate's order, 799 CHAPTER XXII. Guardians and Wards, 803 CHAPTER XXIII. Resignations of Guardians Regulated, 843 CHAPTER XXIV. Appeals .-. 872 Errata. Page 1. Sixth line from bottom, strike out not at end of line. Page 346. Seventh line, for conirivavces read con- tumacious In connection with § 2775 on p. 758, read Chap. 231 of Laws of 1880, authorizing creditor to have an allow- ance for his claim, if he be purchaser. TABLE OF CASES CITED. A Abercrombie v. Holden 599 Abbey v. Christie 114 Ackley v. Dygert 726 Ackerman v. Emott 483 Adams v. Curtis 533 Adams, Matter of 601 Ainslee v. Radcliff 473 Allen V. Eighme 301 Allen V. Public Administrator, 303, 202, 300, "188 Ames V. Downing 601, 430 Anderson, In goods of 109 Applegate ». Cameron 391 Armstrong ■». Moran 541 Asliwell«. Lorni 200 Atkins V. Kinnan 762, 713 Austen «. Munro 461 B Bailey v. Bergen 514 Bailey v. Spofford 412 Bailey «. Hilton 146, 671 Bank i>. Harbrouck. , 670, 669 Bank of Niagara, Matter of 858 Bank of Lansingburgh v. Ciary, 380 Barkin •». Barkin Ill, 410 Barto V. Bank 769 Barber v. Barber 107 Barnes v. Underwood 645 Bamfield v. Ramsey 453 Baerman v. Schenk 756 Bainbridge v. McCullougb. . . 606 Bartlett ex parte 811 Barnett ii. Kincaid 734, 728 Baggott V. Boulger 456 Bageaux v. Bogeaux 133 Baggart «. Boulger 679 Bagley B. Blackman 113 Bain v. Pine 421 BallD. Miller 728 Beach «. King 423 Becar v. Struller 222 Bedell i). Carle 535 Beers exparte 112, 114 Beebe, Matter of 370 Belding ®. Leichardt 114 Belden v. Meeker 299 Bennett v. Byrne 826 Bentley, Matter of 492 Berrieris Estate 463 Betts 11. Betts 619, 618, 616 Bevan v. Cooper 551, 546 Bishop ■». Bishop 379 Bibb V. Thomas 137 Blanchard v. Nestle 303 Bleeker s. Lynch , 200 Bloodgood u Bruen 476, 531 Bloodgood 1). Gregory 463 Bloom V. Burdick 742 Board v. Board 899 Bolton i>. Jacks ^ 146 Bogart J). Van Velsor 432, 434 Xll Table of Oases Cited. Bogert «. Hertell 410, 429 Borst V, Spelman 537 Boswick v. Burns. 516 Bostwick V. Atkins 431, 832 Botsford 1). Krake 133 Boufanti v. Dequerre 579 Boughton «. Flint. 498, 542, 599, 605 Brainbridge v. McCollough, ... 601 Bradner ®. Faulkner 580, 631 Brant t>. Willson 126 Bramley «. Forman 686, 680 Bromley a. Miller 413 Brewster v. Balch 299 Brick's Estate. . . 669, 671, 672, 856 Brick «. Brick 155 Brick Matter of 37 Bright V. Currie 433 Brigham v. Bush 387 Brink V. Gould 536 Brockett v. Bush, 451 Broderick «. Smith 455 Brown's accounting. . 411, 618, 624 Broome i). Van Hook 608 Brown «. DeSelding 112 Brown, ex parte 306 Brown ». Knapp 651 Brown v. Lynch 811 Brown «. Public Administrator, 473 Bruce ®. Griscom 637 Brush V. Lee 692 Buckhurst v. Hunt 515, 445 Buchan ». Rintout 580, 599 Bucklin v. Bucklin 385, 537 Buckklin ».Chapin,448,436,450, 446 Bullock V. Bogardus 515 Bundy «. Mundy 411 Bunn V. Vaughan 309 Burdick i>. Jackson 832 Burhans ». Burhans 453 Burr, Matter of 644 BurrittB. Silliman 199, 113 Burtis 11. Bodge 631 Burt «. Burt 407 Butler V. Benson 163 Butler, Matterof 383 Butler «. Butler 107 Butler V. Emmett 725 Byrne i>. Van Hoesen 831 c Cairus «. Chaubest 630, 635 Campbell «. Bowne 431 Campbell v. Brueen 579 Campbell i). Logan 107, 113, 114, 115, 136 Calanan «. McClure 456 Camp V. Camp 635 Campbell i>. Renwick 790 Campbell «. Johnson 430 Carle v. Underbill 118 Gary v. Gregory 463 Carroll «. Carroll 901 Carroll v. Norton Ill Ca»twright i>. Cartwright 197 Carle t>. Underbill 106, 36 Casey i). Gardnier 334, 290 Calhoun «. Jones 198 Casoni v. Jerome 307, 669 Chaffee v. Baptist Miss. Conv. 112, 364 Chamberlain »! Chamberlain . . 105 Chambers i). The Queen's Proc- tor l£'8 Chase ». Ewing 634 Chapman v. Tibbits 830 Chonteau v. Suydam 463 Cheeseman i>. Wiggins. . . 814, 415 Chipman v. Montgomery 571 Cipperly «. Baucus 673 Clark «. Baltorf 395, 601, 910 Clark ». Fisher. . 191, 200, 302, 201 Clark v. Ford, . . . 522, 574, 579, 608 Clark V. Clark.' . . 434, 496, 611, 839 Clark «. Van Amburgh, . . 394, 427 Clark V. Montgomery 805, 853 Table of CAgEs Cited. xm Clapp V Fullerton 182 Clayton ■». ■VVardcll 436 Clayton ■». Wardell 390 Clinch V. Eckford 631 Clock «. Chadeagun 584, 579 Cluett V. Mattice , 305 Codding «. Newman 224 CofBn V. Coffin Ill, 114, 117 Cohen's estate 110 Cole V. Ward 839 Collins e. Hoxsie 637 Collier v. Munn 618 Collier v. Idley's Executors. . . . 353 Colt V. Lasmer 439 Colhun ». Jones 201 Comstock 11. Comstock 476 Comstock -0. Olmstead .... 450, 480 Conklin n. Egerton 308 Constant v. Schuyler 537 Conover ■». Hoffman 135 Cook «. Colinridge 409 Cooper V. Felter 472 Cooper ■». Lowerre 283, 220 Cooper, Matter of 864 Cooke V. Meeker 633, 631 Copley i>. O'Neil., 853 Cornwallis, Estate of 713 Oorines v. Welkin 440, 456 Corn well «. Deck.... 390,413,470 Cory «. People 892 Cottrell V. Brock 343 Cotter i). Leager 130 Cox V. Schermerhorn 623 Cozine «. Horn. 827 Cram ». Oram 621 Cregin i\ Brooklyn R. R. Co. . 4] 8 Cromwell v. Deck 459 Cunningham, In the matter of, 496 Cunningham's Estate 497 Crispell «. Dubois 200 D Dawson ex parte 838 Damarell «. Walker 864 Dakin v. Deming. . . . 617, 633, 830 Darling «. Halsey 453 Davis v. Stover 432 Davies b. Skidmore . ., 683 Day ex parte 106 Delafield v. Parish 166, 190 Delaplaine v. Lawrence 753,762, 761 De Cordova v. DeCordova 394, 409 Decker v. Miller 393, 425 Deraismis ii. Deraismes 596 Decker i>. Elwood 673 Despard!). Churchill.... 379, 638 De Peyster V. Clarkson 603 Denham d. Cornell 383 Delaplaine «. Lawrence 939 DeWittB. Barley 178 Diez, Matter of 106, 118 Dillaje v. Com. Bank 429 Dissossway v. Bank 574, 596 Doe«, Roe 617 Doe «. Steple 130 Dolbeer v. Casey 439 Dominick v. Michael 308 Downing «. Marshall 385 Downe «. Panning 430 Drake v. Price : . . . 630 Dygert v. Reimei-Schneider. . . 522 Duflfy «. Duffy 603 Dunham ». Sage 523 Duiando o. Durando 887 Dunning ». Ocean Nat. Bans, 308, 383 Dutton «. Dutton . . 838 E Eages ». Roberts 634 Earl of Euston v. Seymour 133 Eddy V. Traver 710, 795 Elliott i>. Cronk 455 Elmore v. Jaques 498 Emerson ®. Bowers 330 XIV Table of Cases Cited. Erwin v. Loper , 456 Evans v. Evans 438 Everts «. Everts 153, 394, 497 F Fairman's Appeal 459 Farley ■», McConnell 300 Farrell, Estate of Ellen 138 Parrlngton v. King 734, 783 Fay V. Halloran 381 Faulkner, Matter of 188 Ferrie «. Public Administrator. 385 Ferris, Estate of Horatio N 314 Ferrin ■». Myrick 463 Ferguson i>. Browne 783 Field®. Field 638 Field i>. Van Cott 686, 399 Field «. Shieffelin 439, 830 Fitch «. Witbeck 734, 709 Fitzpa trick ®. Brady 503 Fisher «. Banta 669 Flagg ». Ruden 503, 499 Fletcher «i. Updike 533 Plinn V. Chase 399 Flood, Matter of 498 Forsyth v. Burr 399 Forbes v. Halsey 756 Forman v. Smith 191 Fosdick ». Delafield 309 Foster «. Wilbur 36 Foster v. Foster 930, 938, 157 Pox V. Bums 389 Fox®. Fox ' 514 Poy V. Muzzy 379 Francisco v. Fitch 451 Prane ®. Rockett 453 Francis v. Gi'over 137 Freeman i>. Freeman 607 Pry ■0. Evans 433 Fulton ®. Fulton 536 Fulton D. Whitney, 430,883 Purman «. Coe 613 G Gage 1). Dauchy 537 Gamble ®. Gamble 118, 117 Gardner ®. Gardner. . 199, 598, 601 Gardner ®. Miller 407 Gardner «. Purdy 593 Gardenier v. Spikerman 937 Gansevoort ®. Nelson 441 Gates, Matter of 367 Genet i>. Talmadi?e 831 Genet ®. Berisse 441 Gerould «. Wilson 399 Gerould®. Watson 687 Gilchrist ®. Eae 713, 308 Gillespie ». Brooks. . . 433, 435, 613 Gilman, Matter of 108 Gilman ®. Gilman, 410, 411, 451, 543, 546. 603, 604, 636 Gilkin ®. Carhart 601 Glover®. Holly 670 Gombault®. Public Administra- tor 114, 195, 149 Gooding ®. Porter 447 Goodrich ■». Jones..., 379 Gorham v. Ripley 447 Gottsberger v. Taylor 397, 330, 344, 680 Graham ®. Linden. . . .713, 735, 910 Grangiac i>. Arden 536 Grey ■». Grey 536 Gridler ®. Curry 686 Griswold ®. Griswold. 469 Groom ®. Thomas 197 Gratacap v. Phyfe 399, 573, 579 Grout, Matter of 463 Guild ®. Peck 937, 579 Haddow v. Lundy 570 Hall ®. Hall ; 631 Hasley ®. Reed 474 Halsey ®. Van Amringe 633 Hall «. Partridge 763, 609 Halstead ®. Hyman 613 Table of Cases Cited. XV Hallenbeck'D. VanValkenburgh, 116 Hammond v. Hofiman 471 Hannalis v. Hannahs 626, 605 Harris «. Ely 573 Harrison ■». McMenomy 536 Harrison v. Ayers 623 Harrison v. McMahon 230, 671 Hart ■». TenEyck 371 Hart«. Duffy 673 Hart, Matter of 344 Hartnett d. Wandall 209, 325 Harrington v. Hibby 481 Hardy v. Ames 439 Hasper v. Hasper 116 Hackney ■». Vrooman 537 Hasbrouck v. Hasbrouok 601 Hasler d. Hasler. .137, 439. 604, 625 Havens ». Sherman 726 Hawley v. James 888 E^awley ». Cramer 757 Haggard®. Rowe 833 Heady's will 109 Hepburn v. Hepburn 475, 633 Heermans v. Hill 159 Hewitt V. Hewitt 739 Hewitt V Bronson 460 Hewlett V. Wood 187 Hills D. Tallman's administrator, 433 Higbie v. Westlake 789, 785 Hitchcock 11. Marshall 647 Holmes*. Cock 330,343,743 Holmes v. Seeley 881 Holland «. Ferris 323 HoUister v. Burritt 414 Holley«. S. G ,. 604 Hopkins v. Van Valkenburgh. . 738 Horn ». Pullman . . . •. 193 Hosf ord. Matter of . . . : 807 House V. Grant 588 House V. House 879 Hovey v. Smith 472 Howard «. Heinerschit 477 Howell, In goods of 108 Hoy sradt «. Kingman Ill Hoyt V. Bennett 446, 451, 455, 440, 439, 437 Hughes, Matter of 811 Hulstander «. Thompson 450 Hubbard d. Hubbard 122 Hunt «. Mortrie 112 Hunter v. Hunter 537 Huntington v. Gilmore 536 Hyde ®. Tanner 609 Hyde v. Tanner 784, 762 I Ireland «. Corse 630, 623 Irish «. Nutting 538 Isenhart v. Brown 683, 475 Isham v. Davison 421 Jackson i>. Christman 164 Jackson v. Irwin 742 Jackson «. Jackson 118 Jackson v. O'Donagley 892 Jackson v. Waltermyer 894 Jacob V. Emmett 603, 603, 613 Jewett e. Keenholtz 763, 761 Johnson D. Eichards 668, 67S Johnson D. Corbet.. . . 443, 473, 886 Jauncey v. Thorne 164 Jones, Matter of 568, 595 Jordon v. Nat. S. & L. Bank. . 334 K Kane ». Astor's ex'rs 135 Kane «. Masterton 761 Kane, Matter of 837 Kane v. Fisher 380 Kellum, Matter of will of John, 245 Killinger v. Roe 939 Kellett J). Rathbone 410 Kellogg, Matter of 858 Kelly's estate 761 Kerr i) Dougherty 631 Kenny v. Tucker 634 Kennedy ■». Ryall 374 XVl Table of Oases Cited. Kenney «. "Whitmark 107 Ketchunv v. Milne 423 Kettletas «. Gardner 864 Kettletas «. Green 555 Kidd B. Chapman 447 Killinger«. Roe 837 King V. King 439 King «. Talbot 433, 633, 837 Kingsleyi). Blanchard. . . 188, 166 Kirby «. Turner 395, 808 Knapp n. Public administrator, 388 Knox V. Jones 105, 119 Kohler v. Knapp 331, 881 Kyle «. Kyle 498 Lacey ex pwrte 409 Lamberson, Matter of 776 Langdon v. Astor, 181, 636 Lansing v. Swatz 447 Larrour v. Larrour 408 Larkins «. Larkins 127 Lathrop «. Borden, 198 Lathrop v. Dunlop 129 Lathrop ®. Smith 291 Lawrence v. Blmendorf 790 Lawrence ■». Lawence 428 Lawrence v. Norton 163 Lawrence ®. Lindsay 930 Lawyer «. DeMyer 553 Lazarus v. Bryaon 757 Lay, Goods of. 132 Leaycraft ». Simmons 300, 301 Lef evfe ». Lefevre 104, 589 Le Fort «. Delafield 331 Leitch «. Wells 428 Leland «. Manning 463 Lewis B. Malone 546 Lewis D. Lewis Ill, 114 Lewis «. Jones. . , 928 Lewis «. Smith 888 Lindsay ex parte 156 Livingston «. Newkirk i . 794 Lockhart v. Public admr. . 481, 411 Lockman, Matter of 627 Lockwood V. Thome 444 Loder b. Hatfield 541 Logan '0. Deshay 586 Low B. Purdy 833 Lupton V. Lupton 628 Lynch v. Mahony 631 Lyon ®. Smith Ill, 110, 117 M Malley v. Vanderbilt 476 Malcom, Matter of Will of James 157 Maloney v. Maloney 300 Mandeville «. Mandeville.. 231, 343 Marre «. Ginochio 601 Hasten ■». Budington 454 Marsh v. Hayne 633 Martin, Goods of 110 Manning v. Manning 603, 614 Mann v. Lawrence 605 Marshall «. Moseley 381 Martin v. Gage 608, 607 Marvin v. Marvin 157, 188, 928 Mason «. Rosevelt 807 Marx, Matter of 838, 614 TAcGoimick. ex parte 106, 133 McCarter v. Carnel. 557 McDonnel eoc parte 133 McGue V. Garvey 458 McDonough ■b. Loughlin 116 McGregor a.Buell 214 McGregor v. McGregor 425 McLaughlin v. M'Devett 201 McLoskey v. Reid 807, 806 McMahan «. Harrison 220 McNulty 11. Hurd 609 McNaug'hton v. Clave 652 McPherson v. Clark 138 McGuire ii. Kerr 108 McRaea. McRae 434 McWhorten v. Benson 619, 625 Table of Cases Cited. xvu Meehan v. Roui'ke 115 Meech'am v. Steiues 621 Merchant 11. Merchant 537, 600 Mercein v. Smith's Aclm'rs. . . . 433 Merritt ®. Seaman 423 Metzger t\ Metzger 601 Micbond «. Girod 431 Middlebrook ■0. Corwin 379 Middlebrook ^.Merchants Bank, 413 Mygatt ®. Wilcox 670 Milward, In the goods of 110 Miller v. Knox 477 Minier «. Minier 583 Minchin r. Merrill 536 Minuse ». Cox 603 Mitchum « Mitchum 756 Moers v. White 713 Moke«. Norrie 309 Montgomery B Suiuning 601 Moore v. Moore 118, 756 Moore v. Mayor 888 Morgan v. Morgan . . 857 Morgan v. Hamas 857 Morris v. Kniffin 107, 1 15 Morrow v. Morrow 437, 304 Morrison v. Morrison 399 Morrill v. Dickey 841 Morgan «. Hammiss 618 Moultrie «. Hunt 105 Mount e. Mitchell 471 Mpdock B. Giflford ..379, 385 Murray v. Blatchford 407 Mundorf v. Wangler 667 Murray v. Smith 439, 437 N Nelson v. McGiflfert 303, 126 Newfoille ■». Thompson 536 Newhouse ». Godwin 303 Nexsen «. Nexsen 114, 166 NichoU, Matter of 808 Kichols B Chapman. . .438, 439, 430 McholsB. Smith 423 Nicholson «. Showerman 515 Nipper «. Groesbeck 113 Noble V. Smith 536 Norton «. Lawrence 157 O O'Brien s. The People 185 O'Donnell «. Lindsay 755 O'Gara v. Clearkin 414 Otcilviei). Ogilvie 604, 613 O'Neil, Matter ot Maiy 804 O'Neil B. Murray 200, 303 Orcntt V. Arms 429 Orser v. Orser 163 Orton v. Orton 539, 551 Owens V. Bloomer 459 P Parish v. Parish 938 Paise V. Halbut .■ 755 Parham e. Moran 399 Parkers. McClure 634 Patterson 11. Patterson 423, 461 Patching. Wilson 408 Payne v. Matthews 475 Paul®. Squibb 756 Paye, Matter of 200 Pearson ». Pearson 633 Peebles «). Case. .. -■ 164 Peck 1). Sherwood, 390,543, 555,596 Penfield v. Thayer 536 Peterson 1). Chemical Bank. . . . 413 Petrie «. Petrie 552 Pelt «. Pelt 642 Pelletreau 11. Smith 741, 789 People 0. Downing, 679,808 People, ex rel. v. Kearney 805 People «. Pelhum 401 People i>. Hascall 680 People 1). Cowles 692 People V. Voyron 308 Pew V. Hastings 670 Phyfe, Matter of 443, 443 Pierce, Matter of 811, 828 Pike, Matter of 621, 634 Pinkernelli i>. BischofiF 453 Piper 1). Barse 685 Pitts V. Pitts 888 Potter V. Pearson 757 Power V. Lester 522 Powers V. Powers 430 Prentice «. Jamesen 799 XVIU Table op Cases Cited. Price v. Price 417 Prince v. Hazleton 133 Priest «. Watkins 138 Public Adm'r ». Hughes 378 Purdy «. Austin 531 Putnam «. Ritciiie 831 Q Quarles «, Quarles 634 Quinn v. Quinn 137 R Rait«. Rait 837 Kapalje ». Hal 603 Rappleyea v. Russell 460 Real «. The People 185 Remsen v. Burckerhoff. . . 112, 117 Renwick i>. Renwick 738 Reid«. Landerheyden 929 Renholm «. Public Atlmr 279 Reynolds « CoHius 455, 450 Reynolds v. Collier C79 Richmond v. Foote 724 Richard's Case 826 Richardson d. Judah 717 Richardson v. Jcwctt 76a Ridgley v. Johnson 410 Rider v. Legg 166 Rieben v. Hicks 114 Robert ». Ditmas 449 Roberts v. Ditmas 516 Robertson ii. McGoech 324 Robins v. Coryele 107 Robinson v. Robinson 580 Robinson v. Smith Ill Rodrignez v. E. R. Savings Inst 372, 274, 393, 300 Rogers 'd. Rogers 631, 431 RoUwagen ». RoUwagen . . 166, 303 Root, Matter of 280 Roome v. Phillips 308 Roosevelt v. Roosevelt 433 Roosevelt v. Mark 465 Rose «. Lewis 669 Ross V. Harden 462, 471 Ruggles «. Sherman 424 Ruddon®. McDonald. 110,111, 117 Rundell v. Lahey 470 Rutherford ». Rutherford 117 Sandsii. Craft 453 Saltust). Saltus .- 671 Saltus, Matter of 601 Sanford v. San ford 436, 446 Sanford v. Granger 717, 712 Sage «. "Woodin 424 Schenk®. Dart 619 SchiefiFelin v. Stewart 603 Schell, Matter of 631 Schoonmaker «. Roosa 463 Schneider «. McFarland... 736, 724 Schifler v. Purden 888 Schofield V. Hustis 844 Scofield v. Taylor 330 Scofleld i>. Schofleld 389, 388 tioofield V. Churchill 399 Scofield V. Adams 554 ScovillD. Scovill 436 Seaman ». Duryea 692 Seaman v. Whitehead 691 Seabury v. Bower 472 Sears v. Mack 795 Seabury v. Bowon 470 Seguine v. Seguine 113 Seymour i). Butler 633 Seymour v. Van Wyck 114 Selover v. Coe 446, 454 Sherman . Fortune 668, 497 Troom v. Van Home 301 Tucker v. Tucker, 668, 608, 455, 446 Tunison v. Tunison 203, 114 Timpson's Estate 887 Tuttle V. Heavy 830 Tyler ■». Gardner 191 Tyler ®. Gilman 114 U Underbill v. Dennis 836, 929 Upson V. Badeau 614 Utica Insurance Company v. Lynch 603 V Van Allen ®. Hewins 352 Van Alst «. Hunter 306 Van Buren v. Dash 541 Vandermark ®. Vandermark, 938, 131 Van Derpoel «. Van Allen 879 Vanderheyden v. Vanderheyden, 635, 619 Van Duyne v. Thayer 888 Van Epps v. Van Epps. . . 807, 430 Valentine®. Valentine.... 619, 614 Van Guysling i>. Van Kuren.. . 191 Van Hauswyck ®. Wiese 107 Van Hooser ®. Van Hooser. . . . 113 Van Kuren ®. Parmelee 531 XX Table oe Cases Cited. Van Saun v. Farley 446 Van Slick v. Burroughs, 608, 596, 579, 36 Vaugheu v. Spencer ' . . . 118 Vaughen v. Burford. 118 Vedder «. Saxton 389, 388 Verman ■». Spencer 117 Volckmeri). Hudson. . 981, 387, 385 Voorheea v. Voorhees 200 Vreeland v. McClelland SOO Vreedeubugh v. Calf 671 Vulte 4). Martin 497 w Waite «. Breeze 203 Watson V. Donnelly 192 Watson, Matter of 693 Walker v.- Browne 829 Waldron i). McComb 762 Waldron ■». Waldron 474 Ward, Matter of. 280 Watrons v. Smith 540 Waterman v. Hazleton 628 Walsh «. Ryan 157 ^Vard». Kilts 897 Walsh Estate 107 Wadsworth ®. Olcott 382, 381 Wade V. Kalbfleisch 417 Walton's Estate 891 Ward V. Smith 431, 757 Watson v. Nelson 691 Warren v. Paff 476, 557, 608 Weed«. Ellis... 830 Weller®. Waller 431 Webb, Matter of 413 Welch 1). N. T. C. R. R. Co., 273, 300 Weller«. Wallace 669 Westervelt «. Gregg. . 574, 578, 601 Westervelt e. Westervelt 620 Wheelwright ®. Wheelwright.. 618 Wheeler «. Wheeler 407 White B. Howard 541 White V. Joy 433 White 1). Bullock 619 While «. Story 450, 909. 904 White J). Parker 838 White i>. Pomeroy 836 Whitbeck i). Patterson 114 Wheeler d. Ruthven 631 Whitmore ». Foose 455 Whitbeck's Estate 439 Wilder v. Keeler 475 Williams, Estate of 281 Williams ®. Purdy 611 Williams v. Fitch 937 Williams, Matter of 633 Williamson «. Williamson, 551, 683 Willickt). Taggart 830 Willis V. Mott Ill Wilson 1). Hatterick 113 Willson V. Moran 300 Wilcox V. Smith, 443, 443, 531, 473, 608, 595, 594, 930 Wilcox «. Wilcox 821, 837 Wood V. Tunnicliff. . . 448, 434, 414 Wood V. Wood., .... 105, 320, 348 Wood V. Burns 374 Wood «. Byington, 712 Wood ®. Denhigh 106 Wood V. Morehouse. 755 Wood 1). Van Denburgh, 458, 553, 550 Wood's Estate 459 Wood V. McChesney 769 Woodruff V. Cook 713, 536 Woodhead, Estate of John 692 Woodin D. Bagley 442, 449 Wright «. Wright 533, 607 Wright's accounting 673 Wurts «. Jenkins 670, 435 Y Young V. Foster 903 PRACTICE SURROGATE'S COURT. CHAPTER I. Of the Surrogate's Court and the Powers and Duties of the Surrogate Generally. The Surrogate's Courts, are the courts of original jurisdiction for the proof of wills and the issuing of letters testamentary thereon and the granting of letters of administration upon the estates of in- testates, and with wills annexed. They are provided for by the constitution (art. vi), and their jurisdiction is regulated and re- stricted by the statutes of the State. They are not courts of record. (Code, Civ. Proc, as amended by chap. 416, Laws of 1877, § 2.) They were not courts of record, under the Revised Statutes (2 R. S., 220-276), and attorneys, admitted to practice in all the courts of the State, were held not to be 1 2 Practice in Surrogate's CottBt. officers of this court [Goates v. GJieever, 1 Cow. 460), but to represent their clients specially. Un- der the statutes as amended, attorneys must be held to represent their clients as in other courts of record. The court is held by the county judge of each county, or in the city and county of New York and in counties having a population exceeding forty thousand, in which the board of supervisors have provided for a separate office, to perform the duties, by a surrogate. The county judge acting as surrogate, or the sur- rogate, before entering upon the duties of his office, files his official oath and bond in the office of the clerk of the county, with two or more sureties ap- proved by the clerk, for the faithful performance of his duties. (1 R. S., 382, §§ 7'', 78, as amended by chap. 239, Laws 1871 and Laws 1858, chap. 213.) In New York city and county, the surrogate holds office for three years, but in the other counties for six, and their salaries are fixed by the legislature, and can neither be increased or diminished, during their terms of office. (Cons., art. vi, § 14.) The surrogate may be removed by the senate on the recommendation of the governor, after service of the copy of the complaint against him, and after Practice in Surrogate's Court. 3 having l:ad"an opportunity of being heard in his defense. (Cons., art. vi, § 11.) The new revision of the statutes, chap, viii, pro- vide for the holding of the court by other officers. Oflloial designation. § 2483. Where the county judge is also sur- rogate, he may be designated, in any paper or pro- ceeding relating to the office of surrogate, as the surrogate of the county, without any addition referring to his office as county judge. A local officer elected, as prescribed in the constitution, to discharge the duties of surrogate, or of county judge and surrogate, is designated in this act, and, when acting as surrogate, may be designated, as the " special surrogate " of his county. Where an officer, other than the surrogate, acts as surro- gate in a case prescribed by law, he must be desig- nated by his official title, with the addition of the words, " and acting surrogate." Who to act in ease of vacancy or disability. § 2484. Where, in any county, except New York or Kings, the office of surrogate is vacant ; or the surrogate is disabled, by reason of sickness, ab- sence, or lunacy; and special provision is not made by law, for the discharge of the duties of his office in that contingency ; the duties of his office 4 Practice in Surrogate's Court. must be discliarged, until the vacancy is filled, or the disability ceases, as follows : 1. By the special surrogate. 2. If there is no special surrogate, or he is in like manner disabled, or is precluded or disquali- fied, by the special county judge. 3. If there is no special county judge, or he is in like manner disabled, or is precluded or disquali- fied, by the county judge. 4. If there is no county judge, or he is in like manner disabled, or is precluded or disqualified, by the district-attorney. But before an officer is entitled to act, as pre- scribed in this section, proof of his authority to act, as prescribed in section 2487 of this act, must be made. Vacancy. When disqualified. § 2485. Where the surrogate of any county, except New York or Kings, is precluded or dis- qualified from acting with respect to any particular matter, his jurisdiction and powers with respect to that matter vest in the several officers designated in the last section, in the order therein provided for. If there is no such ofiicer qualified to act therein, the surrogate may file in his office a cer- tificate stating that fact; specifying the reason Peactice in Surrogate's Court. 5 Why he is disqualified or precluded, and desig- nating the surrogate of an adjoining county, other than New York or Kings, to act in his place in the particular matter. Thereupon the surro- gate so designated has, with respect to that matter, all the jurisdiction and powers of the surrogate making the designation, and may exercise the same in either county. Vacancy by disqualification in New York and Kinge. § 2486. In the county of New York, the Court of Common Pleas for that city and county, and, in the county of Kings, the Supreme Court, at a special term thereof held in the city of Brooklyn, must, upon the presentation of proof of its authority, as prescribed in the next section, exercise all the powers and jurisdiction of the Surrogate's Court, as follows : 1. Where the surrogate is precluded or dis- qualified from acting, with respect to a particular matter, it must exercise all the powers a,nd juris- diction of that court with respect to that matter. 2. Where the office of surrogate of the county is vacant, or the surrogate is disabled by reason of sickness, absence, or lunacy, it must exercise all the powers and jurisdiction of that court, uniil the vacancy is filled, or the disability ceases, as the case may be. 6 Practice in Surrogate's Court. Proof of authority. § 2487. The authority of another officer, or, in the county of New York, of the Court of Common Pleas, or, in the county of Kings, of the Supreme Courtj to act as prescribed in the last three sec- tions, must be proved, in one of the following modes : 1. Where the surrogate is disqualified, or pre- cluded from acting in a particular matter, that fact may be proved by the surrogate's certificate thereof; or, except as otherwise prescribed in section 2485, by affidavit or oral testimony. 2. The fact that the surrogate is so disqualified or precluded, or that he is disabled, or that the office is vacant, and also the authority of the officer, or of the court, as the case may be, to act in his place, may be proved, and are deemed con- clusively established, by an order of the general term of the Supreme Court, held within the de- partment embracing the county. After such an order is made, the surrogate shall not make the certificate specified in section 2485 of this act, and if such a certificate has been theretofore filed, the powers and jurisdiction of the surrogate therein designated, as specified in that section, thenceforth cease. Practice in Surrogate's Court. 1 Appointment by Supreme Court. § 2488. An order may be made, as prescribed in subdivision second of the last section, upon or with- out notice, as the general term thinks proper. It must recite the cause of the making thereof; it must designate the officer or court, empowered to discharge the duties of the office of surrogate ; and, if it relates to a particular matter only, it must designate that matter. It may, in the discretion of the court, require an officer to give security, for the due discharge of his duties therein. Where the office of surrogate is vacant, or the surrogate is disabled by reason of lunacy, the at- torney-general, if directed by the governor, must, or the district-attorney, upon his own motion, may, apply for the order; and the general term must grant it upon his application. The general term may also grant the order, upon the application of a party, or a person about to become a party, to any special proceeding in the Surrogate's Court. Where the surrogate is sick or absent, the granting of the order rests in the discretion of the court, and its effect may be qualified, as the court thinks proper. How authority superseded. § 2489. Where an order is made by the general term, as prescribed in the last two sections, or 8 Practice in Surrogate's Court. an appointment is made by the -board of super- visors, as prescribed in section 2492 of this act, for any cause except a vacancy in the office of surro- gate, it may be revoked, without prejudice to any proceedings theretofore taken by virtue thereof, by the general term of the department embracing the surrogate's county, upon proof that it was im- providently made, or that the cause of making it has become inoperative. Such an order or ap- pointment, made upon the ground that the sur- rogate's oifice is vacant, is superseded, without any formal revocation, by the filling of the vacancy. After the order or appointment is revoked, or the vacancy is filled, as the case may be, the un- finished business, in any proceedings taken by virtue of the order or appointment, must be transferred to, and may be completed by, the surrogate, in the same manner and with like ef- fect, as where a new surrogate completes the un- finished business of his predecessor. In certain counties, provision is made for the election of special surrogates and special county judges to act when those regularly elected shall be disqualified. (Laws 1851, chap. 108.) Proceedings in New York and Kings regulated. § 2490. In a special proceeding cognizable be- fore a surrogate, taken in the Court of Common Practice in Surrogate's Court. 9 Pleas, or the Supreme Court, as prescribed in this article, the seal of the court in which it is taken, must be used, where a seal is necessary. The special proceeding must be entitled in that court ; and the papers therein must be filed or recorded, as the case may be, and issues therein must be tried, as in an action brought in that court. The clerk of that court must sign each record, which is required to be signed by the surrogate or the clerk of the Surrogate's Court. The issuing of a citation may be directed, and any order intermediate the citation and the decree may be made, by a judge of the court. Transfer to Surrogate's Court. § 2491. The court may, at any time, in its dis- cretion, upon being satisfied that the reason for the exercise of its powers and jurisdiction has ceased to operate, make an order to transfer to the Surrogate's Court, any matter then pending before it. Such an order operates to transfer the same accordingly. Immediately after such a transfer, or after the revocation of the order of the general term, as prescribed in the last section but one, the surrogate must cause entries to be made in the proper book in his office, referring to all the papers filed, and orderp entered, or other 10 Practice in Surrogate's Court. proceedings taken, in the Couj-t of Common Pleas, or the Supreme Court; and he may cause copies of any of the orders or papers to be made, and recorded or filed in his office, at the expense of the county. Temporary surrogate. § 2492. In any county, except New York or Kings, if the surrogate is disabled, by reason of sickness, absence, or lunacy, or the office of surro- gate becomes vacant before the expiration of a full terra, and there is no special surrogate, or special county judge of the same county, who is competent and able to act as surrogate, the board of supervisors may, in its discretion, appoint a suit able person, to act as surrogate, until the surro- gate's disability ceases, or his term of office ex- pires, if the disability continues until then ; or until a special surrogate or a special county judge is elected or appointed. A person so appointed must, before entering upon the execution of the duties of his office, take and file an oath of office, and give an official bond, as prescribed by law, with respect to a person elected to the office of surrogate. Temporary surrogate's compensation. § 2493. An officer, or a person appointed by the Practice in Surrogate's Court. 11 board of supervisors, who acts as surrogate of any county during a vacancy in the office, or in conse- quence of disability, as prescribed in the last nine sections, must be paid, for the time during which he so acts, a compensation equal, pro rata, to the salary of the surrogate ; or, in a county where the county judge is also surrogate, to the salary of the county judge. The amount of his compensa- tion must be audited and paid, in like manner as the salary of the surrogate, or of the county judge, as the case may be. Where an ofiicer of the county performs the duties of the surrogate, with respect to a particular matter, wherein the surro- gate is disqualified or precluded from acting, the supervisors of the county must allow him a just compensation for his services therein, to be audited and collected in the same manner. Acts of temporary surrogate how recorded. § 2494. Where an act is done, or a proceed- ing is taken by, before, or by authority of an offi- cer, or a person appointed by the board of super- visors, temporarily acting as surrogate of any county, as prescribed in this article, the same must be recorded, or the proper minutes thereof must be entered, in the books of the Surrogate's Court, in like manner as if the same was done or taken by, 12 Practice in Surrogate's Court. before, or by authority of the surrogate of the county ; and the officer or person so acting, or the clerk of the Surrogate's Court, must sign the certi- ficate of probate and any letters so issued, and must certify the record thereof in the book. In regard to the general powers of the surrogate, it is provided by the new revision as follows : General jurisdiction. § 2472. 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 probate 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 Practice in SuRRoaATE's Court. 13 the payment or delivery, by executors, adminis- trators, 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 affairs of decedents, according to the pro- visions 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 the cases specially prescribed by law, to direct and control their conduct, and settle their accounts. This jurisdiction must be exercised in the cases, and in the manner, prescribed by statute. Exclusive jurisdiction. § 2476. The Surrogate's Court of each county has jurisdiction, exclusive of every other Sur- rogate'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 : li Practice in Surrogate's Court. 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 per- sonal property within the State, or leaving personal property, which has, since his death, come into the State, and remains unadministered. 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 administration, 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 the title fifth of this chapter, is situated within that county, and no other. Presumption of jurisdictions. § 2473. Where the jurisdiction of a Surrogate's Court to make, in a case specified in the last section Practice in Sureogate's Court. 15 (§2472) a decree or other determination, is drawn in question collaterally, and the necessary parties were duly cited or appeared, the jurisdiction is presumptively, and, in the absence of fraud or collusion, conclusively, established, by an allegation of the jurisdictional facts, contained in a written petition or answer, duly verified, used in the Sur- rogate's Court. The fact that the parties were duly cited is presump lively proved, by a recital to that effect in the decree. Jurisdiction not lost by defect of record. § 2474. The Surrogate's Courtobtains jurisdiction in every case, by the existence of the jurisdictional facts prescribed by statute, and by the citation or appearance of the necessary parties. 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. But, for the better protection of any party, or other person interested, the Surrogate's Court may, in its discretion, allow such a defect to be supplied by amendment. Eflfeet of exercise of jurisdictions. § 2475. Jurisdiction, once duly exercised over 16 Practice in Surrogate's Court. any matter, by a Surrogate's Court, excludes the subsequent exercise of jurisdiction by another Sur- rogate's Court, over the same matter, and all its incidents, except as otherwise specially prescribed by law. Where a guardian has been duly ap- pointed by, or letters testamentary or of adminis- tration 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 taken in a Surrogate's Court, with respect to the same estate or matter, must be taken in the same court. But the jurisdictions may be concurrent in two or more surrogates. Concurrent jurisdiction. § 2477. 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 there- upon, or to grant letters of administration, as the Practice in Surrogate's Court. 17 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 possess^ ing concurrentjurisdiction, the jurisdiction of that court excludes that of the other. Jurisdiction aflFected by locality of debts. § 2478. For the purpose of conferring juris- diction upon a Surrogate's Court, a debt, owing to a decedent by a resident of the State, is regarded as personal property, 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 pro- perty, situated within the county where the prin- cipal office of the corporation is situated. But the foregoing provision does not apply to a debt evi- denced by a bond, promissory note, or other in- strument 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, associar tion, or corporation, is, for the purpose of so con- ferring jurisdiction, regarded as personal property, at the place where the bond, note, or other in- 2 18 Practice in Surrogate's Court. strument is, either within or without the State. Jurisdiction in case of New County. § 2479. Where a new county has been heretofore, or is hereafter erected, or territory has been hereto- fore, 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 lettres, 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 trans- fer of the territory, letters have been granted, upon the ground that the decedent died or resided within the county, the Surrogate's Court of the county, embracing the place where he died or resided, has exclusive jurisdiction of the estate, and of all matters incidental thereto ; and if that place 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 payment of the fees therefor, by the proper officer, to any person interested in the estate; and, upon the latter's request and pay- ment of the fees therefor, the proper officer of the Practice in Surrogate's Court. 19 court so having jurisdiction must file, enter, or record the same, in like manner and with like effect as the originals. Whei'e the letters were granted upon any ground other than the decedent's death or residence within the county, the jurisdic- tion of the court from which they were issued, remains unaffected by any change in the terri- torial limits of its county. Proceedings how transferred. §2480. A special proceeding pending in a Sur- rogate'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 juris- diction ; and the latter court has the same juris- diction, power, and authority with respect thereto, which the former court would have had, if the ter- ritorial limits of its county had not been changed. § 10, (S. L. 1867, Chap. 782). The board of supervisors of each county, shall provide the Surro- gate's Court of such county, with rooms, fuel, lights, and stationery, suitable and sufEcent for the trans- action of its business ; and if such board shall 20 Practice in Surrogate's Court. neglect to do so, the said court^may, by an order duly entered, direct the sheriff of the county to do so ; and the expense incurred by the sheriff, in carrying such order into effect, when certified by him, shall be a county charge. Surrogate's Court ; when to be open. § 2504. The Surrogate's Court is always open for the transaction of any business, within its powers and jurisdiction. When surrogate to attend. § 2506. The surrogate must, unless prevented by sickness or other unavoidable casualty, attend at his office on Monday of each week, except during the month of August, or, when Monday is a public holiday, on the following Tuesday, to execute the powers conferred and the duties im- posed upon him. But the surrogate of any county may, by an instrument in writing, under his hand, filed in the office of the clepk of the county, at least twenty days before the first day of January in any year, designate a day of the week, other than Monday, on which he will attend at his office, or a month, other than A-ugust, during which he will be absent therefrom, or both, during that year ; and where the county judge is also surrogate, he is not required to attend at his Practice in Surrogate's Court. 21 office OQ any day, when the County Court or Court of Sessions is sitting. The surrogate must also execute the duties of his office, at such other times and places, within his county, as the public convenience requires. When and where court to be held. § 2506. The Surrogate's Court, in a county where the county judge is also surrogate, may be held at the time and place at which the County Court is held ; and, in that case, the order of business of the County Court, the Court of Sessions, and the Sur- rogate's Court, is under the direction of the county judge. Seal. § 2507. The Surrogate's Court has a seal, of which the surrogate has charge. Clerks in surrogate's ofllce. § 2508. Each surrogate may appoint, and at pleasure remove, as many clerks for his office, to be paid by the county, as the board of supervisors of his county, or, in the city and county of New York, the board of aldermen, authorize him so to appoints The board of supervisors or the board of aldermen, as the case .requires, must fix the compensation of the clerk or clerks so appointed ; and may author- 22 .Practice in Surrogate's Court. ize them, or either of them, to receive, tor their or his own use, the legal fees for making copies of any record or paper in the office of the surrogate. A surrogate may appoint, and at pleasure remove, as many additional clerks, to be paid by him., as he thinks proper. Clerk of Surrogate's Court ; how appointed ; his powers. § 2509. A surrogate may, by a written order, filed and recorded in his office, and which he may, in like manner, revoke at pleasure, appoint a clerk employed in his office to be the clerk of the Surrogate's Court. The clerk so appointed may exercise concurrently with the surrogate the following powers of the surrogate : 1. lie may certify and sign as clerk of the court any of the records of the court, including the cer- tificate specified in section 2629 of this act, and the records and papers specified in subdivision ninth of section 2481 of this act. 2. He may issue any mandate, to which a party is entitled as of course, either unconditionally, or upon the filing of any paper ; and may sign, as clerk of the court, and affix the seal of the court to, any letters or mandate, issued fropi the court. :>. He may certify, in the manner prescribed by chapter ninth of this act, a copy of any paper, re- Practice in Surrogate's Court. 23 quired or permitted by law to be filed or recorded in the iSurrogate's oflSce. 4. He ma/ adjourn to a definite time, not ex- ceeding thirty days, any matter, when the surro- gate is absent from his ofiice, or unable, by reason of other engagements, to attend to the same. 5. He may take the acknowledgment or proof of any instrument, to be used or filed in the court of which he is clerk The surrogate may prohibit the clerk from ex- ercising any power specified in this section, but the prohibition does not affect the validity of any act of the clerk done in disregard of the prohibi- tion. Incidental powers of the surrogate. § 2481. A surrogate, in court or out of court, as the case requires, has powfer : 1. To issue citations to parties, in any matter within the jurisdiction of his court ; and, in a case prescribed by law, to compel the attendance of a party. 2. To adjourn, from time to time, a hearing or other proceeding in his court; and where all persons who are necessary parties have not been cited or notified, and citation or notice has not been waived by appearance or otherwise, it is his 24 Practice in Surrogate's Court. duty, before proceeding further, so to adjourn the same, and to issue a supplemental citation, or re- quire the petitioner to give an additiopal notice, as may be necessary. 3. To issue, under the seal of the court, a sub- poena, requiring the attendance of a witness, re- siding or being in any part of the State ; or a subpoena duces tecum, requiring such attendance, and the production of a book or paper material to an inquiry pending in the court. 4. To enjoin, by order, an executor, administra- tor, testamentary trustee, or guardian, to whom a citation or other process has been duly issued frona his court, from acting as such, until the further order of the court. 5. To require, by order, an executor, adminis- trator, testamentary trustee, or guardian, subject to the jurisdiction of his court, to perform any duty imposed upon him, by statute, or by the Surrogate's Court, under authority of a statute. 6. To open, vacate, modify, or set aside, or to enter, as of a former time, a decree or order of his court ; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause. The powers, conferred by this subdivision, must be ex- ercised only in a like case and in the same manner. Practice in Surrogate's Court. 25 as a Court of Record and of gfeneral jurisdiction exercises the same powers. Upon an appeal from a determination of the surrogate, made upon an application pursuant to this subdivision, the general term of the Supreme Court has the same power as the surrogate ; and his determination must be reviewed, as if an original application was made to that term. 7. 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. 8. Subject to the provisions of law, relating to the disqualification of a judge in certain cases, to complete any unfinished business, pending*before his predecessor in the office, including proofs, ac- countings, and examinations. 9. To complete, and certify and sign in his own name, adding to (lis signature the date of so doing, all records or papers, left uncompleted or un- signed by any of his predecessors. 10. To exemplify and certify transcripts of all records of his court, or other papers remaining therein. 11. With respect to any matter not expressly provided for in the foregoing subdivisions of this 26 Practice in Surrogate's Court. section, to proceed, in all matters subject to the cognizance of his court, according to the course and practice of a court, having, by the common law, jurisdiction of such matters, except as other- wise prescribed by statute ; and to exercise such incidental powers, as are necessary to carry into effect the powers expressly conferred. The provisions of chap, xviii, relating to the jurisdiction of the Surrogate's Court, to take the proof of a will, and to grant letters testamentary, or letters of administration, or regulating the mode of proceeding in any matter connected with the estate of a decedent, applies, unless otherwise expressly declared therein, whether the will was made, or the decedent died, before or after this chapter takes effect. (§ 2482.) He may also issue a commission to take testi- mony in the same manner as other Courts of Record, the statute concerning which is made to apply so far as they can be applied to the sub- stance and subject matter. (§ 2538.) He may commit a witness or party for perjury. " Whenever it shall appear to any Court of Record, or to any surrogate, that any witness or party who has been legally sworn, and examined in any cause, matter or proceeding pending before such court or surrogatCj has testified in such a Practice in Surrogate's Court. 27 manner as to induce a reasonable presumption that he has wilfully and corruptly testified falsly to some material point or matter, such court or surrogate may immediately commit such party or witness, by an order or process for that purpose, to prison, or take recognizance with sureties for his appearance and answering to an indictment for perjury." (Art. 1, Title 4, Chap. 1, Part 4, of R. S., §5, as amended by Chap. 782, Law 1867.) What books to be kept. § 2498. Each surrogrte must provide and keep the following books : 1. A record book of wills, in which must be re- corded, at length, every will required by law to be recorded in his office, with the decree admitting it to probate, and also, if the probate is not con tested, the proof taken thereupon. 2. A record book of letters testamentary an I letters of administration, in which must be ro corded all such letters, issued out of his court. 3. ' A record book, in which must be recorded ev- ery decree, whereby the account of an executor, administrator, trustee, or guardian is settled. 4. A book, containing a minute of every paper filed, or other proceeding taken, relating to the disposition of the real property of a decedent, and a record of every order or decree, made thereupon . 28 Practice in Surrogate's Court. with a memorandum of every report made, and other proceeding taken, founded upon a decree ibr such a disposition. 5. A book, containing a record of every decre .• or order, the record of which is not required by this section to be kept elsewhere ; together with a memorandum of each execution issued, and of the satisfaction of each decree recordeil therein. 6. A book, in which must be recorded all let- ters of guardianship, issued out of his court. 7. A book of fees and disbursements, in whicli must be entered, by items, all fees charged or ro ceived by him for services or expenses, and all disbursements made or incurred by him, which are chargeable against those fees, or to the county. The expense of providing the books specified in this section is a county charge. Books to be indexed. § 2499. To each of the books, kept as prescribed in the last section, must be attached an alphabeti- cal index, referring to ■ the page of the book, where each subject may be found. The surro- gate may keep two or more books, for a further division of the subjects specified in either subdivi- sion of the last section ; in which case, he must keep a separate index to each set of books. Practice in Surrogate's Court. 29 Each decree, revoking the probate of a will, or revoking or otherwise affecting letters testamen- tary, letters of administration, or letters of guar- dianship, or suspendingor removing a testamentary trustee, or modifying or otherwise affecting any other decree, must be plainly noted at the end or in the margin of the record of the will, letters, or original decree, with a reference to the book and page where the subsequent decree is recorded. The books, kept as prescribed in the last section, appertain to the surrogate's office, and must be open, at all reasonable times, to the inspection of any person. Papers and books to be preserved. § 2500. A surrogate must carefully file and pre- serve in his office, every deposition, affidavit, peti- tion, report, account, voucher, or other paper, relating to any proceeding in his court ; and must deliver to liis successor all the papers and books kept by him. Surrogate to report fees. § ';^501. The surrogate of each county, except New York, must, at his own expense, make a report to the board of supervisors of the county, on the first day of each annlial meeting thereof, containing a statement, verified by his oath, of all 30 Practice in Surrogate's Court. fees received or charged by him for services or ex- penses, since the last report, and of all disburse- ments chargeable against the same, or to the county, stating particularly each item thereof. Id. ; in New York county. § 2502. The surrogate of the county of New York must, at his own expense, make and file in the oflBce of the county clerk, a like report, be- tween the first and twentieth days of January in each year. What papers to be transmitted to the Secretary of State. ; expenses thereof. § 2503. A surrogate who admits to probate the will oi a person, who was not a resident of the State at the time of his death ; or grants original or ancil- ary letters testa;raentary upon such a will, or orig- inal or ancilary letters of administration upon the estate of such a person ; must, within ten days thereafter, transmit to the secretary of State, to be filed in his office, a certified copy of the will or letters. The surrogate's fees for making the copy, and the expenses of transmission, must be audited by the comptroller, and paid out of the treasury upon his warrant. Surrogate liable for acts of clerk. § 2510, A surrogate, hereafter elected or ap- Practice in Surrogate's Court. 31 pointed, and the sureties in his official bond, are liable for any act of the clerk of the Surrogate's Court in the discharge of his official duties, during the surrogate's term of office, as if the act was performed by the surrogate. The surrogate may take security from the clerk, to indemnify him against the liability created by this section. Clerk, etc., not to be appraiser, attorney, etc. § 2511. A clerk, or other person employed in any capacity, in a surrogate's office, shall not act as appraiser, as attorney or counsel, or as referee or special guardian, in any matter before the sur- rogate. stenographer for Surrogate's Courts in New York and Kings. § 2512. The surrogate of each of the counties of New York and Kings, must appoint, and may, for cause, remove, a stenographer for his court, who is entitled to a salary fixed by law, and to be paid as the salaries of clerks in the surrogate's office are paid. Id. ; in other counties. § 2518. The surrogate of each county, except New York and Kings, may, in his discretion, ap- point, and at pleasure remove, a stenographer for his court, who shall be paid a reasonable compen- 32 Practice in Surrogate's Court. sation, certified by the surrogate, in every case in which he takes notes of testimony. Such com- pensation is part of the costs of the proceedings. Duty of stenographer. § 2541. The stenographer of a Surrogate's Court must under the direction of the surrogate, take full stenographic notes of all proceedings, in which oral proofs are given, except where the surrogate otherwise directs. The testimony must be legibly written out at length by him, from his notes ; and the minutes thereof, as so written out, must, aftsr being authenticated, as prescribed in the next section, be filed in the surrogate's office. How minutes of testimony authenticated. § 2542. The minutes of testimony, written out as prescribed in the last section, or taken by the surrogate, or under his direction, while the witness is testifying, must, before being filed, be authen- ticated by the signature of the surrogate, or the clerk of the Surrogate's Court, to the effect that they are correct. Id. ; to be bound in volumes. § 2543. In the city jand county of New York, in the county of Kings, and in any other county where the supervisors so direct, the minutes of testimony Practice in Surrogate's Court. 33 written out by the stenographer must be bound, at the expense of the county, in volumes of convenient size and shape, indorsed " Stenographic minutes," and numbered consecutively. Upon the record of a decree made in any contested matter, the surro- gate must cause to be made a minute, referring to each volume of the stenographic minutes, and to the pages thereof, containing any testimony re- lating to the matter. To give efficiency to the process of the court it is provided that every sheriff, jailor, coronei' or other executive officer, to whom any citation, sub- poena, attachment or other process issued by a Sur- rogate's Court, may be directed or delivered for the purpose of being executed, shall execute the same in the same manner as if issued by a Court of Record, and, for any neglect or misfeasance therein, shall be subject to the same penalties, actions and proceedings as if the same had occurred in relation to any process issued by Courts of Record. (2 R. S, 223, § 9.) Surrogate when not to be counsel, etc. § 2495. A surrogate shall not be counsel, soli- citor, or attorney, in a civil action or special pro- ceeding, for or against any executor, administrator, temporary administrator, testamentary trustee, 34 Practice in, Surrogate's Court. guardian, or infant, over whom, or whose estate or accounts, he could have any jurisdiction by law. Surrogate, when disqualified. § 2496. In addition to his general disqualifica- tions as a judicial officer, a surrogate is disqualified froui acting upon an application for probate, or for letters testamentary, or letters of administration, in each of the following cases : 1. Where he is, or claims to be, an heir or one of the next of kin to the decedent, or a devisee or legatee of any part of the estate. 2. Where he is a subscribing witness, or is necessaiily examined or to be examined as a wit- ness, to any written or nuncupative will. 3. Where he is named as executor, trustee, or guardian, in any will, or deed of appointment, in- volved in the matter. Disqualification; when objection must be taken: § 2497. An objection to the power of a surrogate to act, based upon a disqualification, established by special provision of law, other than one of those enumerated in the last section, is waived by an adult party to a special proceeding before him, unless it is taken at or before the joinder of issue by that party ; or, where an issue in writing is Practice in Surrogate's Court. 35 not framed, at or before the submission of the matter or question to the surrogate. Surrogate's son not to practice before him. § 2529. A surrogate's father or son shall not practice or be em ploy d as attorney or counsel, in any case, in which his partner or clerk is prohibited by law from so practicing, or being employed. 36 Practice est Surrogate's Court. CHAPTER II. Pleading in Surrogate's Court, and process and service thereof, etc. It has betn frequently said, hastily said, as we think, that there are no rules of pleading in this court. But the courts have held (see Foster v. Wilbur, 1 Paige, 540 ; Van VIeck v. BurrmigJis, 6 ■ Barb., 343, and Carle v. Underhill, 3 Brad., 101), that litigants in this court, shall present their cases in such form, as to give the court notice of the pro- positions which they seek to establish or contro- vert; and the practice which has almost universally obtained in the several Surrogate's Courts of this State, is exceedingly uniform. From that practice, clear and simple rules of pleading may be deduced. The court itself, is the successor in its functions of the Ecclesiastical Courts of England. These courts were established in the time of William I, by act of parliament, and it was ordained, that they should decide according to the canon law ; that is according to rules established by the ordinances of Practice in Surrogate's Court. 3T the Catholic councils or the decretals of the several popes. The Ecclesiastical Courts, like the Court of Chancery, in the earlier times in that country, was officered by clerical persons, unversed in the com- mon law, as it then existed, and adopting the can- nons, they adopted also the method of procedure, which had descended from the Roman Courts, or their successors on the European continent. (See an admirable and complete history of the Surro- gate's Courts, by Daly, justice, acting as surrogate, 15 Abb., 12.) This method of procedure was far more simple and inartificial than that built up in the common law courts, and abolished in this State by the leg- islature in the adoption of the Code of Procedure. Indeed that code is, practically, an adoption of the rules of the civil law, as to pleading. In the Ecclesiastical Courts*, and others governed by the civil law, as we understand it, the suitor applied by petition, stating the facts upon which he relied for the relief he sought, and asking for such relief; and, when the parties all were gotten into court, the other party stated the facts upon which he relied to defeat the claim for relief, or, to oust the Court of Jurisdiction. We see traces of this practice in the chancery pleadings in use in this State until 1848. The party now styled the 38 Practice in Surrogate's Court. plaintiflf, was then called the complainant, and he styled himself, " your orator," anglice, petitioner, or one who prays, in his bill of complaint. The Ecclesiastical Courts preserved more nearly the practice of the civil law, and upon the petition of the suitor, issued the process, summons, citation, or subpoena, as the case required, and the party defending, was required to state, in apt language, the grounds of his defense. Keeping in mind, then, the origin of the Surro- gate's Courts, we can readily see how a system of pleading has arisen, and has been continued, and how it has, in some cases, been embodied in the Revised Statutes of the State. The theory, then, on which the practice of the court is founded, is, that the court in all cases, is moved by petition, stating the facts which confer jurisdiction of the persons or matter, upon the court, and asking for the process or relief appro- priate to the facts. The court thereupon enters the proper order for the relief, or for process, and if process is asked, issues it. On the return of the process, the party cited or summoned, if there be a contest, states, in apt language, the facts upon which he relies, and, the issue being made up, a trial is had. Practice in Surrogate's Court. 39 It does not follow, that the petition shall always be actually made in form, but in all cases, it is believed, it is presumed to have been made. The new revision of the statutes adopts these views, and makes authoritative the rules of plead- ing as above deduced from theory and the actual practice of the court. Process ; how executed and returnable. § 2515. A citation or other mandate of a Surro- gate's Couri must, except where it is otherwise specially prescribed by law, be made returnable before the surrogate from whose court it was issued, and may be served or executed in any county. A warrant of attachment must be directed to the sheriff of the surrogate's county ; who may exe- cute it in any county, and must convey the per- son arrested to the place where it is returnable. Proceedings to be commenced by citation. § 2516. Except in a case where it is otherwise specially prescribed by law, a special proceeding in a Surrogate'^ Court must be commenced by the service of a citation, issued upon the presentation of the 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. 40 Practice in Surrogate's Court. Id. ; within the Statute of Limitations. § 2517. The presentation of a petition is deemed the commencement 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 presen- tation 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. Persons constituting a class ; when to be cited ; citation when some are unknown. § 2518. Where it is prescribed, in any provision of this chapter, that a petition must pray that a person, or that creditors, next of kin, legatees, heirs, devisees, or other persons constituting a class, may be cited for any purpose, all those persons are necessary parties to the special proceeding. Where persons to be cited constitute a class, the petitioner must setforth, in an affidavit, the name of each of them, unless the name, or part of the name Practice in Surrogate's Court. 41 of one or more of them cannot, after diligent inquiry, be ascertained by him; in which case, that fact must be set forth, and the surrogate must, thereupon, inquire into the matter. For the pur- pose of the inquiry, he may, in his discretion, issue a subpoena, requiring any person to attend before him to testify respecting the matter. If he is satisfied, upon the allegations of the petitioner, or after making the inquiry, that the name of one or more of the persons to be cited, cannot be ascer- tained with reasonable diligence, the citation may be directed to that person or those persons, by a general designation, showing his, her, or their con- nection with the decedent, or interest in the property or matter in question ; or otherwise sufficiently identifying the person or persons in- tended. A citation, thus directed, has the same force and effect, as if it was directed to the person or persons intended, by their names ; and where the person or persons so intended are duly cited, in any manner prescribed by law, the decree binds them, as if they were named therein. A petition, duly verified, is deemed an afiidavit, within the meaning of this section. Contents of citation. § 2519. A citation must be made returnable 42 Practice in Surrogate's Court. upon a day certain, designated therein, not more than four months after the date thereof; and must specify whose estate or what subject-matter is in question. The names of all the persons to be cited, as far as they can be ascertained, must be contained in the citation. Where the name, or part of the name, of either of them cannot be ascer- tained, that fact must be stated in the citation. Citation ; how served within this State. § 2520. Except where special provision is other- wise made by law, service of a citation, within the State, must be made upon an adult person, or an infant of the age of fourteen years or upwards, by delivering a copy thereof to the person to be served, or by leaving a copy at his residence, or the place * where he sojourns, with a person of suitable age and discretion, under such circumstances, that the surrogate has good reason to believe that the copy came to his knowledge, in time for him to attend at the return day. A citation must be so served, if within the county of the surrogate, or an adjoin- ing county, at least eight days before the return day thereof; if in any other county, at least fifteen days before the return day; unless, in either case, the person served, being an adult, and not incom- " petent, assents in writing to a service within a Practice in Surrogate's Court. 43 shorter time. Any person, although a party to the special proceeding, may serve a citation. PROOF OF SERVICE OF CITATION. Surrogate's Court, Rensselaer county. In the matter of the proof of the will of John Doe, deceased. Rensselaer county, ss : Charles Doe of the City of Troy, in said county, being duly sworn says that he is eighteen years old and upwards; that on the day of .... 1880, and more than eight days before the day of 1880, at the town of Brunswick, in said county, he served the aanexed citation, on Sarah Rich, whom he knows to be the person so named in said citation by delivering to and leav- ing with, her a copy thereof; that on the same day at said town of Brunswick, he served said annexed citation on Charles Smith, the person named therein, by leaving a copy thereof at his residence with Sarah Jones, a person of mature age and apparently of discretion, with a request that the same be delivered to said Charles Smith, deponent having been informed by said Sarah Jones that said Charles Smith was absent from 44 Practice in Surrogate's Court. home but would return in about three days ; that on the . . . day of 1880, and more than fifteen days before the .... day of" 1880, he served said citation on therein named at the town of Elmirn, by deliver- ing to and leaving with him a copy thereof. Charles Doe. Sworn before me this .... day \ of January . . . ., 1880. J William Lord, Notary Public, Rensselaer Co. ADMISSION OF SERVICE. I admit due, timely and personal service of the within citation. James Smith. Substitute for personal service upon a resident. § 2521. Where it appears, by affidavit, to the satisfaction of the surrogate from whose court a citation issued, that proper and diligent effort has been made to serve it upon a resident of the State, as prescribed in the last section ; and that the person- to be served cannot be found, or, if found, that he evades service, so that it cannot be made ; the surrogate may make an order, directing that service thereof be made, as prescribed in section Practice in Surrogate's Court. 45 436 of this act, and the provisions of that section, and of saction 437 of this act, relating to the ser- vice of a summons, apply to the service of a cita- tion, pursuant to an order made as prescribed in this section. The sections referred to, so far as they relate to the Surrogate's Court, with explanations showing their application, are as follows : How service must be made. ^ 346. The order must direct, that the service of the summons (citation), be made, by leaving a copy thereof, and of the order, at the residence of the defendant (party), with a person of proper age, if, upon reasonable application, admittance can be obtained, and such a person found who will receive it ; or, if admittance cannot be so obtained, nor such a person found, by affixing the same to the outer or other door of the defendant's (party's) residence, and by depositing another copy thereof, properly inclosed in a post-paid wrapper, addressed to him, at his place of residence, in the post-office at the place where he resides. Papers to be filed ; proof of service. § 437. The order and the papers upon which it was granted, must be filed, and the service must be made, within ten days after the order is granted; 46 Practice in Surrogate's Court. otherwise the order becomes inoperative. On fil- ing an affidavit, showing service according to the order, the summons (citation), is deemed served. AFFIDAVIT TO PEOCURE ORDER FOR SUBSTITUTED SERVICE. Surrogate's Court. In the matter of the estate of John Smith, deceased. Rensselaer county, ss. : Charles Smith, of Nassau, in said county, being duly sworn, says that at the request of Sarah Smith, administratrix of the goods of the above named de- ceased, the deponent endeavored to serve the an- nexed citation on Job Smith therein named. That said Job Smith resides in said town of Nassau with his family ; and deponent, on the 5th day of June, 1879, went to the residence of said Smith and in- quired for him, and the wife of said Smith refused to tell where he could be found; and deponent made inquiry from several other persons who are acquainted with said Job Smith, and was informed that said Job Smith was about home, but none of them could tell his precise whereabouts. That deponent endeavored to make service of said citation on James Jones, in said citation Practice in Surrogate's Court. i1 named. That said Jones resides in the town of Berlin, with a person named Jolls, and deponent went to the house of said Jolls on the . . . day of , 1879, and on approaching said house, deponent saw said Jones in front thereof, but be- fore deponent could approach near enough to de- liver a copy of said citation to him, said Jones went into said house and fastened the door, and deponent was not able to enter said house peace- ably ; and further deponent says not. Charles Smith. Sworn before me, etc. ORDER FOR SUBSTITUTED SERVICE. At a Surrogate's Court, held in and for the county of Rensselaer, at the surrogate's office in the city of Troy, on the .... day of , 1880. Present — Hon. Moses Warren, Surrogate. In the matter of the estate of John Smith, deceased. On reading and filing the affidavit of Charles Smith, made in this matter, from which it appears that Job Smith, one of the parties to whom the citation issudd in this matter, out of this court, dated June 1, 1879, was issued, cannot be found, although he resides in the town of Nassau, (or, that although the said Job Smith can be found, he 48 Practice in Surrogate's Court. evades service of the citation directed to him issued in this matter, out of this court, dated June 1, 1879,) and that proper and diligent eflfort has been made to serve said citation on said Job Smith : Ordered, that said citation be served upon said Job Smith by leaving a copy thereof, with a copy of this order, at the residence of said Smith, with a person of mature age, if, upon request, admit- tance can be obtained, and such a person found who will receive it ; or, if admittance cannot be so obtained, nor such a person found, by affixing a copy of said citation and of this order to the outer door of the residence of said Smith ; and by de- positing copies of said citation and of this order-, securely inclosed in a post-paid wrapper addressed to said Smith at the town of Nassau, in the post- office at Nassau. Witness, Moses Warren, Surrogate and the [sEAL.J seal of the court, the day and year first above written. Moses Warren, Surrogate. PROOF OP SERVICE OF CITATION AND ORDER. Surrogate's Court. In the matter of the estate of John Smith, deceased. Rensselaer county, ss.: James Lord, of the town of Nassau, in said Practice in Surrogate's Court. 49 county, being duly sworn, says that on the . . . '• day of , 1880, he served the annexed citation and the order of this court in this mat- ter in reference to the service thereof, on Job Smith, by affixing copies of said citation and order to the front outer door of the residence of said Smith, after deponent had requested and endeav- ored to gain peaceable admittance to such resi- dence, and after? he was unable so to do. And de-, ponent further says that on the same day he de- posited copies of said citation and said order, se- curely inclosed in a post-paid wrapper, addressed to said Job Smith at the town of Nassau, in the post office at And further deponent says not. James Lord. Sworn, etc.^ Service hy pvhlication. Service by putalioation, etc. § 2522. The surrogate, from whose court a cita- tion is issued, may make an order, directing the service thereof without the State, or by publica- tion, in either of the following cases : 1. Where it is to be served upon a foreign corpo- ration, or upon a person who is not a resident of the State. 2. Where the person to be served, being a resi- dent of the State, has departed therefrom, with in- 4 50 Practice in Surrogatsp's Court. tent to defraud his creditors, or to avoid the ser- vice of process. 3. Where the person to be served, being a resi- dent of the State, has been continuously without the United States, for snch a liength of time, and under such circumstances, that an order for the service upon him without the State, or by publi- tion, of a summons issued from the Supreme Court, might be made by a judge. 4. Where the person to be served is a resident of the State, or a domestic corporation, and an at- tempt was made to serve a citation, issued from the same Surrogate's Court, upon the presentation of the same petition, before the expiration of the limitation applicable to the enforcement of the claim set forth in the petition, as fixed in chapter fourth of this act ; and the limitation would have expired, within sixty days next proceeding the ap- plication for the order, if the time had not been extended by the attempt to serve the citation. Id. ; upon persons unknown, etc. § 2523. The surrogate may also make an order, directing the service of a citation without the State, or by publication, in either of the following cases : 1. Upon a party to whom a citation is directed, either by his full name or part of his name, where Practice in Surrogate's Court. 51 the surrogate is satisfied, by affidavit, that the res- idence of that party cannot, after diligent inquiry, be ascertained by the petitioner. 2. Upon one or more unknown creditors, next of kin, legatees^ heirs, devisees, or other persons included in a class, to whom a citation has been directe 1, designating them by a general descrip- tion, as prescribed in this article. Order when and how made ; contents thereof. § 2524. Where an order, directing the service of a citation without the State, or by publication, is made as prescribed in the last two sections, the party applying therefor must produce proof, by affidavit or otherwise, to the satisfaction of the surrogate, that the case is one of those specified in those sections. The order must direct that service of the citation, upon the person named or des- cribed in the order, be made by publication of the citation in two newspapers, designated as pre- scribed in this article, for a specified time, which the surrogate deems reasonable, not less than once in each of six successive weeks ; or, at the option of the petitioner, by delivering a copy of the citation, without the State, to each person so nanaed or des- cribed, in person, or, if the service is made upon a corporation, to an officer thereof, specified in sec- 52 Practice in Surrogate's Court. tion 431 or 432 of this act. It must also contain, either a direction that, on or before the day of the first publication, the petitioner deposit, in a speci- fied pos<>office, one or more copies of the citation and order, each contained in a securely closed post- paid wrapper, directed to the person to be served, at a placed specified in the order ; or a statement that the surrogate, being satisfied, by the affida- vits upon which the order was granted, that the petitioner cannot, with reasonable diligence, ascer- tain a place or places where the person to be served would probably receive matter transmitted through the post-ofiice, dispenses with the deposit of any papers therein. ORDER FOR PUBLICATION AND SERVICE WITHOUT THE STATE. At a Surrogate's Court, held in the county of Rensselaer, at the surrogate's office in the city of Troy, on the . . . day of , 1880. Present — Hon. Moses Warren, Surrogate. In the matter of the estate of John Smith, deceased. On reading and filing proof to the satisfaction Practice in Surrogate's Court. «8 of the surrogate, that (a) The First National Bank of Detroit, is a necessary party to this proceeding and is a foreign corporation ; (6) that A. B. is a necessary party to this proceeding and is a non- resident of the State ; (c) that A. B. is a necessary party to this proceeding, and has departed from this State to avoid the service of process ; (d) that A. B. a necessary party to this proceeding and be- ing a resident of this State, and an adult has been continually without the United States for more than six months next before this date, and has not made a designation of a person upon whom to serve a summons in his behalf; (e) that C. D. is a necessary party to this proceeding and an attempt has been made to serve a citation from this court, upon the petition in this matter, before passing of the Statute of Limitations upon the claim sought to be enforced in this proceeding ; {/) that E. F. is a necessary party to this proceeding, and that his residence cannot, after diligent inquiry, be ascertained by the petitioner ; [g) that certain persons next of kin of R. S., deceased, are neces- sary parties to this proceeding and their names and residences are unknown. It is ordered, that the citation issued in this matter be served upon the said A. B. by the pub- lication thereof in the State Paper, and the Troy Daily Times for six weeks, once in each suc- cessive week, or the petitioner may serve the same without the State on said First National Bank of Detroit, by delivering a copy thereof to the presi- 54 Practice in Surrogate's Court. dent of said bank. (See §§ 431, 432.) (a) The petitioner shall also deposit, on or before the first day of the publication of said citation, copies of said citation and this order in the post-office at Troy, contained in a securely closed post-paid wrapper, directed to the said A. B. at Galena, 111.; (h) the surrogate being satisfied by the affidavits on which the order is granted, that the petitioner cannot, with reasonable diligence, ascertain a place or places where the said next of kin of said E. P. deceased, would probably receive matter transmit- ted through the post-office, service by mail on them is not required. Witness, Moses Warren, surrogate, the day and year first above written. Moses Warren, Surrogate. What time required for delivery of copy, etc. § 2525. Where service is made by delivering a copy of the citation without the State, pursuant to an order made as prescribed in the last section, it must be made, if within the United States, at least thirty days, if without the United States, at least forty days, before the return day of the cita- tion. Where it is made by publication, and de- posit of the papers in the post-office is not dispensed with, the requisite copies of the citation must be deposited in the post-office, at least thirty days be- Practice in Surrogate's Court. 55 fore the return day of the citation, if they are di- rected to a place within the United States ; if to a place without the United States, at least forty days before the return day thereof. Proof of pub- lication, deposit, or delivery may be made as pre- scribed in section 444 of this act. Section 444, referred to, is as follows : Proof of service. §§444. Proof of the publication of the sum- mons and notice (citation), must be made by the affidavit of the printer or publisher, or his fore- man or principal clerk. Proof of deposit in the post-office * * * * must be made by the affidavit of the person who deposited * * it. Service upon a corporation, infant, lunatic, etc. § 2526. Service of a citation must be made upon an infant under the age of fourteen years, a per- son judicially decla;red to be incompetent to man- age his affairs by reason of lunacy, idiocy, or habitual drunkenness, or a corporation, in the manner prescribed for personal service of a sum- mons upon such a person, or upon a corporation, in article first of title first of chapter fifth of this act. 56 Practice in Surrogate's Court. That is to say if the person served is an infant under the age of fourteen years, a copy must be delivered to the infant in person, and also to his father, mother, or guardian ; or, if there is none within the State, to the person having the care and control of him, or with whom he resides, or in whose service he is employed. If the person to be served be one judicially de- clared incompetent, by reason of lunacy, idiocy or habitual drunkenness, and for or whom a committee has been appointed, by delivering a copy to such person, and one to his committee. In any other case of service required upon a natural person, it may be made by delivering a copy to him in per- son. (§ 426.) Id. ; upon infant, etc. ; additional requirement in cer- tain cases. § 2527. Where a person, cited or to be cited, is an infant of the age of fourteen years or upwards, or where the surrogate has, in his opinion, rea- sonable grounds to believe, that a person, cited or to be cited, is an habitual drunkard, or for any cause mentally incapable adequately to protect his rights, although not judicially declared to be in- competent to^ manage his ^affairs, the surrogate may, in his^^discretion, with or without an applica Practice in Suerogate's Cottrt. 5T tion therefor, and in the interest of that person, make an order requiring that a copy of the cita- tion be delivered, in behalf of that person, to a person designated in the order ; and that service of the citation shall not be deemed complete until such delivery. Where the person, cited or to be cited, is an infant under the age of fourteen years, or a person judicially declared to be incompetent to manage his affairs, by reason of lunacy, idiocy, or habitual drunkenness, and the surrogate has reasonable ground to believe that the interest of the person, to whom a copy of the citation was delivered, in behalf of the infant or incompetent person, is adverse to that of the infant or incom- petent person, or that, for any reason, he is not a fit person to protect the latter's rights, the surro- gate may likewise make such an order ; and as a part thereof, or by a separate order, made in like manner at any stage of the proceedings, he may appoint a special guardian ad litem to conduct the proceedings in behalf of the incompetent person, to the exclusion of the committee, and with the same powers, and subject to the same liabilities, as a committee of the property. 58 ■ Practice in Surrogate's Court. ORDER FOR SUBSTITUTED SERVICE IN CASE OF HABITUAL DRUNKARD NOT JUDICIALLY DECLARED. At a Surrogate's Court held at the surro- gate's office in the City Hall in the City of Albany, on the day of , 1880. Present — Hon. Peter A. Rogers. Surrogate. In the matter of the wills | \ J J, deceased. j The Surrogate having, in his opinion, reason- able ground to believe that A B, a person to be cited in this matter is, (a) an infant of the age of fourteen years and upwards ; or, (b) an habitual drunkard, or, (c) is for some cause mentally in- capable adequately to protect his rights, although not judically declared to be incompetent to man- age his affairs. It is ordered that a copy of said citation be delivered in behalf of the said A B, t .) C D, residing in the city and county of Albany, at least eight days before the return day of said citation, and that service of the said citation shall not be deemed complete until such delivery. Witness Peter A. Rogers, Surrogate, and [l.s] the seal of the court, the day and year first above written. P. A. Rogers, Surrogate. Practice in Surrogate's Court. 59 ORDER FOR SUBSTITUTED SERVICE IN CERTAIN CASES UNDER LAST CLAUSE OF § 2527. At a Surrogate's Court held, at the surro- gate's office in the village of Salem, in the county of Washington, on the . . . day of 1880. Present — Hon. Lonson Eraser, Surrogate. In the matter of the estate j A B, deceased. I An application having been made for the judicial settlement of the accounts of C D, exe- cutor of the will of A B, deceased, in which pre- ceding E F, an infant under the age of fourteen years, is a person to be cited; or (6) G H, a lunatic, or, an idiot, or, an habitual drunkard, is a person to be cited and the Surrogate having reasonable grounds to believe that, J K, the guardian of said infant^ or, the committee of said lunatic, or idiot, ordrunkard, who would be a proper person on whom to serve said citation, is an im- proper person in this case, for the reason that his interest is adverse to that of such infant (or lunatic, or idiot, or habitual drunkard), or that, said guard- ian is for some course absent from this State. It is ordered that a copy of said citation be de- livered in behalf of said G H to J A, residing 60 Practice in Surrogate's Court. in the town of Jackson, at least eight days before the return day of said citation. And it is further ordered that the said J A be and he is hereby appointed special guardian ad litem of said G H, to conduct the proceedings in his behalf in said settlement. Witness Lonson Frasef, Surrogate, and [l. s.] the seal of the court, the day and year first above written. L. Fraser, Surrogate. But it may not be necessary to serve process upon some or all of the parties ; they may appear. Appearance ; how made, and effect thBreof. § 2528. In a Surrogate's Court, a party of full age may, unless he has been judicially declared to be incompetent to manage his affairs, prosecute or defend a special proceeding, in person or by an attorney regularly admitted to practice in the Courts of Record, at his election ; except in a pro- ceeding to punish him for a contempt, or where he is required to appear in person, by special pro- vision of law, or by a special order of the Surrogate. The appearance of a party, against whom a citation has been issued, has the same effect, as the appearance of a defendant, in an action brought in the Supreme Court. Practice in Surrogate's Court. 61 So, also, a special guardian may be appointed on the return of the citation. Special guardian ; when to be appointed. § 2530. Where a party, who is an infant, does not appear by his general guardian ; or where a party, who is a lunatic, idiot, or habitual drunkard, does not appear by his committee, the surrogate must appoint a competent and responsible person, to appear as special guardian for that party. Where an infant appears by his general guardian, or where a lunatic, idiot, or habitual drunkard, appears by his committee, the surrogate must in- quire into the facts, and must, in like manner, appoint a special guardian, if there is any ground to suppose that the interest of the general guardian or committee is adverse to that of the infant, or incompetent person ; or, that, for any other reason, the intei'ests of the latter require the appointment of a special guardian. A person cannot be ap- pointed such a special guardian, unless his written consent is filed, at or before the time of entering the order appointing him. The last form or order under § 2527, may be used for the appointment of a special guardian. 62 Practice in Surrogate's Court. CONSENT OF PERSON TO BE APPOINTED SPECIAL GUARDIAN. Surrogate's Court. In the matter of the will I A B, deceased. I I, C D, consent that the surrogate may appoint me special guardian of E F, an infant (or a lunatic, etc.), in the matter now pending before him for proof of the will of A B, deceased. (Signed) C D. Dated Jan. 21, 1880. But the application for the appointment of a special guardian, as it can only be done on notice, under ordinary circumstances, should usually be made upon the presentation of the petition under the following section : Notice of proceedings to appoint special guardian. § 2531. Where a person, other than the infant, or the committee of the incompetent person, ap- plies for the appointment of a special guardian, as prescribed in the last section, at least eight days' notice of the application must be personally served upon the infant, or incompetent person, if he is Practice in Surrogate's Court. 63 within the State, and also upon the committee, if any, in like manner as a citation is required by law to be served. But except in a case specified in title fifth of this chapter, the surrogate may, by an order to show cause, prescribe a shorter time, and direct the service of the order to be made in such a man- ner as he deems proper. The application may be made at the time of presenting the petition, and, in that case, the order to show cause may, in the surrogate's discretion, accompany the citation. If then, it shall appear by the petition, that some party to be cited is one who would rdquire the appointment of a special guardian, an order somewhat to the following efiect should be entered : OKDER TO SHOW CAUSE WHY A SPECIAL GUARDIAN SHOULD NOT BE AP- POINTED. At a Surrogate's Court, held at the surro- gate's oflflce, in the City Hall, in the city of Albany, on the , day of , 1880. Present — Hon. Peter A. Rogers, Surrogate. In the matter of the will | ■ A B, deceased. I It appearing that C D, a person to be cited in 64 Practice in Surrogate's Court. this matter, is an infant. It is ordered that said C D. appear in this court on the , day of , 1880, at ten o'clock in the fore- noon (on the return day), and show cause why E F should not be appointed his special guardian in this proceeding. P. A. Rogers, Surrogate. But the surrogate may, under this section, ex- cept when the proceeding is for the disposition of the real property of a decedent, for the payment of his debts and funeral expenses, provided for in title 5 of this chapter, provide for the service a shorter time than eight days for the order to show cause, and he may direct the service of the order to be made in such a manner as he deems proper. It would seem under this provision, that when the person or persons to be served are in court, or immediately accessible, the order might be made, that they show cause forthwith, and the appoint- ment be made without delay. HOW PROOF SHALL BE MADE OF SER- VICE. Proof of service of citation, subpoena, etc. § 2532. Proof of service of a citation, or a sub- poena, issued from a Surrogate's Court, must be i*RAOTiCE IN Surrogate's Court. 65 made in the manner prescribed by law, for proof of service of a summons issued out of the Supreme Court. In every other case, proof of service must be made by affidavit ; or, where the person served is of full age and not incompetent, by a written admission signed by him, accompanied with proof, by affidavit or otherwise, of the genuineness of his signature. Thus, it appears by section 434 of the Code of Civil Procedure, that, proof of service, * * * ^ must be made by affidavit, except as follows : 1. If the service was made by the sheriff, it may be proved by his certificate thereof. 2. If the defendant served is an adult, who has not been judicially declared to be incompetent to manage his affairs, the serviee may be proved by a written admission signed by him, and either ac- knowledged by him and certified in like manner as a deed to be recorded in the county, or accom- panied with the affidavit of a person, other than the plaintiff, showing that the signature is gen- uine. A certificate, admission, or affidavit of service of a summons, must state the time and place of ser- vice. A written admission of the service of a sum- mons, or of a paper accompanying the same, im- 5 66 Practice in Surrogate's Court. ports, unless otherwise expressly stated therein, or otherwise plainly to be inferred from its contents, that a copy of the paper was delivered to the person signing the admission. We will not consider the proof of service fur- nished by the certificate of the sheriff. AFFIDAVIT OF SERVICE TO BE ANNEXED TO CITATION. County of Columbia, ss : A B, of the town of Chatham in said county, being duly sworn, says : that on the day of , 1880, at said town of Chatham, he served the annexed citation on C D and E F, named therein, by delivering to and leaving with each a copy thereof. And deponent says he is upwards of eighteen years of age. AB. Sworn before me this .... day | of 1880. j The restriction in section 434, that the plain- tiff shall not serve a summons, does not apply to the service of a citation in this court. ADMISSION OF SERVICE INDORSED ON CITATION. I admit due and personal service of the within citation on me at the city of Troy, this .... day of 1880. (Signed), A B. Practice in Surrogate's Court. Gt The signature may be proved by acknowledg- ment, or by affidavit. The following may serve as a suggestion on an affidavit : AFFIDAVIT AS TO SIGNATUEE. Rensselaer county, ss : John Jones, of the city of Troy, in said county being duly sworn, says : that he knows A B, whose name appears affixed to the foregoing (or annexed) admission of service, and that deponent was present and saw the said A B, sign said admission, or, that he has frequently seen A B, whose name appears affixed to the foregoing (or annexed), ad- mission of service, write, and he is . acquainted with the handwriting of the said A B ; and de- ponent verily believes that the signature aforesaid purporting to be the signature of the said A B, is in the proper handwriting of said A B. John Jones. Sworn before me this 21st day ) of January, 1880. ) CD, Notary Pvhlic, Rensselaer county. The surrogate is given full power to control the form and substance of the pleadings in his court and to require them to be reduced to writing, if he shall deem it proper. It will be remembered 68 .Practice in Surrogate's Court. that the first pleading is a petition, which answers to the complaint in a civil action. It has been the practice in some Surrogate's Courts, to require the answer or objections to be reduced to writing. Written pleadings may be required. § 2533. The surrogate may, at any time, require a party to file a written petition or answer, con- taining a plain and concise statement of the facts constituting his claim, objection, or defence, and a demand of the decree, order, or other relief, to which he supposes himself to be entitled. The surrogate may require the petition or answer to be verified, and a copy thereof to be served upon any other person interested. K. party who fails to comply with such a requirement may be treated as a party in default. Except where such a re- quirement is made, or in a case where a written petition is expressly required by this act, a petition, or the answer thereto, may be presented orally ; in which case, the substance thereof must be entered in the records of the courts. All the pleadings, when in writing, shall be verified, and the verification shall be substantially in form like those provided for by the code. Verification thereof. § 2534. The provisions of sections 523, 524, 525, and 526 of this act apply to a verification Practice in Surrogate's Court. 69 ■ made pursuant to this chapter, and to the petition or other paper so verified, where they can be so applied in substance, without regard to the form of the proceeding. These sections are as follows : Verification. § 523. Where a pleading is verified, each subse- quent pleading, except a demurrer, or the general answer of an infant by his guardian ad litem, must also be verified. But the verification may be omitted, in a case where it is not otherwise specially prescribed by law, where the party pleading would be privileged from testifying, as a witness con- cerning an allegation or denial contained in the pleading. A pleading cannot be used, in a criminal prosecution against the party, as proof of a fact admitted or alleged therein. Form and construction of certain allegations and deni- als in verified pleading. ^ § 524. The allegations or denials in a verified pleading must, in form, be stated to be made by the party pleading. Unless they are therein stated to be made upon the information and belief of the party, they must be regarded, for all purposes, including a criminal prosecution, as having been made upon the knowledge of the person verifying the plead- 70 Practice in Surrogate's Court. ing. An allegation that the party has not suffi- cient knowledge or information, to form a belief, with respect to a matter, must, for the same pur- poses, be regarded as an allegation that the per- son verifying the pleading has not such knowledge or information. Verification ; how and by whom made. § 525. The verification must be made by the afi&davit of the party, or, if there are two or more parties united in interest, and pleading together, by at least one of them, who is acquainted with the facts, except as follows : 1. Where the party is a domestic corporation, the verification must be made by an officer thereof. 2. Where the people of the State are, or a pub- lic officer in their behalf, is the party, the verifica- tion may be made by any person acquainted with the facts. 3. Where the party is a foreign corporation, or where the party is not within the county where the attorney resides, or, if the latter is not a resi- dent of the State, the county where he has his of- fice, and capable of making an affidavit ; or, if there are two or more parties in interest, and pleading together, where neither of them, ac- quainted with the facts, is within the county, and Practice in Surrogate's Court. 71 capable of making an affidavit ; or, where the ac- tion or defence is founded upon a written instru- ment for the payment of money only, which is in the possession of the agent or attorney ; or where all the material allegations of the pleading are within the personal knowledge of the agent or at- torney ; in either case, the verification may be made by the agent of or the attorney for the party. Form of aflldavit of verification. §426. The affidavit of verification must be to the effect, that the pleading is true to the knowl- edge of the deponent, except as to the matters therein stated to be alleged on information and be- lief, and that as to those matters, he believes it to be true. Where it is made by a person, other than the party, he must set forth, in the affidavits the grounds of his belief, as to all matters not sta- ted upon his knowledge, and the reason why it is not made by the party. The forms of verification are so familiar to the practitioner, that they do not need to be repeated here. Publication of citation, etc. § 2535. Where a provision of this chapter, or an order made pursuant to such a provision, directs the publication of a citation, notice, or other pa- 72 Practice in StrREOCATE's Court. per, or the service thereof by publication, the pub- lication must be made in a newspaper published in the county. The surrogate may, also, in his dis cretion, direct the publication thereof in any other newspaper published in the same or another county, as he deems proper, for the purpose of giving no- tice to the persons intended to be served or noti- fied. If no newspaper is published in the county, the citation, notice, or other paper, must be pub- lished in the newspaper printed at Albany, in which legal notices are required by law to be pub- lished. Citations when published in State Paper. § 2536. In either of the following cases, a cita- tion, notice, or other paper, directed to be pub- lished by a provision of this chapter, or by an or- der made pursuant to such a provision, must, in addition to the publication thereof, made as pre- scribed in the last section, be published in the newspaper printed at Albany, in which legal noti- ces are required by law to be published : 1. Where the special proceeding is instituted in the Surrogate's Court of the county of New York, or of the county of Kings, or the order for publica- tion is made by the surrogate of either of those counties. Practice in Surrogate's Court. YS 2. Where the special proceeding relates to the estate of a decedent, and the order directs the ad- ditional publication therein. Such a direction may be given, in the discretion of the surrogate, where the person upon whom the service is to be made, or to whom notice is to be given, is not a resident of the State. But where it affirmatively appears, from the papers upon which the order is granted, or from the papers then on file in Surro- gate's Court, relating to the same estate, that the property of the decedent, or, if the special proceed- ing relates to a portion only of the property, that the portion to which it relates, does, not exceed two thousand dollars in value, the order may, in the discretion of the surrogate, direct the publica- tion required by this section to be made gra- tuitously; in which case, that newspaper must make the publication without charge. The following provisions in relation to moneys paid to the surrogate, or securities taken by him, are new. Formerly the moneys paid to the surro- gate were retained and invested or paid out by him. (2 R. S., 98, § 80, Id., 106, etc.) Money paid into oourt and securities taken, how dis- posed of. § 2537. Where a statute requires the payment of 74: Practice in Surrogate's Court. money into the Surrogate's Court, or the deposit of a security, for the payment of money, with the surrogate, the same must be paid to or deposited with the county treasurer of the county, to the credit of the fund, or of the estate, or of the special proceeding ; unless the surrogate specially directs the payment or deposit to be made to or with himself, or the clerk of the Surrogate's Court. Where the surrogate or the clerk of the Surrogate's Court so receives money or a security, he must, within four days thereafter, pay the money to, or deposit the security with, the county treasurer of the county ; unless the statute contains special directions for another disposition thereof. Each security, so deposited with the county trea- surer, must be held and disposed of by him, subject to the direction of the Surrogate's Court ; except that he must, unless otherwise so directed, collect the principal and interest secured thereby. All money collected by, or paid to the couuty treasurer, as prescribed in this section, must be held, managed, invested, and disposed of by him, in like manner as money paM into the Supreme Court in an action pending therein. The regulations, con- tained in the general rules of practice, as specified in section 744 of this act, and the provisions of title third of chapter eight of this act, apply to Practice in Surrogate's Court. T5 money paid to and securities deposited with the county treasurer, as prescribed in this section; except that the Surrogate's Court exercises, with respect thereto, or with respect to a security, in which any of the money has been invested, or upon which it has been loaned, the power and au- thority conferred upon the Supreme Court by section 747 of this act. These sections are as follows : General rules may regulate concerning payment into court. § 744. The general rules of practice may con- tain regulations, concerning the payment of money into court, in an action, and the care and disposi- tion thereof, which shall govern, where provision is not otherwise made by law. Money to be paid to county treasurer and securities taken in his name. § 745. Unless the court otherwise specially directs, money paid into court, must be paid, either directly, or by the oflBcer who is required by law first to receive it, t ; the county treasurer of the county where the action is triable. Where it is paid to an ofl&cer, other than the county treasurer, he must pay it to the county treasurer, within four days after he receives it. In the city of New York, he must pay it to the chamberlain. 76 Practice in Sureogate's Court. within two days after he receives it. A bond, mortgage, or other security, or a certificate or transfer of stock, taken upon the investment of money paid into court, must be taken to the county treasurer of the county where the fund belongs, in his name of oflfice ; or to such other county treasurer as the court specially directs. But this, and the next section do not prevent the court, upon the application of a party to an action, from directing in what manner or place, money paid into court in the action, shall be deposited or invested. Funds where and how deposited or invested. § 746. Provisions may be made in the general rules of practice, for the deposit, in a bank or trust company, of money paid into court ; for the invest- ment thereof in the public debt of the United States, or of a State, or for loaning it upon approved interest bearing mortgages upon real property ; and for the transferring or disposing, from time to time, of the money, or any investment, or security. But the money must be deposited or loaned in the county where the fund belongs, where that can be done conveniently and safely, and with advantage to the parties interested. Practice in Surrogate's Court. 77 Powers of courts as to transfer, etc., to an investment by guardians, etc. § 747. The Supreme (Surrogate's) Court, may direct that money paid into court, in an aption brought therein, or a bond, mortgage, or other security or public stock, in the possession or under the control of a county treasurer, which represents money so paid in, to be transferred and delivered to a general or special guardian, committee, or other trustee, upon his giving, or if he has given, security, satisfactory to the court, for the faithful execution of his trust, or that a bond, mortgage, or other security, or public stock, be taken in the name of the guardian, committeee, or other trustee ; and be collected, invested or loaned as the court directs, or as prescribed in the general rules. Powers of certain officers, touching securities, etc. § 749. A county treasurer, or other officer, or a guardian, committee, or other trustee, in whose name is taken a bond, mortgage, or other security, or public stock, representing money, paid into court, in an action ; or to whom stock or a security, or an account, deed, voucher, receipt, or other paper, representing or relating to such money, is transferred, delivered, made, or given, pursuant to law, is vested with the title for the purposes of 78 Practice in Surrogate's CouRf . the trust, and may bring an action upon, or in relation to the same, in his official or representative character. Provisions relating to death, removal, etc., of county treasurer. § 750. On the expiration of the official term of a county treasurer, or where a vacancy occurs in his office, by death or otherwise, all public stock, bonds, mortgages and other securities held by him, as prescribed in this title, vest in his successor in office ; and all money deposited, as prescribed in this title, in a bank, trust company, or other de- pository, to his credit, vests in, and must be carried to the account of his successor in office. Authority for payment of money by bank or trust company. § 751. Money paid into court, in an action (pro* ceeding) and deposited in a bank or trust company, to the credit of a county treasurer, shall not be paid out, without the production of a certified copy of an order of the court, for that purpose, countersigned by the judge, by whose directions it is made. Section 752 prescribes that the county treasurer shall so keep his accounts, as to show the source of each fund, and Section 753 provides that he shall report annually to the court. Practice in Surrogate's Court. 79 The provisions relating to the county treasurer as custodian of moneys paid into court in the city of New York, apply to the chamberlain. (§ 754.) Certain provisions of code applicable. §2538. Except where a contrary intent is ex- pressed in, or plainly implied from the context of, a provision of this chapter, the following portions of this act, to wit : title first, and articles • third and fourth of title sixth, of chapter eighth, and articles first and second of title third of chapter ninth, apply to Surrogates' Courts and to the pro- ceedings therein, so far as they can be applied to the substance and subject-matter of a proceeding, without regard to its form. Title 1, of chapter eight of the code relates to defects and how cured from sections 721 to sec- tion 730 inclusive. Article third of title six of chapter eighth, re- lates to the manner of service of papers, after the commencement of the proceeding. (§ § 796-802.) Papers may be served personally. § 796. A notice or other paper in an action, may be served on a party or an attorney, either by delivering it to him personally, or in the man- ner prescribed in the next section. 80 Practice in Surrogate's Ooxtrt. other modes'of service. § 797. When the service is not personal, it may be made as follows : 1. Upon a party or an attorney, through the post-oflBce, by depositing the paper properly in- closed in a post-paid wrapper, in the post-office of the party or the attorney serving it, directed to the person to be served, at the fiddress, within the State, designated by him for that purpose, upon the proceeding papers in the action ; or, where he has not made such a designation, at his place of residence, or the place where he keeps an office, according to the best information which can con- viently be obtained concerning the same. 2. Upon an attorney, during his absence from his office, by leaving the paper with his partner or clerk therein, or with a person having charge thereof. 3. Upon an attorney, if there is no person in charge of his office, and the service is made be- tween six o'clock in the morning and nine o'clock in the evening, either by leaving it, in a con- spicuous place in his office, or by depositing it, inclosed in a sealed wrapper, directed to him, in his office letter box, or if the office is not open, so as to admit of leaving the paper therein, and there Practice in Surrogate's Court. 81 is no office letter box, by leaving it at his residence, within the State, with a person of suitable age and discretion. 4. Upon a party, by leaving the paper at his , f residence, between six o'clock in the morning and nine o'clock in the evening, with a person of suitable age and discretion. § 798. Prescribes that double time shall be given where the service is by mail. When paper to be served on attorney. When service not required. §799. Where a party has appeared, a notice or other paper, required to be served, in an action (pro- ceeding), must be served on his attorney. If a defendant (party) has not appeared, service of a notice or other paper in the ordinary proceeding in the action, need not be made upon him, unless he is actually confined in jail, for want of bail. When service may be made on clerk, for non-resident. § 800. Where a party to an action (proceeding), who has appeared in person, resides without the State, or his residence cannot, with reasonable diligence, be ascertained, and he has not desig- nated an address, within the State, upon the pre- ceding papers, service of a paper upon him may be made by serving it on the clerk. 82 Practice nsr Surrogate's Court. § 801 . In New York city, deposit, in a branch post-office is equivalent to deposit in the principal office. Not to apply to serv'ice of summons, etc. § 802. This article does not apply to the service of a summons, or other process ; or of a paper to bring a party into contempt ; or to a case where the mode of service is specially prescribed by law. Article 4 of title 6 of chapter 8, referred to in section 2538, above quoted, relates to the dis- covery of books and papers (§§ 803-809). We will endeavor to summarize them. The court may compel a party to produce or discover a paper or allow inspection or a copy to be made of any paper in his possession or under his control, relating to the merits of the proceed- ing. The cases in which discovery may be com- pelled must be prescribed in the general rules, where not prescribed by law. Discovery is had upon petition verified by affidavit to a judge ; upon which an order may be made to claim inspection or discovery, or to show cause why the prayer of the petition should not be granted. The order may contain a stay. The judge who granted the order may vacate it m proof by affidavit that the order has been com- Practice in Surrogate's Court. 83 plied with, or that it ought not to have been granted. The court may appoint a referee to superintend the discoveiy or inspection, and may claim costs not exceeding twenty dollars, of motion. The penalties for disobedience to the order, the court may strike out the pleading of the party disob 'y- ing, or any cause oi action or defence interposed by him, may exclu !e the notice paper from being given in evidence, or may punish the party as for a contempt. Article 1, of title three of chapter 9, relates to depositions taken and to be used within the State, and article two, of the same title and chapter, to depositions taken without the State, to be used within the State. We will furnish a set of forms which may be used upon the proof of a will : AFFIDAVIT. Surrogate's Court, Rensselaer county. In the matter of the will of John Doe, deceased. Rensselaer county, ss : Lewis Jones, being duly sworn, says that he is 84 Practice in Surrogate's Court. one of the executors named in the will of John Doe, late of the city of Troy, in said county, de- ceased, proceedings for the proof of whose will are now pending in this court : That Henry Jones re- siding in the city of Milwaukee, in the State of Wis- consin, is a necessary and material witness in this proceeding, in support of the probate of said -will as he is advised by James Lansing, Esq., his coun- sel in this proceeding, after stating to him the facts which deponejit expects to prove by said Henry Jones,'and deponent prays for a commis- sion to examine said Henry Jones accordingly. Lewis Jones. Sworn before me this 5th day | of December, 1873. j D. Dunn, Comr of Deeds, Troy, N. Y. NOTICE. (Title, same as affidavit.) Please take notice, that upon an affidavit of which the annexed is a copy, a motion will be made in this matter, before the surrogate of Rens- selaer county at his office in the Court House in the city of Troy, on the 17th day of December, 1873, at ten o'clock in the forenoon of that day, for an order that a commission issue out of and under the seal of this court, to be directed to Rob- ert N. Austin, Esq., residing in the city of Mil- Practice in Surrogate's Court. 85 waukee, in the State of Wisconsin, counselor at law, authorizing him to examine Henry Jones, a witness residing in said city of Milwaukee, on oath, in support of the proof of the will propoun'ears of age than others at sixty. Senile Imbecility. 205 Senile imbecility proceeds generally from morbid distribution of the circulation, resulting in a defi- ciency of the supply of blood to the brain, and de- fective stimulation of that organ. This disturbance may proceed from several causes, prominent among which are, lack of supply of blood from defective digestion and assimilation of the food, or mechani- cal obstruction to circulation, caused by ossification of certain arteries. In either case, the brain, lack- ing the stimulus of a healthy and normal circula- tion, the person is deficient in perception, and in- capable of reflection, and dementia is the result. But such cases are clearly to be distinguished from the slowness of intellect manifested even in vigorous old age. In the latter case, the brain takes the impression from the perception more slowly perhaps, and lequires more time to arrive at a conclusion, but its action is normal, and its results reliable. To compare the immaterial with the material; the machine, through reduced sup- ply of power, operates more slowly, but, time be- ing given, the appropriate product is achieved. This phenomenon is observable in many persons, even before advanced age is -attained. Still the same question is to be asked as to the will of the old man as to the will of the young and vigorous testator ; was the decedent compos mentis, or was he non compos mentis ? 206 Old Age as Evidence. The courts have been very tender of the wills of old persons, and inclined to go as far as possible in carrying them into effect ; and in the opinions may be found a strain of sentiment unusual in judicial determinations. Chancellor Kent, in Van Alst v. Hunter (5 Johns. Ch., 148), in a case where the decedent at the making of the proposed will was between ninety and one hundred years of age, and greatly debilitated, says : "It is one of the painful conse- quences of extreme old age, that it ceases to excite interest, and is apt to be left solitary and neglected. The control which the law still gives to a man over the disposal of his property, is one of the most efl&- cient means which he has in protracted life to com- mand the attention due to his infirmities. The will of an aged man ought to be regarded with great tenderness, when it appears not to have been procured by fraudulent acts, but contains those very dispositions which the circumstances of his situation and the course of the natural affections dictated." Prom this extract it will be perceived that the Chancellor felt moved with sympathy, and regarded the will with tenderness, but the question may be asked, with whom did he have this sympathy, with the living or the dead ? Man- ifestly, with the dead, who could not appreci- ate it. Old Age as Evidence. 207 Notwithstanding, it is not to be disguised, that the aged, with perceptions blunted and reflections dulled, readily falls into a state of dependence upon the persons surrounding him, and insensibly, the will of such person is substituted for the will of the decedent, and testamentary dispositions may be obtained which are to be looked upon with sus- picion and not tenderness. Here the principle that the will 'is to be looked into to see if the testa- mentary disposition is in accordance with the nat- ural claims of the objects of the testator's bounty, above referred to, is of great value, and if it ap- pears, that the testator omitted to give suitable be- quests to those whom he always had regarded with affection, it affords grave ground for suspicion of undue influence. Delirium is a temporary insanity and during its continuance renders the subject of it incompetent to make a valid will, and is aptly defined by Wharton and Still^ (Med. Juris., § 235), as a " state of dreams, brought on, not by sleep, but by disease." The perceptive powers of the subject are suspended, or their objects distorted and the patient reasons as he perceives, irrationally, and this is true of all forms of the disease, however caused. 208 Letters Testamentary. CHAPTER VIII. LETTERS TESTAMENTARY. After the proof of a will of personal estate, letters issue of course thereon, to the parties named therein as executors, if there be no notice of objection to their issue, and the letters so issued are the warrant of the executors in the execution of their duties. Notwithstanding that the statute in terms re- stricted the power of the surrogate to issue letters testamentary to the persons. " named in the will," where the will provided that the executrix might nominate and requested that " such male friend as she may desire shall be appointed with her as an executor, an appointment of an executor in pursuance of this request, was valid and letters testamentary were properly issued to him, this was so held by a majority of the court, which further held, that the statute that the surrogate shall issue letters testamentary " to the person named therein as executor" (2 R. S., 69 § 1) and all other statutes affecting the Surrogate's Court, should be liberally construed in furtherance of Intention opJthe Testator. 209 justice and to give effect to the intent of testators. {Hartnett v. Wandell, 60 N. Y., 346, 16 Abb. N. S., 383.) But in determining whether the will effectually appoints an executor, the intention of the testator is to be gathered from the will only. {Fosdick V. Delafield, 2 Redf Sur. Rep.. 392.) An executrix is included in the general term of executors, and acquires power to hold and convey by words naming his executors , and appointment of executors as guardians and trustees, includes and executrix. [Molce v. Norrie, 14 Hun., 128.) An executor is not absolutely prohibited from occupying the relation of trustee for his own benefit, and especially is this so, where he is but one of several trustees. (Id.) When letters testamentary to be given. § 2636. Where a will, which is admitted to pro- bate, names one or more persons to be executor or executors thereof, upon a contingency, the surro- gate must inquire into the facts, and, if the con- tingency has happened, that fact must be recited in the decree. Immediately after a will has been admitted to probate, the person or persons named therein as executors, who are competent by law to serve, and who appear and qualify, are entitled to letters testamentary thereupon ; unless, before the " 14 210 Objection how Verified. letters are granted, a creditor of the decedent, or a person interested in the estate, files an affidavit, specifying his demand, or how he is interested, and either setting forth specifically one or more legal objections to granting the letters to one or more of the executors, or stating that he is advised and believes that there are such objections, and that he intends to file a specific statement of the same. Where such an affidavit is filed, the surrogate must stay the granting of letters, at least thirty days, or until the matter is sooner disposed of. A specifi- cation or statement of an objection, made as pre- scribed in this section, must be* verified by the oath of the objector, or his attorney, to the effect that he believes it to be true. The surrogate enters an oider for the issue of letters, either in the following form, or he may in- clude this order in the order for probate. ORDER FOR ISSUE OP LETTERS. At a Surrogate's Court held in and for the county of , at the surro- gate's^office in the .... of on the day of , 1874. Present — Surrogate. In the matter of the will of deceased. I The will of said deceased having been duly OfficiaC Oath how taken. 211 proved as a will of real and personal estate it is ordered that letters testamentary issue thereon to , executrix and , executor in said will named, upon their taking and filing the oath, prescribed by law. , Surrogate. OfS.cial oaths before whom taken. § 26i>4. The official oath or affirmation of an executor, administrator, or guardian, to the effect that he will well, faithfully, and honestly dis- charge the duties of his office, describing it, must be filed with the surrogate, before letters are issued to him. The oath may be taken before any offi- cer, within or or without the State, who is autho- rized to take an affidavit, to be used iu the Supreme Court. Where it is taken without the State, it must be certified as required by law, with respect to an affidavit to be used in the Supreme Court. The oath is as follows : OATH OF EXECUTOR. State of New York, 1 ^^ county, j I, , do solmenly swear that I will honestly and faithfully discharge the duties of 212 Letters TestamiAntary. executor of the will of , deceased, accord- ing to law. Sworn before me this 9th day of December, 1873. , Swrogate. Requisites of Letters. § 2590. Letters testamentary, letters ot admin- istration, and letters of guardianship must be in the name of the people of the State. Where they are granted by a surrogate, or by an officer or person appointed by the board of supervisors, tem- porarily acting as surrogate, they must be tested in the name of the officer granting them, • signed by him, or by the clerk of the Surrogate's Court, and sealed with the seal of the Surrogate's Court. Where they are issued out of another court, they must be tested in the name of the judge holding the court, signed by the clerk thereof, and sealed with its seal. Tenor and effect of letters. § 2591. Subject to the provisions of the next section, regulating the priority among different letters, letters testamentary, letters of administra- tion, and letters of guardianship, granted by a court or officer, having jurisdiction to grant them, Liability of Sureties of Executor. 213 as prescribed in this chapter, are conclusive evi- dence of the authority of the persons to whom they are granted, until the decree granting them is reversed upon appeal, or the letters are revoked, as prescribed in this chapter. Sureties liable for money received before letters. § 2596. 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 con- trol, 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 fail- ure to deliver the property, may be maintained upon both official bonds ; but, as between the sure- ties, upon the 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. But aj; any time before the letters are granted, a creditor of the decedent, or a person interested in the estate' may file an affidavit, specifying his demand, or how he is interested, and either setting forth specifically one or more legal objections to granting the letters tp one ox n^ore of the execu- 214 Stay of granting Letters tors, or stating that he is advised and believes that there are such objections and that he intends to file a specific statement of the same. Where such an aflBdavit is filed, the surrogate must stay the granting of letters, at least thirty days, or until the matter is sooner disposed of. (§ 2fi36, sup.) This is in place of § "^2, chap. 460, of Laws of 1837. If the affidavit shows an intention to file objec- tions against only one of several executors, the surrogate will suspend action as to all. [Mc- Gregor v. Buell, 24 N. Y., 166.) If the objector shall swear positively that he is a creditor, it seems that the surrogate will not try the issue as to whether he is a creditor, but will entertain the objection. {Estate of Horatio N. Fer- ris, 1 Tucker, 15.) AFFIDAVIT OF INTENTION TO FILE OB- JECTIONS. Surrogate's Court, Rensselaer County. In the matter of the will of , deceased. Rensselaer county, ss : A B, of the town of , in said county, being duly sworn, says : that he is a legatee named in the will of (or a creditor of ) ., , late Until objections Filed. 215 of said town, deceased, which has been admitted to probate by the surrogate of said county, in which said will C D is named as an executor. That de- ponent intends in good faith to file with said sur- rogate, objections to the competency of said C D, to act as such executor, and he is advised and be- lieves that there are just and substantial objec- tions to his competency and to the granting of let- ters testamentary to the said C D, and that he in- tends to file a specific statement of the same. A B. Sworn, etc. Having filed his affidavit, the objector has thirty days in which to file his objections and prosecute them. He will therefore prepare his objections. The ■following states all the legal objections to the issue of letters as is believed, and the pleader may use those upon which he intends to rely. A specifi- cation or statement of an objection, must be veri- fied by the oath of the objector or his attorney, to the efiect that he believes it to be true. (§ 2636, 8wp.) OBJECTIONS TO ISSCE OF LETTERS. Surrogate's Court, Rensselaer county. In the matter of the will I ".,^. ] To the Surrogate of th© county of Rensselaer : 216 Objections Filed and Reasons. The undersigned, a legatee named in the will of (or a creditor of) the above named deceased, ob- jects to the issue of letters testamentary to C D, an executor in said will named, for the following reasons : (a.) That the said C D is incompetent to exe- cute the duties of such trust as an executor, by reason of his improvidence. (6.) That the said C D is incompetent to dis- charge the duties of such trust, by reason of habit- ual intemperance in the use of alcoholic liquors. (c.) That the said C D is an alien, not being an inhabitant of this State. {d.) That the said C D has been convicted of an infamous crime, to wit, the crime of (e.) That the said C D's circumstances are so precarious as not to afford adequate security for his proper administration of the estate of the de- ceased. (/) That the said G D is unable to read and write the English language. Dated Dec. 9, 1873. A B. James Lansing, Attorney. Rensselaer county, ss. A B, being duly sworn, says: that he believes the foregoing statement of objections to the issue of letters testamentary to C D be to true. A B. Sworn before me, etc. Trial of Objections. 21Y Surrogate to inquire into objections. § 2637. The surrogate must inquire into an ob- jection, filed as prescribed in the last section; and, for that purpose, he may receive proof, by affida- vit or otherwise, in his discretion. If it appears that there is a legal and sufficient objection to any person, named as executor in the will, letters shall not be issued to him, except as prescribed in the next section. It is presumed that the surrogate would not, in any case try the objections by affidavit. The better practice would be to try them upon the re- turn of a citation for that purpose. The following forms may serve the pleader. ORDER FOR CITATION. At a Surrogate's Court, held in and for the county of , at the surrogate's office in the of , on the day of , 1880. Present — , Surrogate. In the matter of the will of deceased. The will of said deceased having been proved and A B having filed objections to the issue of letters testamentary to C D, an executor in said will named. 218 Order for Citation now on motion of said A B : Ordered that a citation issue to the said C D, requiring him to show cause why he should not be required to give bonds as such executor upon the issue of such letters to him. , Surrogate. The citation when issued should be served in the same manner and giving the time as laid down heretofore (p. ante). CITATION. The people of the State of New York to C D, Greeting You are hereby summoned to appear before our surrogate of our county of Eensselaer at his office in the city of Troy on the .... day of , 1873, at ten o'clock in the forenoon then and there to attend the adjudication of our said surrogate upon certain objections filed to your competency to act as an executor of the will of , late of the town of , deceased, and to show cause, if required, why you should not be ordered to give bond for the faithful performance of your duties as such executor. Witness Moses Warren, surrogate of our [l. s.] said county and the seal of our said court this .... day , 1880. , Swrrogate. It would seem that if the objector does not pro- And Answer thereto. 219 secute his objections during the thirty days in which the issue of letters is stayed, he will be deemed to have abandoned them, and letters will issue to the executor against whom the objections were filed. On the return of the summons, the parties join issue and it is suggested that the issue be framed fully in writing. ANSWER TO OBJECTIONS. Surrogate's Court, Rensselaer county. In the matter of letters testamentary on the will of , deceased. J r C D, an executor named in the will of the above named deceased, in answer to the objections filed by A B in this matter respectfully says : That he, the said C D, is not incompetent to discharge the duties of executor as aforesaid by reason of habitual intemperance in the use of alchoholic liquors. And he prays the adjudication of the court upon such objection. CD. Dated Feb. 11, 1880. L. W. Rhodes, Attorney. 220 What are Objections. Rensselaer county, ss : C D, being duly sworn says that he believes the foregoing answer by him subscribed is true. CD. Sworn, etc. The issue having been joined, the burden of proof is upon the objector, to show that the exe- cutor is incompetent, for incompetence, is not pre- sumed, more than unsoundness of mind. The proof as to the objections, must necessarily vary as to each. Upon the objection that the executor named has been convicted of an infamous crime, however guilty or base he may be, the record of conviction must be produced to sustain the objection or it will fail. (1 Goope v. Lowerre, Barb. Ch., 47 ; Harrison v. McMahorb, 1 Brad., 289 ; McMahon v. Harrison, 6 N. Y., 443 ; Emerson v. Bowers, 14 N. Y., 449.) A professional gambler is presumptively incom- petent. [McMahon v. Harrison, sup.) Where an executor had no property except an unliquidated demand, and was about to remove from the State, he was required to give security. {Wood V. Wood, 4 Paige, 299; Holmes v. Cock, 2 Barb. Ch., 426.) But an executor should not be required to give When Person named is Entitled. 221 security, merely because he does not own prop- erty to the full value of the estate of his testator, and where there is no ground for supposing that the trust fund is in danger. [Mandemlle v. Man- deville, 8 Paige, 475.) Bond; when tequired. § 2638. In either of the following cases, a per- son named as an executor in a will, may entitle himself to letters testamentary thereupon, by giv- ing a bond as prescribed by law, although an ob- jection against him has been established to the satisfaction of the surrogate : 1. Where the objection is, that his circumstan- ces are such, that they do not afford adequate se- curity to the creditors, or persons interested in the estate, for the due administration of the estate. 2. Where the objection is that he is not a resi- dent of the State, and he is a citizen of the United States. But a person against whom there is' no objec- tion, except that of non-residence, is entitled to letters testamentary, without giving a bond, if he has an office within the State, for the regular trans- action of business in person ; and the will contains an express provision, to the effect that he may act without giving security. 222 When Objections are to be Dismissed The hearing having been concluded, the surro- gate either sustains or dismisses the objections. If he sustains the objections to the competency of the executor, he will enter an order in terms. " that the surrogate doth order and adjudge that the ex- ecutor named in the will of said deceased is in- competent to execute the trust imposed upon him by reason of his being an alien, not an inhabitant of this State" (or, whatever the objection be.) But if he fail to sustain the objections, he may, with- out further delay, enter an order for the issue of letters. Ordinarily, unless required by the terms of the will appointing them, or unless required by the surrogate, executors are not required to give bonds. W'here a non-resident executor gives a bond to the people, as above required, the people are trustees of an express trust, under § 449 of the Code of Civil Procedure. An action will lie in their name for a breach of the condition. Becar v. Strutter, 16 Hun, 234. The bond required, shall be as to the personal estate with a penalty twice the amount thereof, and the surrogate may also add to the penalty such sum as he will deem proper considering the value of the real estate, or the proceeds thereof which may come to the hands of the executor. Ob^sustained. Renunciation. 223 Executor or administrator to qualify. Penalty of bond. § 2645. An executor from whom a bond is re- quired, as prescribed in this article, or an admin- istrator with the will annexed, must, before letters are issued to him, qualify as prescribed by law, with respect to an administrator upon the estate of an intestate ; and the provisions of article fourth of this title, with respect to the bond to be given by the administrator of an intestate, apply to a bond given pursuant to this section ; except that, in fixing the penalty thereof, the surrogate must take into consideration the value of the real prop- erty, or of the proceeds thereof, which may come to the hands of the executor or administrator, by virtue of any provision cbntained in the will. EXECUTOR MAY RENOUNCE. Henunciation and retraction. § 2639. A person, named as executor in a will, may renounce the appointment by an instrument in writing, signed by him, and acknowledged or ap- proved, and certified, in like manner as a deed to be recorded in the county, or attested by one or more witnesses, and proved to the satisfaction of the surrogate. Such a renunciation may be re- tracted by a like instrument, at any time before 224 Renunciation. letters testamentary, or letters of administration with the will annexed, have been issued to any other person in his place ; or, after they have been so issued, if they have been revoked, or the per- son to whom they were issued has died, or become a lunatic, and there is no other acting executor or administrator. Where a retraction is so made, letters testamentary may, in the discretion of the surrogate, be issued to the person making it. An instrument specified in this section must be filed and recorded in the surrogate's oflBce. As to the power of an executor to retract his re- nunciation as settled by authority, before the late amendments, as above, see Robertson v. McOoech, 11 Paige, 640 ; Casey v. Oardiner, 4 Bradf., 13 ; Godding v. Newman, 3 M. & C, 364. As to the statute before the amendment, see 2 R. S., 70, §8. The renunciation may be in the following form. Surrogate's Court, county. In the matter of the will of , deceased. I, C D, named as an executor in the will of the Selection of an Executor. 225 above named deceased, do hereby renounce the appointment as such executor. (Signed) C D. Dated Troy, Dec. 30, 1874. In presence of E F. The execution of this may be proved by one of the subscribing witnesses, or may be acknowledged by the executor, in the form in which deeds are required to be acknowledged, to entitle them to be recorded. We have seen {ante,) that an executor may be appointed by a power given to another party in the will. The decision of the Court of Appeals in Hartnett v. Wandell, confirming an ap- pointment made by an executrix, required some legislation to regulate the exercise of the power to appoint, and we accordingly have the following : Selection of an executor made a power. § 2640. Where the will contains a valid power, authorizing the selection, as executor thereof, of a person not named therein, the selection must be made, by the person appointed for that purpose, within thirty days after making the decree admit- ting the will to probate; in default whereof, the power of selection is deemed to have been re- 15 226 How Selection made. nounced. Such selection must be made by an instrument in writing, designating the person se- lected, signed by the proper person, and acknowl- edged or proved, and certified, in like manner as a deed to be recorded in the county, or proved to the satisfaction of the surrogate, and filed in the surro- gate's office. Where the will authorizes the per- son, so to be selected, to act with the executor or executors named therein, the issuing of letters must be delayed until the expiration of the period, fixed in this section for the exercise of the power of selection, and, if the selection is so made, for five days thereafter. SELECTION UNDER POWER. Surrogate's Court, county of In the matter of the will of , deceased. In pursuance of the power given to me by^the above described will, which has been duly admit- ted to probate, I, , do hereby select and nominate as an executor of said will , of the town of . . . , in said county, and request that letters testamentary issue to said with me. Dated Feby. 11th, 1880. (Signed) Rensselaer county, ss : On this day of , 1880, before Acknowledgement op Letters, etc 22T me personally came, to me known to be the same person described in, and who ex- ecuted the foregoing instrument, and acknowledged that she executed the same for the uses and pur- poses therein mentioned. AB. Notary Public, Rens. Co. Objection to person selected how taken. § ^641. Within five days after a selection is made, as prescribed in the last section, any person may file an afl&davit, verified as prescribed in section 2636 of this act, showing that he is a creditor of the decedent, or a person interested in the estate, and setting forth specifically one or more legal objections to granting letters to the person selected. The proceedings to be taken thereupon are the same, as prescribed in sections 2637 and 2638 of this act. If letters are not issued to the person so selected, the power of selection is deemed to be exhausted. The forms and proceedings may be found under the sections named. But should some or one of the executors fail to appear, it would seem to be irregular to issue letters testamentary, without a renunciation of the remaining executors, or until they shall have been summoned as provided by law. 228 When Qualification of Executor Executor failing to qualify or renounce, how treated. § 2642. If a person, named as executor in a will, does not qualify or renounce, within thirty days after probate thereof; or if a person, chosen by virtue of a power in the will, does not qualify or renounce within thirty days after the filing of the instrument designating him ; or, in either case, if objections are filed, and the executor does not qualify or renounce, within five days after they are aetermined, in his favor, or, in a case specified in section 2638 of this act, within five days after an objection has been established ,* the surrogate must, upon the application of any other executor, or any creditor or person interested in the estate make an order requiring him to qualify within a time therein specified ; and directing that, in de- fault of so doing, he be deemed to have renounced his appointment. Where it appears, by affidavit or other written proof, to the satisfaction of 'the surrogate, that such an order cannot, with due diligence, be served personally within the State upon the person therein named, the surrogate may prescribe the manner in which it must be served, which may be by publication. If the person, so appointed executor, does not qualify within the time fixed, or within such further time as the sur- rogate allows for that purpose, an order must be made and recorded, reciting the facts, and declar- Amounts to Eenunciation. 229 ing that he has renounced his appointment as ex- ecutor. Such an order may be revoked by the surrogate m his discretion, and letters testamentary may be issued to the person so failing to renounce or qualify, upon his application, in a case where he might have retracted an express renunciation, as prescribed in section 2639 of this act. The order may be made upon suggestion, and without a formal petition for all the facts to be presented appear by the will, which has been proved and by the probate. The time within which the executor delinquent shall appear and qualify is to be fixed by the sur- rogate, and it is presumed where the service can be made personally, it will usually be very short, for there has already been some delay. ORDER THAT EXECUTOR QUALIFY OR RENOUNCE. At a Surrogate's Court held in and for the county of . ." , at the sur- rogate's office in the of , on the . . . . , day of , 1880. Present — Hon , Surogate. In the matter of the will of , deceased. It appearing that A R aj; executor named m 230 Oeder of Renunciation. said will has not qualified or renounced, notwith- standing that thirty days have elapsed since the probate of said will : Ordered, that said A B, qualify within days after the service of a copy of this order on him, or that, in default of so doing, the said A B, be deemed to have renounced his appointment as such executor. , Surrogate. ORDER DECLARING RENUNCIATION. At a Surrogate's Court held in and for the county of at the surrogate's office in the of on the day of , 1880. Present — Hon , Surrogate. la the matter of the will of , deceased. An order having been made in this court that A B, an executor named in the said will, qualify within a time limited in said order, or that he be deemed to have renouBced, and on reading and filing due proof of the service of said order, on said A B, and the said A B, not having qualified or obtained further time for that purpose : Ordered, that said A B, by reason of the pre- mises, has renounced his appointment as an ex- ecutor of the will of said , /Surrogate^ When may be Revoked. 231 The cases in which such order may be revoked, in the discretion of the surrogate, are these : Any time before letters testamentary or letters of administration, with the will annexed, have been issued to any person, in his place, or, after ttiey have been so issued, if they have been re- voked ; where the person to whom the letters have been issued has died, or became lunatic, and there is no other acting executor or administrator. (§2639, sup.) Letters testamentary issue upon a will of a testator dormiciled without the State, at the time of his death, leaving personal property within the county of the surrogate, and in no other, or leaving per- sonal property which has since his death, come into the county, and in no other, and remains unadministrated. (§2476. sub. 3, Kohln, v. Kriaj)p, 1 Bradf. 241.) Letters issued upon a will admitted to probate in another State or country, or upon^an estate of a decedent so domiciled, are termed ancillary letters, and their issue is regulated by the statute. Ancillary letters. § '26115. Where a will of personal property, made by a person who resided without the State at the time of the execution thereof, or at the time of his 232 Letters of Administration. death, has been admitted to brobate by a compe- tent court, within the foreign country, or the State, or the territory of the United States, where it was executed, or where the testator resided at the time of his death ; the Surrogate's Court, havingjurisdiction ofthe estate, must, upon an am- plication made as prescribed in this article, accom- panied with an exemplified copy of the will, and of the judgment, decree, or order, so admitting the same to probate, and also of the foreign letters, if any have been issued, record the will and the foreign letters, and issue thereupon ancillary letters testamentary, or ancillary letters of administration with the will annexed, as the case requires. Ancillary letters upon grant of foreign administration. § 2696. Upon an application, made as prescribed in this article, to a Surrogate's Court having juris- diction of the estate; and the presentation of letters of administration upon the estate of a de- cedent, who resided, at the time of his death, without the State, but within the United States, granted by a competent court of the State or ter- ritory, where the decedent so resided; the Sur- rogate's Court, to which the foreign letters are so presented, must issue' ancillary letters of administ Letters of Administration. 233 tration, in accordance therewith ; except in one of the following cases : 1. Where ancillary letters have been previously issued, as prescribed in the last section. 2. Where an application, for letters of adminis- tration upon the estate, has been made by a relative of the decedent, who is legally competent to act, to a Surrogate's Court of the State, having juris- diction to grant the same ; and letters have been granted accordingly, or the the application has not been finally disposed of. To whom ancillary letters granted. 2697. Where the will specially appoints one or more persons as the executors thereof, with respect to personal property situated within the State, the ancillary letters testamentary must be directed to the persons so appointed, or to those who are com- petent, to act and qualify. If all are incompe- tent or fail to qualify, or in a case where such an appointment is not made, ancillary letters testa- mentary, or ancillary letters of administration, issued as prescribed in this article, must be di- rected to the person named in the foreign letters ; unless another person applies therefor, and files, with his petition, an instrument, executed by the foreign executor or administrator ; or, if there are two or more, by all who have qualified and are 234 How Proved and Shown. acting; and also acknowledged or proved, and certified, in like manner as a deed to be recorded in the county, authorizing the petitioner to re- ceive such ancillary letters; in which case, the surrogate must, if the petitioner is a fit and com- petent person, issue such letters directed to him. Where two or more persons are named in the foreign letters, or in an instrument executed as prescribed in this section, the ancillary letters may be directed to either or any of them, without naming the others, if the others fail to qualify, or if, for good cause shown, to the surrogate's satis- faction, the decree so directs. Letters issue on petition. Citation to issue. § 2698. An application for ancillary letters tes- tamentary, or ancillary letters of administration, as prescribed in this article, must be made by petition. Upon the presentation thereof, the sur- rogate must ascertain, to his satisfaction, whether any creditors, or persons claiming to be creditprs, of the decedent reside within the State ; and if so, the name and residence of each creditor, or person claiming to be a creditor, so far as the same can be ascertained. He must thereupon issue a citation, directed to each person whose name and residence have been so ascertained; and also directed gene- Letters op Administration. 235 rally to all creditors, or persons claiming to be creditors, of the decedent. Any such person, although not cited by his name, may appear and contest the application, and thus make himself a party to the special proceeding. PETITION FOR ANCILLARY LETTERS TESTAMENTARY. Surrogate's Court, county. In the matter of the will 1 . y A B, deceased. ] To Hon , Surrogate of the county of Rensselaer. The petition of C D, of the city of Chicago, in the State of Illinois, respectfully shows upon in- formation and belief as follows : A B, late of said city of Chicago, was a resident of said city at the time of the execution of his will, and said will has been admitted to probate, by the Probate Court of Cook county, in which Chicago is situated, and which is a competent court for that purpose, as by the exemplified copy of said will, and of the decree so admitting it to probate, hereto annexed, will more fully and at large ap- pear, and your petitioner was named in said will as an executor thereof, and letters testamen- tary have been duly issued to your petitioner by 236 How Shown. said Probate Court, as by an exemplified copy of said letters will appear, which copy is hereto an- nexed. And your petitioner further shows as aforesaid that at the time of his death the testator was domiciled in said city of Chicago, and that he left certain personal property, in the county of Rens- selaer, and in no other county within the State of New York (or, that he left certain personal property which, since the death of the testator, has come into said county of Rensselaer, and no other), and remains unadministered the value whereof does not exceed , dollars. That no an- cillary letters have been issued within the State of New York, upon the said probate. And your petitioner has made diligent inquiry as to whether there are any creditors of the de- cedent, or persons claiming to be creditors, and he is unable lo learn that there are any such persons (or, your petitioner upon diligent inquiry, has learned that C D, of Troy, N. Y., and E F, of West Troy, N. Y., are or claim to be creditors of the decedent, and he can learn of no other persons who are or claim to be creditors as afore- said) . Your petitioner therefore prays, that said will of said A B, may be recorded in this court as a will of personal estate, and that letters testamentary may issue to your petitioner in due form, when he phall have filed the bond required by the statute Petition for Letters Administration. 237 in such case made and provided, and in all respects have qualified. And your petitioner will ever pray, etc. Dated Feb. 11th, 1880. (Signed), C D. county, ss. C D, being duly sworn says, that the foregoing petition by him subscribed is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be true. (Signed) C D. Sworn, etc. PETITION FOR ANCILLARY LETTERS OF ADMINISTRATIO]^. ' Surrogate's Court, county of In the matter of the estate of , deceased. To Hon , Surrogate of the county of : The petition of A B, of the city of Troy, respect- fully shows, on information and belief, as follows : C D, at the time of his decease, was a non-resi- dent of the State of New York, and domiciled in the city of Chicago, in the county of Cook, in the State of Illinois, and died in said city intestate, and 238 How TO BE Shown. thereupon letters of administration of his goods, chattels and credits were duly issued and granted by the Probate Court of said county of Cook to A D, the widow of said C D., and to B B, both of said city of Chicago, as by said letters of administration hereto annexed, will more fully appear. That the said C D, at the time of his death, left certain personal property in the county of Eens- selaer and in no other county of the State of New York, the value whereof does not now exceed the sum of dollars, and which remains unadministered (or, that since the death of the said C D certain personal property belong- ing to his estate has come into the county of Kens- selaer, and into no other county within the State of New York, the value whereof does not now ex- ceed the sum of dollars, and remains unadministered) . That the said administratrix and administrator have executed an instrument hereto annexed au- thorizing your petitioner to receive ancillary let- ters of administration. That your petitioner has made diligent inquiry as to whether there are any persons creditors or claiming to be creditors of the said C D, and has not learned that there are any such persons. Wherefore your petitioner prays that ancillary letters of administration of the goods, chattels and credits of the said C D may issue to your peti- Petition how Verified. 239 tioner upon his filing the bond and qualifying as required by law. And your petitioner will ever pray, etc. Dated Troy, Feby. 11th, 1880. (Signed) C D. Rensselaer county, ss : C D, being diily sworn, says, that the preceed- ing petition by him subscribed is true of his own knowlege, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be true. (Signed) C D. Sworn, etc. ORDER FOR CITATION UNDER § 2698. At a Surrogate's Court held in the county of , at the , on the .... day of , 1880. - Present — Hon , Surrogate. In the matter of the will of . . , deceased. On reading and filing the petition of C D for record of the will of A B, late of the city of Chi- cago, in the State of Illinois, and for the issue of ancillary letters testamentary upon said will to said petitioner, and it appearing that said will has 24:0 Citation to Creditors. been admitted to probate by the Probate Court of the county of Cook, in said State of Illinois, and letters testamentary issued by said court to said CD. Ordered that said will and letters be recorded, and it further appearing that there are certain per- sons, creditors or claiming to be creditors of the said A B, deceased, it is further ordered that a ci- tation issue to E P and G H, of the city of Troy, claiming to be creditors of said deceased, requiring them to show cause why ancillary letters testa- mentary should not issue to said C D, the peti- tioner aforesaid. (Signed) , Surrogate. CITATION. To E F and G H, of the city of Troy, in the county of Rensselaer, and State of New York, and to all persons, creditors or claiming to be creditors, of A B, late of the city of Chicago, in the State of Illinois, deceased. You and each of you are cited and required to appear at the ofl&ce of our surrogate of the county of Rensselaer, in the city of Troy, on the day of , 1880, and show cause why ancillary letters testamentary upon the will of said A B should not be granted to C D, of said city of Chicago, who has applied for the same. In testimony whereof, our said surrogate has hereunto signed his name and affixed the [l. s,] seal of said court this . . . day of , 1880, , Skmrogate. Time for Service. 241 The time for service is eight days within the county, or adjoining county fifteen days, elsewhere in the State and by publication six weeks, on all oat of the State, together with mail service of thirty days. (See ante, p. 54.) Hearing; security. § 2699. Upon the return of the citation, the surrogate must ascertain, as nearly as he can do so, the amount of debts due, or claimed to be due, from the decedent to residents of the State. Be- fore ancillary letters are issued, the person, to whom they are awarded, must qualify, as prescri- bed in article fourth of this title, for the qualifica- tion of an administrator upon the estate of an in- testate ; except that the penalty of the bond may, in the discretion of the surrogate, be in such a sum, not exceeding twice the amount which ap- pears to be due from the decedent to residents of the State, as will, in the surrogate's opinion, effec- tually secure the payment of those debts ; or the sums which the resident creditors will be entitled to receive, from the persons to whom the letters are issued, upon an accounting and distribution, either within the State, or within the jurisdiction where the principal letters were issued. 16 242 PowiER OF COURf. Duty as to assets of persons acting under ancillary let- ters. § 2700. The person to whom ancillary letters are issued, as prescribed in this article, must, un- less otherwise directed in the decree awarding the letters ; or in a decree made upon an accounting ; or by an order of the surrogate, made during the administration of the estate; or by the judgment or order of a Court of Record, in an action to which that person is a party ; transmit the money and other personal property of the decedent, received by him after the letters are issued, or then in his hands in another capacity, to the State, Territory, or country, where the principal letters were granted, to be disposed of pursuant to the laws thereof. Money or other property, so transmitted by him, at any time before he is so directed to re- tain it, must be allowed to him upon an account- ing. Power of court to decree distribution of assets. § 2701. The Surrogate's Court, or any court of the State, which has jurisdiction of an action to procure an accounting, or a judgment construing the will, may, in a proper case, by its judgment or decree, direct a person, to whom ancillary letters are issued as prescribed in this article, to pay, out of the money or the avails of the property, received Debts of the Decedent. 243 by him under the ancillary letters, and with which he is chargeable upon his accounting, the debts of the decedent, due to creditors residing within the State ; or, if the amount of all the decedent's debts, here and elsewhere, exceeds the amount of all the decedent's personal properly applicable thereto, to pay such a sum to each creditor, residing within the State, as equals that creditor's share of all the dis- tributable assets, or to distribute the same among legatees or next of kin, or otherwise dispose of the same, as justice requires. General powers and duties under ancillary letters. 2702. The provisions of this chapter, relating to the rights, powers, duties, and liabilities - of an executor or administrator, apply to a person to whom ancillary letters are granted, as prescribed in this article ; except those contained in title fifth thereof; or where special provision is other- wise made in this article ; or where a contrary in- tent is expressed in, or plainly to be inferred from, the context. New Rearing of Proof within one Year. The effect of the decree of the court establishing; the validity of a will is fixed by statute. § 29. (2 R. S., 61.) The probate of any will of 244 Probate as Word personal property, taken by a surrogate having jurisdiction, shall be conclusive evidence of the validity of such will, until such probate be re- versed on appeal or revoked by the surrogate, as herein directed, or the will be declared void by a competent tribunal. The word probate as used in this section, and in our revised statutes generally, is synonymous or nearly so, with the word proof, or, the proceedings forprao/. The word has an entirely different signi- fication in the English statute, and reports. There after a^ will has been proved, a copy is engrossed upon parchment and to it is affixed a certificate of the Probate Court that the will so engrossed has been proved in the court, and this parchment is called probate, and it is synonymous with the le1> ters testamentary with us, and it is said \h'Ai pro- hate is granted to an executor, as we say, that letters testamentary are issued to an executor. Persons interested may apply for revocation. § 2647. A person interested in the estate of the decedent may, within the time specified in the next section, present to the Surrogate's Court, in which a will of personal property was proved, a written petition, duly verified, containing allega- tions against the validity of the will, or the com- Used m this State. 245 petency of the proof thereof; and praying that the probate thereof may be revoked, and that the per- sons, enumerated in the next section but one, may be cited to show cause why it should not be re- voked. Upon the presentation of such a petition, the surrogate must issue a citation accordingly. These proceedings are not confined to cases of wills bequeathing or eflPecting personal property only ; but may be taken as to wills aflecting both real and personal estate. [Matter of will of John Kellum, 50 N. Y., 298, reversing the same case, 6 Lans , 1.) When application must be made. § 2648. A petition must be presented, as pre- scribed in the last section, within one year after the recording of the decree admitting the will to probate ; except that, when the person entitled to present it is then under a disability, specified in section 396 of this act, the time of such a dis- ability is not a part of the year limited in this sec- tion. But this section does not effect an applica- tion made pursuant to subdivisicjn sixth of section 2481 of this act. Section 396, referred to is as follows : Exceptions, as to persons under disabilities. I 396, If a persoq, entitled to maintain an ac- 246 Qualifications of Parties. tion specified in this title ***** ig^ at the time when 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 execu- tions upon conviction of a criminal offence,- for a term less than for life. The time of such 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. Subdivision sixth of section 2481, referred to is in relation to the general power of the surrogate, and is as follows : 6. To open, vacate, modify, or set aside, or to enter, as of a former time, a decree or order of this court ; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufiicient cause. The powers, conferred, by this subdivision, must be exercised only in a like case and in the same manner, as a Court of Record and of general jurisdiction exercises the same powers. Prayer of petition ; who to be cited. § 2649. A petition, presented as prescribed in Of Parties Mentioned. 247 the last two sections, must pray that the citation may be directed to the executor, or administrator with the will annexed ; to all the devisees and legatees named in the will ; and to all other per- sons, who were parties to the special proceeding in which probate was granted. If a legatee is dead, his executor or administrator must be cited, if one has been appointed; if not, such persons must be cited as representing him, as the surrogate designates for the purpose. PETITION TO CONTEST PROBATE, WITHIN ONE YEAR. Surrogate's Court. In the matter of the will of John Doe, deceased. To the surrogate of the county of Rensselaer : The petition of A B, of the city of Troy, re- spectfully alleges upon information and belief as follows : That he is one of the next of kin of John Doe, late of the town of Nassau, in said county, deceased, and that heretofore, on or about the day of 1871, and within one year from the exhibiting hereof, a certain instru- ment in writing was admitted to probate by the surrogate of the county of Rensselaer, as and for 248 Petition to Contest. Will. the last will and testament of said John Doe, de- ceased, and letters testamentary thereon, were afterwards issued by said surl-ogate to D J B, executrix, named in said supposed will. And that A B, C D, E F, are named as legatees in said will and reside in Troy, in the State of New York, and that G H, of the town of Nassau is the sole devisee named therein, and some of the legatees have died since the death of the said John Doe, and your petitioner refers to the proceedings for the proof of said will remaining in this court, for the pointing out of all other persons who were parties to s^aid proceeding. And the said A B further alleges as aforesaid, (a.) That the said John Doe did not sign said supposed will ; or, (ft.) That the witnesses to said supposed will, did not sign the same ; or, (c.) That the said will was not published as by law required, nor did the said John Doe request the witnesses thereto to sign the same as witnesses ; or, (tZ.) That at the time of the execution of the said supposed will, the said John Doe was not of sound mirrd and memory, but of unsouud mind and memory, and was incapable of making a valid will; or, (e.) That the proof heretofore presented to said surrogate, was uncertain and not competent to es- tablish the due execution thereof, and the com- petency of the said John Doe. Petition to Contest Will. 249 The said A B therefore prays that a citation may be issued to the said D J B, executrix, and the said legatees, devisee and all persons who were parties to the special proceeding in which probate was granted, requiring them to appear before the surrogate at a tiuie and place to be therein fixed, to show cause why the probate of the said supposed will should not be revoked. Dated Dec 20, 1872. (Signed), A B. X Y, Attm-ney for said A B. Rensselaer county, ss : A B, being duly sworn says : that he is the petitioner named in the foregoing petition, and that said petition is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters ; he believes it to be true. (Signed), A B. Sworn, etc. ORDER FOR CITATION. At a Surrogate's Court, held in the county of at the surrogate's oflftce in the of on the day of , 1880. Present — Hon , Surrogate. In the matter of the will | y John Doe, deceased. | On reading and filing the petition of A B, one 250 Manner of Citation op Parties. of the next of kin of John Doe, late of the town of deceased, praying that the proper per- sons be cited to show cause why the probate of the will of the said deceased, should not be revoked. Ordered, that the executor of said will and all the legatees and the devisee named therein, and all persons who were parties to the proceeding for the proof of said will be cited to allow in this court on the day , 1880, to show cause why the probate of the said will should not be re- voked. , Surrogate. For manner and time of service see ante, p. 54., etc. It will be observed that under the law as it now stands, the executor, legatees, devisees and all the persons who appeared before the surrogate on the probate, are to be cited, under the revised statutes, only the executors and the legatees residing within the State, were to be cited (2 R. S., 61, §§ 29, et seq). For the purpose of ascertaining who are the legateees named in the will, residing in the State, reference may be had to the petition for proof filed when the will was originally oflfered, and without doubt the surrogate may take such proof as he deems proper, as to whether they are still alive, or, if deceased, who are their personal representatives, or if there are any. Proceedings on returns of Citation. 251 Executor to suspend proceedings. § 2650. After service upon him of a citation, issued as prescribed in the last three sections, the executor, or administrator with the will annexed, must suspend, until a decree is made upon the pe- tition, all proceedings relating to the estate ; except for the recovery or preservation of property the collection and payment of debts, and such other acts as he is expressly allowed to perform, by an order of the surrogate, made upon notice to the petitioner. Hearing. § 2651. Upon the return of the citation, the surrogate must proceed to hear the allegations and proofs of the parties. The testimony, taken upon the application for probate, of a witness who is dead, or without the State, or who, since his testi- mony was taken, has become a lunatic, or other- wise incompetent, must be received in evidence. Before proceeding, the surrogate will appoint special guardians for minors, habitual drunkards or lunatics, as in a proceeding to prove the will. (See ante, p. 58, etc.) The proceedings upon the hearing are the same as if no proofs had been taken on the former hearing, and each party may produce and examine witnesses. We are aware that Mr. Surrogate 252 Proceedings to be Examined. Bradford in Collier v. Idleys Executors, 1 Bradf., 94, suggests, that where the allegations raise some issue narrower than the broad one of the invalidity of the will, and the incompetency of the first proofs, a rule of evidence different from the one above stated, may be adopted. But the case ex- pressly holds, as the point to be decided, that the allegations being broad enough to contest the will and its probate on every material point, the witnesses to the will must be produced and be ex- amined de novo. The proceedings so instituted, do not abate by the death of the contestant, and the surrogate has power to direct continuance of the same, and the substitution of the executors of the contestant in his place.- {Van Allen v. Hewins, 5 Hun, 560.) Decree. § 2652. If the surrogate decides that the will is not sufficiently proved to be the last will of the testator, or is, for any reason, invalid, he must make a decree revoking the probate thereof; oth- erwise, he must make a decree confirming the pro- bate. Decree Revoking Probate. 253 DECREE REVOKING PROBATE. At a Surrogate's Court held in the county of , at the surrogate's office in the of , on the . . . day of , 187 . Present — Hon , Surrogate. In the matter of the paper pur- porting to be the will of John Doe, deceased. A B having heretofore filed allegations against the probate of the above mentioned paper, and a citation having been issued to the proper persons, and proofs having been offered in the matter, and the surrogate having deliberated thereon, and it appearing that the said John Doe, deceased, at the time of the making of the instrument in vrriting, admitted to probate in this court, on the . . . day of , 1879, as the last will and testa- ment of the said deceased, -was not of sound mind (or, that said will was not duly executed) : It is ordered, adjudged and decreed, that the probate heretofore granted by this court, on the said instrument as, and for the last will and testament of the said John Doe, deceased, be and the same is, hereby annulled and revoked. It is further ordered that notice of this decree 2^4 Notice of Eevocation. be published for three weeks successively, in a newspaper printed in the county of Rensselaer. Witness, , Surrogate, and the seal of the court the day and year [l. s.] first above written. , Surrogate. Notice to be published. § 2653. Where the decree, revokes the probate of a will, as prescribed in this article, the surro- gate must cause notice of the revocation to be im- mediately published, for three, successive weeks, in a newspaper published in his county. FOEM FOR WILL. The last will and testament of A B, of the town of , in the county of , and State of New York. I, A B, make this my last will and testament as follows : First. I direct that my funeral charges, expenses of administering my estate, and my debts, be paid out of my personal estate ; and if my personal es- tate be insufficient for those purposes, I expressly charge the payment thereof, or of any deficiency, upon the real estate whereof I may die seized, and for that purpose, or for the payment of the lega- cies hereinafter bequeathed, I authorize my exec- utors hereinafter named, to sell at public or private Form of Will. 255 sale, the whole, or such part of my real estate, as may be sufficient for those purposes.* Second. I give and bequeath unto my beloved wife if she shall survive me, the sum of dollars, to be paid to her, with interest from the time of my decease, in lieu of her dower, and of her distributive share in my estate.f Third. I give and bequeath to my daughter C D, wife of , one thousand dollars to be paid to her by my executors, for her separate use .J And I further direct, that if she should die dur- ing my lifetime, leaving issue, and any of her de- scendants shall be living at my decease, said sum shall be paid to said descendants in the proportion that the same would be paid to them under the statutes of this State, if the said C D had died in- testate, leaving said sum for distribution as a part of her personal estate. § * The direction to pay funeral charges and debts and ex- penses out of the personal estate, and the charge of them on the real estate are surplusage, but the draftsman will find it to be more satisfactory to the testator, than his ex- planation will be. f The direction for interest is unnecessary, but it is in serted for the reasons mentioned in the foregoino- note. ITheworAs for fier separate use are also unnecessary, but used for the above reason. § This is also provided for in the statute . 256 Form of Will. Fourth. I give and bequeath unto , infant son of , of , one hundred dollars ; and I authorize my executors, if they shall deem it safe and prudent, to pay the said legacy to the father of said infant, and to take his receipt therefor, and his agreement to hold the same in trust for the said infant, to be paid to him when he shall arrive at full age, with interest ; or, if they shall think best, the said executors may deposit said legacy in some savings bank to be se- lected by them, to the credit of said infant, and proof of such deposit shall be a sufficient discharge to my said executors for the same. Fifth. I give and bequeath to each of ray broth ers, A and B, the sum of five hundred dollars, and I direct that in case either of my said brothers should die during my lifetime, his legacy shall not lapse, but shall go to the survivor. If both of my said brothers shall die during my lifetime, then the legacies to them shall lapse into the residue of my estate. Sixth. I give and bequeath my ten shares of one hundred dollars each, of stock in the Union Na- tional Bank of Troy, to my friend Seventh. I give and devise to my beloved wife, the dwelling house and lot, in the village of . . . . . . , where I now live, for and during her natu- ral life ; and from and after her death, I give and devise the same, to my son A R, his heirs and as- signs forever. Custody of Children. 25t Mghth. I hereby dispose of the custody and tu ition of my infant children during their minority, and while they shall remain unmarried, to my be- loved wife, so long as she shall remain my widow ; but if she shall die, or marry during the single life and infancy of any of said children, then and in that case, I dispose of and commit their custody and tuition, to my friend R F. Ninth. I give, devise and bequeath all the resi- due of my estate, real and person,al, to my chil- dren, share and share alike, as tenants in common. Lastly. I appoint my son S B and my friend A R, executors of this, my last will and testament, hereby revoking all former wills by me made. In witness whereof I have hereunto subscribed my name this day of , in the year of our Lord one thousand eight hundred and seventy-five. (Signed), A B. The foregoing instrument was, at the date thereof, subscribed by the said A B, in our presence, and he at the same time declared the same to be his last will and testament, and requested us to sign our names as witnesses which we do in his presence. C D, Troy, Reus, Co., N. Y. R M D, Troy, Reus. Co.. N. Y. 17 258 AttesI'ation OLAtrsES. Attestation Olause where the Execution was Acknotoledged. On the day of the date of the foregoing instru- ment, the above named A B acknowledged to us and each of us, that he had subscribed the foregoing instrument, and at the same time declared the same to be his last will and testament, and requested us to sign the same as witnesses which we do in his presence. ^ C D. Troy, Reus, Co., N. Y. R M D, Troy, Rens. Co., N. Y. Attestation Clause showing Execution, and good in any State except Louisiana. Three untnesses are required On this day of , 1875, the under- signed being present and believing the above named A B, to be of sound mind and memory, saw the said A B subscribe the foregoing will, and at the time of such subscription, the said A B stated to each of the undersigned, that the paper so sub- scribed by him, was his last will and testament, and requested us and each of us to sign said will as witneses. Whereupon we do in his prescence and in presence of each other, attest and subscribe the same as witnesses, the day and year above written. C D, Troy, Rens, Co-, N. Y. E F, Troy. Rens, Co., N. Y. G H, Albany, N. Y. Special Olausei in Will. 259 Clause in a will, limiting Certain Property to the Use of a Married Woman. I give and bequeath to A B, and C D, the sur- vivor of them or their successors, appointed by the Supreme Court, the sum of two thousaud dollars, in trust to receive the interest thereof during the joint lives of G H, and E H, his wife, and to pay the same to the said E H, and her assigns, notwith- standing her coverture, for her sole and separate use, from time to time, during the joint lives of the said G H, and E H, his wife, so that the said E H, shall not sell, mortgage, charge, or otherwise dis- pose of the same in the way of anticipation. And if the said E H shall survive her said husband then upon trust to pay the said principal sum to the said E H ; but in case the said E H shall die during the lifetime of her husband, then in trust, after the decease of the said E H, to assign and transfer the said sum of two thousand dollars, to such person or persons and in such shares and subject to such conditions^ as the said EH, by her last will and testament in writing, or by any writ- ing in the nature of, or purporting to be her last will and testament, shall limit or appoint, and in default of such appointment, upon trust to pay, transfer and assign the same to the next of kin, of the said E H, not including therein the said G H, her husband. 260 Codicil. Clause in a Will, limitiny Real Estate to the separate Use of a Married Woman. I give and devise to A B and C D, during the joint lives of E H and G H, her husband, all that parcel of land conveyed to me by R J, by deed dated Nov. 1st, 1873, and recorded in the office of the clerk of the county of. , in book No. . . of deeds, page . . . ., etc., upon trust to pay the rents, issues and profits thereof to the said E H, or to such person or persons as she shall by writing appoint to receive the same, during the joint lives of the said E H and G H, for her sole and separate use, so that the said E H shall not sell, mortgage, or otherwise dispose of the same in the way of anticipation. From and immediately after the decease of the said G H, then I give and devise said premises to the said E H, if she shall survive her said husband. But in case the said E H shall die in the lifetime of her husband, then I give and devise tne same to her heirs at law, as tenants in common. Legacy to Charitable or Religious Corporations. I give and bequeath to the (American Bible Society stating the name, if possible, or otherwise clearly describing the society), the sum of one thou- sand dollars, to be applied to the uses of said society. Codicil. Whereas I, A B, did heretofore make my last Codicil to Will, 261 will and testament dated the . . . day of .... , 1875. Now I make this a codicil to said will. First. I give and bequeath to my beloved wife the further sum of five thousand dollars. Second. Whereas I did in said will give and be- queath to my son R R the sum of one thousand dollars, now I revoke said bequest, for the reason that I have paid said sum to him. Inasmuch as I contemplate advancing to my children sums of money hereafter, I direct that all moneys which I shall advance to them, or which shall be owing to me from any of them at my de- cease, shall be considered part of my residuary estate, and shall be deducted from his, or her re- spective share. In witness whereof I now hereunto subscribe my name this . . . day of , in the year of our Lord, one thousand eight hundred and sev- enty- .... A B. The /oregoing instrument was at the date thereof subscribed by the above named A B, in our presence, and he declared the same to be a codicil to his last will and testament and requested us to sign the same as witnesses, which we do in his presence, J L, Troy, N. Y. G S, Troy, N. Y. 262 Probate qf Heieship, CHAPTER IX. Probate of Heirship. For the purpose of having an adjudication as to the ownership of real estate acquired by descent, proceedings may be had in the Surrogate's Court. Heir may apply. § 2654. Where a person, seized in fee of real property within the State, dies intestate, or with- out having devised his real property to specific persons, his heirs, or any of them, may present to the Surrogate's Court which has acquired jurisdic- tion of the estate, or, if no Surrogate's Court has acquired such jurisdiction, then to the Surrogate's Court of the county where the real property, or any part thereof, is situated, a written petition, duly verified ; describing the real property ; setting forth the facts upon which the jurisdiction of the court depends ; and the interest or share of the petitioner^ and of each other heir of the decedent, in the real property ; and praying for a decree es- tablishing the right of inheritance thereto, and that all the heirs of the decedent may be cited to Petition for Probate of Heirship. 263 attend the probate of that right. Upon the pre- sentation of such a petition, the surrogate must issue a citation accordingly. PETITION FOR PROBATE OF HEIRSHIP. Surrogate's Court, Rensselaer county. In the matter of the real estate | \ A B, deceased. I The petition of B B, of the town of Nassau, in said county respectfully shows to the court. A B, in his life time, was an inhabitant of said town of Nassau and on the 17th day of January, 1880, died intestate and at the time of his death he was seized in fee of all that farm of land situate (describing the land clearly and briefly), and leaving hitn surviving his children your petitioner, and Sarah Jones, of the city of Buffalo, in the county of Erie and his grand-children, A B and C D, both residing in Nassau aforesaid who are all and the only heirs at law of said deceased and to whom said real estate descended by the laws of this State in the following proportions to wit : to the said B B, petitioner, and the said Sarah Jones each an undivided one-third thereof, and to the said A B and C D, grand-children as aforesaid, each an undivided sixth thereof. And your petitioner prays for a decree establish- ing the right of inheritance of said parties in said 264 Form op Petition. real estate, and that said heirs at law of the de- cedent may be cited to attend the probate of that right. And your petitioner will ever pray, etc. BB. Dated Feb. 17, 1880. Rensselaer county, ss : B B, being duly sworn says : that he is the pe- titioner named in the foregoing petition, and that said petition is true of his own knowledge except as to the matters which are therein stated to be alleged on information and belief, and as to those matters, he believes it to be true. BB. Sworn, etc. And thereupon an order is made for the issuing of a citation. ORDER. At a Surrogate's Court, held in the county of Rensselaer, at the surrogate's office in the city of Troy, on the 17th day of February, 1880. Present — Hon. Moses Waeren, Surrogate. In the matter of the real estate of A B, deceased. On reading and filing the petition of B B, from Petition what to Contain. 265 which it appears that said deceased lately died, being an inhabitant of the county of Kensselaer, and seized of certain real estate described in said petition and also certain heirs at law in said pe- tition named. Ordered, that a citation issue to said heirs at law requiring them to attend the probate of the right of inheritance in said real estate, on the . . day of next, at ten o'clock in the forenoon. Moses Warren, Swrogate. Citation and appearance of parties. § 2655. The citation must set forth the name of the decedent and of the petitioner ; the interest or share which the petitioner claims ; and a brief description of the real property. Any heir of the decedent, who has not been cited, may neverthe- less appear at the hearing; and thereby make himself a party to the special proceeding. But this section does not affect a right or interest of such a person, unless he becomes a party. Hearing. Decree. § 2656. Upon the return of the citation, the surrogate must hear the allegations and proofs of the parties. If it appears that there is a contest, respecting the heirship of a party, or respecting the share to which a party is entitled, as an heir of the decedent, the surrogate must dismiss the 266 Facts and Circumstances. proceedings. If there is no such contest, he must inquire into the facts and circumstances of the case. The petitioner must establish , by satisfactory evidence, the fact of the decedent's death ; the place of his residence at the time of his death ; his intestacy, either generally, or as to the real pro- perty in question ; the number of heirs entitled to inherit the property in question ; the name, age, residence, and relationship to the decedent, of each ; and the interest or share of each in the pro- perty. The surrogate, where these facts are established, must make a decree, describing the property, and declaring that the right of inherit- ance thereto has been established to his satisfaction, in accordance with the facts, which must be re- cited in the decree. The proceeding is a novel one, but there can be no difficulty in conducting it, or in determining the rules of evidence as to the facts to be proved. The most important rule would seem to be, that, the facts are to be proved by the best evidence. The decree establishing the rights of inheritance may be in this form. Decree as to Heirship. 26T DECREE. At a Surrogate's Court, held in the county of Rensselaer at the surrogate's office in the city of Troy, on the day of , 1880. Present — Hon. Moses Warren, Surrogate. In the matter of the real estate Of A B, deceased. B B, having heretofore presented his petition to this court duly verified, praying that the rights of inheritance of the parties therein named may be declared as to certain real estate in said petition described, the surrogate thereupon issued a citation to B B, C B, A X and R L, requiring them to attend the probate of such rights on this day. And now it appears that all the parties named in said citation were duly served therewith and the said B B and C B, appearing in person, and by A L, their attorney, and it further appearing that said R L, is a minor, J B, of the city of Troy, was appointed his special guardian and appeared for him ; J D, claiming to be an heir at law of the said deceased also appeared in the proceeding and the surrogate proceeded to hear the proofs and allega- tions of the parties upon the matter. It is adjudged and decreed, that B B, at the time of his death, was an inhabitant of the county of Rensselaer, and that he resided in the town of 268 Decree as to Heirship, Nassau in said county ; that he died on the .... day of , 1880, intestate seized in fee of the following described real estate, to wit : All that parcel of land situate, etc., (describing same as in the petition), and the following persons, his heirs at law, to wit : B B, C B' and J D, his children, who reside in said town of Nassau, and who are each entitled to and seized of an undivided one- fourth part of said real estate, and R L and J S, his grand-children, residing in the city of Troy, who are each entitled to and seized of an undi- vided one-eight of said real estate. Witness Moses Warren, Surrogate, and the [l. s.] seal of the court, the day and year first above written. , Surrogate. Decree to be recorded and effect thereof. § 2657. An exemplified copy of a decree, made as prescribed in the last section, and of the proofs taken thereupon, may be recorded in the office of the clerk, or of the register, as the case requires, of each county in which the real property is situated, as prescribed by law for recording a deed, and, from the time when the exemplifications are so recorded, the decree, or the record thereof, is pre- sumptive evidence of the facts so declared to be established thereby. But notwithstanding the decree, it may be opened and modified or vacated. i*ETiTiON TO Vacate. 269 Petition to vacate or modify decree. § 2658. Any person, other than a party to a special proceeding, instituted as prescribed in this article, or the heir, devisee, or assignee of such a party, may, at any time within ten years after a decree establishing the right of inheritance is made therein, present to the court a written petition, duly verified, showing that he has a right, title, or interest in the real property, or a part thereof, which is injuriously affected by the decree; stating that the decree is erroneous in some material particular, specified therein ; and praying that the decree may be set aside or modified in that parti- cular, and that all the persons, whose heirship was established by the decree, may be cited to show cause, why the prayer of the petition should not be granted. If an heir has since died, or has conveyed the share or interest so established, by a deed duly recorded in the county, the petition must state that fact ; and must pray that the persons, who have succeeded to his interest, may be also cited. Upon the presentation of such a petition, the surrogate must issue a citation ac- cordingly. Decree when modified or vacated. § 2659. Where a petition is presented as pre- 270 Decree when Vacated. scribed in the last section, and it appears, upon the hearing, that, if the petitioner, or his ancestor, testator, or grantor, had been a party to the special proceeding, the decree or a part thereof could not have been legally made, as prescribed in this article, the surrogate must vacate or modify the decree accordingly. An exemplified copy of the decree or order, so vacating or modifying the original de- cree, may be recorded in the office of any clerk or register, where a copy of the original decree was recorded. Administration. 2*71 CHAPTER X. Administration. Administration is the legal right to settle and control the estate of deceased persons, and also, the exercise of that right. Letters of administra- tion, are the warrant under the seal of the court giving the legal right. Letters of administration are of three kinds; first, upon the goods, chattels and credits of a person who shall have died intestate; that is, without having made his last will and testament ; second, special letters of administration authorizing the administrator to collect and preserve the estate, either of a testator, in certain cases, or of an intestate ; and third, letters of administration authorizing the person appointed to execute the powers given by the will of the deceased, called letters of administration with the will annexed, or (nmi testamento annexo. Neither the legislature, nor the courts have power to confer jurisdiction on surrogates, over the estates of living persons. The court only obtains 2Y2 Jurisdiction op Surrogate. jurisdiction to grant administration in the event of the actual death of the person whose estate is to be administered on. {Roderigas v. East River Savings Bank. 48 Bow. 166.) The jurisdiction of the court and the' rights of parties interested, are controlled by the statute. Exclusive jurisdiction of court. § 2476. The Surrogates Court of each county has jurisdiction, exclusive of every other Surro- gate'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 property which has, since his death, come into the State, and remains un administered. 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. Evidence for Surrogate to Act IJpon. 273 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 administration, under subdivision second or third of this section, has not been filed in any Surrogate's Court ; but real property ol 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. Where letters of administration, have been granted upon the estate of one dying intestate in the county of the surrogate, the anus is upon one disput- ing the title and authority of the administrator, to show a want of jurisdiction in the surrogate to grant the letters. {Welch y. N. Y. G. R. R. Co., 53 N. Y., 610.) Under the provisions of this section, the inquiry by the surrogate as to the death of the person upon whose estate administration is applied for, is judicial in its nature, the surrogate has jurisdiction to determine it upon sufficient evidence, and letters issued by him upon due proof, are conclusive evi- dence of the authority of the administrator to act, nutil the order granting them is reversed on appeal, or the letters are revoked or vacated, so far at least, as to protect innocent persons acting upon the faith 18 274 In Letters of Administration for the of them. This was so held, reversing the ruling in the lower courts, where a savings bank had, on presentation of the letters paid the deposit of the supposed deceased to the administrator or when, in fact the depositor was not dead, and afterwards suit was brought by his representatives against the bank to recover the money so paid by it. [Bodrignes V. East River Savings Ins., 63 N. Y., 460.) Where the application for administration is on the groun 1 that the intestate left property in the county of the surrogate, to whom the application is made, it is suflBcient if it appear that the deceased had a claim against a resident of the county, for money deposited with him, even though it should subsequently appear that the claim was invalid and not to be enforced. [Sullivan v. Fosdick, 10 Hun, 173.) As the domicile of the father is the domicile of minor children, where a father had lived seven months in New York, and his child was injured and died at quarantine before landing in this country, it was held that the child was domiciled in New York. {Kennedy/ v. Byall, 67 N. Y., 379.) Conomrent jurisdiction of Surrogate's Court. § 2477. Where personal property of the decedent is within, or comes into, two or more counties , Purpose op Conferring Jurisdiction. 275 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 Court of those counties have concurrent jurisdiction, exclusive of every other Surrogate's Court, to take the proof of the wills 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 concur- rent jurisdiction, the jurisdiction of that court excludes that of the other. Jurisdiction how conferred. § 2478. For the purpose of conferring jurisdic- tion upon a Surrogate's Court, a debt, owing to a decedent by a resident of the State, is regarded as personal property, 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 pro- perty, situated within the county where the principal office of the corporation is situated. But the fore- going provision does not apply to a debt evidenced by a bond, promissory note, or other instrument for the payment of money only, in terms negoti- 2Y6 Eights of JPersons to be set Forth able, 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 goverment. State, county, public officer, assossa- tion or corporation, is for the purpose of so confer- ringjurisdiction, regarded as personal property, at the place where the bond, note, or other instrument is, either within or without the State. (See Sulivan V. Fosdich, 10 Hun., 173, sup.) The former provisions in relation to the juris- dictions to grant and the grant of administration, may be found 2 R. S., 73, et seq. The rights of persons interested in the estate of an intestate, to general administration, are also regulated by the statute as follows : " § 27. Administration, in cases of intestacy, shall be granted to the relatives of the deceased, who would be entitled to succeed to his personal ostate, if they, or any of them, will accept the .same, in the following order : First. To the the widow ; Second. To the children ; Tliird. To the father ; Fourth. To the mother ; Fifth. To the brothers ; Sixth. To the sisters ; Seoenih. To the grand-children ; And Party Entitled to Preference. 2Y7 Mght. To any other of the next of kin who would be entitled to share in the distribution of the estate. " If any of the persons so entitled be minors, ad- ministration shall be granted to their guardians ; if none of the said relatives or guardians will accept the same, then to the creditors of the de- ceased, and the creditor first applying, if otherwise competent, will be entitled to a preference; if no creditor apply, then to any other person or per- sons legally competent. But in the city of Nev/" York, the public administrator shall have pre- ference, after the next of kin, over creditors and all other persons ; and in the other counties, the county treasurer shall have preference next after creditors, over all other persons. And in the case of a married woman, dying intestate, her husband shall be entitled to administration in preference to all other persons. * * * This section shall not be construed to authorize the granting of letters to any relative not entitled to succeed to the personal estate of the deceased as his next of kin, at the time of his decease." (2 R. S., 74, as amended by chap. 782, Laws of 1867.) In a contest under the statute, between relatives whose priority is not settled by the statute, the surrogate will appoiiit the one having the greatest 278 Who Entitled to Administration. interest in the per; onal estate. {Sweezy v. Willis, 1 Bradf. 495.) Letters of administration issue upon the estate of an illegitimate in the following order : First, to the widow; Second, to the children or other de- scendants ; Third, to the mother ; and, Fourth, to the relatives on the part of the mother in the order of their nearness of kindred to him through the mother. (S. L., 1846, chap. 236.) Where the intestate was illegitimate and un- married, and died domiciled in a country by the laws of which he could have no legal kindred ex- cept lineal descendants, a lawful son of the mother of the intestate having no right to a distributive share of the estate of the decedent, is not entitled to letters of administration here. {Pub. adm'r v. Hughes, 1 Bradf., 125.) " § 28 Where there shall be several persons of the same degree of kindred to the intestate, en- titled to administration, they shall be preferred in the following order: First, males to females; second, relatives of the whole blood, to those of the half blood ; Third, unmarried women to such as are married ; and where there are several per- sons equally entitled to administration, the sur- rogate may in his discretion, grant letters to one or more of such persons." (2 R. S., 74.) Who Entitled to Letters. 279 "§29. A husband, as such, if otherwise compe- tent according to law, shall be solely entitled to administration on the estate of his wife and shall give bonds as other persons, but shall be liable, as administrator, for the debts of his wife, only to the extent of the assets received by him * * * *" (Id., 75.) For the purpose of establishing a right to ad- minister by a wife, marriage with the deceased may be proved by evidence of cohabitation, de- clarations and repute. [Renkolm v. Puh. adm'r., 2 Redf. S. Rep., 456.) " § 31. In all cases, where persons, not inhabit- ants of this State, shall die, leaving assets in this State, if no application for letters of administra- tion be made by a relative entitled thereto and legally competent, and it shall appear that letters of administration on the same estate, or letters testamentary have been granted by competent authority, in any other State of the United States, then the person so appointed, on producing such letters, shall be entitled to letters of administra- tion in preference to creditors, or any other per- sons except the public administrator in the city of New York." (Id.) As to these letters called ancillary letters, see 28C Who Incompetent. circumstances under which they lAay be granted, [ante) . The statute secures administration to the per- sons having the greatest interest in the distribu- tion of the personal property of the intestate in the order of their interest. (Sweezy v. Willis, 1 Bradf, 495.) But this right to administration is a personal right and one entitled cannot nominate a third party to take the letters without himself. He can only exclude others, by taking letters himself. {Matter of Root, 5 N. Y. Leg. Obs., 449 ; Matter of Ward, 6 id., 111.) "§ 32, No letters of administration shall be granted to any person convicted of an infamous crime, nor to any one incapable by law of making a contract, nor to any person not a citizen of the United States (unless such person resides within this State), nor to any one who is under twenty- one years of age, nor to any person who shall be judged incompetent by the surrogate, to execute the duties of such trust by reason of drunkenness, improvidence, or want of understanding * * * * . (Id. as amended by chap. 782, S. L., 1867.) Any surrogate may also, in his discretion, refuse the application for administration, of any person unable to read and write the English language, (§ 5, S. L., 1867, chap. 782.) Who Entitled to Letters. 281 " § 33. If any person, who would otherwise be entitled to letters of administration as next of kin, or to letters of administration with the will an- nexed, as residuary or specific legatee, shall be a minor, such letters shall be granted to his guardian, being in all respects competent, in preference to creditors or other persons. (2 R. S., 75.) "§ 34. Administration may be granted to one or more competent persons not entitled to the same, with the consent of the person entitled to be joined with such person ; which consent shall be in writ- ing, and be filed in the ofiice of the surrogate." (Id.) This consent, once acted on and letters issued in accordance with it, cannot be revoked. {Estate of Williams, 1 Tuck., 8.) Who may apply for letters, § 2660. A person entitled, absolutely or contin- gently, to administration upon the estate of an in- testate, may present to the Surrogate's Court, hav- ing jurisdiction, a written petition, duly verified, praying for a decree, awarding letters of adminis- tration, either to him or to such other person or persons, having a prior right, as may be entitled thereto, or in the alternative, as the petitioner elects ; and, if necessary, that the persons required to be cited, as prescribed in the next section but 282 Who May Apply for Letters. one, may be cited to show cause, why such a de- cree should not be made. The petition must set forth the petitioner's title ; the facts upon which the jurisdiction of the court to grant letters of ad- ministration upon the estate depends; and the names of the husband or wife, if any, and of the next of kin of the decedent, as far as they are known to the petitioner, or can be ascertained by him with^^due diligence. What to be shown upon application, § 2661. A citation shall not be issued, and a decree shall not be made where a citation is not necessary, until the petitioner presumptively proves, by affidavit or otherwise, to the satis- faction of the surrogate, the existence of all the jurisdictional facts, and, particularly, that the decedent left no will. For the purpose of the in- quiry touching any of these matters, the surrogate may issue a subpcena, requiring any person to at- tend and be examined as a witness. There is no provision in the statute, as to ob- jections to the issue of letters to any person other- wise entitled, as there is in the case of an executor, and usually, if the applicant for letters is entitled in his own right, or is one of a class entitled, letters would immediately issue to him on his filing the proper bond, notwithstanding that he might be Petition for Administration. 283 incompetent, or might be found incompetent on a hearing before the surrogate. But it is believed that the surrogate would entertain objections from any person interested in the estate as one of the next of kin, or as a creditor, and that an affidavit, of intention to file objections might be filed with the same effect, and to be followed by the same pro- ceedings, as in the case of objections to an execu tor, and reference is made to the consideration of that subject. (See ante.) But the surrogate cannot exclude a person, oth- erwise entitled to letters of administration, except for the causes specified in the statute. (Coojpe v. Lowerre, 1 Barb. Ch., 45.) PETITION FOR ADMINISTRATION. Surrogate's Court, Rensselaer county. In the matter of the estate I , deceased. I To Moses Warren, Esq., Surrogate of the county of Rensselaer : The petition of , of the city of Troy in said county, respectfully shows upon in- formation and belief: That , late of said city, died on or about the 15th day of December, 1873, at the city of Troy, aforesaid, without leaving any last will 284 Petition for Letters. and testament ; that said deceased at the time of his death, was possessed of certain personal prop- erty within the State of New York, the value whereof does not exceed the sum of dollars, as your petitioner is informed and verily believes ; and that your petitioner is a creditor of the said deceased. Your petitioner further shows that the said deceased left him surviving his widow (your petitioner), and his children, and , of Troy aforesaid (naming all who are interested in the personal es- tate as entitled to share therein), his only next of kin, and that he was at, or immediately previous to his death an inhabitant of the county of Rens- selaer. Your petitioner prays that administration upon the estate of the said deceased may be granted to your petitioner, jointly with , of the city of Troy. Dated Troy, Dec. 18, 1873. State of New York, ) ^^ Rensselaer county, j , being duly sworn, says that he is the petitioner named in the foregoing petition, and that said petition is true of his own knowl- edge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be true. Sworn, etc. Citation for Letters. 285 CONSENT OF PERSON TO BE JOINED TO BE ENDORSED UPON PETITION. I, • • > named in the within petition, consent that administration upon the goods, etc., of , deceased, be granted to me jointly with , as asked for in said petition. Dated Sept. 17, 1873. Where administration is claimed by a party whose right, through relationship is denied, prooi must be taken as to the relationship, and interest of the petitioner. {Ferrie v. Fktb. Adm'r, 3 Bradf., 151.) It would seem to be good practice, in such a case, for the parties claiming administration, each to file the proper petition, and that the surrogate order that they be heard together. Citation to persons having prior right. • § 2662. Everyperson, being a resident of the State who has a right to administration, prior or equal to that of the petitioner, and who has not re- nounced, must be cited upon a petition for letters, of administration. The surrogate may, in his dis- cretion, issue a citation to non-residents, or those who have renounced, or to any or all other per- 286 Citation on Petition. sons interested in the estate, whom he thinks pro- per to cite. Where it is not necessary to cite any person, a decree, granting to the petitioner letters, may be made upon presentation of the petition. When attorney-general to be cited. § 2663. Where the surrogate is unable to ascer- tain, to his satisfaction, whether the decedent left, surviving him, any person entitled to succeed to his estate, a citation must be issued, directed generally to all creditors of, and persons interested in, the estate, and also to the attorney-general, and the public administrator of the proper county, requir- ing them to show cause, why administration should not be granted to the petitioner. Renunciation how made. § 2664. Any person who has a right to adminis- tration, prior or equal to that of the petitioner, may renounce his right by a written instrument, ac- knowledged or proved, and certified, in like man- ner as a deed to be recorded in the county, or oth- erwise proved to the satisfaction of the surrogate ; which must be filed in the surrogate's office. EENUNCIATION. Surrogate's Court, Eensselaer County. In the matter of the goods, etc., of JamFB Murphy, deceased. I, , of the city of Troy, in the Eenunoiation. 28Y county of Rensselaer, widow (or, one of the next of kin), of James Murphy, late of said city, de- ceased, intestate, do hereby renounce my right to administration of the goods, chattels and credits of said intestate. Dated Troy, Dec. 18th, 1873. Signed in presence of Wm. Lord. Rensselaer county, ss : On this . . . day of , 1880, before me personally came , to ine known to be the same person described in and who execu- ted the foregoing renunciation, and acknowledged that he executed the same. Wm. Lord, Notary Public, Bens. Co. But if a citation is necessary it is issued upon the order of the surrogate. ORDER FOR CITATION. At a Surrogate's Court held in and for the county of , at the surrogate's oflBce in the city of , on the day of , 1873. Present — , Surrogate. In the matter of the estate of , deceased. On reading and filing the petition of 288 Citation. a creditor of the above named deceased, for admin- istration upon the estate of said deceased, and it appearing that said deceased left him surviving his widow and and , his next of kin. Ordered that a citation issue to said widow and next of kin of said deceased, requir- ing them personally to appear in this court on the . . . day of next, at ten o'clock in the forenoon, to show cause why administration of all and singular the goods, chattels and credits of the said deceased, should not be granted to the said petitioner. , Surrogate. CITATION. The people of the State of New York. To , widow and and , next of kin of [l. s.] . . 5 late of the city of Troy, deceased, intestate. Greeting: You and each of you are hereby cited personally to be and appear before our surrogate of the county of Rensselaer, at his office in the city of Troy, on the . . . day of next, at ten o'clock in the forenoon of that day, to show cause why adminis- tration of the goods, chattels and credits of the said intestate should not be granted to , a creditor of said intestate. Witness, Moses Warren, Surrogate, and the seal of said court this . . . day of ... . , 1873. Moses Warren, Sv/rrogate. Return of Citation. 289 The time for the return of the citation is neces- sarily governed by the time to be taken for the service, as to which and the manner of .service which is applicable to all citations. (See ante, p. 42, etc.) Persons not cited may appear. § 2665. Where a citation is issued, any creditor of the decedent, or any person interested in the personal estate, although not cited, may appear and make himself a party to the special proceed- ing, in like manner and with like effect, as a devi- see or legatee, who is not cited upon an applica- tion for probate. The parties cited may come into court, even be- fore the return day of the citation, and petition for the issue of letters to themselves, and if the petitioners have the prior right, or produce the renunciation of those entitled to letters in prefer- ence to them, letters will undoubtedly issue forth- with upon the filing of the proper bond and oath of ofl&ce. Hearing; decree. § 2666. Upon the return of a citation, issued as prescribed in this article, the surrogate must make such a decree in the premises, as justice requires. The decree may award administration to any party 19 290 Who to be Preferred. to the special proceeding, who appears to be en- titled thereto. The surrogate may, in his discre- tion, award administration without a personal , examination of the person to whom it is awarded . But, upon the return day of the citation, if there shall be no legal objections made to the person applying for letters, and no one having a prior right shall apply, the surrogate will order the issue of letters to the applicant. And, notwithstanding parties entitled, may have renounced, they may retract such renunciation at any time before letters shall actually be issued to another. {Casey v. GardnieT, 4 Brad., 13.) There may be a case, in which several parties equally entitled, shall apply for letters, and there is no provision in the statute as to which shall be preferred, except males to females, relatives of the whole blood to those of the half blood, etc. {Sup., § 28.) If, therefore, several sons of the intestate should apply, it would seem that the surrogate may exercise his discretion as to whom he will issue the letters ( Taylor v. Delancey, Gaines' cases, 149), and he would undoubtedly be governed in the exercise of his discretion by the wishes of the parties interested in the distribution as next of kin, who for the purpose of expressing their pre- ference might either unite in the petition of one, Decree for Letters. 291 or petition independently for the appointment of any one. It is error, to grant letters unless all the persons having right to them in preference to the applicant, shall have renounced, or shall have been deemed to have renounced after citation. Thus it was held, that where one died intestate, leaving a father and brothers, it was error to grant letters to a creditor, upon the renunciation of the father only. {Lathrop V. Smith, 35 Barb., 64 and 24 N. Y., 417.) The question as to priority having been dis- posed of, the surrogate enters a decree for the issue of the letters. DECREE FOR LETTERS. At a Surrogate's Court held in and for the county of , at the surro- gate's ofi&ce in the .... of on the of , 1880. Present — Hon Swrogate. In the matter of the estate | of , deceased. On reading and filing proof of the due service of the citation in this matter on and and on motion of , who has petitioned for the issue of letters of administration of the goods, I ) 292 Decree for Letters. chattels and credits of the above named deceased intestate, no one opposing : It is adjudged that letters of administration of the goods, chattels and credits of the said deceased, issue to the said , upon his filing the oath of office as such administrator, and a bond as required by law in the penalty of (ten thousand) dollars with two or more sureties approved by the surrogate. Witness , surrogate, and the seal [l. s.] of this court the day and year first above written. , Surrogate. The jurisdiction of the surrogate to grant letters of administration, depends upon the surrogate's judicial determination, made in a judicial inquiry before him, that death has occurred. [Bodrigner V. East JR. Savings Inst., 43 N. Y. Supr. C. Rep., 217.) The oath of administrator, may be taken before any officer authorized to administer oaths. OATH OF ADMINISTRATOR. State of New York, county, ss : Ij , do solemnly swear, that I will honestly and faithfully discharge the duties of Administrator's Bond. 293 administrator of the goods, chattels and credits of , deceased, according to law. Sworn before me this 24 th ) day of Dec, 1873. j Justice of the Peace. Administrator's bond. § 2667. A person appointed an administrator must, before letters are issued to him, besides filing his official oath, execute to the people of the State, and file with the surrogate, the joint and several bond of himself, and two or more suveties, in a penalty, fixed by the surrogate, not less than twice the value of the personal property of which the decedent died possessed, and of the probable amount to be recovered by reason of any right of action, granted to an executor or administrator, by special provision of law. The sum, to be fixed as the amount of the penalty, must be ascertained by the surrogate, by the examination, upon oath, of the .applicant or any other person, or otherwise, as the surrogate thinks proper. The bond must be con- ditioned, that the administrator will faithfully dis- charge the trust reposed in him as such, and obey all lawful decrees and orders of the Surrogate's Court, touching the administration of the estate committed to him. 294 Bond may be Eeduced. But this is modified by another general pro- visions in relation to bonds, providing for a deposit of securities and a proportional reduction of the amount of the bond. Deposit of securities to reduce bond. § 2595. In a case where a bond, or new sureties to a bond, may be required by a surrogate from an executor, administrator, or other trustee, if the value of the estate or fund is so great, that the surrogate deems it inexpedient to require security in the full amount prescribed by law, he may direct that any securities for the payment of money, be- longing to the estate or fund, be deposited with him to be delivered to the county treasurer, or be deposited, subject to the order of the trustee, countersigned by the surrogate, with a trust company duly authorized by law to receive the same. After such a deposit has been made, the surrogate may fix the amount of the bond, with respect to the value of the remainder only of the estate or fund. A security thus deposited shall not be withdrawn from the custody of the county treasurer or trust company, and no person, other than the county treasurer or the proper officer of the trust company, shall receive or collect any of the principal or interest, secured thereby, without the special order of the surrogate, enteied in the appropriate book. Such an order can be made in What Bond Sufficient. 295 favor of the trustee appointed, only where an additional bond has been given by him, or upon proof that the estate or fund has been so reduced, by payments or otherwise, that the penalty of the bond originally given, will be sufficient in amount, to satisfy the provisions of law relating to the penalty thereof, if the security so withdrawn is also reckoned in the estate or fund. When ther,e are several administrators, the statute requiring the surrogate to take from every administrator a bond with sureties, as above pro- vided, is complied with by taking one joint and several bond from all the administrators, with competent approved sureties. [Kirhy v. Turner, Hopk., 309.) Per contra, it would be proper to take from each of several administrators, a sepa- rate bond with sureties. BOND OF ADMINISTRATOR. Know all men by these presents : that we, John Doe, Richard Roe and Thomas Nokes, of the city of Troy, are held and firmly bound unto the people of the State of New York, in the sum of two thou- sand dollars, lawful money of the the United States, to be paid to the said people, to which payment, well and truly to be made, we bind our- selves, our and each of our heirs, executors and 296 Bond of Administrator. administrators, jointly and severally, firmly by the presents. Sealed with our seals, and dated this 22d day of February, 1862. The condition of this obligation is such, that if the above bounden John Doe, administrator of all and singular the goods, chattels, and credits of Kichard Roe, late of the city ol Troy, deceased, shall faithfully discharge the trust reposed in him as such, and obey all lawful decrees and orders of the Surrogate's Court of the county of R ensselaer, touching the administration of the estate com- mitted to him, then this obligation to be void, otherwise to remain in full force. (Signed), John Doe, [l. s.] Richard Roe, [l. s.] Thomas Nokes. [l. s.] Sealed and delivered in ) the presence of J Moses Warren. State of New York, 1 ^^ Rensselaer county, J On this 22d day of February, 1880, before me personally appeared John Doe, Richard Roe and Thomas Nokes, to me known to be the same per- sons described in and who executed the foregoing bond and severally acknowledged that they exe- cuted the same for the uses and purposes therein mentioned. Geo. Scott, Omir of Deeds, Troy, N. Y. Effect of Letters. 29Y Rensselaer county, ss : Richard Roe and Thomas Nokes of the city of Troy, duly sworn, do each depose and say that he is worth the sum of two thousand dollars over and above all debts he owes, or liabilities incurred by him. Richard Roe, Thos. Nokes. Sworn before me this 22d day ) of February, 1880. j Geo. Scott, GomW of Deeds, Troy, N. Y. The justification of the sureties is not necessary, unless exacted by the surrogate as a condiiion of his approval of them. His approval may either be endorsed at the time of filing, or it would ?eem, that when the surrogate himself files the bond, his approval would be presumed. If a question should be raised, the surrogate might at any time endorse his approval, nunc fro twnc. Inasmuch as the letters relate back to the de- cease of the intestate, the sureties are liable for moneys received by the administrator before his appointment. [Gottshorger v. Taylor, 19 N. Y., 150.) Sureties how liable. § 2596. A person to whom letters are issued, is 298 Liability of Sureties. liable for money or other personal property of the estate, which was in his hands, or under his con- trol, 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 pre- viously issued to him, in the same or another capa- city, an action to recover the money, or damages for failure to deliver the property, may be naain- tained upon both official bonds ; but, as between the sureties upon the 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. In a speial case, . where the bond given on the appointment of an administratrix and ad- ministrator seemed to run against the default of the administratrix only, it was held that the sureties were, notwithstanding, liable for a devastavit of the administrator as well. [Brewster V. Balch, 9 J. & Spencer, 63.) After the breach of the bond, and upon suit against the principal and sureties, none of them can show that the surrogate did not have jurisdic- tion to grant administration, or to take the bond. {Field V. Van Gott, 5 Daly., 308.) Neither the validity of the will on which letters cwm test, an., were issued, nor the authority of the Liability op Sureties. 299 surrogate, can be attacked by one against whom an action is brought to recover a debt due the de- ceased. [Sullivan v. Fosdick, 14 Hun., 173.) The liability of sureties on a bond, is not limited to deficiencies or defaults of the executor or ad- ministrator, occurring after the making of the bond. The liability extends to moneys lost or disposed of, before the bond was executed. [Scqfield v. Churchill, 72 N. Y., 565.) And, in the absence of collusion, the decree of the surrogate or to deficiencies is conclusive. (Id. see also Oerould v. Wilson, 16 Hun., 530.) A misnomer of the county of the surrogate, in the bond, when the surety knew in what county it was intended to be used, was held to be imma- terial. [Oerould v. Wilson, swp.) The letters of administration issued under the seal of the Surrogate's Court are prima facie evi- dence of the appointment. {Belden v. Meeker, 7 N. Y., 307; Bxrham v. Moran, 4 Hun., 717.) And such letters cannot be attacked collaterally, nor in any proceeding except one specially insti- tuted to revoke them. {Ili/nn v. Chase, 4 Den., 85.) But the letters must issue upon the judicial de- termination of the surrogate himself, and he can- not delegate the power. Thus, where a surrogate 300 Letters Improperly Issued. signed letters in blank, and the same were issued by a clerk, upon proper petition, but which was not presented to the surrogate for his judicial de- termination, the letters so issued are void and a payment made by a creditor on the faith of such letters, is not good and they will not protect the party so paying against an action brought by the alleged deceased, he being in fact, alive; {Bod- rignez v. E. R. Sav. Inst., 43 Sup. C. Rep., 217.) In a proceeding in which the letters are drawn in question collaterally, the presumption is that the statutory directions were complied with. {Farley v. McConnell, 52 N. Y., 7 Lans., 428.) Where administration has been granted upon the estate of one dying in the county of the "surro- gate, the onvs is upon one disputing the title and authority of the administrator, to show a want of jurisdiction in the surrogate to grant the letters. Welch V. N. Y. a B. B. Co., 53 N. Y., 610.) The seal may be attached at any time. It is sufficient if it appear affixed when offered in evi- dence. [Moloney v. Moloney, 11 Hun., 202.) The authority of an administrator appointed in this State, upon the goods of a deceased non-resi- dent, to receive and satisfy the debts due here, is exclusive of that of any foreign executor or adminis- trator. Therefore it was held, that a satisfaction Letters Relate Back. 301 of a mortgage by an administrator in New Hamp- shire was no defense to an action by a resident administrator to foreclose., {Stone v. Scripture, 4 Lans, 186.) The letters relate back to the time of the decease of the intestate. {TroomY. Van Home, 10 Paige, 549.) It was accordingly held, that an agreement made by a person afterwards appointed adminis- trator in regard to the collection of certain notes, assets of the deceased, was binding. (Allen v. Mghme, 9 Hun., 201.) Requisites of letters. § 2590. Letters testamentary, letters of adminis- tration, and letters of guardianshrip must be in the name of the people of the State. Where they are granted by a surrogate, or by an officer or person appointed by the board of supervisors, temporarily acting as surrogate, they must be tested in the name of the officer granting them, signed by him, or by the clerk of the Surrogate's Court, and sealed with the seal of the Surrogate's Court. "Where they are issued out of another court, they must be tested in the name of the j udge holding the court, signed by the clerk thereof, and sealed with its seal. Effect of letters. § 2591. Subject to the provisions of the next 302 Effect of Letters. section, regulating the priority among different letters, letters testamentary, letters of administra- tion, and letters of guardianship, granted by a court or ojfficer, having jurisdiction to grant them, as prescribed in this chapter, are conclusive evi- dence of the authority of the persons to whom they are granted, until the decree granting them is reversed upon appeal, or the letters are revoked, as prescribed in this chapter. Priority among different letters. § 2592. The person or persons, to whom letters testamentary, or letters of administration are first issued, from a Surrogate's Court having jurisdiction to issue them, as prescribed in article first of title first of this chapter, have sole and exclusive authority, as executors or administrators, pursuant to the letters, until the letters are revoked, as pre- scribed by law ; and they are entitled to demand and recover from any person, to whom letters upon the same estate are afterwards issued, by any other Surrogate's Court, the • decedent's property in his hands. But the acts of a person, to whom letters were afterwards issued, done in good faith, before notice of the letters first issued, are valid ; and an action or special proceeding, commenced by him, may be continued by and in the name of the person or persons to whom the letters were first issued. Letters de bonis Noisf. 303 The distinction formerly kept up between letters issued in the first instance, and those iussed upon the decease of a former administrator, or the revo- cation of letters while some part of the estate remains un administered, is not recognized in the statutes now in force, but the distinction is a con- venient one, notwithstanding. These subsequent letters were called letters de bonis non. Administration of the goods, chattels and credits of an intestate, not administered upon by a former administrator, issue of course, when the office of such former administrator becomes vacant, by death, or revocation of j his letters, for any cause specified in the statute. The rules as to priority are the same as in the first issue and the same proceedings would be taken in regard to citation of all persons having such prior right to letters. The petition for such letters should however state the fact of the issue of such former letters, and the death of the former administrator, or revo- cation of the fornier letters, and that such former administrator "left un administered, certain assets and personal property of the intestate, of the value of about I . . . . , as the petitioner is informed and verily believes." In such case also the petitioner could have any 304 Administration with Will Annexed. proper person joined with him in the acUninistra- tion, as in the case of the first issue. The bond would be the same, and the adminis- trator should in all respects pursue the same course as if appointed in the first instance. ADMINISTRATION WITH THE WILL AN- NEXED. The provisions in force in relation to adminis- tration with the will annexed before the late amendments may be found in 2 R. S., 71, et seq. The provisions now in force are as follows : When and to whom issued. § 2643. If no person is named as executor in the will, or selected by virtue of a power contained therein ; or if, at any time, by reason of death, in- competency adjudged by the surrogate, renuncia- tion in either of the methods prescribed in sections 2639 and 2642 of this act, or revocation of letters, there is no executor, or administrator with the will annexed, qualified to act ; the surrogate must, upon the application of a creditor of the decedent, or a person interested in the estate, and upon such no- tice to the other creditors and persons interested in the estate, as the surrogate deems proper, issue Parties entitled to Administration. 306 letters of administration with the will annexed, .ib follows : 1. To one or more of the residuary legatees, who are qualified to act as administrators. 2. If there is no such residuary legatee, or none who will accept, then to one or more of the prin- cipal or specific legatees, so qualified. 3. If there is no such legatee, or none who will accept, then to the husband, or wife, or to one or more of the next of kin, or to one or more of the heirs or devisees, so qualified. 4. K there is no qualified person, entitled under the foregoing subdivisions, who will accept, then to one or more of the creditors, who are so quali- fied. 5. If there is no qualified creditor who will ac- ceptj then to any proper person designated by the surrogate. But a guardian of an infant, who is not a resi- duary or specific legatee, is not entitled to letters with the will annexed, in preference to the widow of the testator. (Gltiett v. Mattice, 43 Barb., 417.) " § 20. Such letters of administration, or letters testamentary, shall supersede all former letters, and shall deprive the former executor or administrator of all power, authority and control over the per- sonal estate of the deceased, and shall entitle the 20 306 The Authority of an Administrator person appointed, by such letters, to take, demand, and receive the goods, chattels and effects of the deceased wherever the same may be found. (2 E. S., 85.) The authority of an administrator with the will annexed, is not confined to the property disposed of by the will, but it is his duty to collect and ad- minister the entire personal property within his jurisdiction. {Sullivan v. Fosdick, 14 Hun, 173.) The petition for administration with the will annexed, should show the death of the testator; the proof of his will ; the issue of the former let- ters ; the death, removal or other disability of the person to whom letters testamentary were for- merly granted, if such be the fact, and the amount and value of the personal estate of the testator, and the relation of the petitioner to the estate. If the petitioner be a residuary legatee, then he has prior right to administration, and it will not be necessary to state the relation of other parties, and letters will issue the petitioner on giving same bond [Ex parte Brown, 2 Brad., 22), as an administra- tor, and taking the same oath of office. The bond may be given in the ordinary form required of general administrators and it will be valid and proper. And the ignorance of the sure- ties on such a bond as to the real nature of the And his Rights and Powers. 307 admiaistration, is no defense in an action on the bond, nor is it a defense that they were de- ceived by their principals. (Gasoni v. Jerome, 58 N. Y., 315.) Persons to be cited or to renounce. § 2644. But where a person applies for letters of administration with the will annexed, as prescribed in the last section, and another person has the right to the administration, prior to that of the petitioner, the application must be made by peti- tion, unless a written renunciation of every per- son having such a prior right, is filed with the sur- rogate, and the execution thereof is proved to his satisfaction. The petition must pray that all the persons having a prior right, who have not re- nounced, be cited to show cause why administra- tion should not be granted to the petitioner. The proceedings thereupon are the same, as upon an application for administration upon the estate of an intestate. "§ 22. In all cases where letters of administra- tion with the will annexed shall be granted, the will of the deceased shall be observed and per- formed; and the administrators with such wills, shall have the rights and powers, and be subject 308 Power of Administrator cum test. an. to the same duties, as if they had been named ex- ecutors in such will." (2 E. S., 72.) But they cannot sell and dispose of the real es- tate for the purpose of division among legatees, or do any other act about the real estate, without fur- ther authority from the Supreme Court. ( Gonh- lin V. Egerton, 21 Wend., 430 and 25id., 224 ; Dam- inick V. Michael, 4 Sand. Sup. Ct. E., 374; Roome V. Phillips, 27 N. Y., 357.) But if the adminis- trator with the will annexed, assumes to act as trustee as to real estate, in place of an executor appointed, who declined to act, those interested might consider him as trustee instead of a wrong (doer, and have him removed for neglect of the du- ties proper to the trustee. Where a will contained a devise to an executor, in trust, the trust duty is not annexed to the office of executor, but to the person, and an administra- tor with the will annexed, does not succeed to any rights concerning the trust estate, unless it is ordered sold, for the payment of the! testator's debts. [Dunning v. Ocean Nat. Banh, 61 N. Y., 497.) In Qilchrist v. Bae (9 Paige, 66), the court held that it being doubtful whether the administrator with the will annexed was authorized to execute a trust power given to the executor named, and Temporary Admiipstration. 309 who declined to act, the administrator would be appointed trustee, and directed him to execute the conveyance of the real estate, both as administra- tor and trustee. [Bunn v. YaAighan, 1 Abb. C. of App. Dec, 253.) But now, it is presumed, the Court of Appeals having definitively decided in Boome v. Phillips (swp.), that the administrator with the will an- nexed has no power over the real estate, that the proper course would be to petition the Supreme Court for an appointment as trustee to execute a power of sale, and that wh6n appointed, he would execute the power solely as trustee. Temporary administration. Letters of administration were formerly issued in the discretion of the surrogate, pending some other proceeding or a delay in proving a will and were called letters of collection. The same are now termed letters of temporary administration. The former law may be found in Sec. 38, et seq., of chap. 460, of Laws of 1837. The law as now in force embodies the extensive amendments made by chap. 71 of Laws of 1874. Temporary administration, when allowed. § 2668. Upon the application of a creditor, or a 310 Appointment of Tempoeary person interested in the estate, the surrogate may, in his discretion, issue to otie or more persons, competent and qualified to serve as executors, letters of temporary administration, in either of the following cases : 1. Where delay necessarily occurs in the grant- ing of letters testamentary or letters of administra- tion, in consequence of a contest arising upon an application therefor, or for probate of a will ; or in consequence of the absence from the State of an executor named in the will ; or for any other cause. 2. Where a person, of whose estate the surrogate would have jurisdiction, if he was shown to be dead, disappears or is missing, so that, after diligent search, his abode cannot be ascertained, and under circumstances which aflFord reasonable ground to believe either that he is dead, or that he has be- come a lunatic, or that he has been secreted, con- fined, or otherwise unlawfully made away with ; and the appointment of a temporary administrator is necessary for the protection of his property, and the rights of creditors, or of those who will be in- terested in the estate, if it is found that he is dead How made. § 2669. An appointment of a temporary ad- ministrator, in a case specified in subdivision first Administratob. 311 of the last section, must be made by an order. At least ten days' notice of the application for such an order must be given to each party to the special proceeding, who has appeared. NOTICE OF APPLICATION FOR ORDER. Surrogate's Court. In the matter of the estate of , deceased. Please take notice, that by reason of the delay occurring in the granting of letters testamentary to act in this matter, the undersigned will apply to the surrogate of the county of Rensselaer, at his oflBce in the city of Troy, on the day of 1880, at ten o'clock in the forenoon for an appointment of a temporary administrator in this matter. John Ray. Dated Feb. 19, 1880. To } How made upon estate of an absentee. § 2670. Application for such an appointment, in a case specified in sribdi vision second of the last section biit one, must be made by petition, in like 312 Administration of Absentee's estate. maimer as where an application is made for ad- ministration, in a case of intestacy ; and the pro- ceedings are the same as prescribed in article fourth of this title, relating to such last mentioned application. Such an application for the appoint- ment of a temporary administrator may also be made, with like effect, and in like manner, as if it was made by a creditor, by the county treasurer of the county where the person, whose estate is in question, last resided ; or, if he was not a resident of the State, of the county where any of his pro- perty, real or personal, is situated. That is to say, the proceeding must be conducted, and the rules for administration and priority of next of kin, are the same as if the missing person were actually proved to be dead. Eeference is therefore made to the discussion of letters upon the estate of intestates, ante. Administrator to qualify. § 2671. A temporary administrator must qualify, as prescribed in article fourth of this title, with respect to an administrator in chief. Which is to say, that the administrator must give the required bond and take the oath of office as administrator, of the estates of intestates. General powers. § 2672. A temporary administrator, appointed Temporary Administrator's Powers. 313 as prescribed in this article, has authority to take into his possession personal property ; to secure and preserve it ; and to collect choses in action ; and, for either of those purposes, he may maintain any action or special proceeding. An action may be maintained against him, by leave of the surro- gate, upon a debt of the decedent, or of the absentee whom he represents, in like manner, and with like effect, as if he was an administrator in chief The surrogate may, by an order, made upon at least ten days' notice to all the parties who have appeared in the special proceeding, authorize the temporary administrator to sell, after appraisal, such personal property, specifying it, of the decedent, or of the absentee whom he represents, as it appears to be necessary to sell, for the benefit of the estate. The surrogate may, also, by order, authorize him to pay funeral expenses, or any expenses of the administration of his trust. May publish notice to creditors.'. § 2673. After six months have elapsed, since letters were issued to a temporary administrator, appointed upon the estate, of either a decedent or an absentee, he has the same power, as an adminis- trator in chief, to publish a notice requiring cre- ditors of the decedent or absentee, to exhibit their 314 Power as to Debts. demands to him. The publication thereof has the same effect, with respect to the temporary admin- istrator, and also an executor or administrator, subsequently appointed upon the same estate, as if the temporary administrator was the executor or an administrator in chief, and the person to whom the subsequent letters are issued was his successor. Power as to paying debts. § 2674. After a year has elapsed, since letters were issued to a temporary administrator, appointed upon the estate, of either a decedent or an absentee, the surrogate may, upon the application of the temporary administrator, and upon proof, to his satisfaction, that the assets exceed jthe debts, make an order, permitting the applicant to pay the whole or any part of a debt, due to a creditor of the decedent or absentee ; or, upon the petition of such a creditor, he may issue a citation to the temporary administrator, requiring him to show cause why he should not pay the petitioner's debt. When such a petition is presented, the proceedings are, in all respects, the same as where a creditor pre- sents a petition, praying for a decree directing an executor or administrator to pay his debt, as pre- scribed in articlejfirst of title fourth of this chapter. May lease Eeal Peopeety. 315 Power as to real property. § 2675. Where a temporary administrator is appointed, in consequence of a contest respecting a will of real property, the order appointing him may confer upon him authority to take possession of real property, in the same or another county, which is affected by the will, and to receive the rents and profits thereof The surrogate may, by an order, confer upon him authority to lease any or all of the real property, for a term not exceeding one year ; or to do any other act with respect thereto, except to sell it, which is, in the surrogate's opinion, necessary for the execution of the will, or the pre- servation or benefit of the real property. For eith'er of these purposes, he may maintain or defend any action or special proceeding. Power as to real estate of absentee. § 2676. A temporary administrator, appointed upon the estate of an absentee, has all the powers and authority enumerated in the last section, with respect to the real property of the absentee. His acts, done in pursuance of that authority, bind the absentee, if he is living, or his heir or devisee, if he is deadj in the same manner as the acts of an executor or administrator bind his successor. May provide for family of absentee. § 2677. Upon proof, satisfactory to the surro- 316 How TO Deposit Moneys. gate, that the wife or any infant child of an absentee, upon whose estate a temporary adminis- trator has been appointed, is in such circumstances, as to require provision to be made out of the estate for his or her maintenance, clothing or education, the surrogate may make an order, directing the temporary administrator to make such provision therefor, as the surrogate deems proper, out of any personal property in his hands, not needed for the payment of debts. Deposit of money by temporary administrator. § 2678. A temporary administrator, appointed as prescribed in this article, must, within ten days after any money belonging to the estate comes into his hands, deposit it as prescribed in this section. Where he was appointed by the Surrogate's Court of any county except New York, it must be depos- ited with a person, or with a bank, designated by the surrogate ; but a natural person, so designated as depositary, must first file in the surrogate's office a bond to the surrogate, in a penalty fixed by him, executed by the depositary and two sureties, and conditioned to render a faithful account, and pay over all money received by him, upon the direction of any court of competent jurisdiction. Where the temporary administrator was appointed by the sur- rogate of the county of New York, the money must Deposit how Compelled. 31T be deposited in a domestic incorporated trust com- pany, having its principal office or place of busi- ness in the city of New York, and either specially approved by the surrogate, or designated, in the general rules of practice, as a depositary of funds paid into court. Proceedings if lie neglects to deposit. § 2679. If a temporary administrator neglects to make a deposit, as described in the last section, within the time therein limited, the surrogate must, upon the application of a creditor or person inter- ested in the estate, accompanied with satisfactory proof of the neglect, make an order, directing him to do so forthwith, or to show cause why a war- rant of attachment should not issue against him. In the county of New York, the order must be made returnable three days after issuing it ; and it must be served upon the temporary administra- tor, at least two days before the return day thereof, either personally or by leaving a copy thereof within the State, at his dwelling place, or his office for the regular transaction of business in person ; or, if it cannot be served in either of those meth- ods, by serving it in such other manner, as the surrogate directs. In any other county, it must be made returnable within a reasonable time, not exceeding fifteen days after issuing it ; and it must 318 Deposits how Withdrawn. be served, in like manner, at least ten days before the return thereof. How deposits withdrawn. § 2680. Money deposited by a temporary ad- ministrator, as prescibed in this article, cannot be withdrawn, except upon the the order of the sur- rogate, a certified copy of which must be presented to the depositary. Such an order may be made upon two days' notice of the application therefor, given to all the parties to the special proceeding, in which the temporary administrator was ap- pointed, who appeared therein ; but not otherwise. Notices how served. § 2681. A notice required to be given, as pre- scribed in this article, to a party other than the temporary administrator, must be served upon the attorney of the party to whom notice is to be given; or, if he has not appeared by an attorney, upon the party, in like manner as a notice may be served upon an attorney in a civil action, brought in the Supreme Court. But where the attorney or party to be served does not reside in the sur- rogate's county ; or where the attorney for a party has died, and no other appearance for that party has been filed in the surrogate's office; the sur- rogate may, by order, dispense with notice to that Law applies to Collectors. 319 party ; or may require notice to be given to him in any manner which he thinks proper. When time to sue for or against estate. § 2682. Section 2593 of this act does not aflfect any proceeding in favor of or against an executor, or an administrator in chief, where a temporary ad- ministrator of the same estate has been appointed, except as otherwise presciibed in section 2673 and section 2674 of this act. Application of law to collectors heretofore appointed. § 2683. Each provision of this chapter, imposing a duty or liabiUty upon a temporary adminis- trator, appointed upon the estate of a decedent, or his sureties or confei'ring upon the surrogate power or authority with respect to such a tem- porary administrator, or his sureties ; applies to a collector or special administrator, appointed before this chapter takes effect, and his sureties ; except so far as it is repugnant to the provisions of law in force, when the collector or special adminis- trator was appointed, or to the letters issued to him. When the necessity for the special administra- tion shall have ceased, he may be compelled to account and to deliver the assets to his successor, by citation to him, or may ask for a settlement of 320 Liability of SuRETiEg. his account. When decree has been made against him, obedience to it may be enforced by attach- ment, as in other cases of administration. In regard to the liability of his sureties, it was held that they are liable for moneys in his hands received before his appointment as special admin- istrator. [Goitsherger v. Taylor, 19 N. Y., l^i), see also Scofield v. Taylor, 72 N. Y., 565. G-ENERAL Provisions. 321 CHAPTER XL General Provisions in Regard to Letters Testa- mentary AND of Administration. For what Reasons Letters are revoked, etc. Letters of administration and letters testamen- tary, except where the will expressly authorizes the executor to meddle with the real estate, give no power to the administrator or executor over the real estate belonging to the heirs at law or devisees, and they can be evicted only through a sale under the decree of the court for the payment of the debts of the decedent. But if such an administrator or executor interfere with the real estate, unless it is wanted to pay debts, those in- terested may treat him as a trustee de sov tort, and make him account. {Le Fort v. Delafield, 3 Edw., bl.) Bemaiuing executors or administrators to act. § 2692. Where one of two or more executors or administrators dies, or becomes a lunatic, or is con- 21 322 When Letters are Ee yoked victed of an fainmous offense, or becomes other- wise incapable of discharging the trust reposed in him ; or where letters are revoked 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 admin- istration of the the estate, pursuant to the letters, and may continue any action or special proceed- ing, brought by or against all. (See 2 R. S., 78 § 44 for former law.) Successor to be appointed, when. § 2693. Where all the executors or all the ad- ministrators, to whom letters have been issued, die, or become incapable, as prescribed in the last section, or the letters are revoked as to all of them ; the surrogate must grant letters of admin- istration 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, as in a case of intestacy. (See 2 R. S., 78, § 45, for law before reissues.) What law governs testamentary dispositions. 2694. The validity and effect of a testamentary And New Letters G-ranted. 323 disposition of real property, situated within the State, or of an interest in real property so situated, which would descend to the heir of an intestate, and in the manner in which such property or such an interest descends, where it is not disposed of by will, are regulated by the laws of the State, without regard to the residence of the decedent. Except where special provision is otherwise made by law, the validity and effect of a testamentary disposition of any other property situated within the State, and the ownership and disposition of such property, 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. Letters revoked on revocation of probate," etc. § 2684. Where, after letters of administration, on the ground of intestacy, have been granted,, a will is admitted to probate, and letters are issued thereupon ; or where, after letters have been issued upon a will, the probate thereof is revoked, .or a subsequent will is admitted to probate, and letters are issued thereupon ; the decree, granting or i-e- voking probate, must revoke the former letters. (See Holland v. Ferris, 3 Bradf , 334 ; 2 R. S., 78, §46.) 324 New Bond may be Eequired. When new bond may be required. § 2597. Any person, interested in the estate or fund, may present to the Surrogate's Court a writ- ten petition, duly verified, setting forth that a surety in a bond, taken as prescribed in this chap- ter, is insufficient, or has removed, or is about to remove, from the State, or that the bond is inade- quate 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 sure- ties, 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 in- fant. When the bond is that of an executor or administrator, the petition may also be presented by any creditor of the decedent. If it appears to the surrogate, that -there is 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. Petition for Further Security. 325 PETITION WHEN SURETIES ARE INSUF- FICIENT. Surrogate's Court. In tlie matter of the estate 01 , deceased. To Hon , Surrogate of county : The petition of , one of the next of kin of , late of the town of . . . . . . , in the county of ....... , respectfully shows upon information and belief: That heretofore, in the Surrogate's Court of said county, administration upon the goods, chattels and credits of tho said deceased were duly granted and issued to of the town of ... . .... and A B and C D were the sureties for the said upon the bond filed by him prior to the issue of such letters. And your petitioner further shows : That the said C D, one of the said sureties, is becoming insolvent (or is about to remove, or has removed from the State) . Wherefore your petitioner prays that the said , administrator as aforesaid, may be cited to give further sureties, or be superseded in the administration, or for such other or further relief as may be proper in the premises. Dated Dec. 31, 1879. (Signed) county, ss :• ..-.,,.., being duly sworn, says that he 320 When New Bond Required. is the petitioner named in the foregoing petition, and that the same is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be true. (Signed) Sworn, etc. For time and manner of service of the citation, eitl:er personally or by publication, see ante, p. 42 Bond when required. § 2598. 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, requiring the prin- cipal in the bond to give new or additional sure- ties, or a new bond in a larger penalty, as the case requires, within such a reasonable time, not exceed- ing five days, as the surrogate fixes ; and directing that, in default thereof, his letters be revoked. ORDEK REQUIRING FPRTHER SURETIES. At a Surrogate's Court held in the county of , at the surrogate's oflBce in the . . . of , on the .... day of , 187 . Present — Hon , Surrogate. In the matter of the estate of , deceased. R P having heretofore presented his petition Letters mat be Ee yoked. 327 praying that , the administrator of the estate of the above named deceased, be re- quired to give further sureties, and a citation having been duly i.ssued thereip, and the same having been returned with proof of the due service thereof, and the said , having ap- peared, and the surrogate having heard the proofs and allegations of the parties, and being satisfied that C D, one of the sureties of said administrator, is about to remove from the State : Ordered that , said administrator, give further surety by at least one person, in a bond in the usual form in the penalty of dollars, within five days from the making of this order. , Su/rrogale. Decree revoking letters. § 2599. If a bond with new or additional sure- ties, 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, dismiss- ing the proceedings, upon such terms, as to costs, as justice requires ; otherwise, he must make a de- cree, removing the delinquent from office, and re- voking the letters issued to him. 328 Revocation op Letters. DECREE FOR REVOCATION OF LETTERS. At a Surrogate's Court, held in the county of ....... at the surrogate's office, in the .... of , on the .... day of , 188 . Present — Hon , Surrogate. 1 In the matter of the estate \ deceased. I R F, one of the next of kin of the above named deceased, having presented his petition pra_)ing that , administrator of the goods, chattels and credits of said deceased be ordered to give further sureties, and such proceedings having been thereupon had, that on the .... day of . . . . . . ., 1880, an order was duly entered in this court directing that said give further surities in the penalty of dollars, within five days from the entry of said order, as by re- ference thereto will more fully appear ; and it now appearing that the said has not given such bond, as required by said order, notwithstand- ing the lapse of the time in said order limited : It is ordered and adjudged, that the letters of administration issued to the said , out of this court, on the .... day of , 1873 be and the same are thereby revoked. Witness, surrogate of said county [l. s.] and the seal of the court, the day and year first above written. , Swrrogate, Discharge from the Bond. 329 So, the sureties of an executor or administrator, may apply to be released. Sureties may apply to be released. § 2600. 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 account of any future breach of the condition of the bond ; and that the principal in the bond may be cited to show cause, why he should not give new sureties. The surrogate must thereupon issue a citation ac cordingly. It does not seem that the surety desiring to be released, need give any reason for his application, but that it is the duty of the surrogate to entertain the proceeding upon his arbitrary wish. PETITION OF SURETY FOR RELIEF. Surrogate's Court. In tlie matter of the estate of , deceased. To Hon , Surrogate of the county of The petition of , of town of , in said county, respectfully shows, 330 Eelease op Sureties That your petitioner is one of the sureties of ... . to whom administration on the goods, chattels and> credits of , late of the town of , were on the .... day of , last, granted out of this court; and your petitioner desires to be released from responsibility on account of the future acts or defaults of such administrator. Your petitioner therefore prays that the said may be required to give new sureties. And your petitioner will ever pray, etc. Dated Feb. 20, 1880. Rensselaer county, ss : , being duly sworn, says : that he is the petitioner named in the foregoing petition and that the same is true of his own knowledge, except as to the matters therein stated to be alleged on information and belief and as to those matters he believes it to be true. (Signed) Sworn, etc. ORDER FOR CITATION ON APPLICATION OF SURETY, At a Surrogate's • Court held in the county of , at the sur- rogate's office in the of , on the . . . . , day of , 1880. Present — Hon , Surogate. In the matter of the estate of , (Jeoeased. A B, one of the sureties for C D, the administra- And Order for New Sureties. 331 tor of the goods, chattels and credits of the above named deceased, having presented his petition, praying to be released from further responsibility for the future acts or defaults of the said adminis- trator : Ordered that a citation issue to said C D, to ap- pear in this court, on the .... day of , 1880, at ten o'clock in the forenoon, to show cause why he should not give new sureties. Arrogate. On giving of bond, former sureties released. § 2601. Upon the return of a citation, issued as prescribed in the last section, if the principal in the bond files in the surrogate's office a bond in the usual form, with new sureties to the satisfac- tion of the surrogate, then or within such a reasonable time,* not exceeding five days, as the surrogate fixes, the surrogate must make a decree releasing the petitioner from liability upon the bond for any subsequent act or default of the prin- cipal ; otherwise he must make a decree, revoking the delinquent's letters. 332 Surety to be Released. DECREE RELEASING SURETY. At a Surrogate's Court held in the county of at the surrogate's office in the of on the day of , 1880. Present — Hon , Surrogate. In the, matter of the estate j ol deceased. I \ A B, one of the sureties of C D, the administra- tor of the goods, chattels and credits of the above named deceased, having applied to this court for relief, and an order having been made that said administrator give further sureties in place of said A B, and the said C D having given further sureties to the satisfaction of the surrogate, and a bond which is filed this day : Ordered and adjudged, that the said A B, shall not be liable on the bond signed by him as surety for the said C D, for any subsequent act or default of said C D, Witness Surrogate and the seal [l.s.J of the court, the day and year first above written. , Swrogate. But if the administrator shall fail to give new sureties within the time allowed by the surrogate, a decree must be made revoking his letters. Letters to be Eevoked. 333 DECREE REVOKING LETTERS. At a Surrogate's Court, held in the county of , at the surogate' s office in the .... of on the ... day of , 1880. Present — Hon , Surrogate. In the matter of the estate I of . . . , deceased. I C D, the administrator of the goods, chattels and credits of the above named deceased, having been ordered by the court to give a bond in the usual form with new sureties in place of A B, one of his sureties, who petitioned for relief, and having neg- lected to give such bond, and the time limited therefor having expired : It is ordered and adjudged, that the letters of of administration granted in this court to said C D, on the . . . day of , 1873, on the es- tate of the above named deceased, be and they are revoked and annulled, and the authority and rights of said C D, as such administrator shall cease. Witness, , Surrogate, and the seal of the court, the day and year [l. s.] first above written. , Surrogate. The new revision introduces a new provision for a method of settling disagreements between co- 334 Disagreement Between Executors, etc. executors, or co-administrators. It may be very useful. Surrogate may direct as to custody, when executors or administrators disagree. § 2602. Where two or more co-executors or co- administrators disagree, respecting the custody of money or other property of the estate ; or two or more testamentary trustees or guardians of the property disagree, respecting the custody of money or other property, belonging to a fund or an estate which is committed to their joint charge ; the surro- gate may, upon the application of either of them, or of a creditor or person interested in the estate, and proof, by affidavit, of the facts, make an order, re- quiring them to show cause, why the surrogate should not give directions in the premises. Upon the return of the order, the surrogate may, in his discretion, make an order, directing that any prop- erty of the estate or fund be deposited in a safe place, in the joint custody of the executors, admin- istrators, guardians, ot testamentary trustees, as the case requires, or subject to their joint order ; or that the money of the estate be deposited in a specified safe bank or trust company, to their joint credit, and to be drawn out upon their joint order. Disobedience to such a direction may be pun- ished as a contempt of the court. Disagreement of Executoes, etc. 335 . The provisions of this section are new, not only in form, but are of a novel character, and in the abscence of any judicial interpretation, we cannot pronounce authoritatively as to the scope of the section. It cannot be presumed that the surrogate will effectively interfere because executors disa- gree as to the custody of securities, for the seuri- ties may be in perfectly safe hands, and in the possession of one of the executors. Nor does it follow that because one executor has deposited the funds of the trust, subject to his sole control as executor, the surrogate should direct a different disposition. For the funds may be in the best possible custody. And it must be remem- bered that each executor or administrator repre- sents the whole estate and, so to speak, may bind ,or loose. Nor, does it seem that the fact simply, that the executors do not agree will warrant the interfer- ence of the surrogate, for they would agree no better after he should have made an order. It would seem then, that the surrogate should exercise his discretionary power under this section only when by reason of the disagreement of the exe- cutors or administrators, the interests of the estate are in jeopardy, and that he can, by his order, rea- sonably expect to benefit the estate. . 336 f'ETITION OF ONE EXEOUTOE. PETITION OF EXECUTOR FOR ORDER. Surrogate's Court. In the matter of the estate of , deceased. y To Hon , Surrogate of the county of : The petition of C D, one of the executors of the will of A B, late of the of , , respectfully shows : That letters testamentary upon the will of said A B, deceased, were, on the day of , 1879, issued and granted in this .court to your petitioner and E F, who were named as executors in said will. That before the issue of said letters, the papers and assets of the said deceased were in the posses- sion and under the control of the said E F (or im- mediately after the completion of the inventory made by said executors of the goods and estate of the said deceased, the said E F, took possession of all the papers and effects belong to the said estate), and he still retains them and refuses to' permit your petitioner to see and examine the said papers or to control any of the moneys which make part of the estate of the said deceased. And your petitioner further says that inquiries have been made by some of the debtors of the de- cedent in relation to the terms of their liabilities Oedee to be Issued. 337 which your petitioner was not able to satisfy be- cause he could not have access to said papers. And he further says, that acting in good faith as such executor, your petitioner has assumed cer- tain obligations in relation to the payment of the funeral expenses of the decedent and of certain ex. penses of administration, and by reason of the cus- tody which the said E F retains of the money be- longing to the estate, your petitioner is unable to pay such sums except from his own resources. Your petitioner therefore prays, that the surro- gate shall give direction in the premises. And your petitioner will ever pray, etc. Dated June 1, 1880. (Signed) C D. county, ss : C D, being duly sworn, says that he is the peti- tioner named in the foregoing petition, and that the same is true of his own knowledge, except as to the matters which are therein stated to be al- leged on information and belief, and as to those matters he believes it to be true. (Signed) C D. Sworn, etc. The practice in this case, requires the making of an order, instead of the issue of a citation as is usual. In such a case therefore, the time may be fixed for the return, as the surrogate may think proper. 22 338 Eevocation of Letters in Case We apprehend that the difficulties which may exist between executors will not be much smoothed by the proceeding. The following provisions are not new, in the main, but the various statutes are grouped in one section. They are found principally in chap. 460, of Laws of 1837. Bevooation of letters for disqualification, etc. § 2685. In either of the following cases, a creditor, or person interested in the estate of a de. cedent, may present, to the Surrogate's Court, frota which letters were issued to an executor or ad- ministrator, a written petition, duly verified, praying for a decree revoking those letters ; and that the executor or administrator may be cited to show cause, why a decree should not be made accordingly : 1, Where the executor or administrator was, when letters were issued to him, or has since be- come, incompetent, or disqualified by law to act as such ; and the grounds of the objection did not exist, or the objection was not taken by the peti- tioner, or a person whom he represents, upon the hearing of the application for letters.* 2. Where, by reason of his having wasted or improperly applied the money or other assets in Of Misconduct in Office. 339 his hands, or invested money in securities un- authorized by law, or otherwise iinprovidently managed or injured the property committed to his charge ; or by reason ol" other misconduct in the execution of his office, or dishonestj', drunkenness, improvidence, or want of understanding; he is ■ unfit for the due execution of his office. 3. Where he has wilfully refused, or, without good cause, neglected, to obey any lawful direction of the surrogate, contained in a decree or order ; or any provision of law, relating to the discharge of his duty. 4. Where the grant of his letters was obtained by a false suggestion of a material fact. 5. In the case of an executor, where his circum- stances are such, that they do not afford adequate security to the creditors or persons interested, for the due administration of the estate. 6. In the case of an executor, where he has re- moved or is about to remove from the Stalte, and the case is not one, where a non-resident executor would be entitled to letters without giving a bond. 7. In the, case of an executor, where, by the terms of the will, his office was to cease upon a contingency, which has happened. 8. In the case of a temporary administrator, appointed upon the estate of an absentee, where 340 Petition, Contents Of. it is shown that the absentee has returned ; or that he is living, and capable of returning and resuming the management of his affairs ; or that an executor, or an administrator in chief, has been appointed upon his estate ; or that a committee of his property has been appointed by a competent court of the State. Petition; citation. § 2686. A petition, presented as prescribed in the last section, must set forth the facts and cir- cumstances, showing that the case is one of those therein specified. Upon proof, by affidavit or oral testimony, satisfactory to the surrogate, of the truth of the allegations contained in the petition, a citation must be issued according to the prayer thereof; except that, where the case is within subdivision fifth of the last section, and the execu- tor has given a bond, as prescribed in article first of this title, the surrogate may, in his discretion, entertain or decline to entertain the application. PETITION WHERE CIRCUMSTANCES OF EXECUTOR ARE PRECARIOUS. Surrogate's Court. -, ■ .. « In the matter of tlie estate deceased. To Hon , Surrogate of the county of : The petition of of the of , Petitioner's Statement of Facts. 341 in said county, respectfully shows, on information and belief, as follows : Your petitioner is one of the legatees named in the will of , late of the of in said county which will was duly proved in this court, on the .... day of , 1880, and upon which letters testamentary were, on the same day, issued to an executor named in said will, who gave no bond for the faithful performance of his duties as such executor. And your petitioner charges and states as a fact, that the circumstance of the said said executor, are such that they do not aflford adequate security to your petitioner and the other persons interested, for the due administration of the estate committed to him. And your petitioner prays for a decree revoking the letters issued as aforesaid to the said and that he may be cited to show cause why a decree should not be made accordingly. And your petitioner will ever pray, etc. (Signed) Dated Feb. 20, 1880. Rensselaer County, ss : being duly sworn, says that he is the petitioner named in the foregoing petition, and that said petition is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters, that he believes it to be true. ^wprn, etc, 342 Citation Served on Executor. The citation when issued must be served on the executor at least eight days if he reside in the same or an adjoining county to the surrogate, and fifteen days in any other county in the State. It is believed that the surrogate, may, by virtue of his power of general control, as formerly by S. L. 1837, chap. 360, enjoin the executor from further action until the matter in controversy shall be settled. Hearing; decree. § 2687. Upon the return of a citation, issued as prescribed in the last section, if the objections, or any of them, are established to the surrogate's satisfaction, he must make a decree, revoking the letters issued to the person complained of. But the surrogate may, in his discretion, dismiss the proceedings, upon such terms, as to costs, as justice requires, and may allow the letters to remain un- "evoked, in either of the following cases : 1. Where the case is within subdivision third of the last section but one, if the direction of the surrogate or the provision of law is obeyed, and suitable amends made to each person injured by the neglect or refusal to obey it. 2. Where the case is within subdivision fourth of that section, if the person cited is entitled to letters, notwithstanding the false suggestion. Certain Cases. 343 3. Where the case is within subdivision fifth of that section, if the executor gives, within a reason- able time, not exceeding five days, a bond, as pre- scribed in article first of this title. Where an executor has no property except an unliquidated demand, and was about to remove from the State, held, that he should be required to give security. {Wood v. Wood, 4 Paige, 299; Holmes v. Cock, 2 Barb. Ch., 426.) An executor should not be required to give security, merely because he does not own property to the full value of the estate, and when there is no ground for supposing that the trust fund is in danger. [Mandeville v. Mandecille, 8 Paige, 475). The main point is, whether, the circumstances being considered, it is doubtful whether the trust fund is safe in his hands, to be administered as directed. {Gottrell v. Brock, 1 Brad., 148.) The circumstances of an executor are precarious within the statute, only when his character and conduct present such evidence of improvidence or recklessness in the management of the trust estate, or of his own, as in the opinions of prudent and discreet men, endangers its security. Though bankruptcy might furnish a reason for superseding an executor,' poverty does not. {Shields v. Shields, 60 Barb., 56.) Bii Penalty of Bond. The bond, if given, is similar to that of adminis trators, mutatis mutandis. But if the executor gives a bond, his sureties will be liable thereon, not only for all sums received by the executor after the giving of the bond but also for all moneys misappropriated before that time. [Schofield v. Hustis, 9 Hun., 157 ; see also Gottsherger v. Taylor, 19 N. Y., 150.) Where the estate consisted wholly of realty with an annual rental of $20,000, held by the executor in trust under the will ; on an order that the executor give a bond with sureties ; Held, that the amount of the penalty of the bond was discre- tionary with the surrogate. Held, further, that the bond having been fixed with a penalty of $50,000 the sureties would not be required to justify in twice the amount of the penalty. [Matter of Hart, 2 Redf. Sur. R., 156.) But in certain cases letters testamentary or of administration may be revoked, peremptorily by the surrogate, and without notice to. the party. Letters may be revoked without citation in certain cases. § 2691. In either of the following cases, the surrogate must make a decree, revoking letters testamentary or letters of administration, issued from his court, without a petition or the issuing of a citation : Person to Whom Letters are Issued 345 1. Where the person, to whom the letters were issued, is not a resident of the State, or is absent therefrom ; and, upon being duly cited to account, neglects to appear upon the return of the citation, without showing a satisfactory excuse therefor ; and the surrogate has not sufficient reason to believe that such an excuse can be made. 2. Where a citation, issued to such a person, in a case prescribed by law, cannot be personally served upon him, by reason of his having absconded or concealed himself. 3. Where, by reason of his default in returning an inventory, such a person has remained, for thirty days, committed to jail, under the surrogate's order, granted in proceedings taken as prescribed in section 2715 of this act. 4. In a case of temporary administrator, where an order has been made and served, as prescribed in section 2679 of this act, directing him to deposit money, or show cause why a warrant of attach- ment should not issue against him; and a warrant of attachment, issued thereupon, has been returned not served upon him. The cases provided for in this section seem not to be original proceedings ; that is, they do not proceed upon a petition for a revocation, but they 346 Proceedings shall Recite the Neglect. seem to come in the course of other proceedings as remedial or punitive. The decree revoking the letters then will isssue in the course of the proceedings already entertained and will recite (1), the neglect of the party to appear, (2), that he cannot be served because he has absconded or con- ceals himself, (3), that he continues contrivances in relation to the order that he returns an inven- tory, or (4), that he cannot be served with a war- rant of attachment for contempt. Effect and contents of decree revoking letters. § 2603. Upon the entry of a decree, made as prescribed in this chapter, revoking letters issued by a Surrogate's Court to an executor, adminis- trator, or guardian, his powers cease. The decree may, in the discretion of the surroga'te, require him to account foi" all money and other property re- ceived by him ; and to pay and deliver over all money and other property in his hands, into the Surrogate's Court, or to his sucessor in office, or to such other person as is authorized by law to re- ceive the same ; or it may be made without pre- judice to an action or special proceeding for that purpose, then pending, or thereafter to be brought. The revocation does not affect the validity of ^ny act, within the powers conferred by law upon the Eevocation does not Affect Liability. 347 executor, administrator, or guardian, done by him before the service of the citation, where the other party acted in good faith ; or done after the service of the citation, and before entry of the decree j where his powers with respect thereto were not suspended by- service of the citation, or where the surrogate, in a case prescribed by law, permitted him to do the same, notwithstanding the pendency of the special proceeding against him ; and he is not liable for such an act, done by him in good faith. The last section qualified. § 2604. The last section does not affect the liability of a person, to whom money or other pro- perty has been paid or delivered, as husband, wife, next of kin, or legatee, to respond to the per- son 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. Successor may be appointed and may compel an ac- counting. § 2605. Where letters have been revoked by a decree of the Surrogate's Court, that court has, 348 Successor may be Appointed. 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 com- mitted to his predecessor ; he may continue, in his own pame, a civil action or special proceeding, pending in 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 creditor or person interested in the estate, if the term of office, conferred by the letters, had expired by its own limitation. The subject and the manner of compelling an account, is treated of fully hereafter. Accounting by an executor of a deceased executor. § 2606. Where an executor, administrator, guardian, or testamentary trustee dies, the Sur- rogate's Court has the same jurisdiction, upon the petition of his successor, or of a surviving executor, administjator, or guardian, or of a creditor, or Bond may be'^Prosecuted 349 person interested in the estate, or of the guardian's ward, to compel the executor or administrator of the decedent to account for and deliver over any of the trust property which has come to his pos- session, or is under his control, which it would have as against the decedent, if his letters had been revoked. Successor may prosecute ofS.cial bond. § 2608. Where letters have been revoked by a decree of the Surrogate's Court, the successor of the 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 re- garded as [part of the estate in the hands of the plaintiff, and must be distributed or otherwise dis- posed of accordingly ; except that a recovery for an act or omision, 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 350 Action on Bond. any person, is for the benefit of the person or per- sons so entitled thereto. Action on bond when no successor appointed. §2609. Where the letters of an executor or administrator have been so revoked, and no suc- cessor is appoi'Qted, any person aggrieved may, upon obtaining an order from the surrogate, grant- ing 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 adminis- tered by him, and to the full extent of any injury, sustained by the estate of the decedent, by any act or omission of the principal. The money re- covered 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 dis- tribute it to the creditors or other persons entitled thereto. The proceedings for such a distribution are the same as prescribed in title fifth of this chapter, for the distribution of the pro. ceeds of a sale of real property. Application of this article. § 2610. The provisions of this article apply to Effect of Eevo cation. 351 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. Decree revoking letters not to affect trusts. § 2688. Where an executor or an administrator is also a testamentary trustee, a decree revoking his letters does not affect his power or authority as testamentary trustee, except in the case specially prescribed for that purpose, in title sixth of this chapter. Title sixth referred to contains the provisions in relation to a testamentary trustee, § 2802, etc., and will be fully quoted and elaborated hereafter. Application by executor or administrator for revoqa- tion of letters. § 2689. An executor or administrator^ may, at any time, present to the Surrogate's Court a writ- ten petition, duly verified, praying that his account may be judicially settled ; that a decree may there- upon be made, revoking his letters, and discharging him accordingly ; and that the same persons may be cited to show cause, why such a decree should not be made, who must be cited upon a petition for a judicial settlement ol his account, as pre- 352 The Facts to be Set Forth. scribed in article second of title fourth of this chapter. The petition must set forth the facts upon which the application is founded ; and it must, in all other respects, conform to a petition praying for a judicial settlement of the account of an exec- utor or administrator. The surrogate may, in his discretion, entertain or decline to entertain the application. This is the inauguration of a new proceeding in the Surrogate's Court and is the conferring on the court the same power in relation to executors and administrators which the Supreme Court has held in relation to trustees. There has been a similar provision, however, in force in relation to the re- moval of guardians, on 'their own application. As the petition is addressed to the discretion of the surrogate, the reasons stated why the petition should not be granted must appear and must be such as are especially important to the estate, rather than to the person who petitions. It is presumed that if an executor or administrator is about to remove to such a distance as that his at- tendance upon his duties would be expensive, or that by reason of age or failing health, the execu- tor or administrator cannot longer attend well to his duties, a case would be made in which the de- cree removing him would be granted. Petition for Revocation. 353 PETITION BY EXECUTOR FOR SETTLE- MENT AND REVOCATION. In the matter of the estate ] ... . • . , deceased. ' Surrogate's Court. sstate J To Hon , Surrogate of the county of '• The petition of C D, of the town of , in said county, respectfully shows as follows : That letters testamentary upon the will of the above named deceased were granted and issued in this court to your petitioner on the . . day of last, and your petitioner has duly filed an inventory of sai'd estate, and faithfully dis- charged his duties as executor of said will, up to this time. But your petitioner has made such arrange- ments as to his future business, that it will be necessary hereafter for him to reside in the State of Iowa, whither he now intends to remove, on or about the first day of March next, and such re- moval will render it very inconvenient and very expensive for your petitioner to attend to his du- ties as such executor. And your [)etitioner further says, that A B, E F and G II are the legatees named in said will, and 'reside within the county of , and -3 354 Prayer of Petitioner that R L is your petitioner's co-executor, and that your petitioner is unable to state who are the cred- itors of the decedent, for the reason that the time for the expiration of the notice to creditors to pre- sent claims published according to the order of this court has not yet expired. Wherefore your petitioner prays that his account may be judicially settled; that a decree maybe made revoking his letters and discharging him ; and that the persons above named interested may be cited to show cause why such decree should not be made. And your petitioner will ever pray, etc. Dated Troy, Feb. 25, 1880. Rensselaer county, ss : , being duly sworn, says that he is the petitioner named in the foregoing petition, which is true of his own knowledge, except as to tlie matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be true. (Signed) Sworn before me, etc. Proceedings thereupon. § 2690. If the surrogate entertains an applica- tion, made as prescribed in the last section, the proceeHings thereupon must be, in all respects, the same, as upon a petition for a judicial settlement of the petitioner's account ; except that, upon the And when a Decree to be Made. 355 hearing, the surrogate must first determine, whether sufficient reasons exist for granting the prayer of the petition. If he determines that they e.xist, he must make an order accordingly, and allowing the petitioner to account, for the purpose of being dis- charged. Upon his fully accounting, and paying over all money which is found to be due from him to the estate, and delivering over all books, papers, and other property of the estate in his hands, either into the Surrogate's Court, or in such a manner as the surrogate directs, a decree may be made, revoking the petitioner's letters, and dis- charging him accordingly. The citation having been returned, and the sur- rogate deciding that sufficient reasons exist for granting the application, he makes an order that petitioner account. ORDER THAT PETITIONER ACCOUNT. At a Surrogate's Court, held in the county of at the surrogate's office in the of on the day of , 1880. Present — Hon , Surrogate. 1 J C D, the executor of the will of the above named In the matter of the estate of , deceased. 356 Proceedings on Petition * deceased having petitioned that his letters testa- mentary may be revoked and a citation having been issued to A B, C D, and E P, the legatees named in said will, and to R L, the co=executor of the said C D, and the surrogate having ex- amined the matter and determined that the said C D, executor, is about to remove from this State and that such contemplated removal is a sufficient reason for granting the prayer of the petition. Ordered that the said C D, be allowed to account for his proceedings as such executor for the pur- pose of being discharged , Surrogate. The executor or administrator, the parties being all either before the court or cited, will file his ac- count, made in all respects, as far as" possible like the first account of an executor or administrator. As the form and manner of preparing and render- ing an account will be treated at large in the chapter on accounting hereafter, the reader is re- ferred to that chapter. If the executor or administrator shall then fully account and pay over all money which shall be found due from him to the estate, and shall de- liver over all books, papers and other property of the estate in his hands, either into the Surrogate's Court or to his co-executor, if the surrogate shall so direct, a decree will be made. Decree Revoking Letters. 35T DECREE REVOKING LETTERS. At a Surrogate's Court held in the county of at the surrogate's office in the ... of on the . . . day of , 1880. Present — *HoN Surrogate. In the matter of tlie estate of , deceased. C D, one of the executors of the will of the above named deceased, having petitioned this court that his account be judicially settled and that his letters be revoked, and he discharged, and that the legatees named in said will and R L, his co- executor, be cited to show cause why a decree should not be made accordingly, and a citation having been issued to A B, E F, and G H, said legatees and to R L, said executor, accordingly and said citation having been duly served and the said A B, and R L, having appeared, and the surrogate having determined that a sufficient reason exists for granting the prayer of the peti- tioner, and the said petitioner having rendered his account, and there having been found due from him to the estate uf said deceased the sum of dollars, and the said C. D, having paid over said sum to R L, his co-executor 358 Decree Eevoking Letters. as directed by the surrogate, and having fui ther delivered to said R L, all books, papers and other property of the estate in his hands. It is ordered, adjudged and decreed, that the letters testamentary heretofore issued by this court to the said C D, as an executor of the will of said , deceased, on the .... day of , 1879, be and the same are revoked. And it is further adjudged that the said C D, is discharged from liability or responsibility as such executor, Witness Surrogate, and the [l. s.] seal of the court, the day and year first above written. , Surrogate. Discovery and Recovery of Assets, 359 CHAPTER XII. Discovery and Recovery of Assets. The legislature by chap. 394, of Laws of 1870J have provided for a summary process, to discover assets belonging to a deceased person, or to which he was entitled at the time of his decease, when they are improperly concealed or withheld by any person, by a subpoena, and an examination of persons designated, by the executor or adminis- trator. These provisions much amended appear in the revision as follows ; Proceedings to discover property. § 2706. An executor or administrator may pre- sent to the Surrogate's Court, from which letters were issued to him, a written petition, duly verified, setting forth, upon knowledge, or information and belief, any facts, tending to show that money or other personal property, which ought to be de- livered to the petitioner, or which ought to be included in an inventory or appraisal, is in the possession or under the control of a person, who withholds the same from him ; or conceals or 360 Discovery of Assets. refuses to exhibit it, so that it cannot be inven- toried or appraised ; and praying an inquiry respecting it, and that the person complained of may be cited to attend the inquiry, and to be examined accordingly. The petition may be accompanied with an affidavit or other evidence, written or oral, tending to support the allegations thereof. If tiie surrogate is satisfied, upon the papers so presented, that there are reasonable grounds for the inquiry, he must issue a citation accordingly ; which may be made returnable forth- with, or at a future time fixed by the surrogate, and may be served at any time before the hearing. Where persons to be cited reside in another county. § 2707. Where the person or any of the persons,* to be cited, does not reside, or is not within the county of the surrogate, the citation may, in the the surrogate's discretion, require him to appear at a specified time, at a place within the county where he resides or is served, before a judge, a justice of the peace, or a referee, designated in the citation, or before the surrogate of that county. It will be observed that the time of the return of the citation is in the discretion of the surrogate. Petition for Discovery. 361 PETITION FOR CITATION. Surrogate's Court, Rensselaer county. In the matter of the goods, etc., | J. . . . D deceased. j To Hon. Moses Warren, surrogate of said county : The petition of A B, of the town of respectfully shows to the court that your petitioner is the executor of the last will and testament of J D, late of said town, dec'd (or the administrator of the goods, chattels, anil costs of J D, dec'd), and that letters testamentary (or, of administration), were issued to deponent by this court on the .... day of last past. That your petitioner has made search and inquiry for the goods, chattels and credits of said deceased and from such inquiry he believes that some of such chattels, to wit : one bay horse, one watch, and one diamond ring (or such other property as the executor may have learned of), which were in possession of the said deceased at the time of his death (or which were in the possession of the deceased within two years prior to his decease), are withheld (or concealed), by A B and C D, who were about the person of the deceased, prior to his decease (or into whose hands the said effects of the deceased have fallen) . That your petitioner has demanded such articles from 362 Contents op Petition. the said A B and C D, who have refused to deliver the same. And he further says, that the reasons and grounds for his belief that such property belongs to the estate of the deceased are his personal knowledge that the said deceased owned them (or, information derived from A B and B C, whose affidavits are hereunto annexed), and your peti- tioner prays the aid of this court, for the recovery and discovery of such property, and that a citation issue out of this court to (naming the persons), requiring them to appear at a time and place therein to be specified, lor the purpose of being examined touching the estate and effects of the said deceased. And your petitioner will ever pray, etc. (Signed), Dated N. Y., Feb. 56, 1880. Rensselaer county, ss : being duly sworn, says that he is the petitioner named in the foregoing petition, which is true of his own knowledge, except as to the matters which are therein stated to be alleged on infonnation and belief, and as to those matters, he believes it to be true, sworn, etc. (Signed), Citation to Persons ha vino Assets. 363 ORDER FOR CITATION. At a Surrogate's Court, held in the county of at the surrogate's office in the . . . of . . . ., on the day of , 1880. Present — Hon ., Surrogate. In the matter of the goods | \ , deceased. j , . . having presented his petition to this court, duly verified, accompanied by affidavits, and it appearing to the surrogate that there are reason- able grounds for inquiring whether certain assets of the estate of the above named deceased, are in the possession or under the control of who withholds them from said the executor of the will of said deceased. Ordered that a citation issue to the said requiring to appear in this court on the .... day of 1880, at ten o'clock' in the forenoon (or forthwith), to be examined in relation to such assets. Skirrogate. The proof presented to the surrogate by the pe- tition and other proof oral, or by affidavit, must make it appear to the satisfaction of such officer. 364 Grounds for Petition. that there are reasonable grounds for believing that the effects sought to be recovefed are concealed or withheld. In analogy to the practice in the Su- preme Court, in warranting au order for arrest, it is presumed that the circumstances, from which a reasonable presumption may be drawn, that such effects are concealed or withheld, should be verified by the affidavit or affidavits used. It will not be sufficient to move upon papers simply declaring that there are reasonable grounds for the belief that the effects are concealed or withheld. Certain other oflacers may entertain proceeding. § 2709. If the surrogate is absent, the petition may be presented to the county judge, the special county judge, or the special surrogate, or to a jus- tice of the Supreme Court, or a judge of a Superior City Court within his city, or, except in New York or Kings county, to the mayor or recorder of a city within the surrogate's county. The officer, to whom it is so presented, has the same power as the surro- gate, with respect to all the proceedings, and must issue a citation and an order, returnable before him, or as prescribed in the last two sections. He may, at any stage of the proceedings, make an or- der transferring them to the surrogate, who must thereupon complete them, in like manner, as if he had issued the citation. Hearing as to Assets. 365 Examination of persons cited. § 2710. Upon the attendance oi a person, to whom a citation is issued, as prescribed in this ar- ticle, he must be sworn to answer truly all ques- tions put to him, touching the inquiry prayed for in the petition ; and he may be examined fully and at large, respecting any money or other property of the decedent, or of which the decedent had pos- session at the time of, or within two years before, his death. A refusal to be sworn, or to answer any question which the officer conducting the ex- amination determines to be proper, is punishable by the officer or referee conducting the examina- tion, in the same manner as a like refusal by a witness, subpoenaed to attend a hearing before the surrogate. Additional evidence. § 2711. After the examination of all the parties cited is completed, unless one or more of them give security, as prescribed in the next section but one, either party may produce further evidence, in like manner and with like effect as upon a trial. The proceeding is a judicial one and the testi- mony reviewable therein, is subject to the restric- ions of section 39'J (829) of the code, prohibiting the admission of evidence given by parties inter- ested in the proceeding as to personal transactions 366 Surrogate to Award Possession. had with the deceased [lilton v. Ormshy, 10 Hun, 7.) Decree awarding possession tp petitioner. § 2712. Where it appears to the surrogate or other oflBcer who issued the citation, from the ex- amination and other testimony, if any, that there is reason to suspect, that money or other property of the decedent is withheld or concealed by the person cited, he must, unless that person gives se- curity, as prescribed in the next section, make a decree, reciting the ground of making it, and re- quiring the person cited to deliver possession of the money or other property to the petitioner- The decree must specify the sum of money or describe the other property. Where it is made by an officer, other than the surrogate or temporary surrogate, it must be entered, and may be enforced, as a decree of the Surrogate's Court. In order to justify an order requiring the delivery, the surrogate must find as a fact, that the prop- erty belongs to the estate ; it is not enough that he should determine that there is probable cause to believe that it belongs to it. {Tilton v. Ormsby, sup.) In these proceedings, the surrogate has no power to try the title to the property in dispute. The Decree for Possession. 367 court will not, therefore, on the examination of the person withholding the property, hear testi- mony as to the ownership by him. [Matter of Gates, 2 Redf. Sup. C. Rep., 144 ; Summerfield v. Howie, id., 149.) The order should specify distinctly the property, delivery of which is required, and an order which, after specifying certain articles, proceeds, " and all other property, goods, etc., of the said deceased, in her possession or under her control, at her place of residence," is too broad and must be reversed. [Tilton V. Ormshy, 10 Hun, 7.) DECREE. At a Surrogate's Court held in and for the county of Rensselaer, at the surrogate's office in the city of Troy, on the . . . day of , 1880. Present — Hon. Moses Warren, Surrogate. In the matter of the goods, etc.. of J. . . . D. . . . , deceased. It appearing from the testimony in this matter, that certain effects of the above named deceased, to wit : one bay horse, one gold watch (naming and describing the articles), are concealed (or withheld) by G B, of the town of Nassau, in said county. 368 Security to Prevent Decree. It is ordered and adjudged that the said G B deliver possession ol said property to E P, execu- tor of the will of said deceased. "Witness, , Surrogate, and [l. s.] the seal of the court, the day and year first above written. Surrogate. Security to prevent decree. § 2713. The security, to be given as prescribed in the last section, must be a bond to the petitioner, executed by the person cited, with such sureties and in such a penalty as the surrogate approves ; des- cribing the property or specifying the sum of money ; and conditioned that the principal in the bond will pa,y' to the obligee, or his successor, the money ; or that he will deliver to him the prop- erty, or, in default thereof, pay to the obligee the full value of the property, and, in either case, that he will pay all damages awarded against him for withholding the property, whenever it is deter- mined, in an action or special proceeding to be bi ought by the obligee or his successor, that it be- longs to the estate of the decedent. Upon the presentation of such a bond, and the payment of the costs, if any, which the surrogate or other offi- cer awards to the petitioner, within such a time as the surrogate or other officer fixes for that pur- Surrogate to Issue Warrant 369 pose, an order must be made, dismissing the pro- ceedings. "Warrant to issue. § 2714. Where the decree requires the person cited to deliver money, disobedience thereto may be punished as a contempt of the court. Where it requires him to deliver possession of other pro- perty, a warrant must be issued, upon the applica- tion of the petitioner, directed to the sheriff, or, generally, to any constable of the county, or any marshal of the city, where the property may be found ; commanding him to search for it ; to seize it, if it is found in the possession of the person cited, or his agent, or a person deriving title from him since the presentation of the petition, and for that purpose, if neceseary, to break open any house in the day time; to deliver the pro- perty so seized, to the petitioner ; and to return the warrant within sixty days thereafter. If the decree was made by the surrogate or temporary surrogatCj the warrant must be under the seal of the Surrogate's Court ; if by any other officer, it must be under his hand, and returnable before him. The issuing of such a warrant does not affect the power of the court to enforce the decree, 24 370 Warrant for Possession. or any part thereof, by punishing a disobedience thereto. WAERANT. The people of the State of New York to [l.s.] the sheriff of the county of Rensselaer or any constable of said county, Greeting : We command you, that upon the receipt hereof you do forwith search for and seize, one bay horse, one gold watch (enumerating the articles) sup- posed to be in the possession of G B, in your baili- wick, and for that pui"pose, if necessary, to break open any house in the day time, and that you deliver said property to J. D, the executor of the will of A B, deceased, and that you make return thereof with this writ, to our surrogate of the county of Rensselaer. Witness, Moses Warren, Surrogate of our county of Rensselaer and the seal of our said court this day of 1880. Moses Warren, Surrogate. As we are in press, the Supreme Court, Third Department decide that the act of 1870, substan- tially re-enacted in therevision, is unconstitutional. {Matter of Beebe, 20 Hun, 462.) Appointment of Appraisers. 371 CHAPTER Xlir. Appointment of Appraisers and the Inventory. The duty of taking an inventory is too often neglected, while in fact the omission to make and file it, according to the statute, is a strong circum- stance in support of the charge of improper con- duct in an administrator. [Hart v. Ten Eyck, 2 Johns' Ch., 80.) "Upon the application of .any executor or ad- ministrator, the surrogate who granted letters tes- tamentary or of administration, sh^all by writing, appoint two disinterested appraisers, as often as occasion may require, to estimate and appraise the property of the deceased person. (2 R. S. 82, §1.) Fees of an appraiser. § 2566. An appraiser is entitled, in addition to his actual expenses, to a sum, to be fixed by the surrogate, not exceeding five dollars for each day, actually and necessarily occupied by him, in mak- ing the appraisal or inventory. The number of days' services, and the expenses, if any, must be proved by the affidavit of the appraiser; and the 372 Appraisers to be Appointed. sum payable therefor taxed by the surrogate, and paid by the executor or administrator. Clerk not to be appraiser. § 2511. A clerk, or other person, employed in any capacity in a surrogate's office, shall not act as appariser. The law would seem to require a warrant of ap- pointment of the appraisers, and such, in fact, is the practice, to issue the warrant upon the order of the court. ORDER FOR APPRAISERS. At a Surrogate's Court, held in and for the county of at the surro- gate's office in the of , on the .... day ol , 1874. Present — Hon , Surrogate. In the matter of the estate of , deceased. j On the application of , executor of the last will and testament of deceased : Ordered that , of the city of , an Mcecutors. It is not required, but it is believed to be good practice, to annex to the inventory when filed, proof by affidavit, of the service and posting of the notice of the appraisement. " § 4. Before proceeding to the execution of this duty, the appraisers shall take and subscribe an oath to be insertecJ'in the inventory made by them, before any officer authorized to administer oaths, that they will truly, honestly, and impartially appraise the personal property which shall be ex- hibited to them, according to the best of their knowledge and ability." 376 Inventory, Form Of. ' § 5. The appraisers shall, in the presence of uch of the next of kin, legatees or creditors of the testator or intestate as shall attend, proceed to estimate and appraise the property which shall be exhibited to them, and shall set down each article separately, with the value thereof, in dollars and cents distinctly in figures, opposite to the articles respectively." (Id.) INVENTORY. We, whose names are hereunder signed, ap- praisers, appointed by the surrogate of the county of Rensselaer, having first taken and subscribed the oath hereinafter inserted, do certify that we have estimated and appraised the property in the annexed inventory contained, exhibited to us, ac- cording to the best of our knowledge and ability, and we have signed duplicate inventories thereof. Dated this .... day of > Appraisers. State of New York, ) Rensselaer county, j ' I, do solemnly swear that I will truly, honestly and impartially appraise the personal property^ of , deceased, which shall be ex- hibited to me, according to the best of my knowl- edge and ability. Subscribed and sworn, this .... day of 18 . . . ., before me. Form of Inventoey. Z11 State of New York, 1 Eensselaer County. j I, do solemnly swear that I will truly, honestly and impartially appraise the personal property of , deceased, which shall be exhibited to me according to the best of my knowl= edge and ability. Subscribed and sworn, this day of 18 , before me. A true and perfect inventory, of all and singular, the goo;ls, chattels and credits of , de- ceased, made by , etc., of the de ceased, with the aid of , appraisers, appointed by the surrrogate of the county of Rens- selaer, duly qualified, and after service of notice, as the law directs, on the day of , one thousand eight hundred and seventy The following articles are stated but not ap- praised, being set apart, according to law, for the widow (and minor children), to wit: One spinning wheel. One weaving loom. One knitting machine. One sewing machine. Thre ^ stoves kept for the use of the family. [And so on to property exempt from appraisal.] The following articles are appraised and set apart for the use of the widow (and minor child- ren), in addition to those enumerated above, in pursuance of the statute, to wit : One mahogany bureau, - - - - $16.00 One bay mare, ----- 75.00 One half barrel flour, - - - . 5.00 378 Property Enumerated One cord wood split for use, - 5.00 Cash, 60.00 $150.00 We have further set apart for said widow and minor children, the followini? articles of personal property in addition to the above : One pair sorrel horses : - . - $100.00 Cash, 60.00 150.00 The following are enumerated as assets in ad- dition to the above : Forty sheep, .... $100.00 One sorrel horse, - - - 60.00 One black horse, 75.00 [And thus through like articles.} The following accounts and notes are considered good and collectable : Note John Myers, dated Peby.. iO, 1860, for $100, interest endorsed for two years now worth, - - . - - $100.00 Account against James Jones, - - 15.00 [And thus through the good items.] The following are considered doubtful : Note Thomas Nokes, dated Aug. 1, 1872, no endorsement, . . . - - $16.00 [And so through the doubtful. J The following are considered bad : [State items in detail.] Dated June 6, 1874. (Signed), 1 Appraisers. The inventory is made in duplicate, one copy for filing, and one to be preserved by the execu- tors or administrators. And Described. 379 " § 6. The following property shall be deemed assets and shall go to the executors or administra- tors, to be applied and distributed as part of the personal estate of their testator or intestate, and shall be included in the inventory thereof: " " 1. Leases for years; lands held by the deceased from year to year, and estates held by him for the life of another person." [Reynolds v. Oollier, 3 Hill, 441, Despard v. Ghurchill, N. Y., 53, 192.) " 2. The interest which may remain in the de- ceased at the time of his death, in a term for years, after the expiration of any estate for years therein, granted by him or any other person. " 3. The interest in lands devised to an executor for a term of years, for the payment of debts. " 4. Things annexed to tliC 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." Hop poles used on the land are a part of the realty. {Bishop v. Bishop, 11 N. Y., 123.) Cotton machinery is personal property. ( Van Derpoel v. Van Allen, 10 Barb., 157.) Looms in a woolen mill are personal estate {Murdock v. Gifford, 18 N. Y., 28), while the water wheel, gearing, millstones and bolting appa- ratus are part of the realty. [Murdock v. Qifford, sup., and House v. House, 10 Paige, 158.) Manure, the produce of a farm, passes with the realty. (Middlebrook v. Gorwin, 15 Wend., 169 ; Goodrich v. Jones, 2 Hill, 142 ; see also Foy v. 380 Things Annexed to Freehold Muzzy, 13 Gray, Mass., 53.) On the other h.and, by parity of reasoning and without doubt, the ac- cumulations of a hvery stable or scavenger, are persona] property. " 5. The crops growing on the land of the de- ceased, at the time of his death." Meaning, as qualified in the next subdivision, crops which are produced annually, by cultiv.ation. {Bank of Lansinghurgh v. Grary, 1 Barb., 544 ; Kairi v. Fisher, 6 N. Y., 597.) But the case of Brad- ner v. Faulhner, 36 N. Y,, 347, in construing this fifth subdivision, declares that crops growing upon the land devised, do not pass to the executor, ex- cept they be necessary to pay debts or legacies. The court undertakes to explain and limit the plain and imperative language of the statute. They overlook the provision in the same statute, in rela- tion to estates of intestates, that the crops shall go '• to the administrator and be distributed as part of the personal estate." There can be no broader language than this, fixing upon growing crops the character of assets in the hands of the executor or administrator for all purposes. And now, as this work is going through the press, we have another decision of the Court of Appeals, in the case of {State V. Wilbur, 11 N. Y., 158), holding that " Under this provision^ the executor takes posses- sion of the growing crops, as he does all other per- And Chops Growing. 381 sonal property. But he takes possession only for the purpose of administration according to law. He may sell it, if necessary, for the payment of debts and legacies. But when the land upon which the crop is growing, has been devised in such form as to convey it to the devisee, then the crop in my opinion, is to be put upon the footing of a chattle specifically bequeathed ; and it can- not be sold for the payment of debts, only after the other assets, not specifically bequeathed, have been applied. We must yield to the dscision of the court for there is no method of securing a review. Under this decision, where the land on which the crops grow, is devised, the crops are to be considered as specifically bequeathed to tlie devisee, where the land is not devised, or the decedent is intestate, the crops are assets in the hands of the executor or administrator. "6. Every kind of produce, raised annually by labor and cultivation, excepting grass growing and fruits not gathered. "7. Een t reserved to the deceased, which had. accrued at the time of his death." Rents accrued and collected after the decease of the testator or intestate, go to the heir, as incident to the reversion, and the executor is not responsi- ble for it, and can maintain no action to recover it. [KoJiler V. Knapp, 1 Brad., 241 ; lay v. Halloran, 35 Barb., 295 ; Mars/tall v. Moseley, 21 N. Y., 280; Wadsworth v. Alcott, 6 N. Y., 64.) But by chap. 542 of Laws of 1875, "rents, an- nuities, dividends and other payments payable or 382 Eents Due to be Set Forth. becoming due at fixed periods under any instru- ment executed after the passage of this act (June 7, 1875), or, being a last will and testament, that shall take effect after the passing of this act, shall be apportioned so that the sum accrued at the death of the person entitled shall pass to his executors, administrators or assigns, who may have proper remedies to collect the same. The sum so appor- tioned shall include all that shall have accrued up to and including the day of the death of such person." This revision is in the spirit of the R. S. in relation to rents due to a tenant for life. Where a lease ended in April, and the tenant had the privilege to gather winter crops, and to pay the rent in wheat in August, and the landlord died in June, held that the rent due in August went to the executors. ( Wadsworth v. Alcott, 6 N. Y., 64.) Where a tenant for life, having demised premises, dies, on or after the day the rent becomes due, his executors or administrators may recover the rent. But if he dies before the rent becomes due, the rent shall be apportioned between the executors or ad" ministrators and the reversioners. (2 E. S., 747, § 22.) " 8. Debts secured by mortgage, bonds, notes, or bills, accounts, money and bank bills, or other cir- Property to be Included. 383 culating medium, things in action and stock in any company, whether incorporated or not. " 9. Goods, wares, merchandise, utensils, furni- ture, cattle, provisions and every other species of personal property and eflfectj, not hereinafter ex- cepted." Moneys which become due by reason of a policy on the life of the decedent, are assets when the sum is collectable by the personal representatives. A surplus arising out of a sale under a mortgage on lands held by the deceased, is not assetts, and is not to be paid to the executor or administrator even though the mortgage so provided. The sur- plus belongs to the heirs or devisees. {Dunning V. Ocean Nat. Bank, 61 N. Y., 497.) Where one interested in lands dies intestate, af- ter a sale thereof, his interest in the money to be realized by the sale is personal estate and goes to the administrators, not to the heirs at law. [Den- ham V. Cornell, 67 N. Y., 556.) The inventory must include all the personal property of the decedent wherever situated, whether in this State, or in some other State, which has come to the hands, or knowledge of the executor or administrator. [Matter of Butler, 38 N. Y., 397.) In this case, the executor was or- dered to make an inventory of assets in the State of Louisiana. 384 Partnership Interests. Some difficulty has been experienced in inven- torying the interest of the decedent in a partner- ship, but it seems to be well settled now by the opinion of Mr. Surrogate Bradford in Thompson v. Thompson (1 Brad., 24). He there holds, that in- asmuch as the surviving partner is a trustee as to the interest of the decedent, the assets are not to be inventoried. That as the executor or adminis- trator is only entitled to a balance on an account- ing, it is sufficient, as to the partnership interest, to state it in the inventory, as an interest in an unascertained balance. The surviving partner must account to the repre- sentatives of a deceased partner for the property of the firm at the time of the deceased partner's death. They are entitled to this accounting absolutely, without showing that something would be due to them. If the surviving partners carry on the business, they do so at their own risk as to the future. ( Gheeseman'w . Wiggins, 1 T. & C, 595.) " § 7. Things annexed to the freehold, or to any building, shall not go to the executor, but shall descend with the freehold, to the heirs or devisees, except such fixtures as are mentioned in the fourth suhdivision of the last section. " § 8. The right of an heir to any property not enumerated in the preceding sixth section, which Fixtures when Chattels. 385 by the common law would descend to him, shall not be impaired by the terms of that section." (Id.) Fixtures have been well defined to be " chattels so annexed to the land that the owner of the chattels has no right to remove them, as a general rule, except when he is the owner of the land." (Bingham on Real Estate, 453. See also Tifft v. Horton, 53 N. Y., 377; Murdoch v. Gifford, 18 N. Y., 28 ; Buckley v. Buckley, 11 Barb., 43 ; Down- ing, V. Marshall, 1 Abb. C. of App., 525.) Besides the allowances of personal property, the widow is entitled to tarry in the chief house of her husband for forty days after his death, and in the meantime is. entitled to her reasonable susten- ance out of the estate of her husband (1 R. S., 742, § 17). This is called the widow's quarantine. But it is held ( Voelckmer v. Hudson, 1 Sandf., sup.), that the provision for the widow's quarantine, applies only to lands in which the widow has a right or claim of dower. The dictwm is not sup- ported , by any authorities, and we are disposed to doubt the authority of it. The right to the sustenance for the ioriy days out of the personal estate of her husband, is not affected by the fact that the estate is insolvent, 25 386 Property set apart for Widow. but it is confined to the sustenance of the widow herself, and she is not allowed, by virtue of the statute, to provide out of the estate, for the sus- tenance of her children. [Johnson v. Corhett, 11 Paige, 265.) " § 9. (As amended chap. 782, Laws of 1867, and Laws of 1874.) When a man having a family, shall die leaving a widow, or a minor child or children, or a widow shall die leaving a minor child or children, the following articles shall not be deemed assets {for the purpose of distribution, the payment of debts or legacies), but shall be included and stated in the inventory of the estate without being appraised. I. All spinning wheels, weaving looms, one knitting machine, one sewing machine and stoves put up or kept for use by his family. II. The family Bible, family pictures and school books used by or in the family of such deceased person, and books not exceeding in value fifty dollars, which were kept and used as part of the fimily library before the decease of such person. III. All sheep to the number of ten, with their fleeces, and the yarn and cloth manufactured from the same ; one cow, two swine, and the pork of such swine, and necessary food for such swine, sheep or cow for sixty days ; and all necessary provisions and fuel for such widow, or child, or Property set apart for Widow. 387 children, for sixty days after the death of such deceased person. IV. All necessary wearing apparel, beds, bed- steads 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 teacups and saucers, one sugar dish, one milk pot, one teapot and twelve spoons, and also other household furniture which shall not exceed one hundred and fifty dollars in value. The cow must be a milch cow if there be any such in the estate. {Brigham v. Bush, 33 Barb., 596.) § 13. (S. L., 1867, chap. 782.) * * * * All articles and property set apart, in accordance with law for the benefit of a widow and a minor or minors, shall be and remain the sole personal pro- perty of such widow, after such minor or minors shall have arrived at age. But notwithstanding, the widow is not entitled to the possession of these articles, until they are inventoried and set apart by the appraisers. ( Volck- ner v. Hudson, 1 Sandf., 215.) These provisions for the widow and minor child or children, apply whether the decedent was a householder or not> and even if the deceased, or his widow or children 388 Meaning of the Provision. are non-residents. {Knapp v. Public Administrator, 1 Brad., 258.) The provision that the articles set apart shall remain in the possession of the widow, is explained in Scofield v. Scofield (^6 Hill, 642), to mean that she is entitled to hold the articles during the mi- nority of the children, notwithstanding their volun- tarily leaving her, without her fault and even if she is their step-mother. A husband cannot divest his widow of these articles by his will. [Vedder v. Saxton, 46 Barb., 188.) § 2. (S. L., 1842, chap. 157, as amended chap. 782, of Laws of 1867.) Where a man having a family shall die, leaving a widow or minor child or children ; or a widow shall die leaving a minor child or children, there shall be inventoried and set apart for the use of the widow, or for the use of such widow and child or children, or for the use of such child or children, in the manner now pre- scribed by the ninth section, necessary household furniture, provisions or other personal property, in the discretion of said appraisers, to the value of not exceeding one hundred and fifty dollars, in addition to the personal property now exempt from appraisal by said section. The appraisers then,, under this section shall set Shall remain in Possession of Widow. 389 apart to the widow or children, " necessary house- hold furniture, provisions or other personal pro- perty " to the value of one hundred and fifty dollars, and this in addition to the same amount before set apart, in household furniture. The right of the widow to the articles to be set apart, is absolute and, subject to the right of the executor to keep them in his possession to state them in the inventory, she could sell them. Her right is absolute against creditors, next of kin or the legatees of the deceased. {Fox v. Burns, 12 Barb., 677 ; Vedder v. Saxton, 46 Barb., 188.) These decisions overrule the case of Volckner v. Hudson (1 Sandf, sup.), whcih holds that the widow has no right to any specific chattel, until it has been inventoried and set apart by the ap- praisers for her use. Thus it seems that the appraisers shall use their discretion as to what articles they shall set apart, not as to whether they shall set apart any or not, for it has been held {Scofield v. Scofield, 6 Hill, 642), that where the articles reserved by the statute for the use of the widow are not set apart as required by the statute, in the inventory, the surrogate may cite the executor or administrator, and cause him to have the inventory corrected. Or the error may be corrected on the accounting 390 Other Property allowed to Wroow. of the executor or administrator. [Clayton v. Warden, 2 Brad., 1.) But this would seem to be in the just discretion of the surrogate on the facts of the case. So, in a case partially reported, where after the testator's death the widow remained in the dwelling house enjoying the use of the personal property, and received $188, from the money of the estate, it was held, that she was not entitled to an allow- ance for forty days' sustenance, nor to $150 for household furniture not set off. [Peclc v. Sherwood, 56 N. Y., 615.) It was also held in Cornwall v. Deck. (2 Redf. Rep., 87), that a widow who was also adminiptra- trix, cannot on the accounting, for the first time claim the $150 which should have been set off to her by the appraisers. Property may be set ofif on petition or paid for. § 2720. Where an executor or administrator has tailed to set apart property for a surviving hus- band, wife, or child, as prescribed by law, the person aggrieved may piresent a petition to the Surrogate's Court, setting forth the failure, and' praying for a decree, requiring him to set apart the property accordingly; or, if it has been lost, in- jured, or disposed of, to pay the value thereof, or Wroow TO HAVE Allowance. 391 the amount of the injury thereto; and that he may be cited to show cause why such a decree should not be made. If the surrogate is of the opinion' that sufficient cause is shown, he must issue a citation accordingly. Upon the return of the citation, the surrogate must make such a decree in the premises as justice requires. In a proper case, the decree may require the executor per- sonally to pay the value of the property, or the amount of the injury thereto. Allowance may be made on settlement. §2721. The decree, made upon a judicial set- tlement of the account of an executor or adminis- trator, may award to a surviving husband, wife, or ohild, the same relief which may be awarded, in his or her favor, upon a petition presented as pre- scribed in the last section. {Sheldon v. Bliss, 8 N. Y., 31.) But the appraisers' estimate of value, is not judicial as to articles set apart, and errors may be corrected by the surrogate. [Applegate v. Cameron, 2 Brad., ll'J.) If the appraisers' memorandum of articles set apart shows that they exceed $150 in value, the allotment is void. (Id.) § 11. (2 R. S , 84.) The inventory shall contain a particular statement of all bonds, • mortgages, notes or other ^iecurities for the payment of money. 392 Inventory shall Contain. belonging to the deceased, which are known to such executor or administratior, specifying the names' of the debtor in such security, the date the sum originally payable, the endorsements thereon, if any, witn their dates, and the sum which in the judgment of the appraisers, may be collectable on such security. § 12. The inventory shall also contain an ac- count of all moneys, whether in specie or bank bills, or other circulating medium, belonging to the deceased, which shall have come into the hands of the executor or administrator ; and if none shall have come into his hands, the fact shall be so stated in such inventory. It may oftentimes occur that, before the ap praisal, the executor or administrator may have paid out some of the moneys which came into his hands, for funeral expenses, or other necessary charges ; notwithstanding, he should state in the inventory the amount which came originally into his possession, and charge in his account, what he shall have paid out. § 13. The naming of any person executor in a will, shall not operate as a discharge or bequest of any just claims which the testator had against such executor, but such claims shall be included among the credits and effects of the deceased, in Other Property and what 393 the inventory, and such executor shall be liable for the same, or for so much money in his hands, at the time such debt or demand becomes due ; and he shall apply and distribute the same in the pay_ ment of debts and legacies, and among the next of kin as part of the personal estate of the deceased. (See also Becker v. Miller, 2 Paige, 149.) The above provisions of the statute, does not discharge' a lien upon real estate by which the executor's debt is secured, or so effect it as to give subsequentincumbrancespriority of lien; it merely adds to the original obligation, a liability to account as executor for the debt ; and, until the executor in the performance of his trust, shall have paid the amount of the debt, and thus discharged it, all liens by which it is secured remains in force. {Soverhill v. Suydam, 59 N. Y., 140.) A judgment in favor of the testator, against the executor, is not dischaiged, but is assets in the hand of the executor, and by the statute, converted into money, and the executor is bound to dispose of it as such. {Soverhill v. Suydam, 2 M. & C, 460.) The including in the inventory of notes made by the executor and barred by the Statute of Limitations, in the lifetime of the testator, is, when the inventory is sworn to, sufficient to revive them 394 Effect qf naming Debtor Executor. as anew promise. {Morrow v. Morrow, 12 Hun., 386.) So stating them in a copy of the inventory fur- nished by the executor, is sufficient. {Clark v. Van Amhurgh, 7 Week. Dig., 102.) At common law, the naming of the debtor to be executor of the will of the creditor, extinguished the debt, on the ground that, as the executor could not maintain an action against himself, the remedy was gone, and where the remedy is gone, the debt is gone. (2 Williams on Ex'rs, 1139.) But equity construes the debtor to be a trustee, and the creditors, legatees, or next of kin, may enforce the debt of compelling the executor to account for the amount of the debt due from him to the testator. (11 Ves., 90; 13 Yes., 264.) And an executor cannot compromise his own debt to the estate, nor can several co-executors make such a compromise as to the debt of another. {De Cordova v. De Cm-dovaAl L. T. Rep. [N. S.], 43 Alb. Law J., 20, p. 357.) Notwithstanding the duty of the executor to state a claim of the deceased against himself in the inventory, on the hearing on final settlement, it is competent to show any legal defense which he may have to the claim. {Everts v. Everts, 62 Barb., 677.) Bequest of Debt, Effect of. 395 § 14. The discharge or bequest in a will, of any debt or demand of the testator against any executor named in his will, or against any other person, shall not be valid as against the creditors of the deceased ; but shall be construed only as a specific bequest of such debt or demand, and the amount thereof shall be included in the inventory of the credits and effects of the deceased, and shall, if necessary, be applied in the payment of his debts ; and if not necessary for that purpose, shall be paid in the same manner and proportions as other spe- cific legacies. [Soverhill v. Suydam, 2 Th. & C, 460.) Where assets have been erroneously stated in the inventory as assets of the deceased, as, the crop on land assigned to a widow for her dower, the executor or administrator is not concluded by the statement in the inventory, but he may show the error, and having accounted to the widow, he will be protected in a claim made by the next of kin. {Clarh v. Batkyrf, 1 Th. &C., 58.) § 15. Upon the completion of the inventory, duplicates thereof shall be made and signed by the appraisers ; one of which shall be retained by the executor or administrator, and the other shall be returned to the surrogate within three months from the date of such letters. 396 Oath to Inventory § 16. Upon returning such inventory the exe- cutor or administrator shall take and subscribe an oath, * * * * stating that such inventory is in all respects just and true, that it contains a true state- ment of all the personal property of the deceased • which has come to the knowledge of such executor or administrator, and particularly of all money, bank bills and other circulating medium, belonging to the deceased, and of all just claims of the deceased against such executor or administrator, according to the best of his knowledge. Such oath shall be endorsed upon or annexed to the inventory. OATH TO INVENTORY. Surrogate's Court, State of New York, Rensselaer county, , of , deceased, being duly sworn, does depose and say that the annexed inventory is in all res[)ects just and true ; that it contains a true statement of all the personal pro- perty of the said deceased which has come to the knowledge of this deponent, and particularly of all money, bank bills and other circulating medium belonging to the said deceased, and of all just claims of the said deceased against this deponent. Subscribed and sworn this day of ." 187-, before me. } And Eeturn of, Extended. 39T Return of Inventc/ry. — How Compelled. It will have been observed, that one copy of the inventory, verified by the oath of the executor or administrator shall be filed with the surrogate within three months from the issue of letters testa- mentary, or of administration. (See § 15, supra.) But the time for the filing of the inventory may be extended for cause shown, by the surrogate, not ex- ceeding four months longer. This extension should be granted by order, upon a petition stating the reasons fully why the inventory cannot be com- pleted within the three months time allowed by the statute, and if the application, which is made ex parte, shall seem reasonable, the surrogate will grant an order, thus : ORDER EXTENDING TIME FOR FILING INVENTORY. At a Surrogate's Court held in and for the county of Rensselaer, at the surrogate's office in the city of Troy, on the . . . day of , 1874. Present — Hon , Surrogate. In the matter of the estate I \ , deceased. On reading and filing the petition of 398 • When the Executor is in Default. the executor of the will of the above named de- ceased, praying for further time in which to file the inventory of the personal estate of said de- ceased, and said application seeming reasonable: Ordered, that said executor have until the . . . daj of next, to make and file such inventory. , Surrogate. Return of inventory, how compelled. § 2715. A creditor, or person interested in the estate, may present to the Surrogate's Court proof, by afiidavit, that an executor or administrator has failed to return an inventory or a sufficient inven- tory, within the time prescribed by law therefor. Thereupon, if the surrogate is satisfied that the ex- ecutor 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. Upon the return of the order, if the delinquent has not filed a sufficient inventory, the surrogate must is- sue a warrant of attachment against him, upon which the proceedings are the same, as upon a warrant issued for disobedience to an order, as pre- scribed in title twelfth of chapter seventeenth of this act. RETtTRN OF Inventory Compelled. 399 The surrogate may issue a summons on his own motion {Thompscm v. Thympson, 1 Bradf., 24), and the application for the summons may be made by any one, even a creditor, interested in the es. tate. {Forsyth v. Burr, 37 Barb., 540.) A mere appearance of interest is sufficient on the part of the petitioner and the surrogate will not try the issue as to his interest. (See Morrison V. Morrison, sup., and Orotacap v. Phyfe, 1 Barb. Ch., 485.) AFFIDAVIT. Surrogate's Court, Eensselaer County. In the matter of the estate of , deceased. Rensselaer county, ss : C D, of the town of , in said county, being duly sworn, says : That he is a creditor (or one of the next of kin of, or a legatee named in the will), of the above named deceased. That let- ters testamentary upon the will (or letters of ad- ministration upon the estate) of the above named deceased were, on the first day of June, 1879, duly granted and issued to J D, of the town of Bruns- wick, and that notwithstanding more than three months have elapsed since the issue of such letters, the said J D has not filed an inventory of the per- 400 Eeturn of Inventory Compelled. sonal estate of the said deceased, in the office of said surrogate, as he was by law required to do. (Signed) , ., . C D. Sworn before me this . • • \ day of , 1880. | The surrogate thereupon enters the order for the return of the inventory and fixing the time for the return thereof. It would seem that ordinarily the order should give at least five days to the ex- ecutor or administrator, to enable him to serve notices for the taking of the inventory, and make the same. ORDER. At a Surrogate's Court, held in and for the county of , at the surrogate's office in the city of , on the .... day of , 1880. Present — Hon , Surrogate. In the matter of the estate of , deceased. r On reading and filing the affidavit of C D, show- ing that he is a creditor of , late of the town of , in said county, deceased ; that J D is the executor of the will of said de- Inventory Compelled. 401 ceased, and that more than three months have elapsed since the granting of letters to the said J D, and that he has hitherto neglected to file an in- ventory of the personal estate of the said deceased : Ordered that the said J D, appear before the surrogate at his office in the city of Troy, on the . . . day of next, then and there to return an inventory of the personal property, goods, chattels and credits of the said deceased, according to law, or show cause why an attachment should not issue against him. , Surrogate. It would seem, as the proceeding is punitory in case of disobedience to the order, that the proper manner of serving the order, is by delivering to the executor or administrator a copy thereof, at the same time showing to hiin the original with the signature of the surrogate. If the executor or administrator should fail to return the inventory, an attachment would issue. The attacliment may be executed in any county where the executor or administrator may be. [Peo- ple V. Pelhum, 14 Wend., 485.) It is issued upon an order as follows : 26 402 Attachment against Executor, etc. ORDER FOR ATTACHMENT. At a Surrogate's Court, held in and for the county of , at the surrogate's office, in the city of Troy, on the . . . day of , 1880. Present — Hon , Surrogate. In the matter of the estate of , deceased. An order having been issued out of this court re- turnable this day, to J D, executor of the will of the above named deceased, requiring him to ap- pear and file an inventory of the goods, chattels and credits of the said deceased or show cause why an attachment should not issue against him, and said order having been duly and person- ally served, and the said J D not having appeared (or, having appeared and not filing an inventory as required) , and no cause being shown why an at- tacment should not issue against him : It is ordered and adjudged, that an attachment issue against the said J D, directed to the sherifi" of the county of , and that he be com- mitted to the common jail of the county of , there to remain until he shall return such inventory, or be thence discharged according to law ; and that said sheriff make return of such at- tachment on the day of , next. , Surrogate. Attachment, Form of, 403 And thereupon issues the ' ATTACHMENT. The people of the State of New York to the [l. s.] sheriff of the county of , Greeting: Whereas on the day of , 1880, by a certain order made in our Surrogate's Court of the county of , before our surrogate of said county, at the surrogate's office in the village of , in said county, in a certain pro- ceeding pending in our said court in the matter of the estate of , deceased, it was ordered that an attachment issue against J D, executor of the will of said deceased, and that he be com- mitted to the common jail of the county of , until he shall return to our Surrogate's Court of said county, an inventory of the goods, chattels and credits of the said deceased, or be thence discharged according to law, as by the said order remaining of record in our said Surrogate's Court more fully appears, the said J D, having re- fused (or neglected) to return such inventory, although required so to do by an order and summons of our said court : Now therefore we command you, that you take the body of the said J D, if he shall be found in your bailiwick, and him safely keep in your custody, until he shall return such inventory, or until he shall be thence discharged by due course 404 Executor how Discharged. of law ; and you are to make and return to our Surrogate's Court, on the day of , 1880, a certificate under your hand, of the manner in which you shall have executed this writ, and have you then and there this writ. In testimony whereof we have caused this writ to be subscribed by our said sur- rogate and the seal of the court to be afiixedthis day of , 1880. , SurrogaU. Indorsed. Title, Attachment against J D, executor, etc., of ? deceased, for not returning an inventory of the goods, etc., of said deceased. , Surrogate. How executor or administrator discharged from com- mittment. § 2716. A person committed to jail, upon the return of a warrant of attachment, issued as pre- scribed in the last section, may be discharged by the surrogate, or a justice of the Supreme Court, upon his paying and delivering, under oath, all the money and other property of the decedent, and all papers relating to the estate, under his control, to the surrogate, or to a person authorized by the surrogate to receive the same. Eevocation of Letters. 405 Under sub-division 3, of section 2685, providing that letters may be revoked, where an executor or administrator " has wilfully refused, or, without good cause, neglected, to obey any lawful direction of the surrogate, contained in a decree or order ; or any provision of law, relating to the discharge of his duty," a revocation may issue as provided for by that section. As to the forms which may be used, see ante. (Index, Tit. Kevocations) . The surrogate may, even upon the return of the citation to show cause why the letters should not be revoked, dismiss the proceedings, in his discre- tion, upon the filing of the inventory. (See section 2687.) -- ^ -:, § 23. (2 R. S., 86.) Any one or more of the executors or administrators named in any letters, on the neglect of the others, may return an in- ventory ; and those neglecting shall not thereafter interfere with the administration, or have any power over the personal estate of the deceased ; but the executor or administrator so returning an inventory, shall have the whole administration, until the delinquent return and verify an inventory, agreeably to the provisions of this article. After an inventory shall have been made it may often happen, tjjiat Dew assets are discovered and 406 Supplementary Inventory. then it becomes the duty of the executor or admin- istrator to make a supplementary inventory. § 24. (2 R. S., 86.) Whenever personal pro- perty or assets of any kind, not mentioned in any inventory that shall have been made, shall come to the possession or knowledge of an executor, or administrator, he shall cause the same to be ap- praised in manner aforesaid, and an inventory thereof to be returned, within two months after the discovery thereof; and the making of such in- ventory and return may be enforced in the same manner as in the case of the first inventory. The affidavit of any person interested, in case of default showing discovery of the property, former inventory and neglect to return inventory of the property discovered, will be ground for the entry of an order and for proceedings as above detailed. The forms before given can be readily adapted to the case here presented. (See § 2715.) Collection and Care of Estate. 407 CHAPTER XIV. Of the Collection and Care of the Estate ; Com- promising Debts due the Estate. Several co-executors or co-administrators are in law, but one person, and the act of one, in refer- ence to the sale, delivery, release or gift of the de- cedent's goods, is deemed the act of all. ( Gardner V. Miller, 19 Johns., 188.) One, without the con- currence of his co-executors, or administrators, may release a portion of mortgaged premises, from the lien, or give a satisfaction piece {Stuyvesant v. Hall, 2 Barb. Ch., 151), and either executor or adminis- trator, as against his associates, may retain pos- sion of the assets. {Burt v. Bart, 41, N. Y., 46.) So, two executors, against the will of a third, may compromise and release a mortgage, or other debt of the estate. [Murray v. Blaichford, 1 Wend , 583.) One executor also, may assign a note, as security for a judgment against the estate. {Wheeler v. Wheeler, 9 Cow., 34.) But one executor cannot waive the just claim 408 Executor Cannot Waive First Claim. of the estate against a creditor or other person. Thus one administrator directed a debtor to re- tain the money due from him, and not to pay it to the other administrator, and the debtor com- plied. The other administrator therefore brought an action to recover the debt and the co adminis- trator refusing to join as plaintiff, was made de- fendant. Held, that the debtor could not set up the directions not to pay, as a bar to the action. The administrator who gave it, did so in violation of his duty, and the administrator suing was en- titled to bring the action. {Streaver v. Feltman, 1 Th. & C, 277.) The whole personal estate vests in the executor or administrator [Patchin v. Wilson, 4 Hill, 57.) The executor cannot be allowed for expenditures in carrying on and stocking a farm, in absence of clear proof that they were beneficial to the estate. But charges for thrashing grain and preparing the crops for market are proper. (Larrour v. Larrour, (2 Redf. Sur, Rep., 69). Executors have power to compromise a debt due to the estate but may not compromise a debt due from one of themselves. This seems to be the rule at common law. In England, where there seems to be no statute requiring an executor to Executor Cannot 409 inventory and account for a claim of the testator against him, it is held that an executor cannot compromise a debt due from himself to the estate. Such a transaction will be treated as a breach of trust, without inquiring whether or not it is bene- ficial to the estate. It seems the same doctrine applies to a case in which several executors com- promise a debt due from one of them. In De . Cordcma v. De Cordaoa, 41 L. T. Rep. (N. S.) 43 ; Alb. Law J., 20 p. 357, the court remark. The case (Cook v. Golingridge, 1 Ja., 607,) seems to be decisive upon the question that an executor cannot not compromise a debt due from himself to the estate. In that case, Lord Eldon said : " One of the most firmly established rules is, that persons dealing as trustees and executors, must put their own interest entirely out of the question, and this is so difficult in a transaction in which they are dealing with themselves, that the court will not inquire whether it has been done or not, but at once say that such a transaction cannot stand." It is treated as a breach of trust without inquiring whether the transaction was beneficial or not. The case of Ex parte Lacey, 6 Ves., 625, is also in point. Where two executors take an obligation to them- 410 Compromise Themselves. selves, jointly as representatives of a testator, for a debt belonging to the estate, one of them can receive payment, and lawfully discharge the obli- gation ; and the obligation in this case being a bond and mortgage, it was held, that one could execute a proper satisfaction piece. So, a hona fide purchaser from one executor, of a bond and mortgage given to two executors, for the purchase money on their sale of lands, under a power in the will, will be protected in his purchase, even though the executor divert and waste the purchase money. {Bogert v. HerteU, 4 Hill, 492.) But a discretionary power to executors to with- hold payments from certain children of the testator, must be exercised by a majority of the executors. [Oilman v. Oilman, 4 Hun., 68.) For trustees cannot act separately, but all must join in their action. {Ridgley v. Johnson, 11 Barb., 527.) They should keep the estate funds separate from other funds ; if they mingle them with their own, they are liable for losses [Kellett v. Bailihone, 4 Paige, 102 ; Barkin v. Barhin, 4 Lans., 40) ; and they may be required by the surrogate to deposit the funds of the estate with a savings bank, or trust company, so as to be earning interest, while Executors Must Act Together. 411 the estate is in process of settlement. [Lockhart V. Public Administrator, 4 Brad., 21.) A cestui que trust, who is also executor, is not entitled to the possession or control of the estate as to which he is interested. {Bundy v. Mvndy, 38 N. Y., 410.) It follows then that the other executors should have exclusive control of the trust fund. One of several executors or administrators cannot avoid liability for the loss of a fund through the mis- conduct of an agent, on the ground that the others were mainly active in the administration of estate, and mainly instrumental in passing the the fund into the hands of such agent, if he tacitly assented thereto w])en he had opportunity and reasonable cause to object. For a trustee is himself, responsible for the faithful conduct and competency of all his subordinates and assist- ants, whether strangers, attorneys or contractors. (Brown's accounting, 16 Abb., N. S., 457.) It would seem, that an executor may from time to time petition the surrogate for direction. In a case [Oilman v. Oilman, 63 N. Y., 41), the exe- cutor petitioned the surrogate for leave to carry out an agreement, among other things, to pay counsel fees, and the leave was granted. A party 412 Letters are Local. interested, but not a T^arty to the agreement appealed from the order which was confirmed by the Supreme Court and Court of Appeals. One of the several executors, has no power to charge either the estate or his co-executor, by indorsing a note in the name of the estate, even though it be given in renewal of one indorsed by the testator in his lifetime. (Bailey v. Spofford, 14 Hun., 86.) Letters testamentary, or of administration, are local in their character, and the authority given by them is co-extensive only with the limits of the State where issued. (2 Kent Com., 430, note.) But an executor who has obtained probate and letters in another State, can (without action), dis- pose of his testator's personal property in this State, without taking out ancillary letters here. For the title of an executor arises from the will, and not the probate, or letters, aad consequently the executor is vested with all the personal estate of his testator wherever situated. [Middlebrook v. Merchanis Bank, 27 How., 474 ; Peterson v. Chemi- cal Bank, 29 How., 240.) So, an executor appointed in another State, may, on recording an exemplified copy of the will Must Keep Property Insured. 413 appointing him, under chap. 311, Laws of 1864 execute a power in this State to convey lands here, without taking out ancillary lettershere. {Bromley v. Miller, 2 Th. & C, &75.) It is the duty of an executor as a prudent man , to keep the assets of the estate insured, and pre- miums paid for such insurance will be allowed to him. {Chmwell v. Beck, 2 Redf. R., 87.) But a foreign executor or administrator cannot prosecute or defend an action in this State. [Matter of Webb, 11 Hun., 124.) The duty of the executor, or administrator in regard to collections and investment of the estate is clear, and he must proceed to convert the pro- perty which may not be producing interest into money, and deposit it, so as that the moneys may draw interest. He must also collect the money loaned on personal security, for if he neglect to do so and a loss accrue through his neglect, which would have been avoided by an early collection, he will be chargeable for the loss. (Williams on Ex'rs, 15, 43.) Where a testator had a judgment, a lien on real estate, and died Jan., 1860, and his will was then soon proved and his executrix qualified, and the prior Hens, not being renewed, expired, so that 414 AndJMtjst Make Collections. fromJFeb., 1865 to Oct.. 1865, the judgmeat [of the estate was a prior lien. The executrix could have collected but did not. Held, she was liable for it. {HoUister v. Burritt, 14 Hun., 291.) He is amply empowered in making collections, and may bring suit in all the courts of this State. A debtor to the estate, when sued by one of the administrators, cannot plead the consent of the other administrator to his withholding payment in bar of the action. (Strevei- v. Feltman, 1 Th. & C, 277.) The executor may employ an agent if the peculiar circumstances of the estate require it, and may be allowed for all proper expenses for its care and management, but the compensation of the agent must be measured by the nature, extent and value of the services. ( O Gara v. GlearMn, 48 N. Y., 663.) He may arbitrate disputed claims, notwith- sanding the provisions in regard to the reference of a disputed claim. {Wood v. Twnnicliff, 74 N. Y., 38.) It is the duty of an executor or administrator to treat all transfers made by his testator or intestate in fraud of the rights of creditors, as void, and he may recover of any person who shall have received May bring Actions. ' 415 the property of the deceased, the full yalue thereof. (S. L., 1858, chap. 314.) " § 2. (2 K. S., 113.) Actions of account, and all other actions upon contract, maybe maintained by and against executors in all cases, in which the same may have been maintained against their respective testators * * *." They may have an action of account against the surviving partner of their testator or intestate, and need not show that anything will be due them. The account must be stated as if the time of the testator's death. {G/ieeseman v. Wiggins, 1 Th. & C, 595.) " § 3. Administrators shall have actions to de- mand and recover the debts due to their intestate, and the personal property and effects of their in- testate ; and shall answer and be accountable to others, to whom the intestate was holden, or bound, in the same manner as executors." § 4 . Executors and administrators shall have actions of trespass against any person who shall have wasted, destroyed, taken or carried away, or converted to his owii use, the goods of their testa- tor or intestate, in his lifetime. They may also maintain actions for trespass committed on the real estate of the deceased, in his lifetime. § 5. Any person, or his personal representatives, 416 May bring Actions. shall have actions of trespass against the executor or administrator of anj testator or intestate, who, in his lifetime, shall have wasted, destroyed, taken, 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. § 6. The executors and administrators of every person, who as executor, either of right, or in his own wrong, or as administrator, shall have wasted or converted to his own use any goods, chattels or estate of any deceased person, shall be chargeable in the same manner as their testator or intestate would have been if living." § 1. (2 R. S., 447.) For wrongs done to the pro- perty, rights or interest of another, for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or, after his death, by his executor or administra- tor against such wrongdoer; and, after his death, against his executors or administrators, in the same manner, and with the like effect, iu all respects, as actions founded upon contracts. § 2. But the preceding section shall not extend to actions for slander, for libel, or to actions of assault and battery, or false imprisonment, nor to actions on the case, for injuries to the person of Certaiis! Actions Will not Lie. 41T the plaintiff, or to the person of the testator or in- testate of any executor or administrator. 1 . Neither does it extend to an action for breach of promise of marriage. This is not an action on a contract. This is within the category of personal injury. {Wade v. Kalhfleisch, 58 N. Y., 282.) Under this statute an action may be brought by the personal representatives of a citizen of this State, against a foreign corporation for injury in another State, where the same right to sue is given by a statute of the State where the injury occurred. So held in an action in New York, for an injurj- to plaintiff's intestate for an injury in New Jersey {SialUmechtv. The Penn. R. R. Co., 6 Week. Dig., 75.) An action to recover damages for alleged fraud on the part of defendant in inducing the plaintiff, to marry, and cohabit with him, does not survive the death of the defendant. [Price v. Price, 75 N. Y., 244.) But an action by a husband against a carrier of passengers, to recover for the loss of the services of his wife, and for expenses paid in consequence of injuries resulting from defendant's carelessness, although it is grounded in tort, it does not abate upon the death of the plaintiff It may be revived 27 418 May being Action for Injuries by his personal representatives. ( Oregin v. Brooklyn JR. R. Co., 75 N. Y., 192.) § 1. (S. L., 1847, chap. 450, as amended 1849, chap. 256.) Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default, is such as would (if death had not ensued), have entitled the party in- jured to maintain an action and recover damages in respect thereof; then, and in any such case, the person who, or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured ; and although the death shall have been caused under such circurastanoes as amount in law to felony. § 2. Every such action shall be brought by and in the names of the personal representatives of such deceased person ; and the amount recovered in every such action shall be for the exclusive bene- fit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate ; and in every such action, the jury may give such damages as they shall deem a fair and just compensation, not ex- ceeding five thousand dollars, with reference to To Person and Property. 419 the pecuniry injuries resulting from such death, t6 the wife and next of kin of such deceased person, provided that every such action shall be com- menced w^ithin two years after the death of such person. * * * * When person entitled dies before limitation expires. § 402. 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 survives, an action may be commenced by his rep- resentatives, after the expiration of that time, and within one year after his death. Where a person liable dies within the State. § 403. If a person, against whom a cause of ac. tion exists, dies within the State, before the expi- ration of the time limited for the commencement of action thereon, and the cause of action survives against his executor or administrator, an action therefor may be commenced after the expiration of that time, and within eighteen months after his death, but not afterwards, unless letters testamen- tary or letters of administration are not issued within the State, until after the expiration of six months after his death ; in which case the action may be commenced within one year after the let- ters are issued. 420 Where Judgment has been Reversed. Provision wliere judgment has been reversed. § 405. If an action is commenced within the time limited therefor, and a judgment therein is reversed on appeal, without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, in a final judgment upon the merits; the plaintiff, or, if lie rfies,and the cause of action survives, his representative may commence a new action for the same cause, after the expiration of the time so limitedand within one year after such a reversal or termination. So, an action does not abate, if the cause of ac- tion survives, or continues. (Code, § 755.) The court may, in its discretion, allow the action to be continued (§ 757.) Where one of several parties to an action dies, the action will continue by or against the survivors. (§ 758.) Or the court may direct or permit the survivor to be brought in. (§ 759.) Or the court may, on notice, order an action to abate unless continued by proper parties within not less than six months, nor more than one year. (§ 761.) Where the executor continued the action, and there was no allegations in the pleadings of the Cannot be Compelled to Sue. 421 testator's death, and this objection was raised, held, that the fact that the court had, on sugges- tion of the plaintiff's death, ordered the action to be revived in the name of the plaintiff, as execu- trix, was an answer to the objection. {Isham v. Davison, 3 Th. & C, 745.) But the successor cannot be compelled to con" tinue an action brought by his predecessor. {Bain V. Pine, 1 Hill, 615 ; Campbell v. Bowne, 5 Paige, 34.) The statute also protects both executors and ad- ministrators and creditors and enables them to set up their demands in suit by or against them. Counter-claim, when defendant is sued in a repre- sentative capacity. § 505. In an action against an executor or ad- ministrator, or other person sued in a representa- tive capacity, the defendant may set forth, as a counter-claim, a demand belonging to the decedent, or other person whom he represents, where the person so represented would have been entitled to set forth the same, in an action against him. Counter-claim when plaintiff is an executor or admin- istrator. In an action brought by an executor or admin- istrator, in his representative capacity, a demand against the depedent; belonging, at the time of his 422 May have Counter-claim 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. Execu- tion can be issued upon such a judgment in a case where it could be issued upon a judgment, in an action against the executor or administrator. Where one indebted to an estate in the hands of an executor, is employed by him to render services for the benefit and protection of the estate, the value of his services is a proper counter-claim in an action to recover the debt in favor of the estate. {Davis V. Stover, 58 N. Y., 473.) But in a suit by an administrator, upon a cause of action which arose after the death of the intes- tate, the defendant cannot set off a debt due to him from the intestate. {Fry v. Evans, 8 Wend., 530; Hills V. Tullmaris adm'rs, 21 Wend., 674; Mercein v. Smith's adm'rs, 2 Hill, 201 ; Merritt v. Seaman, 6 Barb., 330.) Nor in such a suit brought can the defendant set off a demand which was not due at the death, of the decedent; e. g., a note given by him and which fell duo after his decease. {Jordan v. Nat. S. & L. Bank, 12 Hun., •'^12; Ketchum v. ^Ibie, Foreign Administrator how to Sue. 423 Seldear's notes, 56 ; Pxtterson v. Patterson, 59, N. Y. 574.) In pleading by an executor or administrator, the complaint should set forth the cause of action then allege the death of the testator, or intestate, and that on a certain day letters testamentary or of administration were issued by a certain surro- gate. [Beach v. King, 17 Wend., 197; Sheldon v. Hoy, 11 How., 11 ; White v. Joi/, 13 N. Y., 83.) They are bound to endeavor to make collec- tions from solvent persons in other States, and, if necessary, to procure some proper person to be, appointed administrator there, and where such debt is lost by reason of their neglect, they are liable. (ShuUz v. Pulver,) 11 Wend., 361.) Where an administrator in a foreign State re- covers a judgment, he can collect it in this State, in an action brought therein, but in such action brought in this State, he must bring it in his own name and not as administrator. (Nichols v. Smith, 7 Hun., 580 ; Lawrence v. Lawrence, 3 Barb., Ch., 74 ; Bright v. Gurrie, 5 Sandf , 437 ; lalmage v. Ghapel, 16 Mass., 66.) So an administrator in another State can assign a mortgage upon lands in this State, so that the assignee cm collect it by a foreclosure. [Smith v. Tiffany, 10 Hun., 452.) 424 May Eetain Legacy for Adult. They may adjust and settle the partnership aflfairs with a surving partner, and in the absence of fraud or mistake, the settlement is conclusive upon the. parties to the settlement, and all parties claiming under them, including the creditors of the deceased partner. [Sage v. Woodin, 66, N. Y., 578.) They may also submit to arbitration disputed claims in favor of or against the estate of this decedent. The right to arbitrate by executors or administrators is included in the language of the statute in reference to arbitrations. (2 R. S., 540.) The provisions in regard to the reference of dis- puted claims do not take away the common law right to arbitrate. (Wood v. TunnicUff, 74 N. Y., 38.) But they are liable only for gross or collusive negligence in making collections. {Buggies v. Sherman, 14 Johns., 446.) They may collect of a legatee or distributee for a debt due the estate, by retaining a legacy or dis- tributive share in whole or in part. The legatee or distributee is not entitled to his share, so long as he retains in his own hands a part of the funds out of which payment is to be 'made. {Smith v. Kearney, 2 Barb. Ch. R., 533.) Statute op Limitations. 425 But an executor or administrator cannot sue his co-executor or co-administrator, to recover a debt due to the estate ; but on the final settlement, the executor or administrator, debtor to the estate, may be charged with his indebtedness. [Decker V. Miller, 2 Paige, 149.) Or his indebtedness may be settled in the Surrogate's Court, or a Court of Equity, on the application of his co-executor or co-administrator, and such disposition of the fund as justice and equity may require, may be directed by the court. (Smith v. Lawrence, 11 Paige, 206 ; Wurts V. Jenkins, 11 Barb., 546; McGregor v. McGregor, 53 N. Y., 218.) The statute gives one year extension of the Stat, ute of Limitations, in favor of the estate of a de- ceased person, against debtors, or seven years in all, upon simple contract debts which were not barred at the decedent's death ; while the time is extended eighteen months, and the time which elapses between the death of the testator or intes. tate, and the granting of letters, in favor of credi- tors and against the estate. (Code, 403.) The fact of an outstanding decree of idiocy against a person at the time of his death, held not to pre- vent the Statute of Limitations running after that time. Six years after the death of an intestate, administration was gra.nted. Two years thereaf- 426 Statute op Limitations. ter, plaintiff brought an action for services to in- testate and funeral expenses. Held, that the ac- tion was barred by the statute. (Sanford v. San-^ ford, 4 Th. & C, 686.) S. L., 1868, chap. 594, provides as follows: " But the Statute of Limitations shall not be made available as a defense to such a debt or claim (against decedent), provided the same shall be pre- sented at the first accounting, and provided the same was not barred by the statute, at the time of the death of the testator or intestate. (See also Scc/vill v. Scomll, 45 Barb , 517.) -An executor or administrator who, after a claim against the estate of a testator or intestate has been presented to him, delays unreasonably to make objection to it, is not precluded from asserting the Statute of Limitations as a bar to such claim, not- withstanding it may have become an account sta- ted as to the items. For a debtor who claims an account against him to become stated, does not thereby waive the defense of the statute. {BwMey V. QTmigin, 1 Lans., 443.) Where a claim was referred under the statute, and the defense of the Statute of Limitations was interposed, the action was deemed to have com- menced at the time of the entry of the order by the clerk of the court. (Id.) Disposition of Assets. 427 The including of a note made by the executor in the inventory of the estate as the property of the estate, is a sufficient promise or new contract to take the claim on the note, out of the Statute of Limitations. {Morrow v. Morrow,. 12 Hun, 386.) But the conclusion in this case can be better up. held by reference to the statute (2 R. S., 84, § 13), providing that claims against an executor should be included in the inventory, and he shall be lia- ble for the same as so much money in his hands. It is doubtful whether, as an acknowledgment to take them out of the statute, the including of the notes in the inventory, is sufficient. (See also Clark V. Vmi Amhurgh, 6 Week. Dig., 102.) In regard to the disposition of the assets of the estate the following statutory provision is to be noted. " § 25. If any executor or administrator shall discover that the debts against any deceased per- son, 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 payment of such debts and legacies, shall 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. Such executor, or administrator shall 428 Executor may Sell Assets. not be responsible for any loss happening by such sale, when made in good faith and with ordinary prudence." "§26. In making such sales, such articles as are not necessary for the support and subsistance of the family of the deceased, or as are not specifi- cally bequeathed, shall be first sold, and articles so bequeathed, shall not be sold, until the residue of the personal estate has been applied to the pay- ment of debts." ('2 R. S., 87.) Notwithstanding the apparent restriction of the power to sell in. sec. 25, as above quoted, it was held [Sherman v. Willett, 42, N. Y., 146), that executors and administrators have the right to sell the personal property of the deceased, and that right is nqt limited by that section, which provides that they may sell if necessary. They have the right to sell for the payment of debts and legacies, and for the purpose of distribution ; and to sustain a sale, it need not be proved that the sale was necessary for the payment of debts, etc. (Leitch v. Wells, 48, N. Y., 585 ; see also Nichols v. Chapman, 9 Wend., 452.) The title of a purchaser in good faith from an executor, of personal property belonging to the es. tate of his decedent, e. g. bank stock, is not affected by the fact that the sale was made by the execu- Sale of Property. 429 tor in violation of his duty. {Leitch v. Wells, 48 N. Y., 585; see also, Sutherland v. Brxish, 7 Johns. Ch., 17; Golt v. Lasmer, 9 Cow., 3-0; Bogert v. ffertell, 4 Hill, 4y2.) But if the purchaser knows or has notice, that the sale by the executor or administrator is fraudu- lent, or collusive, or is a devastavit, or is for the purpose of misapplication of the assets, his title will not be allowed to prevail against the benefi- cial interests of creditors or other persons inter- ested in the estate. [Field v. Schieffelin, 7 Johns. Ch., 155 ; Socia v. BertJumd, 17 Barb., 15.) But knowledge on the part of the purchaser, that the executor or administrator is dealing in a fidiciary capacity, is not enough to raise a suspicion, for it is the duty of the executor or administrator to dis- pose of the assets. [Dillage v. Com. Banh, 51, N. Y., 355.) In Ki7ig\. Ring (3 Johns. Ch., 552), it was held that when an admistrator sold leasehold property on credit, without security, whereby purchase money was lost, he was liable to the next of kin. But if the sale is made in good faith and with or. dinary prudence as to security, he would not be responsible for any loss that might happen. ( Or- cutt V. Arms, 3 Paige, 459.) In regard to a partnership, of which the de- 430 ExECUTOE Cannot Buy. ceased was a member, the executor of the deceased partner may insist, that the stock on hand be sold for cash, so as to pay the debts of the partnership^ and close the business as soon as pos-sible. [Evans Evans, 9 Paige, 178.) In making sales of property of his decedent, the executor or administrator is a trustee for the par- ties interested in the estate, and as such, he cannot be allowed, either openly, or by means of another person, to become the purchaser of any part of the assets. If he make such purchase, he may be held to account for the utmost value of the articles so purchased, without regard to the price paid for them. (Williams on Executors, 801 ; Campbell v. Johnson, 1 Sand. Ch., 148 ; Van Epps, v. Van Epps, 9 Paige, 237 ; Ames v. Browning, 1 Brad., 34 ; 4 Kent Com., 438 ; Powers v. Powers, 48 How, 389.) This is the rule in relation to purchases by an executor. Even in a case where no fraud is shown, and where the sale was in an action the decree in which provided that any party might become a purchaser. {Fulton v. Whitney, 66 N Y., 548.) The last case holds that even a final settlement before the surrogate is not a bar to an action by the persons interested to compel the trustee to ac- count for the full value of the property purchased. (See also Downe v. Fanning, 2 Johns. Ch., 254 . Purchaser becomes Trustee. 431 Ward V. Smith, 3 Sandf. Ch., 592 ; Rogers v. Rog- ers, 3 Wend., 503 ; Bostwick v. Atkins, 1 N. Y., 53 ; Michoud V. Girod, 4 How., 504.) If, at the sale, a person purchainsg, announces that he is purchasing for the benefit of the chil- dren or heirs, or any other person interested, in the estate, and thus prevents competition, the pur- chaser will be held to be a trustee for the benefit of the parties interested in the property, and for whom he professedly purchased. For if any one gets an advantage by professing to act in behalf of another person, he will be held to be a trustee for the person for whom he professed to act. Of Investments. An executor or administrator, pending the final settlement of his accounts, should not sufier any considerable balance to lie unproductive. When real securities are not to be had, he should obtain the approval of the surrogate as to the investment. Pending the final settlement, he may be required by the surrogate, to deposit the funds with a trust company, so as to be earning interest. [Lockhart V. Public Administrators, 4 Brad., 21 ; see also, HarringtOTh v. lAhhy, 6 Daly, 259.) This being the case, it follows, that on a repre- sentation by petition, that the executor or admin- 432 • Investments. istrator, is allowing considerable sums to lie un- productive, the surrogate will issue a citation to him, to show in what manner he has the estate invested, and, if the case seem a proper one, he will order investment in a trust company or a savings bank. The executor should always exercise the care which a prudent man would use about his own affairs, as to title, when real estate is in question, or as to the security offered by a bank if a deposit is made of the fund. (Bogart v. Van Velsor, 4 Edwd. Ch., 722.) In making permanent investments as trusteess, executors can only loan on real estate or on State or United States bonds. {King v. Talbot, 40 N. Y., 76.) And the rule is established in equity, that if the executor make a loan on personal security and a loss accrue, he shall bear the loss. [Bogart V. Van Velsor, sup.) As to the diligence required of a trustee, see Roosevelt v. Roosevelt, 6 Abb. N. Cases, 447. If trustees, exercising a general power to make investments, go beyond the limits prescribed by law in selecting a mode of investment, neither good faith, nor care, nor diligence will protect them in the event of an actual loss. In such cases, they assume the risk, and are responsible accordingly. Executors or Testamentary Trustee. 433 {Acherman v. Emott, 4 Barb., 620.) In this case, it was held that a trustee would not be protected against loss arising from the depreciation of trust funds invested by him, except when the loan was made on real security, or in some fund approved by the court. Accordingly, when the executor invested the legacy of an infant in stock of a bank which, at the time of settlement, had greatly de- preciated in value, he was held liable to account to the infant, on her arriving at age, for the whole legacy and interest. Executors being also testamentary trustees, should sell the stocks of private corporations, if any, belong to the estate, and invest the fund in a manner authorized, within the eighteen months allowed for settling the estate. If they neglect to do so, and a depreciation happen, they are per- sonally liable for the loss. While if a loss occur as to some stocks and an appreciation occur as to others, the persons interested may claim the bene- fit of the enhanced value of those which are ap- preciated and throw the loss on those which have fallen, on the executors. [Qillespie v. Broolcs, 2 Redf., Sur. R., 349.) This is the rule notwithstanding the executors acted in good faith. 28 434 Duty in Collecting. Executors are trustees for all the persons inter- ested in the estate, and the whole law of trusts and trustees so far as applicable, may be studied in regard to them. In collecting moneys loaned by the decedent, or themselves on mortgage security, executors or ad- ministrators, may be obliged to foreclose, and if bidders do not appear to run up the property to a sufficient amount to pay the debts, and the pro- perty seems to be about to sell below its actual value, it becomes their duty to purchase for the estate which tliey represent. They will take a deed to themselves, in their representative capacity, and hold the estate until they can sell at a fair price. And where the property remains in their hands unsold, at the time of accounting, the sur- rogate may direct a sale thereof and a distribution of the proceeds, as a part of the estate. ( Glarh v. Clark, 8 Paige, 152 ; Bogart v. Van Velsor, sup.) While it is the undoubted duty of the executor to collect what of the estate may have been loaned by his testator on personal security, as we have heretofore seen, still it was held {McRae v. McRae, 3 Brad., 199), that a fall in the market value of certain railroad stocks purchased by the decedent. Executor not Liable, when. 435 is not, of itself, enough to charge the executor with the loss occasioned by the depreciation; but to have that effect, the circumstances should show affirmatively, that he acted unreasonably in re- taining the stock, and that the failure to sell was unjustifiable. (Compare Qillespie v. Brooks, 2 Redf Sur. R, 379.) 4:36 Advertising foe Claims. CHAPTER XV. Advebtising for Claims and Reference of Dis- puted Claims. An executor paying debts before the total of them shall have been ascertained, does so at a risk that the estate may be insufficient And that he may lose. [Nichols v. Chapman, 2 Wend., 452 ; Glay- ton V. Warden, 2 Bradf, 1.) He should therefore advertise for claims against the deceased, as the only legal mode of ascertaining the claims. The statutory provisions in regard to the publi- cation of notice to present claim against the de- cedent, are as follows : § 34. (2 R. S., 88.) Any executor or adminis- trator, at any time, at least six months after the granting of the letters testamentary, or of admin- istration, may insert a notice once in each week for six months, in a newspaper printed in the county, and in such other newspapers, as the sur- rogate may deem most likely to give notice to the creditors of the deceased, requiring all persons Notice to Creditors. 437 having claims against the deceased, to exhibit the same with the vouchers thereof, to such executor or administrator, at the place of his residence or transaction of business, to be specified in such notice, at or before the day therein named, which shall be at least six months from the day of the first publication of such notice. It is suggested in Murray v. Smith (9 Bosw., 689), that there is room for considerable doubt whether a mere order for publication is sufficient without a formal adjudication that a publication in such newspaper alone is deemed most likely to give notice to creditors as required by statute. But it is believed that, if such an adjudication is to be deemed necessary, the order designating the paper will be considered one. The case of Murray V. Smith was disapproved by the Supreme Court in Eoyt v. Bemiett (58 Barb., 529). The paper or papers in which the notice is to published must be designated by the surrogate, which he does in an order made on the application of the executor or administrator, thus ; 138 Notice to Creditors. ORDER TO ADVERTISE FOR CLAIMS. At a Surrogate's Court held in the county of , at the surrogate's office in the .... of on the day of , 1874. Present — Hon Surrogate. In the matter of the estate of A B , deceased. It appearing that more than six months have elapsed since the issue of letters of administration upon the goods, chattels and credits of A B, late of the of , deceased. Now on the application of C D, administrator : Ordered, that said administrator publish a notice once a week, for six months, in the , requiring all persons having claims against said deceased, to present the same, with the vouchers thereof, to the said administrator, on or before the day of , next. , Swrrogate. NOTICE. In pursuance of an order of , Esq., surrogate of the county of , notice is hereby given, to all persons having okims against Publication of Notice. -4:89 A B, late of the of , deceased, that they are required to exhibit the same with the vouchers thereof, to the subscriber, executor of the will of said deceased, at his residence in the town of , on or before the 15th day of May next. Dated Nov. 11, 1874. (Signed), A D, Executor. The notice to present claims must be to the ex- ecutor or administrator personally, not to an attorney, for the power to accept or reject cannot be delegated. [Hardy v. Ames, 47 Barb., 41o.) A publication in one newspaper printed in the county, pursuant to the order of the surrogate, is sufficient, unless he directs a publication in some other paper also. [Dolheer v. Casey, 19 Barb., 149.) The executors may select a place for presenta- tion of claims, and their designation of it in the notice, makes it their place of business or residence for the purpose of the statute. [Soyt v. Bennett, 58 Barb., 529; reversed on another point, 50 N. Y., 638; Whitlock's Estate, 1 Tuck., 491.) But Murray v. Smith, decided in special term of the Superior Court (9 Bosw., 689), holds to the contrary pf ffai/t v. Bennett. It is also held in no What Claims May be Presented. Hoi/t V. Bennett, that claims not yet due may be presented under this notice. This was confirmed by the Court of Appeals ^jO N. Y., 538), holding that the liability of a deceased partner for partnership debts, although contingent, might be presented under the notice. The omission of the testator's middle name in the notice was held to be immaterial. {Comes v. Wilkin, 11 Hun., 428) But where executors or administrators are sub- stituted for a deceased defendant in a pending action, they are not entitled to a presentation of the claim in suit, nor are they to be exempted from costs if the plaintiff recovers judgment. The re- presentatives in such case come into the place of the decedent and the action must proceed against them, as it would have done against him. ( Tindall V. Jones, 11 Abb., 258, and 19 How., 469.) § 35. (2 R. S., 88.) Upon any claim being pre- sented against the estate of any deceased person, the executor or administrator may require satisfac- tory vouchers in support thereof, and also the affi- davit of the claimant that such claim is justly due, that no payments have been made thereon, and that there are no offsets against the same to the knowledge of such claimants, which oath may be How Claims Overruled. 441 taken before any justice of the peace, or other ofiicer authorized to administer oaths. The affidavit may be in the following form : AFFIDAVIT TO CLAIM. Rensselaer county ,• ss : A B, of the city of , being duly sworn, doth depose and say, that the foregoing claim against the estate of , deceased, is justly due and owing to this deponent ; that no payments have been made thereon (other than those stated therein), and that there are no offsets against the same to the knowledge of deponent. (Signed), A B. Sworn before me this day | of ,1880. I C D, Notary Public, The claims may be presented by letter, or in any way which deals fairly with the executor or administrator, and the estate which he represents, and the claimant need not produce vouchers, or make an affidavit unless requested. [Gansevoort V. Nelson, 6 Hill, 389.) The claim need not be presented to each of several executors. ( Genet v. Binsse, 3 Daly, 239.) So also, where a claim has been virtually pre- sented and acknowledged by the executor or ad- 442 Claims May be Admitted ministrator, before notice to creditors to present claims, it is not necessary to present it again for allowance under the statute. And where the exe- cutor, or administrator admits the validity of the claim by paying interest on it from time to time, it is tantamount to a formal admission of its justice upon presentation under notice. [Johnson v. Cor- lett, 11 Paige, 265.) So also, if the debt be established by judgment, or otherwise, before the commencement of the six month's publication, is of the same force as if pre sented within the six months. [Matter of Phyfe, 6 N. Y. Leg. Obs., 331.) Admission of a claim hy an eocecutor or adminis- trator, conclusive. While the surrogate cannot try the issues raised by a claim pi'esented, he has authority to try the question whether the administrator has admitted the claini. If such admission has been made, it is as effectual, for all practical purposes, as if the debt had been established by judgment, and if such admission has once been made, it cannot be re- tracted. {Matter of Phyfe, 6 N. Y., Leg. Obs., 331.) And where the claim was duly recognized and allowed by the administrator, neither the administrator or the next of kin could require its Admission of Claim. 443 rejection by the surrogate, on the final settlement. {Wilcox V. Smith, 26 Barb., 316, 334.) If a creditor presents a claim to an executor or administrator during the period of six months that he is advertising for the presentation of claims against the estate, and he disputes or rejects a claim, so presented, and the creditor does not, . within six months, thereafter commence a suit for its recovery, by reference or otherwise, he is forever barred from recovering such claim, under the short Statute of Limitations. (2 R. S.', 89, Sec. 38.) The executor acts in a quasi-judicial capacity, and his judgment of rejection becomes final after six months have expired. His admission of the debt, as between him and the claimant, is also quasi- judicial, and being a determination in the propriety of which both parties acquiesce, it is immediately final between them. The executor, therefore, at any time before he shall have made a distribution to claimants, who have presented claims, may make such an admis- sion of the validity of the debt, as will bind him and all parties interested in the estate. [Matter of Phyfe, 6 N. Y. Leg. Obs., 331.) This is consonant with the decisions of the courts. That the exe- cutor may keep a claim alive so as to prevent the running of the Statute of Limitations, against it, 444 Executor may Admit Claim. by paying interest thereon. (Wilcox v. Smith, 26 Barb., 331, 334.) If he can so far admit a claim by paying interest on it as to prevent the running of the statute ; if he can conclude the estate and the next of kin, surely he can conclude the estate and himself and the next of kin by an admission of ■ the validity of the claim when presented. It must also be held, that the executor, by re- taining the presented, for a long time, without dis- puting it or offering to refer it, admits it ; and this admission may be implied from cii cumstance, as between parties acting each in his own right, the presentation of an account, and its retention by the debtor without disputing it, for a reasonable time, will conclude the debtor as an account stated. (Lockwood V. Thorne, 11 N. Y., 170.) There is no reason in law, or arising out of the relation of the parties, why an executor, representing a debtor estate should not be concluded in the same manner. This becomes the more apparent, on considering the fact that while the personal estate is still in the hands of the executor, no one else can dispute a claim, or set up the Statute of Limitations. (2 R. S., 88, Sees. 35, 36 ; Wilcox v. Smith, 26 Barb., 316, 335.) In respect to creditors of the estate, the executor or administrator, is a trustee, and not a creditor. Claims may be Eeferred. 445 And like all trustees, where the names of the cestui que Vruata are not given^in the deed, he is bound to exercise the utmost care, before he accepts a claim as entitled to payment, and the law will afford him all reasonable means of so doing. He cannot be coerced to pay debts short of a year from the time of granting letters. The remedies of the creditor, in the meantime, however, are not absolutely sus- pended ; he may prosecute an action, but he must do so at his own cost and expense, and not at the cost and expense of the estate, unless he can show that the executor or administrator has been guilty of some Icuches, or illegal act in regard to the ad- justment of the claim. [Buckhurst v. Hunt, 16 How., 407.) The statute provides for a summary method of determining claims against the estate of a decedent by a reference. § 36. (2 E. S., 88, amended chap. 261, Laws of 1859.) If the executor or administrator doubt the justice of any claim so presented, he may enter into an agreement, in writing with the claimant, to refer the matter in controversy, to one or three disinterested persons to be approved by the surro- gate, and on filing such agreement and approval in the office of the clerk of the Supreme Court * * * a rule shall be entered by such clerk, either in 446 Eeperence of Claim. vacation or in term, referring the matter in con troversy to the person or persons selected. The ommisson of the executor or administator to offer to refer a claim, when presented, is not, necessarily, an admission of it, which precludes him from contesting it, and thus preventing its allowance by the surrogate or an accounting' (Tucker v. Tucker, 4 Abb. C. of App. Dec, 428). The filing of the stipulation is to be deemed the commencement of the action, for the purpose of stopping the running of the Statute of Limitations. (Sanford v. Sanford, 4 N. C, 686 ; Busldin v. Gha^n, 1 Laws. 443 ; Tracy v. Swydam, 30 Barb., 110.) The rejection must be unequivocal. {Soyt v. Bernnett, 50 N. Y,, 538). And it must be com- municated to the creditor himself. Notice of re_ jection to the attorney employed to make out and present the claim, is not sufficient. ( Van Sawn v. Fales, 4 Daly. 165.) But it is not a valid objection to the notice of rejection of the claim, that it was signed by the attorney for the personal representations, where it appeared that the signature was made at this re- quest and by this authority. {Selover v. Goe., 63 N. Y., 438.) The rejection of the claim should be made upon Offek to Eefer 44:1 the ground that it, or some part of it, is not legally due. {Kiddy. Chapman, 2 Barb. Ch., 414.) To protect the executor or administrator from costs ^ he should accompany his rejection with an offer to refer it. But the offer to refer need not be in writing. {Lansing v. Swartz, 9 How., 434.) In one case {Oorham v. Ripley, 16 How., 313), where a creditor's demand having been rejected he offered to refer to referees to be approved by the surrogate, not naming them. The executors instead of accepting this offer, offered to refer to three referees named by themselves, to be approved by the surrogate; it was held at Special Term, that this was a refusal by the executors to refer, which rendered them liable for costs in an action on the demand. Only those claims are referable which accrued during the decedent's life, or which would have occurred against him if he had lived. {Ghoding v. Porter, 17 Abb., 374.) AGREEMENT TO REFER CLAIM. Whereas A B, has lately presented a claim to the executor of the will of C D, late of deceased, for $ , a copy whereof is attached hereto, the justice of which claim is doubted by 448 Order for Reference. the said executor ; it is thereupon agreed that the matter in controversy be refereed to a referee to hear, and determine the same. Dated Nov. 14, 1764. (Signed), A B, C D, Executor. I hereby approve of the referee named in the foregoing agremeent. Dated Nov. 14, 1874. E F., Swrrogate: ORDER ENDORSED. On reading and filing the within agreement and approval of the surrogate of Rensselaer county : Ordered that , Esq., be and he is ap- pointed referee to hear and determine the matter in controversy mentioned in said agreement. Dated Nov. 16, 1874. Wm. Lape, Glerhof Swpreme Garni. The agreement to refer should present substan- tially the issue between the parties. It is a sub- stitute for the pleadings in an ordinary action. {Woodin V. Bagley, 13 Wend., 453.) It is not essential that the agreement and ap- proval be so formal. In Bucklin v. Ghapin (53 Barb., 488, and 35 How., 155), an order was signed by the surrogate, reciting the presentation Agreement to Eefee 449 of the claim, and that the parties had agreed to a reference, and a consent to the order signed by the attorneys, on behalf of the parties, was held to amount to an agreement in writing to refer, which is suflBcient under the statute. To confer jurisdic- tion under the statute, a substantial compliance with its terms is enough. The naming oP the re- ferees in the order of the surrogate, is sufficient evidence^ also, that they were approved by him. The proceeding is sui generis. The agreement to refer, relates to a particular claim presented, the justice of which is doubted. The agreement to refer, recites this fact and on the approval thereof by the surrogate, and filing of the same in the office of the county clerk, becomes operative as a voluntary submission to its jurisdiction, for the purpose of adjudicating upon the claims presented. The account presented, is in effect, the plaintiff's complaint, and there being no pleadings, and no provision in the statute for pleadings, the defendant is limited to no particular defense, and consequently any and every legal defense against the claim must necessarily be available. {Robert v. Ditmas, 2 Wend., 522; Woodm v. Baghy, 13 Id., 453; Tracy v. &u,gdami, 30 Barb., 110. Within this rule a set off may be proved, or pay- 29 450 Order of Eeference. ment in whole or in part ; or proof given to reduce the amount. The executor may make any defense which the intestate could have made when alive, if properly pleaded by him in an action on such claim. They may therefore insist on the Statute of Limitations, and if that defense is sustained it is a complete answer to the whole cause of action. (Trajoy v. Suydam, sup.) The order of reference must be entered. When the agreement to refer is not filed, and no order entered, the Supreme Court does not get jurisdic- tion of the cause. {Comstock v. Olmsted, 6 How., 7.7.) In this proceeding, the reference stands in the place of an action, and the entry of the order to re- fer, must be deemed the commencement of the ac- tion for the purpose of determining whether the action has been brought within the time limited by statute. [Hultslander v. Thompson, 5 Hun, 348, citing Bucklin v. Clmpin, 1 Lans., 443 ; Reyn- olds V. Collins, 3 Hill, 37 ; Comstock v. Olmsted, 6 How., 77.) Nearly every class of claims, both legal and equitable, may be so presented and referred. {White v. Story, 43 Barb., 124.) Unliquidated claims by surving parties against the decedent, may What may be so Referred. 451 be so refei^red. [Francisco v. Fitch, 25 Barb., 130.) A claim for a tort committed by the dece- dent also is referable. {Broclcett v. B^ish, 18 Abb., 337.) An agreement by testator to suport the claim- ant and his family, is a claim proper for payment when the agreement was for the consideration that the claimant would do the testator's business. {Oilman v. Oilman,. 'I Lans., 1.) A claim by an executor against the deceased is not a proper claim for reference, but where a claim was made by one executor against the estate which was rejected by his co-executor, and referred under the statute, it is too late to set up after judgment against the estate that the claim of an executor is not referable, but must be heard by the surrogate in person. {Weller v. Welter, 4 Hun, 195.) Contingent liabilities may be presented, but it seems they cannot be barred by rejection. {Hoyt Bennett, v. 50 N. Y., 538, reversing 58 Barb. 529.) But a claim against the deceased as an execu- tor, for assets held by him as such, is not so to be treated. The statute cannot be applied to trust moneys or property in the hands of an executor at the time of his death. It contemplates an ordi- nary debt, for which the deceased was liable in 452 Duty op Eeferees. hiB lifetime, upon a promise, express or implied ; a debt which may be supported by the oath of the creditor, which is justly due, which may be the subject of an off set, and which was cognizable by the common law courts. [Savds v. Graft, 10 Abb., 216 ; 18 How., 438.) The powers and duties of the referees are regu- lated by the same statute. , § 37. (2 R. S., 89.) The referees shall there- upon proceed to hear and determine the matter, and make their report thereon to the court in which the rule for their appointment shall have been en- tered. The same procedings 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 which such court might, by law, direct a reference ; and the" court may set aside the report of the referees, or appoint others in their place, and may confirm such report, and adjudge costs, as in actions against executors ; and the judgment of the court thereupon shall be valid and effectual, in all respects, as if the same had been rendered in a suit commenced by the ordi- nary process. Upon the reference, no proof is necessary that the testator left a will, or that the defendant was The Eepect op a Report. iSS an executor, and the defendant was estopped from denying those facts, by stipulating to refer. {Bamfield v. Ramsey, 4 Th. & C.) The report is a verdict under 2 R. S., 387, § 4, allowing judgment to be entered by leave on the death of a party, within two terms after verdict. [Burhans v. Burhans, 10 Wend., 601.) After report, an application must be made to the court ibr confirmation and for judgment before a judgment can be entered. Where the claim was unreasonably contested, as in particular, the claim was recognized by the decedent and referred to in her will, the claimant was held entitled to costs, and an allowance. {Darling v. Halsey, 2 Abb., N. Cases, 105.) But where the claim was not unnecessarily re- sisted, as where the amount was reduced, nearly one-half in amount, the claimant was allowed only disbursement. {PinkernelU v. Biachoff, 2 Abb. N. Cases, 107.) Where no motion was made at special term to set aside the report and the report was confirmed, and judgment entered on consent, it was held not to be appealable. {Frane v. BocJeett, 16 Hun., 528.) Where on appeal, the report shall be set aside, the Supreme Court, at special term, has power to 454 Short Statute of Limitations. direct a compulsory reference, to a new referee. {Masten v. Budmgton, 18 Hun, 105.) Short Statute of Limitations as to rejected Claims. § 1822. Where an executor or administrator disputes or rejects a claim against the estate of the decedei:t, exhibited to him after the commence- ment, and before the completion, of the publication of a notice requiring the presentation of claims, as prescribed by law, unless the claim is referred, as prescribed by law, 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 becomes due; in default whereof, he, and all persons claiming under him, are forever barred from maintaining such an action thereupon, and from every other remedy to entbrce payment thereof, out of the decedent's property. The defense is good not only made by the per- sonal representatives, but by the heirs at law or next of kin. The failure to commence suit within six months, is an absolute bar, as absolute as the lapse of six years. {Selover v. Goe, 63 N. Y., 438.) But due notice must be given of the rejection to the creditor himself, in order to set this short Short Statute of Limitations. 455 statute in motion, A notice to an attorney em_ ployed by the creditor to make out the claim and present it, is not notice to the creditor. (Van Sawn V. Farley, 4 Daly., 165.) The statute being penal in its character it must in all essentials be complied with The act of the executor in disputing or rejecting the claim, must be decided, unequivocal and absolute. Whatever may be the language or declaration, if in the same notice or declaration, or at the same time, he does or says anything from which the claimant may reasonably infer that the determination to dispute or reject is not final, the claim is not disputed or rejected within the meaning of the statute. {Elliott V. Gronk, 13 Wend., 35; Reynolds v. Collins, 3 Hill, 36; Hoyt v. Bennett, 50 N. Y., 539.) The short statute is only applicable where the presentment and rejection take place after publi- cation of notice to creditors. ( Tucker v. Tucker, 4 Abb. Dec, 428 ; WhitmoreY. Foose, 1 Den., 159.) Where an executor or administrator relies upon this statute as a defense, he must make it appear that all the requirements of the statute have been complied with and its terms implicitly obeyed, and he must establish a full compliance with the statute in respect to publication of notice to creditois. {Broderick v. Smith, 3 Lans., 26.) In the case i56 Effect of not Presenting Claim. last quoted, the executor having failed to prove an order of the surrogate for notice to creditors and a publication under it, judgment in his favor was reversed. The presentation and rejection and consequent bar of the statute applies in the case of a claim which matured after the death of the testator as well as where it accrued in his life-time. [Cormes V. Wilkin, 14 Hun., 428.) The rejection of the claim may be waived. Thus, where the executor, when the claim was presented, rejected it, but afterwards entertained negotiations in reference to a settlement, it was held that his previous rejection was waived, and the statutory bar to an action could not be inter- posed. {CalanoM v. McGlure, 47 Barb., 206.) The effect of not presenting the claim at all within the six months of advertising in a subse- quent suit on it, is only to deprive the claim out of costs. The right of action is not barred when the claim was not presented at all, but only when it was presented and disputed, and not referred or prosecuted, [Baggott v. Boulger, 2 Duer., 160 ; Erwin v. Loper, 43 N. Y., 521.) But it may occur that the claim was not presen- ted to the personal representatives at all, and the estate shall be settled and distributed. In such a Claim Collected op Distributees. 467 case, equity will enable creditors to follow the funds liable for their debts, into the hands of the persons to whom it has come, and treat them as constructive trustees, as they are not entitled to anything out of the estate until the debts are sat isfied. (2 Story's Eq. Juris. §§ 1250, 1251. 458 Funeral Expenses and Debts. CHAPTER XYI. Funeral Expenses and Debts. Reasonable, funeral expenses are to be paid in preference to any debts, and are charged as expen- ses of administration. The Supreme Court, First District, decided that where a husband, executor surviving, paid the funeral expenses of his deceased wife, he should be allowed it out of the estate, on the settlement of his account. The surrogate disallowed the item, but the court on appeal reversed the decree. (Quere.) {McGue v. Garvey, 7 Weekly Dig., 125; 14 Hun, 562.) But the question in each case is, what are rea- sonable expenses ? The erection of a headstone at the decedent's own grave, may be considered a part of his funeral expenses, where the rights of creditors cannot be defeated thereby. {Wood v. Vandenburgh, 6 Paige, 277.) And the same charge was allowed in a case What are Funerai, Expenses. 459 where the estate was insolvent. [Oromwell v. Dech, 2 Redf. Rep., 87.) But where the estate of the deceased did not exceed $10,000.00 a monument was erected by the widow, who was also administratrix, at an expense of $500.00. It was held to be excessive and the claim for it was not allowed. [Owens v. Bloomer 6 W. Dig., 330.) Tombstones were allowed as part of the funeral expenses, in Connecticut, even where the estate was insolvent. [Fairmans. Appeal, 30 Conn., 205.) But a charge for a monument was not al- lowed to executors in Springsteed v. Samson (32 N. Y., 703) When the decedent dies away from home, the necessary expense of notifying his family and re" moving his body to his late home, are proper funeral expenses. (Easier v. Easier, 1 Brad., 248.) And moderate expenses for mourning for the widow and family, nnay be allowed as part of the funeral expenses. [Wood's Estate, 1 Ashmead, 314.) . Funeral expenses comprise the outlay or charge incurred for the interment, and the compensation of the person, or undertaker who provides what is necessary, and attends to the iuneral for hire or 460 Funeral Expenses. reward. All other services, for the dead, which are not acts of necessity, are necessarily gratuitous. {Hewitt V. Bronson, 5 Daly, 1.) The rule that an executor, if he have sufficient assets, is liable to a third person who, as an act of duty or necessity, has provided for the interment of the deceased, applies equally in the case of an ad- ministrator; and a person who defrays the neces- sary funeral expenses of an intestate, though be- fore letters of administration are granted, i^' enti- tled to be reimbursed out of the assets which come into the hands of the administrator. {Bappleyea v. Bussell, 1 Daly, 214 ; Hewitt v. Bronson, 5 Daly, 1.) Accordingly, an undertaker, who superintends the the iuneral of an intestate, having no friends or relations in the city, may recover the charges therefor, from the administjator who afterward took out letters, and having in his hands sufficient assets, refused to pay the bill. But a distant relative by marriage, cannot re- cover a charge for services in looking up the de- ceased, who died suddenly away from home, for writing funeral notices, nor for the use of his house in which to hold the funeral services. {Hewitt v. Bronson, swp.) It may be remarked, that an executor contract- ing for funeral expenses or other services for the When Executors are Liable. 461 benefit of the estate of his intestate, binds himself but not the estate. He cannot create a liability for the estate. [Austin v. Munro, 47 N. Y., 360.) The duty of giving decent burial to a deceased testator, who leaves some estate, devolves upon his executor. The necessary and reasonable expenses thereof are a charge against it as a part of the ex" penses of the trust ; and the law implies a promise on the part of the executor to pay one who, in the absence or neglect of the executor, from the neces- sity of the case, incurs or pays out such expenses {Patterson v. Patterson, 59 N. Y , 574. The question as to who is liable for obligations contracted by the executor or administrator, was settled in Ferrin v. Myrick (41 N. Y., 315). A judgment for such contracts must be de ianis pro- priis ; and not against the estate in his hands, and such causes of action cannot be joined in the same complaint, with a cause of action arising upon the contracts of the deceased. The contracts of executors, although made in the interest and for the benefit of the estate they represent, being made upon a new consideration moving between the promisee and the executors as promisors, are the personal contracts of the ex- ecutors and do not bind the estate. {Gary v. Gregory, 38 Supr. Court Rep., 127; Bloodgood y. 462 When Executor does not bind Himself. Gregory, Id., 132), where, however, an executor in good faith, defends an action brought against him individually, for a liability incurred by him, and a judgment is rendered against him, he is en- titled, on his final accounting, to be allowed the costs and disbursements included in the judgment, and a reasonable counsel fee paid to his own at. torney. [Matter of Qrout, 15 Hun., 361 ; see also, Ross V. Harden, 12 J. & S., 26 ) An executor cannot bind himself to pay the debts of his testator unless the agreement therefor or some memorandum or note thereof be in writing, and signed by the executor or by some other per- son by him thereunto specially authorized. (2 R. S., 118.) His promise, except in the manner re- quired by this statute is void, and he cannot bind his decedent's estate by such a void promise. [ScJioonmaker v. Moosa, 17 Johns., 301.) Still if an executor or administrator, makes legal disbursements out of his own funds, as for reasonable counsel fees, he will be entitled to be reimbursed out of the estate of his decedent. (Oilman v. Gilman, 6 Th. & C, 211.) Compromise of Glai/ms. At common law, executors or administrators could compromise claims due to the estate, and Compromise of Claims. 463 could, in a proper case, take less than the full amount of the claims. They might be held re- sponsible for any serious error in so doing. Con- sequently the act, chap. 80, Laws of 1847, was passed, which enables them to obtain the sanction of the judgment of the surrogate, in addition to their own. [Chouteau v. Suydam, 21 N. Y., 179.) The surrogate has power, on cause shown, to authorize an e.xecutoror administrator to compound claims due the estate, whether the debtor be solvent, or insolvent. In the particular case, adjudicated, the debtor allowed the amount of the claim, but purposed to set up a counter-claim for damages. The surrogate authorized the administrator to allow the counter-claim in settlement and com- promise. {Berrien's Estate, 16 Abb. N. Y., 23.) But an executor is bound to compromise and re- lease a debt if the interest of the estate requires it ; he is obliged to act as a discreet and prudent man would do, were the debt his own. (Leland v. Manning, 4 Hun., 7.) The act is as follows : § 1. Executors and administrators may be au- thorized by the surrogate, or the officer authorized to perform the duties of surrogate, in the county where their letters testamentary, or of administra- tion were issued, on application, and good and 4:64: Compromise of Claims. sufficient cause shown therefor, and on such terms as said surrogate, or officer shall approve, to com- promise or compound any debt or claim, belonging to the estate of their testator or intestate. § 2. Nothing in this act contained, shall prevent any party, interested in the final settlement of said estate, from showing, on the final settlement of the accounts of said executor or administrator, that such debt or claim, was fraudulently or negligently compromised or compounded. For the purpose of procuring the judgment of the surrogate the facts are to be embodied in a petition, fortified, if possible, by affidavits, and upon them, the surrogate will make an order, un- doubtedly ex parte. PETITION. To Hon , Surrogate of Rensselaer county : The petition of A B, of the town of , in said county respectfully shows : That your petitioner is the executor of the will of C D, late of Troy, in said county, deceased, and that letters testamentary have been duly issued to him. That among the assets comprising the estate of the said deceased is a claim against E P, of the town of , amounting to the sum of ' Petition for Compromise 465 That your petitioner presented said claim to the appraisers duly appointed to appraise the estate of said deceased, and they did inventory and appraise the same as good (or bad, or doubtful). That since such appraisal your petitioner has made efiforts to collect the said claim and has (state what efforts, if suit has been brought, state result), but has been unable to collect the same, or any part thereof. That your petitioner has learned and verily believesthat the said E F is insolvent, and that there are numerous judgments against him, and that exe- cution upon them, or some of them, have been returned wholly unsatisfied. That the said E P has offered to pay to your petitioner per cent of said claim, and for a release thereupon, and your petitioner verily believes no more can be collected than is so offered. Where upon your petitioner prays that he may be authorized to make a settlement and compro- mise, or compound the claim against the said E F, on the terms above stated. Dated Troy, March 11, 1880. A B. Rensselaer county ss : A B being duly sworn says that he is the peti- tioner named in the foregoing petition, which is true 30 , 466 And the Verification Thereof. of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters, he believes it to be true. Sworn, etc. (Signed), A B. If the surrogate shall be satisfied that the com- promise offered is favorable to the estate, and that the amount to be realized, is probably as much as would be obtained upon a sale of the claim under his order, he will make an order authorizing the compromise. The following may be used as a precedent : At a Surrogate's Court, held in and for the county of at the surro- gate's oJ0fice in the of , on the .... day ot , 1880. Present — Hon , Surrogate. 1 J On reading and filing the petition of A B, exe- cutor of the will of the above named deceased (and the affidavits annexed to said petition); And it appearing to the surrogate thereupon, that the terms stated in said petition as proposed for the compromise of the claim held by said exe- In the matter of the estate of C D. . , deceased. Order op Surrogate. 467 cutor against C D, are favorable to the estate of said deceased : Ordered that said executor may compromise the said claim, amounting to $148, and may accept in settlement the sum of $iOO. (Signed), , Siu/rrogate. Payment of Debts (xnd Tuyvo Enforced. The real and personal estate of a deceased per- son are liable for his debts, and this liability being fixed by the statute, it cannot be altered by the will of the deceased. A creditor, notwithstanding his debt may be charged upon a certain parcel of real estate, may demand payment from the person- alty, which is in the first instance liable^ So while the executors or administrators may be trustees for creditors as far as to define their liabilities, yet the creditors are not cestius que trust, as to their relation to the executor. So true is this that, a a devise of lands in trust for creditors will not sus- pend the running of the Statute of Limitations as to their claims, notwithstanding the rule that the statute does not run in favor of a trustee against his certius que trust, so long as the relation exists. {Roosevelt v. Marh, 6 Johns. Ch , 266.) So it is of no consequence as to creditors, what 468 And Disposition of the Estate. disposition of the estate is made by will, except as the will may give them an additional remedy. They depend upon the liability created by statute. But disposition made by will may affect the rem- edies to be pursued by a creditor and the conse- quent conduct of the executor in converting the estate into money for the payment of debts. The order of the marshalling of the assets for the pay- ment of debts where there is no will is, first the personal estate, second the real estate. The order where there is a will is, first, the personal prop- erty not specifically bequeathed ; second, articles specifically bequeathed ; third, real estate, devised subject to payment of debts, if any ; fourth, real estate not devised, if any ; fifth, real estate devised. These are to be exhausted, each in full, before re- sorting to a subsequent class. At the expiration of one year from the issuing of letters, the executor or administrator, is pre- sumed to know, not only the assets in hand, but, having advertised for claims, also the liabilities of the estate, and he may proceed to pay debts and legacies, and distribute to the next of kin. Debts are preferred to legacies, or the claims of the next of kin as such, and as has been seen, the executors or administrators are trustees for the creditors. How Debts of Deceased to be Paid. 469 § 27. (2 R. S., 87.) Every executor or adminis- trator shall proceed with diligence to pay the debts of the deceased, and shall pay the same according to the following order of classes : 1. Debts entitled to a preference under the laws of the United States; 2. Taxes assessed upon the estate of the deceased previous to his death ; 3. Judgments docketed, and decrees enrolled against the deceased, according to the priority thereof respeptively. 4. All recognizances, bonds, sealed instruments, notes, bills and unliquidated demands and ac- counts. Each class above stated, is entitled to payment in full, before any payment can be made upon a debt of a subsequent class. The taxes to be paid are those due at the death of the decedent, and there is no ratable apportionment of the taxes. Those falling due after the decease of the testator or intestate are chargeable on the land. [Griswold v. Qriswold, 4 Bradf., 216.) When the assessment roll was completed and the jurisdiction of the assessors in making the same was exhausted, prior to the decease of the testator or intestate, it would seem that the tax afterward laid, would be payable out of the per- 470 Liability of Eeal Estate. sonal estate, as the liability of the deceased was fixed by the assessment. {Bundell v. Lahey, 40 N. Y., 513.) But it it is now held by the same court (63 N. Y., 399), that the liability of the real estate' is not fixed until the amount of the tax is asceitained and levied by the proper authorities, and the tax would not be payable out of the personal estate unless the decedent dies after the levying of the same. The term taxes does not include assessments. An assessment confirmed at the decease of the testator is a debt and should be paid out of the personal estate. It is entitled to no priority. (Seabury v. Bowen, 3 Bradf., 207.) Judgments in a justice court, are not debts of record. (Sherwood v. Johnson, 1 Wend., 443) and are not entitled to preference, until docketed in the county clerk's office. [Stevetison v. Weirser, I Bradf, 343.) Interest on a mortgage on land which descended to the heirs is not a debt to be paid by an admini> trator, and if paid by him cannot be allowed in his account. {Oornicell v. DeeJe, 2 Redf. Rep., 87.) The personal representative cannot be compelled to pay a portion of a judgment against the decedent and another- surviving, until the judgment creditor No Preference given in Payment 4T1 has exhausted his remedies against the survivor. {Hammond v. Hoffman, 2 Redf. Rep., 92.) Services rendered to an estate after the death of a testator, but in pursuance of a contract made with the latter during his hfe, is a claim of the last class and ■ may be recovered for in an action against the executor. {Boss v. Harden, 10 J. & S., 427.) § 28. (2 R. S., 84.) No preference shall be given in the payment of any debt, over other debts of the same class, except those specified in the third class ; nor shall a debt due and payable be entitled to preference over debts not due ; nor shall the commencement of a suit for the recovery of any debt, ox the obtaining a judgment thereon against the executor or administrator, entitle such debt to any preference over others of the same class. {Mount V. Mitchell, 31 N. Y., 356; see also 1 Tucker, 126.) § 29. Debts not due may be paid by an executor or administrator, according to the class to which they belong, after deducting a rebate of legal in- terest upon the sum paid, for the time unexpired. § 30. Preference may be given by the surrogate to rents due, or accruing, upon leases held by the testator or intestate at the time of his death, over debts of the fourth class, whenever it shall be made 472 Of Debts, except certain Classes. to appear to his satisfaction that such preference will benefit the estate of such testator or intestate. [Hooey v. Smith, 1 Barb., 372.) Rent is not, in the absence of proof of peculiar circumstances, a preferred demand. [Cooper v. Felter, 6 Lans., ,485.) Rent on a pew in church, is not a preferred debt unless it be due on a lease for years, which is an asset in the hands of the executor or adminis- trator. {Johnson v. Corhett, 11 Paige, 265.) Taxes, assessed upon the real estate of the de- ceased in his lifetime, have priority of all other debts, except those entitled to a preference under the law of the United States, the only noticeable example of which, is the bond given for payment of duties. But taxes assessed on real estate subse- quently to the ^eath of decedent, are not to be paid by the executor or administrator. ( Wilcox V. Smith, 26 Barb., 316.) So also an assessment, confirmed at the time of the testator's decease, although a lien upon the real estate, is also a debt to be paid out of the per- sonal estate, but in the fourth class. (Seabury v. Bower, 3 Brad., 207.) The judgments docketed and decree enrolled, which are to be paid in the third class before sim- ple contract debts, according to the priority in And certain Judgment TjIens. 473 point of time of docketing or enrolling, and with- out reference to any supposed lien of the judgment or decree upon real estate. {Ainslee v. Raddiff, 7 Paige.) It was accordingly held, in the case last cited, that some of the judgments having been docketed more than ten years, atid some less, they were all to be paid according to the priority of their being docketed. So a judgment of a Justices Court, or of the marine or other inferior court, when it has been docketed, becomes entitled to this preference. But this preference does not extend to the judg= ments of courts in other States, or of foreign count- ries. Neither at common law, nor under the statutes of this State, have judgments recovered in another State, any title to priority of payment over simple contract debts. Creditors claiming on such judgments, must come in with the creditors of the deceased, described in the fourth class. [Brown v. Pubcic Administrator, 3 Brad., 212.) An award by arbitrator against the estate of a decedent, under a submission made by the per- sonal representatives, gives no priority to the claim, as against other creditors, and it conse- quently, would be in the last class. [Wood v. Twnnidiff, 74 N. Y., 38.) 474 MOETGAGES, NOT TO BE PaID. Mortgages, which would come under the fourth class, cannot be paid out of the personal estate, unless such payment is provided for in the will. [Waldron v. Waldron, 4 Brad., 114.) Where a creditor has additional security, he should be com- pelled to exhaust that security, and only come in against the personal estate for the deficiency. {Halsey v. Reed, 9 Paige, 446.) So also, it is enacted that whenever any real estate subject to a mortgage executed by an in- ventor or testator, should descend to an heir or pass to a devisee, such heirs or devisee shall satisfied and discharge such mortgage without resorting to the executor or administrator of his testator or ancestor, unless there be an express direction in the will of such testator that such mortgage be otherwise paid. (1 R. S., 749 § 4). The general formula in a will that the executor pay all testator's just debts, is surplusage in any case, and is not sufiicient to authorize the payment of mortgages. To warrant such payment there must be an express direction to make it. {Taylor V. Wendel, 4 Bradf., 324.) But where the real and personal estate are thrown into one fund, in which the same parties are interested equally, the executor may, for the benefit of the estate, apply personal property to pay a mortgage on the realty. [Hepburn v. Hep- Personal Estate. 475 hum, 2 Brad., 47.) Without dissenting from the opinion of Mr. Surrogate Bradford, we would re- mark, that only in a very special case, would the executor be authorized to apply the personal pro- perty in such a way. It would be an interfer- ence with the rights of the devisee which would not be sanctioned, under ordinary circumstances. His right is to have the estate as it is devised to him, the personal as such and the real as the exe- cutor finds it as near as may be, and if he shall choose to pay mortgages, very well. Creditors of an insolvent co-partnership, in case of the death of one of the co-partners, cannot col- lect their debts against the separate estate of the decedent, until his individual liabilities shall have been paid in full. {Wilder y. Keeler, 3 Paige, 1G7.) A balance due from a deceased partner to the surviving partner, arising out of their partnership collections, constitutes a debt of the last class. {Payne v. Matthews, 6 Paige, 19.) A voluntary bond of the testator, given in his lifetime, payable at or immediately after his death, is a valid debt, has preference over legacies, but is postponed to debts for valuable- considerations. [Isenhart v. Brown, 2 Edwd., 341.) The claim of a son who had acted as agent for his aged mother, presented against her estate, upon a contract with her for board and on her promis- sory note in his favor, is presumptively invalid. 476 Claims not to be Paid. on account of the confidential relation ; and can- not be claimed unless there is actual proof rebut, ting the presumption. (Gomstock v. Gomstock, 57 Barb., 453.) The executor or administrator will not be pro- tected in paying a debt or claim barred by the Statute of Limitations, nor will his promise re- vive such a claim. [Bloodgood v. Bruen, 8 N. Y., 362.) In case of collusion between the administrator and others interested with him, to fasten a stale claim on the estate, heirs who have been made parties defendant, may effectually interpose the de- fense of the Statute of Limitations or presumption of payment from lapse of time. [Malley v. Van- derbilt, 4 Abb. N. Cases, 127.) A provision in the will, for the payment of all just debts, does not revive a debt barred by the statute (3 Wend., 503), and the Statute of Limi- tations may be interposed by an executor or any person interested. [Warren v. Pbff, 4 Brad., 260.) In regard to leases held by the decedent, it is the duty of the executor to collect the rents on such leases, and pay them to the landlord, not to put them with the assets of the estate. The exec- utor is personally liable to the landlord to the ex- tent of the rents received by him as for money had EuLE AS TO Rents. 4Y7 and received. Prima fade, the rents received, are sufficient to pay the landlord. If they are not, it is a matter of defense. [Mille)- v. Knox, 48 N. Y., 232.) An exeutor is liable as such, upon the cove- nants contained in a lease executed by his testator, whether he enters into possession of the demised premises or not; but if he does enter into posses- sion, he becomes personally liable on such cove- nants, as an assignee of the lease. {Howard- v. Heinerschit, 16 Hun, 177.) § 31. (2 R. S., 88.) In any syit againiiran ex- ecutor or administrator, the defendant may show, under a notice for that purpose, given with his plea, that there^are debts of a prior class unsatisfied, or that there are unpaid debts of the same class with that on which the suit is brought, and judg- ment shall be rendered only for such part of the assets in his hands, as shall remain after satisfying debts of the prior class, and as shall be a just pro- portion to the other debts of the same class, with that on which the suit is brought. But the plain- tiff may, as in other cases, take a judgment for the whole or part of his debt, to be levied of future assets. § 24. (2 R. S., 355.) Whenever a setoff is estab- lished in a suit brought by executors or adminis- iTS Rule as to Suits. trators, the judgment shall be against them in their representative character, and shall be evidence of a- debt established, to be paid in the course of ad- ministration; but execution shall not issue thereon until directed by the surrogate who granted letters testamentary or of administration. KULES RESPECTING ACTIONS BY AND AGAINST EXECUTORS OR ADMINIS- TRATORS. Actions to be brought in representative capacity by or against executor or administrator. § 1814. (Code.) An action or special proceed- ing, hereafter commenced by an executor or ad- ministrator, upon a cause of action, belonging to him in his representative capacity, or an action or a 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, without 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. Actions May be Joined. 4Y9 Personal and representative actions may be joined, when. § 1815. (Code.) An action may be brought against an executor or administrator, personally, 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 trans- action, 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 defendant personally, or in his representative capacity. Separate dockets and executions. § 1816. 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 rep- resentative capacity, so much of the judgment, as 480 EXECTJTORS TO APPEAR.. awards a sum of money against him personally, may be separately docketed, and a separate execu- tion may be issued thereupon, as if the judgment contained ro award against him in his representa- tive capacity. One executor served to appear. Separate answers not allowed. § 1817. In an action or special proceeding against two or more executors or administrators, repre- senting 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 admin- istrators, 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, ex- ecution 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. Execution not to issue until surrogate grants leave. §1825. An execution shall not be issued, upon 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 Execution to Issue. 481 made by the surrogate, frora whose court the letters were issued. Such an order must specify the sum to be collected ; and the execution must be indorsed with a dii'ection to collect that sum. Leave how procured. § 1826. At least six days' notice of the applica- tion for an order specified in the last section, must be personally served upon the executor or administrator, unless it appears that service can- not be so made with due dilligence; in which case, notice must be given to such persons, and in such manner, as the surrogate 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 chargeable against them for expenses, and for claims entitled to priority as against the plaintiff, are not, or will not be, sufii- cient 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 first exe- cution, shall not exceed the plaintiff's just propor- tion 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 it appears that the sum, directed 31 482 An Execution when Allowed. to be collected by the first execution is less than the plaintiff's just proportion. As an execution will not be allowed unless it appears that there are assets applicable to the payment of the same, unless an account shall have already been filed and adjusted, an accounting will be necessary before leave to issue an execu- tion will be granted. Accordingly it is provided (§ 2723), that, the surrogate may, in his discre- tion make an order, requiring an executor or administrator to render an immediate account in this case. But where the executor or administrator has rendered an account showing assets applicable to the payment of the judgment, the surrogate need not cite him to an account. On the hearing, the executor or administrator may show that the assets have been materially reduced since the ac- counting. An allegation that there has been a re- duction is not enough. (Smith v. Howell, 2 Redf. Rep., 325.) Practically, it will scarcely ever be necessary to proceed under this section, for, as will appeaV, a better method of proceeding against the executor or administrator, will be to proceed upon the decree upon the accounting, and either docket it in the office of the clerk of the county, and thus make And where a Lien on Lands. 483 it a lien upon real estate ; or, proceed against the executor or administrator, as for a contempt in not paying. § 19. (2 R. S., 116.) Where a creditor shall, have obtained a judgment against an executor or administrator, after a trial at law upon the merits, he may at any time thereafter, apply to the surro- gate, having jurisdiction, for an order against such executor or administrator, to show cause why an execution on such judgment should not be issued § 20. The surrogate to whom such application may be made, shall issue a citation, requiring the executor or administrator complained of, at a cer- tain time and place therein to be named, to appear before him, and if, upon such accounting, it shall appear that there are assets in the hands of csuch executor or administrator, properly applicable, under the provisions of this chapter, to the pay- ment, in whole or in part, of the judgment so ob- tained, the surrogate shall make an order, that execution be issued for the amount so applicable. {St. John V. Voorhees, I'J Abb., 53.) This section and these provisions, must be con- strued together with section 31, above quoted, and the amount for which the execution shall be or- dered is to be ascertained by the order on account ing. The statute proceeds : 484 An Obder is Evidence of Assets. § 21. Every such order shall be conclusive evi- dence that there are sufficient assets in the hands of such executor or administrator, to satisfy tte amount for which the execution is directed to be levied; and no appeal shall be made from any such order, unless the person making the same shall execute to the plaintiff in such execution, a bond with sufficient sureties, to be approved by the surrogate, conditioned for the payment of the full amount so directed to be levied, with interest thereon, and the costs of defending the appeal, in case the order appealed from shall be affirmed. § 22. If the whole sum for which judgment may have been obtained, shall not be collected on the execution so directed to be issued, and assets shall thereafter come into the hands of such exec- utor or administrator, the surrogate shall make a further order for issuing execution, upon the ap- plication of the creditor, his personal representa- tives or assignees, and shall proceed in the same manner, from time to time, whenever assets shall come to the bands of the executor or administra- tor, until such judgment be satisfied. Action when barred by judgment. § 1821. (Code.) A final judgment against an heir or devisee, bars an action against the executor or administrator of the decedent. And Set offs against Executors. 485 The statute provides also, especially for setoffs in action against executors and others in a repre- sentative capacity. § 25. (2 R. S., 355.) In actions against execu- tors or administrators, and against trustees and others sued in their representative character, the defendants may set off demands belonging to their t-istators or intestates, or those whom they repre- sent in the same manner as the person represented would have been entitled to set off the same, in an action against them. In regard to the collection of judgments entered against the decedent in his lifetime, by execution, provision is made by the statute. § 27. (2 R. S., 368.) If any party dies after judgment rendered against him, but before execu- tion issued thereon, the remedy on such judg- ments shall not be suspended by reason of the non-age of any heir of such party ; but no execu- tion shall issue on any such judgment until the expiration of one year after the death of the party against whom the same was rendered. Execution after death of judgmontcreditor. § 1376. (Code.) Where the party recovering a final judgment, has died, execution may be issued atany time within five years after the entry of the 486 Execution how Issued. 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 the residence of the person issuing the same. When execution may be issued after five years. § 1377. 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, grant- ing leave to issue the execution. Leave how obtained. § 1378. Notice of an application for an order, granting leave to issue an execution, as prescribed in the last section, must be served personally upon the adverse party, if he is a resident of the State and personal service can, with reasonable dili- gence, be made upon him therein ; otherwise no- tice must be given in such manner as the court directs. Where the judgment is for a sum of money, leave shall not be granted, except on proof by afiidavit, to the satisfaction of the court, that the judgment remains wholly or partly unsatisfied. Leave for Execution. 487 The provisions in relation to an execution against a decedent are as follows : No execution against decedent, except, etc. §1379. An execution to collect a sum of money cannot be issued against the property of a judg- ment debtor, who has died, since the entry of the judgment, except as prescribed in the next two sections. Leave rectuired. § 1380. 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 of money, is rendered the judgment may be en- forced by execution, against any property upor which it. is a lieu, with like effect, as if the judg- ment debtor was still living. But such an execu- tion 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 Surro- gate's Court of the State, which has duly granted letters testamentary or letters of administration upon the estate of the deceased judgment debtor. Leave how obtained. § 1381. Leave to issue an e^^eciition, as pre- 488 Notice before Execution. scribed 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 icsue 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 per- sonally, 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, granting leave to issue the execution, the judgment creditor must present to that court, a written petition, duly verefied, 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 Leave in Supreme Court. 489 accordingly ; and upon the return thereof, he must make such a decree in the premises, as justice re- quires. An accounting may follow in the discretion of the surrogate. (§ 1826). Real property not affected by judgment against execu- tor or administrator. § 1823. Real property, which belonged to a de- cedent, 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 execu- tion 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. AFFIDAVIT FOR MOTION TO SUPREME COURT. Supreme Court. John Doe agaiTist Richard Roe. r Rensselaer county, ss : John Doe, of the city of Troy, in said county, being duly sworn, says that on the 10th day of November, 1878, and more that one year before 490 Affidavit on Notice. this time, deponent recovered a judgment against the above named Richard Roe, at that time re- siding in the town of Brunswick, in said county, in this court, for the sum dollars and cents, damages and costs, and the judgment roll thereon was on said day filed in the office of the clerk of said county. That soon after said day, said defendant died and letters of ad- ministration were thereupon duly issued by the surrogate of said county, to (or, the will of said deceased was duly proved and letters testamentary thereon were duly issued to ), on the day of , 1878. That said deceased at the time of his death owned and was in possession of the following des- cribed real estate to wit : All that parcel of land, etc. (describing it.) That said deceased left him surviving A B, C D, and E P, of said town of Brunswick, his heirs at law (or, by the will of said deceased, he devised ,aid real estate to R. R., his widow residing in said town of Brunswick.) And deponent further says that said judgment is wholly unsatisfied and unpaid. (Signed.) John Doe. Sworn before me this | day of , 1880, J AB, Com. of Deeds. And Notice in Supreme Court. 491 NOTICE TO BE ANNEXED. Supreme Court. John Doe, | i- ) against ' Richard Doe. To A B, administrator of the goods of Richard Roe, deceased, and to C D, E F, and G H, heirs at law of said deceased. Take notice that upon an affidavit of which the annexed is a copy, this court will be moved, at a special term thereof to be held at. in the city of on the day of , 1880, at the opening of court or as soon thereafter as counsel can be heard, for an order that leave be granted to the plaintiff before named to issue an execution to the sheriff of the county of Rensselaer against the real estate described in said affidavit, or for such other or further order as the court shall decree proper. Yours, etc;, AB, Attorney /or Plaintiff. Dated March 10th, 1880. ORDER TO SHOW CAUSE INDORSED. Upon the written affidavit and notice it is ordered that service thereof be made by delivering copies 492 Leave in Suerogate's Court. thereof to the person to whom said notice is directed on or before this 10th day of March, 1880, and that said person show caufe at the special term mentioned in said notice, why the order therein mentioned should not be granted. (Signed,) A. M. Osborn, Justice. Dated March 10th, 1880. This proceeding being against, heirs at law. or devisees, the notice of it or citation to show cause must run to tnem, and, as such a judgment is a preferred debt and might be paid by the executor or administrator, if letters have been issued, he also should be included in the citation. It has been held that it is not showing sufficient cause, to prove the non-payment of the judgment. It should also appear that proper proceedings had been taken to collect out of the personal estate and that the petition should show the land sought to be sold. {Matter of Bentley, 16 Abb., 84.) PETITION FOR LEAVE TO ISSUE EXE- CUTION. To Hon , Surrogate of the county of : : Your petitioner A R, of the town of , in said county, respectively shows : That heretofore your petitioner recovered a judg- Petition for Execution. 493 ment against C D, late of the town of , in said county, in his lifetime, in the Supreme Court, for the sum of | , damages and costs, which said judgment was entered in said county on the day of , 1878. That afterwards, and on or about the day of , 1878, and more than one year since, said C D, died, leaving him surviving E F (and others, naming them), his heirs at law (or having made his will which was duly proved in this court in which E P is named devisee of the real estate of said deceased). That letters of administration of the goods, chattels and credits of the said de- ceased were granted by this court to G H, of the town of , in said county. Your petitioner further shows that the said deceased was seized in his lifetime and at the time of his death of certain real estate, upon which the aforesaid judgment is a lien, described as follows : All that parcel, etc., (describing it). Wherefore your petitioner prays that a citation issue to the aforesaid administrator and said heirs at law (or devisees), requiring them to appear in this court on a day to be named therein, to show cause why an execution should not issue upon said judgment, or for such other or further relief, as the court shall deem proper in the premises. (Signed), A B. Dated Nov. 23, 1879. 494 EULE AS TO SEVERAL JUDGMENTS. Rensselaer county, ss : A B, being duly sworn, says that he has heard the foregoing petition by him subscribed read, and that the same is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief and as to those matters he believes it to be true. (Signed), A B. Sworn before me this day ) of ,1879. j Com'r of Deeds, Troy, N. Y. Upon this petition the suri-bgate enters an order for the issue of a citation, and issues the citation which is to bo served as provided for generally. (See ante). There seems to be no distinction as to judgments against a decedent, between those recovered less or those recovered more than five years before the application for leave to issue execution thereon. Leave may be granted in any case in which the judgment is a lien upon real estate, that is at any time after one year from decedent's death and within ten years from the docketing of the judgment. For the purpose of deciding as to the propriety of the issue of the execution, the surro- gate may order an intermediate account to be filed, (§1826.) Payment of Executor's Debt. 495 Payment of a Debt due to the Executor or Administrator. All executor or administrator, creditor of the estate of his decedent, may not settle his own claim and pay it, he must have it allowed, on due proof by the surrogate. § 33. (2 R. S., 88.) No part of the property of the deceased shall be retained by an executor or administrator in satisfaction of his own debt or claim, until it shall have been proved to, and allowed by the surrogate ; and such debt or claim shall not be entitled to any preference over others of the same class. § 37. (Chap. 460, Laws of 1837, as amended by chap. 594, Laws of 1868.) The proof of the debt or claim of any executor or administrator required by the thirty-third section of title three, chapter six, of the second part of the Revised Statutes, may be made on the service and return of a citation for that purpose, directed to the proper persons, or on the final account of any such executor or ad- ministrator, pursuant to the third article of the third title of chapter six of the second part ol the Revised Statutes, But the Statute of Limitations shall not be available as a defense to such debt or 496 Executor's Claim to be Supported. claim, provided the same shall be presented and claimed at the first accounting, and provided the same was not barred by statute at the time of the death of the testator or intestate. When the executor presents a very large claim and has himself the sole custody of tie books and papers relating to the claims, he should be held to the clearest possible proof of it. {By Surrogate Coffin, 16 Abb. N. S., 429.) An executor or administrator, who makes a claim against the estate, must support it by a sworn voucher, such as he may require from others under § 35, of the statute, and it is error for the surrogate to allow it, whatever the force of the proof, unless so verified. However strong the proof may be it is the duty of the surrogate to exact an oath that there have been no payments, and that there are no offsets. (Clark v. Clark, 8 Paige, 162 ; Terry v. Dayton, 31 Barb., 519.) We are aware that the decision In the Matter of Cwnnrngham, (1 Hun, 214), is adverse to the law as above stated, but notwithstanding it is the most recent, the older authorities were not examined or referred to, and it cannot be considered as author- ity overruling the well considered cases quoted above. The facts were briefly as follows : Proof as to Claim of Executor. 49T The executor included in hia account as exe- cutor on final settlement, an account for sums paid out by him for clothing, nursing and medical at- tendance on testator, and other matters, in his life- time, and it does not appear that, there was any affidavit such as is required of a creditor, or other equivalent testimony from the executor. But the claim was proved. The surrogate, upon the report of an auditor, disallowed the claim. On appeal, the decision was modified and the claim allowed. He cannot retain money.s for a debt due to him self, barred by the Statute of Limitations, in the lifetime of his testator. {Rogers v Rogers, 3 Wend., 503.) And on the hearing, any person interested may set up tQe statute. [Treat v. Fortune, 2 Brad., 116.) The proof of the claim before the surrogate, whether on return of the citation presently to be noticed, or upon final (or judicial) settlement, must be such as would warrant a verdict, if the trial were before a j ury . The surrogate has jurisdiction to try the validity of a claim made by the executor against the de- cedent. (Vulte V. Martin, 44 How., 18 ; Smith v. Christopher, 6 Th. & C, 288 ; Everts v. Everts, 62 Barb., 577 ; Cunningham's Estate, 1 Hun., 214 j 32 498 Claim of Executor. Elmore v. Jaques, 2 Hmi., 130 ; Matter of Flood, i6 Abb. N. S., 407.) He has jurisdiction to hear and determine the claim, whether it is disputed or not. {Kyle v. Kyle, 67 N. Y., 400 ; Shakespeare v. MarMiam, 72 N. Y., 400 ; Boughton v. Flint, 74 N. Y., 476.) Upon such a claim the executor is not a com- petent witness in his own behalf. (Code, § 829.) But as the statute does not run against a claim of an executor or administrator where the time elapsed after the decedent's death, if the same is presented at the first final or judicial settlment, and as a judicial settlement may be had at the expiration of a year, from the issue of letters, it is presumed that a special proceeding to prove a debt of a personal representative, will hardly ever be deemed necessary. An executor or administrator may be compelled, under certain circumstances, to pay a debt of his decedent, before the expiration of the time before final settlement. Petition by creditor to compel payment. § 2717. In either of the following cases, a peti- tion may be presented to the Surrogate's Court, praying for a decree directing an executor or ad- ministrator to pay the petitioner's claim, and that Payment of Debt how Compelled. 499 he may 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 dis- tributive 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. The power of the surrogate to secure the pay- ment of a debt before the expiration of eighteen months is discretionary and where the evidence of the claim is suspicious, the motion will be denied. {Flagg v. JRuden, 1 Bradf., 192.) PETITION BY A CREDITOR FOR PAY- MENT OP A DEBT. To the surrogate of the county of : The petition of , of the of , respectfully shows: That your petitioner is a creditor of said de- ceased, upon a claim for dollars, as follows : That your petitioner sold and delivered to said deceased, in his lifetime, goods, wares and mer- 500 Petition for Payment. chandise to the value of dollars, which sum the said deceased, in his lifetime, promised to pay at the expiration of months ; that said did not pay the same in his lifetime, nor have any payments been made thereon since? and there are no offsets against the same, to the knowledge of your petitioner, and there is due to your petitioner the sum of dollars, with interest thereon, from the day of , 1869. That on or about the day of , 1871, the last will and testament of said deceased was duly proved in this court, and letters testa- mentary were issued to , executor named therein, who has duly returned an inventory of the personal estate of said deceased. That said executor advertised for the presentation of claims against the estate of said deceased, and your petitioner duly presented his claim, which was not disputed, and your petitioner, after the expiration of six months from the granting of such letters^ demanded payment of his said claim from the said executor who has hitherto neglected and refused to pay the same, or any part thereof. Wherefore, your petitioner prays that a decree be made for the payment of said claim, or for such other order or decree as shall be agreeable to law and equity. Dated Dec. 6, 1872. (Signed), Hearing of Petition for Payment. 501 Rensselaer county, ss : , being duly sworn, says that the foregoing petition, by him subscribed, is true of his own knowledge, except as to the matters which are therein alleged to be stated on information and belief, and as to those matters he believes it to be true. (Signed), Sworn, etc. Hearing. Decree. § 2718. Upon the presentation of a petition, as prescribed in the last section, the surrogate must issue a citation accordingly ; and, upon the return thereof, he must make such a decree in the prem- ises, as justice requires. But in either of the fol- lowing cases, the decree must dismiss the petition, without prejudice to an action or an accounting, in behalf of the petitioner : 1. Where the executor or administrator files a written answer, duly verified, setting forth facts which show that it is doubtful, whether the peti_ tioner's claim is valid and legal, and denying its validity or legality, absolutely, or upon informa- tion and belief 2. Where it is not proved, to the satisfaction of the surrogate, that there is money or other per- sonal property of the estate, applicable to the pa_y- ment or satisfaction of the petitioner's claim, and 502 Administrator Cited to Pay Debt. which may be so applied, without injuriously af- fecting the rights of others, entitled to priority or equality of payment or satisfaction. ORDER FOR CITATION TO ADMINISTRA- TOR. At a Surrogate's Court, held in and for the county of . . . . , at the surrogate's office in the . . of . . . . , on the .... day ot , 1874. Present — Hon. . , Surrogate. In the matter of the estate of , deceased. On reading and filing the petition of , showing that he is a creditor of said deceased ; that he has presented his claim to . . . , administrator, etc., of said deceased • that said claim was not disputed, and that more than six months have elapsed sice letters of ad- ministration were issued to the said Ordered, that a citatation issue to the said . . . , administrator, requiring him to show cause why payment of said debt should not be decreed. , Surrogate. The authority to decree payment of a debt in such a case is to be exercised in conformity with Payment May be Enforced. 503 the principles of equity among creditors, and only in cases where the contemplated payment can be made consistently with the rights of all parties in- terested. {ThojnpsoTk V. Taylor, 71 N. T., 27.) But the surrogate's order denying a creditor's application for payment of his claim, does not pre- vent the creditor from maintaining his action in any other proper court. {Fitzpatrick v. Brady, 6 Hill, 581 ; Flagg v. Bvden, 1 Bradf., 192 ; see also 18 Wend., 666 ; 6 Barb., 152.) The defect of omitting a citation is waived by the executor or administrator appearing and pro- ceeding without objection. {St. John v. Voorhies, 19 Abb., 53.) If, upon the return day, no cause be shown to the contrary, the surrogate will order the pay- ment of the debt, and the payment may be en- forced by attachment, or by suit upon the bond given by the executor or administrator. Decree conclusive evidence of assets. § 2552. A decree, directing payment by au exe- cutor, administrator, or testamentary trustee, to a creditor of, or a person interested in, the estate or fund, or an order, permitting a judgment creditor to issue an execution against an executor or ad- ministrator, is, except upon an appeal therefrom, conclusive evidence thfvt the^e ^re sufficient assets 504 Decree how Conclusive. in his hands, to satisfy the sum which the decree directs him to pay, or for which the order permits the execution to issue. A certificate of the decree for the payment may be filed in the office of the county clerk, and an execution issued thereon. This is more fully treated of hereafter. (See index, tit. Execution.) An executor or administrator acting in good faith, will be protected in paying a debt in full, pursuant to the surrogate's decree, although it may finally turn out that by reason of unexpected losses, the assets are insufficient to pay in full. The decree is provisional to the extent that if it remains unexecuted until the final settlement, it must in case of insufficiency of assets give way, and the claim will stand and be paid as other claims are. It is not necessary in such a case, to procure the decree to be formally vacated. {Thompson v. Taylor, 71 N. Y., 217.) Payment of a debt may be enforced after a judgment. The provisions of the new revision in relation to the collection of a judgment recovered against an executor or administrator are contained in 2 R. S., 116, § 19, et seq. Execution not Issued Until Allowed. 505 Want of assets not to be pleaded by executor, etc. § 1824. In an action against an executor or administrator, in hivS 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 such an action, is not evidence of assets in the defendant's hands. Execution not to issue until allowed. § 1825. An execution shall not be issued, upon 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 collected ; and the execution must be indorsed with a direction to collect that sum. The manner of obtaining the order is not so definitely prescribed but, the motion should be made to the surrogate on a petition, a copy of which, with a notice that the motion will be made at a specifi,ed time, should be served. i..- j'J 506 Petition for Execution. PETITION. To Hon , Surrogate of the county of Your petitioner, A B, of the town of in said county, respectfully shows : That C D, late of said town, was a creditor of your petitioner, and that he having died, letters testamentary upon his will have been duly issued from the Surrogate's Court of this county, to E F, an executor named in said will : That your petitioner brought an action upon his claim against said E F, as executor as aforesaid, in the Supreme Court, and your petitioner obtained judgment against said executor, for the sum of dollars and cents, damages and costs, on the day of , 1880, as will appear by a transcript of said judgment, made by the county clerk of the county of , annexed hereto. That said executor has not paid said judgment, or any part thereof, but that the whole amount, with interest from the day in which the same was entered as aforesaid, is due to your petitioner. Wherefore your petitioner prays that he may be permitted to issue an execution for. the amount so due as aforesaid, upon said judgment. (Signed), A B. Dated , Nov. 26, 1880. Notice on Petition for Execution. 507 Rensselaer county, ss : A B, being duly sworn, says that the foregoing petition by him subscribed, is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be true. (Signed), A. B. Sworn before me this ) day of ,1880.] Commissioner of Deeds, Troy, N. Y. NOTICE OF APPLICATION FOR LEAVE, TO BE ENDORSED. To E F, executor of the will of C D, deceased : Take notice that upon a petition of which the within (or foregoing, or annexed) is a copy, an application will be made to Hon , surro- gate, at his office in the city of Troy, on the day of , 1880, at ten o'clock in the fore- noon, for an order, as asked in said petition. Yours, etc., R L, Att'y for Petitioner. Dated March 11, 1880. Notice and hearing. § 1826. At least six days' notice of the applica- tion for an order specified in the last section, must be personally served upon the executor or admin- 508 Application for Execution. istrator, 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 surrogate 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 chargeable 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 it appears that the sum, directed to be collected by the first execution, is less than the plaintiff's just propor- tion. Before an order can be entered the executor must render an account, which will not differ generally from an account rendered on final settle- ment of his accounts, but it must appear also, that there are no debts of a prior class unpaid, or that there are enough assets to pay them all, and it must also show how much the debts of the same Application for Execution. 509 class as the judgment amount to, and the amount in hand applicable to the payment thereof. These facts could not be ascertained, until after publication of notice to creditors to present claims had been made. Inasmuch as an order or decree for the issuing of an execution for a certain sum is made con- clusive evidence of a sufficiency of assets to pay the petitioning creditor such a sum without pre- judice to the personal representatives or the other creditors, where the judgment is in favor of a creditor, it will be very difficult to decide in a case where the estate is at all embarressed, how much ought to be paid, until the time for presenting claims under notice shall have elapsed. The sur- rogate cannot, more than the personal representa- tives, know until the expiration of the time of notice how much the estate can properly pay. It is presumed then that this proceeding will not be taken very often, until after the lapse of a year from the issuing of letters. We present an order, or more properly, a decree for the issuing of an execution, which can hardly ever be necessary, unless the executor or adminis- trator is contumacious. 510 Decree for Execution. DECEEE FOR EXECUTION. At a Surrogate's Court, held in the county of at the surrogate's office in the of on the day of , 1880. Present — Hon , Surrogate. In the matter of the estate | C D, deceased. I A B, having presented his petition to the sur- rogate praying that he might be permitted to issue an execution against E F, the executor of the will of the above named deceased, and it appearing that a copy of said petition with a notice of the application for such permission was duly served on the said E F, more than six days before this day, and the said E F, having attended and filed his account as such executor from which it appears that there is in the hands of said executor a suffi- ciency of assets to pay the claim of the said peti- tions, without prejudice to the claims of other creditors. It was adjudged that an execution may issue upon the judgment referred to in the petition in favor of the said A B and against the said execu- tor for the sum of $ , damages and costs, entered in county on the .... day Previous Payments Allowed. 511 of' , 1879, directing the sheriflF to collect from said executor the whole amount with his fees and expenses proper to the case. Witness, , Surrogate, and [l. s.] the seal of the court, the day and year first above written. , Surrogate. After publication for claims, the executor or ad- ministrator may pay, or ratably pay, the claims presented, and if there be a surplus, may distrib- ute such surplus according to the will or among the next of kin. § 39. (2 R. S., 89.) In case any suit shall be brought upon a claim which shall not have been presented to the executor or administrator of a deceased person, within six months from the first publication of such notice, as hereinbefore di- rected, such executor or administrator shall not be chargeable for any assets or money that he may have paid in satisfaction of any claims of an infe- rior degree, or of any legacies, or in making distri- bution to the next of kin, before such suit was commenced, but may prove such notice published by him as aforesaid, and such payment and distri- bution, in support of his plea of having adminis- tered the estate of the deceased. § 40. In such action the plaintiflf shall be enti- 512 Judgment only for Assets. tied to recover only to the amount of such assets as shall have been in the hands of such executor or administrator, at the time of the commencement of the suit; or he may take judgment for the amount of his claim, or any part thereof, to be levied and collected of assets which shall there- after come into the hands of such executor or ad- ministrator. § 41. (Page 89.) In such suit no costs shall be recovered against the defendants. * * * * § 42. But any creditor who may have neglected to present his claims as aforesaid, may, notwith- standing, recover the same in the manner pre- scribed by law, of the next of kin and legatees of the deceased to whom any assets shall have been paid or distributed. COSTS AGAINST EXECUTORS OR ADMIN- ISTRATORS. The liability of executors and administrators for costs, either as against themselves, or against the estate which they represent, is regulated by statute. The code provides for costs to the plaintiff or defendant generally, in § 3228, etc., and further provides as to executors and administrators. Allowance of Costs. 513 Costs against an executor or administrator. § 3246. In an action brought by or against an executor or administrator, in his representative capacity, or the trustees of an express trust, or a person expressly authorized by statute, to sue or be sued, costs must be awarded as in an action by or against a person, prosecuting or defending in his own right, except as otherwise prescribed in sections 1835 and 1836 of this act ; but they are exclusively chargeable upon, and collectable from the estate, firm or person- represented, unless the courts directs them to be paid by the party person- ally, lor mismanagement or bad faith in the prose- cution or defense of the action. The sections referred to are as follows : Costs how awarded. § 1835. Where a judgment for a sum of money only is rendered against an executor or adminis- trator, m an action brought against him in his rep- resentative capacity, costs shall not be awarded against him, except as prescribed in the next section. Costs when awarded. § 1836. Where it appears, in a case specified in the last section, that the plaintiff's demand was presented within the time limited by a notice, pub- 33 514 Costs when Allowed. lished as prescribed by law, requiring creditors to present their claims ; and that the payment tbereof was unreasonably resisted or neglected,.or that the defendant refused to refer the claim, as prescribed by law ; the court may award costs against the ex- ecutor or administrator, to be collected, either out of his individual property, or out of the property of the decedent, as the court directs, having refer- ence to the facts which appeared upon the trial. Where the action is brought in the Supreme Court, or in a "Superior City Court, the facts must be cer- tified by the judge or referee, before whom the trial -took place. These sections together represent section 317, of the code, and section 412 2 R. S., 80, and the former decisions are of value. No costs arc allowed against a plaihtiff's admin- istrator personally, in an action of trover, when the alleged conversion was in the decedept's life- time, but it is otherwise when the conversion was subsequent to the decedent's death, and the action might have been maintained in the plaintijff over right. {Fox v. Fox, 5 Hun, 53.) A referee has no power to award costs against executors or administrators. {Bailey v. Beryen, Id., 555.) Costs WHEN Allowed. 515 But if the executor or administrator does not advertise for claims, that fact will not prevent an order for costs ag.iinst him. {^Bollock v Bogardas, 1 Den., 276.) So, when the claim was presented thirty-four days after letters testamentary were issued and sued in fifteen days thereafter; on recovery it was held that the executor was not liable lor costs. [Buckliurst V. Hunt, 16 How., 407.) In another case, the court say : '" The action was defended upon the merits, and although the defense failed, it does not necessarily follow that it was improper to have made it ; for aught that appears, the evi- dence in the case may have been nicely balanced." [Nicholson v. Showerman, 6 Wend., 554.) In another case, the claimant demanded over and on reference under the statute, got only .07, the court held that he ought not to have costs, and said : " The statute, I apprehend, cannot be construed to subject executors and administra- tors to costs, unless they are guilty of a violation of duty. If a creditor presents a claim, known to be a fair one, and there is property enough to pay it, not liable to pay debts of a higher class, it is the duty of the executor or administrator to pay it, and a refusal to pay, under such circumstances I think, would be unreasonable ; but if the execu- 616 Where Esjecutor or Administrator tor or adminisirator doubts the correctness of the claim, the statute provides that not only the vouchers may be required, but also the affidavit of the claimant. If the executor or administrator should still remain unsatisfied, he may resist ; and if, upon the trial it i^hall appear that he had good reason for such resistance, it can never be called unreasonable. If, for instance, the plaintiff should fail io substantiate his claim to the amount demanded, or the defendant should succeed in establishing a demand by way of set off, which the plaintiff had refused to allow, such defendant could never be charged with unreasonable resist- ance. [Roberta v. Ditinas, 7 Wend., 522.) Where the plaintiff brought his action as exe- cutor upon a promise made to him after the de- cease of his testator, a verdict was rendered in favor of the defendant and a judgment was en- tered thereon against the plaintiff, without refer- ence to his representative capacity. An execution was issued in this judgment, to be collected against the plaintiff, de boiris proprm, and it was held proper. [Boswick v. Bums, 15 Hun, 308). In a recent case not reported, the claimant pre- sented a claim to the administrator, as against the decedent. He had erroneously included an item for services to the executor named, who did not May Eesist Properly. 517 qualify, on proving the deceflent's will, and also a general charge for interest on the claim which was for services rendered as an attorney. The claim was referred and that part relating to ser- vices rendered after decedents' death was struck out by the referee and the claim for interest was waived. The plaintiff recovered the entire re- mainder of his claim except one item of $19 his recovery being §155. On motion for costs the Court at Special Term held, denying the costs, that the defense was not unreasonable as the whole reduction was $97, and that the defense was none the less necessary because the claimant made a mistake in stating his claim. Each case seems to be decided upon its own circumstances. The subject of costs for and against parties in the Surrogate's Court is a subject of special notice in the new revision. Costs under the former practice when granted, were fixed by the fee bill of the former Court of Common Pleas, which was very small in amount when known to practitioners well enough to enable them to prepare a bill. Besides there are few lawyers now in practice who could draw such a bill. Accordingly the .allowances by the court have generally been arbitrary, and the sums fixed in the discretion of the court. This 518 Award of Costs by Subrogate. proceeded, upon the theory that a hearing in the Surrogate's Court was in the nature of a hearing in equity, a view sustained, for other reasons, in the higher courts. This theory seems to have been adopted, in the preparation of the revision. Costs, how made payable. § 2557. Except where special provision is other- wise made by law, costs, awarded b}' a deciee, may be made payable b} the party personally, or out of the estate, or fund, as justice requires ; but costs, other than actual expenses, cannot be awarded to be paid out oi an estate or fund, which is less than one thousand dollars in amount or value. Costs, when awarded. § 2558. The award of costs in a decree, is in the discretion of the surrogate, except in one of the following cases : 1 . Where special directions, respecting the award of costs, are contained in a judgment or order, made upon an appeal from the surrogate's deter- mination, or upon a motion for a new trial of questions of fact tried by a jury; in either of which cases, costs must be awarded according to those directions. 2. When a question of fact has been tried by a jury; in which case, miless it is within the fore- going subdivision, the decree must award costs to the successful party. Costs when Awarded, Rate. 519 3. Where the decree is made upon a contested application for probate or revocation of probate of a will, costs, payable out of the estate or otherwise, shall not be awarded to an unsuccessful contestant of the will, unless he is a special guardian for an in- fant, appointed by the surrogate, or is named as an executor in a paper propounded by him, in good faith as the last will of the decedent. Costs, how awarded. § 2559. Costs, when awarded by a decree, in- clude all disbursements of the party to whom they are awarded, which might be taxed in the Supreme Court. The sum allowed for costs must be fixed by the surrogate, and inserted in the decree. Costs, same as in Supreme Court. § 2660. Where a question of fact has been tried hy a jury, the cost-s, awarded against the unsuc- cessful party, are the same as the taxable costs of an action in the Supreme Court. The costs of an appeal, where they are awarded in a Suri;-ogate's Court, are the snme as if they were awarded in the Supreme Court. The costs then would seem to be, costs before notice ; costs after notice and before trial, and trial fee. When surrogate to fix costs. I 2561. In a case other than one of those spe- 520 Has Discretion to fix Amount. cified in the last section, the surrogate, upon ren- dering a decree, may, in his discretion, fix such a sum, to be allowed as costs, in addition to the dis- bursements, as he deems reasonable, not exceeding, where there has not been a contest, twenty-five dollars, or where there has been a contest, seventy dollars ; and, in addition thereto, where a trial or hearing upon the merits before the surrogate necessarily occupies more than two days, ten dollars for each additional day ; and where a motion for a new trial is made before the surrogate, if it is granted, seventy dollars, if it is denied, forty dollars. Additional allowanees. § 2562. In addition to the sums specified in the last two sections, the surrogate may, in his discre- tion, allow to an executor, administrator, guardian, or testamentary trustee, upon a judicial settlement of his account, such a sum, as the surrogate deems reasonable, for his counsel fees and other expenses, not exceeding ten dollars for each day occupied in the trial, and necessarily occupied in preparing his account for settlement, and otherwise preparing for the trial. THE STATUTE OE LIMITATIONS. The Statute of Limitations was not formerly con- Statute of Limitations. 621 sidered a meritorious defense, and the pleading of it was discouraged, as between living persons ; but latterlj', the courts have looked with more favor on the defense. {Pardy v. Austin, 3 Wend., 187; Van Kuren v. Parmelee, 2 N. Y., 523.) But as between claimants, and executors or administra- tors, the Statute of Limitations is a very proper and meritorious defense, the executor or administrator being entirely ignorant of the claims. {Tracy v. Suydam, 30 Barb., 110.) There can be no doubt that, in a proper case, the executor or administrator is bound to set up the defense of the Statute of Limitations." This is the more his duty, because there is no other person who can do so while the estate still remains in his hands. {Wilcox v. Smith, 26 Barb., 316, 335.) It is also held in this case that, where the claim of a creditor, was duly recognized by the adminis- trator, the next of kin could not raise the statute as a bar before the surrogate on final settlement. (Id., 334.) But this must be considered overruled by the Court of Appeals, which held, that the ex- ecutor or administrator will not be protected in paying a claim barred by the Statute ol Limitations, and that his promise even will not revive such a claim. {Bloodgood v. Bruen, 8 N. Y., 362.) It was also held by the Court of ,'Appeals, that 622 When Statute Applies. a proceeding to compel the accounting of an ex- ecutor, who had been removed, could not be entertained after the lapse of ten years from his removal. ( Olarh v. Ford, 1 Abb. C. of App. Dec, 359.) The statute applies no less in contests between husband and wife, or to claims made by either surviving, against the estate of the other. In Wright v. Wright (54 N. Y.,437), a wife had sued her husband on a note given to her by him before her marriage, and the defense was, the in- capacity of the wife to sue, arising out of the marital relation. The commission of appeals held that, the incapacity does not exist, and that a wife can sue her husband to enforce any right affecting her separate property, in the same manner that she 'might sue a stranger. The court cites Porver V. Lester, 23 N. Y., 427 ; Dygert v. Reimer- Schnei- der, 32 N. Y., 629, and Whitney v. Whitney, 49 Barb., 319. The Supreme Court, in iletcher v. Updike (5 Th. &C., 513), following out the above decisions, holds that,' inasmuch as there was no disability on the part of the wife to sue her husband, the statute runs against her claim, in the same manner as against a stranger. (See also, Adams v. Cij/rtis, 4 Collection against Distributees. 523 Lans., 164 ; Minier v. Minier, Id., 421 ; Dunham V. Sacje, 52 N. Y., ^29.) It may be interesting at this point to pursue the subject of the collection of claims against distribu- tees of a decedent's estate. The provisions are found in §§ 1837, et seg, of the code, as revised. When action lies against distributees. § 1887. An action may be maintained, as pre- scribed in this article, against the surviving hus- band 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 adminis- trator. 'The neglect of the creditor to present his claim to the executor or administrator, within the time prescribed by law for that purpose, does not impair his right to maintain such an action. Action may be joint or several. § 1838. An action, specified in the last section, must be brought, either jointly against the surviv- ing husband or wife, and all the legatees, or all the next of kin, as the case may be, or, at the plaintiiF's election, against one of them only. But where a legacy is received by two or more persons 524 Eecovbky op Creditor jointly, they are deemed one legatee, within the meaning of each provision of this article, relating to legatees. In joint action, recovery to be apportioned. § 1839. Where a joint action is brought, as pre- scribed in the last section, the whole sum, which the plaintiff is entitled to recover, must be appor- tioned 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 award, against each defendant separately, the proportionate sum thus ascertained. 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 summons upon each defendant must be taxed against him only ; and one sheriff's fee, for returning an execution, may be taxed against eaeh defendant, against whom any sum is awarded. Recovery in several actions to be partial. § 1840. When an action is brought against the the surviving husband or wife only, or against one only of the next of kin, or legatees, the sum, which the plaintiff is entitled to recover, cannot exceed the sum which he would have been entitled to re- Against Distributees. 685 cover from the same defendant, in an action brought, as prescribed in the last section. Eequisites to recovery. § 1841. If the action is brought against a lega- tee, or against all the legatees, the plaintiff must show, either 1. That no assets were delivered by the execu- tor or administrator of the decedent, to the surviv- ing husband or wife, or next of km ; 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 ex- penses 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. RecLuisites in action against a preferred legatee. § 1842. Where some of the legatees are preferred to others, an action may be maintained, as pre- scribed in the last five sections, against one or all of those who are equally preferred, or equally de- ferred, as if the legatees of that class were all the legatees. But where it is brought against a pre- ferred legatee, 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 pro- 526 Heirs, etc., Liable for Debts. provisions of the last section, the same matters, respect to each legatee, or class of legatees, to whom the defendant or defendants are preferred. A creditor also, having exhausted all other rem- edies open to him, may collect a debt due from a decedent from an heir at law or devisee out of the real estate descended or acquired by device. Liability of heirs or devisees for debts. § 1843. 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 spcialty, to the extent of the estate, interest, and right in the real property, which de- scended to them from, or was effectually devised to them by the decedent. When action may be brought against heir, etc. § 1844. 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 letters testamentary, or letters of administration, upon his estate, have been granted within the State. 2. Where three years have elapsed, since letters testamentary, or letters of administration, upon his estate, were granted, within the State. And how Collected against Them. 527 Action to be stayed, when, etc. § 1845. Where it appears that, at the time of the commencement of such an action, a petition, season- ably 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 proceed- ings' in the action, subsequent to the complaint, must be stayed by the court, until the petition is disposed of, unless the plaintiff elects to discon- tinue. If a decree to dispose of real property, pur- suant 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 supplemen- tal complaint, that real property, other than that included in the decree, descended or was devised to the defendants. If the plaintiff elects to pro- ceed 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 caunot share, as a creditor, in the distribution of the money, arising from the disposal of the real property, described in the decree ; and the judg- ment in the action does not charge, or in any way affect, that property. Actions must be joint. § 1846. An action against heirs or devisees. ^28 Eecovery from Heirs, etc. brought as precribed in the last three sections, must be brought jointly against all the heirs, to whom any real property descended from the dece- dent, or jointly against all the devisees, as the case may be. Recovery to be apportioned. § 1847. In such an action, the sum, which the plaintiff is entitled to recover, for damages and costs, must be apportioned among all the defend- ants, in proportion to the value of the real pro- perty descended to each heir, or devised to each devisee, as the case may be, as prescribed in sec- tion 1839 of this act, for a similar apportionment among legatees or next of kin, in proportion to the assets received by them. The final judgment must, in like manner, award against each defend- ant the proportionate sum, with which he is chargeable. Bequisits for recovery against heirs. § 1848. 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 suflBcient 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 For Debt of Decedent. 529 be unable, with due diligence, to collect his debt, by proceedings in the proper Surrogate's Court, and by action against the executor or administra- tor, and against the surviving husband or wife, legatees, and 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, Keguisites for recovery against devisees. § 1849. Where the action is brought against de- visees, the plaintiif must show, in addition to the matters specified in the last section, either that the property of the decedent, which descended to his heirs, was not sufficient to pay tfie plaintiff's debt, or that the plaintiff has been unable, or will be unable, with due diligence, to collect his debt by an action against the heirs. Deductions for prior recoveries by plaintiff. § 1850. Where the assets, applicable to the plaintiff's debt, were sufficient to pay a part thereof or a part thereof has been collected from the exe- cutor or administrator, or from the surviving hus- band or wife, next of kin, or legatees, the plaintiff can recover only for the residue, remaining unpaid 34 530 Collection prom Heirs. or uncollected; and if the action is against de- visees, he can recover only for the residue, which the real estate descended, or the amount of his re- covery against the heirs, is insufficient to dis- charge. Complaint to describe real estate. § 1851. The complaint must describe, with com- mon certainty, the real property, descended or de- vised to the defendant; and must specify its value. Judgment to direct out of which real estate collection is to made. § 1852. If it appears that any of the real property, which descended or was devised to a defendant, had not been aliened by him at the time of the com- mencement of the action, the final judgment must direct, that the debt of the plaintiff, or the pro- portion thereof which he is entitled to recpver against that defendant, be collected out of that real property. Such a judgment is preferred, as a lien upon that property, to a judgment obtained against the defendant, for his individual debt or demand. Judgment not to affect title in certain cases. § 1853. But a judgment, rendered as prescribed in the last section, does not bind, and the execu- Judgment against Heirs. 531 tion thereupon cannot in any way affect, the title of a purchaser, in good faith and for value, acquired before a notice of the pendency of the action is filed, or final judgment is entered, and the judg- ment roll filed. How judgment taken when land aliened. § IS 54. If it appears that, before the commence- ment of the action, or afterwards and before the filing of a notice of the pendency of the action, the defendant aliened the real property descended or devised to him, or any part thereof, the plaintiff may, at his election, take a final judgment against him for the value of the property so aliened, or so much thereof as may be necessary, as in an action for the defendant's own debt. Classification of debts to be enforced. § 1855. 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 pay- ment thereof, and they are so liable therefor, in the order prescribed by law, for the payment of debts by an executor or administrator. Prefer- ence of payment cannot be given to a demand, over, another of the same class, except where a similar preference by an executor or administrator 532 Defense of Heirs. is allowed by law. The commencement of an action, under any provision of this article, does not entitle the] jplain tiff's demand to preference over another of the same class, except as otherwise specially prescribed by law. Defense by reason of prior or equal claim. § 1856. Where it appears, in an action brought as prescribed in this article, that there are un- satisfied demands against the decedent's estate, of a class prior to that of the plaintiff's demand, the defendant is entitled to judgment, if the value of the property, which was received, devised, or in- herited, as the case may be, by the class to which he belongs, does not exceed the amount of the valid demands of a prior class. If it exceeds the amount of those demands, the judgment against the defendant cannot exceed such a proportion of the plaintiff's demand, as the total amount of the valid demands of his class bears to the excess. Defense wben similar claim has been paid. § 1857. Where a defendant, or a person belong- ing to his class, has paid a demand against the decedent's estate, of a class prior to that of the plaintiff's demand, or has paid a demand of the same class, the amount of the demand so paid Claim against Heirs. 533 must be estimated, in ascertaining the amount to be recovered, as if it was outstanding and unpaid. Action not suspended by infancy of any party. § 1858. An action against heirs or devisees, brought as prescribed in this article, is not delayed, nor is the remedy of the plaintiff suspended, by reason of the infancy of any of the parties ; except that an execution shall not be issued against an infant heir or devisee, until the expiration of one year after final judgment is rendered, and the judgment-roll filed. Not applicable in certain case. § 1859. This article does not affect the liability of an heir or devisee, for a debt of a testator, where tho 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. One action where same person is heir and devisee. § 1860. Where a person, who takes real pro- perty of a decedent by devisee, and also by descent ; or who takes personal property fis next of kin, an4 534 Several actions. also as legatee ; or who takes both real and per- sonal property in either capacity ; or who is ex" ecutor or administrator, and also takes in either of the before mentioned capacities ; would be liable, in one capacity, for a demand against the decedent, after the exhaustion of the remedy against him in another capacity ; the plaintiff, in any action to charge him, which can be maintained, without joining with him any other person, except a person whose liability is in all respects the same, may recover any sum, for which he is liable, al- though the remedy against him in another capacity was not exhausted. But this section does not in- crease the sum, which the plaintiff is entitled to recover against him, in the capacity in which he is actually liable ; nor does it charge a defendant individually, who is liable only in a representative capacity. Gifts, ETC., Payments THEREOF. 535 CHAPTER XVII. Gifts, and Legacies and Distributive Shares AND Payment Thereof. The subject of gifts, inter vivos and causa mortis frequently engages the attention of the court. A gift, inter vivos is, when properly made and accepted, an executed contract, and effectually vests the property in the donee. All that is necessary to constitute a valid parol gift is an expression to that effect, by the donor, accompanied by a delivery of the thing to the donee. Neither a donatio inter vivos, or mortis cavsa, is good without delivery ; but in the one case, the title passes immediately to the donee on delivery, and the donor has no more right to or over the property, than any other person ; in the other, the title does not pass immediately, it takes efiect only on the death of the donor who in the mean time, has the power of revocation. (Bedell V. Garll, 33 N. Y., 581.) The distinction between the two classes of gifts is very clearly stated in the 536 Gifts when valid. case last cited, the one being absolute and the other being conditional. To render a gift of either class valid, a delivery is essential, when the subject matter is capable of delivery. The possession, or some means of ob- taining possession, must be transferred to the donee, or the title does not pass. (Woodiuff v. Cook, 25 Barb., 505, and cases cited.) But a con- structive delivery is sufficient, where the nature of the thing does not admit of an actual delivery. {FulUm V. Fulton, 48 Barb., 581.) But possession of a chattel, by a claimant thereof, is not presumptive evidence of a gift, for the law does not presume a gift. [Qrey v. Grey, 47 N. Y., 552.) As to what constitutes an insufficient delivery, see Noble v. Smith, 2 Johns., 52 ; Taylor v. Fire Department. 1 Edwd., 294 ; Harrison v. M'Menomy, 2 Id., 251; Neufoille v. Thompson, 3 Id., 92; Eimtington v. Gilmore, 14 Barb., 243 ; Brink v. OauM, 43 How., 289. As to what is a sufficient delivery, and instances, see Ora/iigioG v. Arden, 10 Johns., 293 ; Minchin V. Merrill, 2 Edwd., 333 ; Logan v. Deshay, Clarke, 209 ; I^nfield v. Thayer, 2 E. D. Smith, 305. So also, the delivery may be made to a third. What may be valid. 531 party for the donee. {Constant v. Schuyler, 1 Paige, 316 ; Hunter v. Hunter, 19 Barb., 631.) It would seeui that any chattel may be the sub- ject of a valid gift, for, on a sale, the title passes by the receipt of the consideration and delivery. A bond and mortgage may be given and the title passes by delivery without writing. [Hackney V. Vromnan, 62 Barb., 650 ; Bucklin v. Buchlin, 1 Abb. C. of App. Dec, 242 ) But real estate is not the subject of gift, without deed, for title passes only by deed. The transaction may take place between all or any persons competent to-contract with each other, and even between husband and wife, who are, by common law, incompetent to contract. [Shirley V. Shirley, 9 Paige, 363 ; Oage v. Dawihy, 38 Barb., 622 ; Borst v. Spelman, 4 N. Y., 284.) A gift causa mortis, is distinguished from one inter vivos, in that, while the latter is irrevocable by the donor, the former is expressly ambulatory, partaking of the character of a will, and may be revoked by the donor at any time before his decease. [Merchant v. Merchant, 2 Bradf., 432.) The rule in regard to actual or constructive delivery, is the same as in the case of a gift inter vivos. But in all cases of gifts of either character, they 538 Gifts causa mortis. are subjeqt to question, on the ground of fraud as against the creditors of the donor, and if a gift causa mortis should prove prejudicial to creditors, it is the duty of the personal representative to question it and set it aside. {House v. Orant, 4 Lans., 296.) So also, it would seem, that a gift causa mortis must be made in apprehension of death, this was the rule of the civil law, that the gift should be made under expressed apprehension of death, and . in the presence of the donee. {Code Jus., Lib., 2 tit., 7.) The rule in this State, in regard to the apprehension of death, is well stated by Bacon J., in Irish v. Nutting (47 Barb., 370) thus " I think there will no case be found where such a gift is upheld, in which there was not, either peril of death from some imminent and impending cause, or the conceived near approach of natural death. It is not indeed necessary that the party should be in extremis, according to some of the earlier cases, but the gift will be presumed in contemplation of death, when the donor is on his death bed, or languishing in what proved to be his last illness. The party must be in condition to fear approaching death from a proximate and impending peril, or from illness preceding expected dissolution." Legacies. 539 LEGACIES. A legacy, in general terms, is a gift by will of some property other than real estate. (Orion v. Orton, 3 Abb. C. of App.) A misnomer or misdescription of a legatee, whether a natural person or a corporation, will not invalidate the provision, if either from the will itself, or evidence alinvde, the object of the testator's bounty can be ascertained, and parol proof may be adduced to prove the identity. {Lefeore v. Lefeore, 59 N. Y., 434.) Legacies are general and specific. A legacy is general, when it is bequeathed in terms not pointing out a particular item of the estate from which it shall be paid. It is specific, when the thing is bequeathed and pointed out. To illustrate : A legacy of one thousand dollars, is general ; a legacy of a certain bond and mort- gage is specific. A legacy is said to be demonstrative, when the fund or portion of the estate is designated, as the source from which payment is to be made. If the testator say, I give to A, one of my horses, the legacy is demonstrative as to the class of property from which it is to be paid. The delivery of any 540 Legacies Distinguished. horse satisfies the legacy. {Watrons v. Smith, 1 Hun., 544.) Legacies are said to be vested; when they are to be paid in the future, contingent when they may fail, being dependent on some contingency or sur- vivorship. They are also absolute and conditional, and all classes of legacies may lapse by failure of a proper person to take, or are to be adeemed by the destruc- tion of the subject matter, in the lifetime of the testator. Inasmuch as most general legacies are subject to abatement, while specific legacies are not, the courts generally incline to consider legacies general, rather than specific. Where a legacy is given to a widow in lieu of dower, or to a creditor in lieu of the debt owed to him, the legatee may, within a suitable time, elect which shall be accepted. But certain legacies do not lapse. Legacies to children do not. § 52. (2 R. S., 66.) Whenever any estate, real or personal, shall be devised or bequeathed to a child or other descendant of the testator, and such legatee or devisee shall die during the lifetime of the testator, leaving a child or other descendant who shall survive such testator, such devise or Legacies may lapse. 541 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. The validity of bequests of personal property, and also questions of succession thereto, or rights therein, must as a general thing, be determined under the laws of the State, and by the courts of the State in which the testator was domiciled at his death, when the property or those having the pos- session and control thereof, are within its jurisdic- tion. {White V. Howard, 46 N. Y., 144.) When the circumstances and conditions of the legatees and the circumstances of the estate and of the devisee, show that the time given for payment of legacies was designed for the benefit of the es- tate and not with reference to the circumstances or situation of the legatees, the legacies do not lapse by reason of the death of the legatees before the time of payment. (Loder v. Hatfield, 4 Hun, 36 ; see, also, Van Beuren v. Dash, 30 N. Y., Arm- strong V. Moran, 1 Bradf , 314.) So, also, a legacy to a creditor is not to be deemed in satisfaction of the claim, unless it ap- pears clearly by the will, that such was the intent 54:2 Payment of Legacies, etc. of the testator. {Boughton v. Flmt, 74 N. Y., 476.) PAYMENT OF LEGACIES AND DISTRIBU- TIVE SHARES AND HOW ENFORCED. The Supreme arid the Surrogate's Courts have concurrent j urrisdiction to compel the payment of legacies, after they shall become due by the terms of the will creating them ; but the Surro- gate's Court, as will be seen, can, in a proper case, compel such payment before they become due. A petition to the surrogate by a legatee, praying that the executrix be ordered to appear and ac- count, and that such further proceedings be had as might be necessary to enforce payment of the leg- acy, is sufficient to give jurisdiction under this sec- tion of the subject matter, and under an order to render a settlement, and a citation for an account- ing issued thereon, the surrogate has power to ex- amine into the account and adjust the same so far as to determine how much should be paid to the legatee. {Rck v. Sherwood, 56 N. Y., 615.) It is in the power of the surrogate to direct a payment to a legatee of a portion of his legacy in anticipation of the final accounting and distribu- tion of the estate, where this can be done without prejudice to the rights of creditors or other lega- Legacy Paid Before it is Due. 543 tees, or persons interested. {^Oilman v. Oilman, 63 N. Y., 41.) The section last above quoted should be con- sidered in connection with the provision of the Eevised Statutes in relation to voluntary pay- ment of legacies. § 43. (2 R. S., 90.) No legacy shall be paid by an executor or administrator, until after the expi- ration of one year from the time of granting letters testamentary or of administration, unless the same are directed by the will to be sooner paid. § 44. In case a legacy is directed to be sooner paid, the executor or administrator may require a bond, with two sufficient sureties, conditioned that if any debts against the deceased shall duly appear, and which there shall be no other assets to pay, and there shall be no other assets to pay other legacies, or not suflBcient, that then the legatee shall refund the legacy so paid, or such ratable proportion thereof with the other legatees, as may be necessary for the payment of said debts and the proportional parts of such other legacies, if there be any, and the costs and damages incurred by reason of the payment to such legatee ; and that if the probate of the will, under which such legacy is paid, shall be revoked, or the will declared void, then, that such legatee shall refund the whole of 544 Bond on Payment op Legacy. such legacy with interest, to the executor or ad- ministrator entitled thereto. BOND ON PAYMENT OP LEGACY BEFORE EXPIRATION OF YEAR. Know all men by these presents, that we, A B, as principal, and C D and E F, of the city of Troy, in the county of Rensselaer, and State of New York, are held, and firmly bound unto J D, as ex- ecutor of the will of John Doe, late of the town of Brunswick, deceased, in the sum of dollars, for which payment, well and truly to be made, we bind our and each of our heirs, executors and ad- ministrators jointly and severally, firmly by these presents, Sealed with our seals, and dated this \ 14th day of December, A.D., 1872. [ Whereas, in and by the will of said John Doe, deceased, dated the day of , 1870, a legacy was bequeathed to the said A B, of one hundred dollars, payable by the terms of said will, in , after the decease of said John Doe, and before the expiration of one year from the granting of letters testamentary to the said J D, executor named therein, and the said J D has, at the request of the said A B, paid said legacy : Now the condition of this obligation is such that if any debts against the deceased shall duly ap- Executor to pay Specific Legacies. 546 pear, and which there shall be no other assets to pay, and there shall be no other assets to pay other lea;acies, or not sufficient, then the said A B shall refund the legacy so paid, or such ratable propor- tion thereof, with the other legatees, as may be necessary for the payment of said debts, and the proportional parts of such other legacies, and the costs and charges incurred by reason of the pay- ment of such legatee ; and that if the probate of the said will shall be revoked, or the will declared void, then the said A B shall refund the whole of such legucy with interest to the said J D, or the administrator entitled thereto, then this obligation to be void, otherwise to remain in full force and effect. A B. [l. .s.] C D. [l. s.] E F. [l. s.] Add acknawledgmeid. § 46. After the expiration of one year from the granting of any letters testamentary or of adminis- tration, the executors or administrators shall dis- charge the specific legacies bequeathed by any will, and pay the generaL legacies, if there be as- sets, and if there be not sufficient assets, then abatement of the general legacies shall be made in equal proportions. Such payments may be en- 35 546 Specific Legacies how Enfokged forced by the surrogate, in 'the same manner as the return of an inventory, as hereinbefore pro- vided, and also by a suit, on the bond of such executor or administrator, whenever directed by the surrogate. It is the duty of executors to turn over specific legacies at the end of one year, with all the ad- vantage which would have occurred to the legatees, had the property thus bequeathed, been delivered when the will took effect. In the case at bar, rents which had occurred on leasehold property prior to delivery of the bequeathed lease, was held to belong to the legatee. {Bevan v. Cooper, 7 Hun., 117 ) Payment may be enforced by petition, order and attachment in the Surrogate's Court, or an action may be commenced in the Supreme Court, [Oil- man v. Oilman,^2>, N. Y., 41.) An action commenced for a legacy in the Su- preme Court is a bar to subsequent proceedings to enforce the payment of the same legacy in the Surrogate's Court. [Lewis v. Malone, 12 Hun, 207.) An action will also lie for a legacy or distribu- tive share and it is provided for by the statute. (2 R. S., 114.) § 9. If, alter the expiration of one year from the And How to be Paid. 547 granting of letters testamentary or of administra- tion, there be more than sufficient assets in the hands of any executor or administrator, to dis- charge the debts of tetator or intestate; and if after reasonable demand made, and the offer of a bond with sufficient sureties, as in the next sec- tion prescribed, by any legatee, or by any next of kin entitled to share in the distribution of the estate, such executor or administrator, such exe- cutor or administrator shall refuse to pay the legacy bequeathed by any will to such legatee, or the share of any such person entitled to distribu- tion, he shall be liable to such action as the case may require, at the suit of such legatee or next of kin, or their personal representatives. § 10 Previous to the commencement of any such action, a bond to the executor or administrator shall be filed with the clerk of the court, with such sureties as the court or any judge thereof shall approve, in double the sum of such share or legacy conditioned, that if any debts owing by the tes- tator or intestate, shall afterward be recovered or duly made to appear for the payment of which there shall be no assets other than the said share or legacy, that then such person shall refund the legacy or share that may be recovered in such action, or such ratable part or proportion thereof, 548 Legacy or Share may be Collected. with the other legatees or repsesentative of the deceased as may be necessary for the payment of the said debts, and the cost and charges incurred by a recovery against such executor or adminis- trator, in any suit therefor. § 11. When given by a legatee, the bond shall be further conditioned, that if no sufiicient assets shall thereafter remain to pay any other legacy which may be due, that then such person shall re- fund such ratable part or proportion thereof, with the other legatees or representatives of the de- ceased, or may be necessary for the payment of the proportional part of such other legacy. § 12. A minor may bring such action by his guardian or next friend, as in other cases ; but not until such guardian or next friend shall have filed with the clerk of the court, a bond to the minor, in such sum and with such sureties, as the court shall approve, conditioned, that such guardian or next friend shall duly account to such minor when of full age, or to his personal representatives in case of his death, for all moneys which may be recovered in such suit. § 13. In any such suit, brought by a legatee, if it appear that there are not assets sufficient to pay all the legacies that may have been given, then an abatement shall be made in proportion to the lega- Suit foe Legacy or Share. 549 cies so given, and such legatee shall recover only a proportionate part. Action by legatee or distributee. § 1819. If, after the expiration of one year after granting of letters testamentary or letters of ad- ministration, an executor or administrator refuses, upon demand, 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 commenced, the cause of action is deemed to accrue, when the ex- ecutor's or administrator's account is judicially set- tled, and not before. Guardian ad litem to file bond. § 1820 The guardian ad litem of an infant, in whose favor an action is brought, as prescribed in the last section, must, unless he is also the general guardian, execute and file with the clerk, before the commcencement of the action, a bond to the infant, with at least two sufficient sureties, in a penalty fixed by a 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 representatives, for all money or property, which the guardian may receive, by reaj son of the legacy or distributive share. 550 Legacy or Shake how Collected. Proceedings in Surrogate's Court to obtain legacy or distributive share. § 2717. In either of the following cases, a peti- tion may be presented to the Surrogate's Court praying for a decree, directing an executor or ad- ministrator to pay the petitioner's claim, and that he may be cited to show cause, why such a decree should be made : 1. By a creditor. * * * '^. By a person entitled to a legacy or any other pecuniary provision under the will, or a distribu- tive share, for the payment or satisfaction thereof or of its joint proportional part, at any time after one year has expired since letters were granted. In case there be a deficiency of assets to pay the legacies in full, as well as the debts of the testator general legacies will rate ratably, unless there is a contrary intention indicated in the will, while legacies founded upon a prior indebtedness or a valuable consideration do not, except as between themselves, so abate, but must be paid in full, tho^ugh the assets are not sufficient to pay all the general legacies. ( Wood v. Va7t Denhuryh, fi Paine, 277.) Specific legacies are not subject to abatement, unless the testator clearly expresses his intention Certain Legacies do not Abate. 551 that they shall be so. (1 P. Williams, 540 ; Bevan V. Cooper, 7 Hun., 117.) The rule as to abatement of general legacies, applies only to such as are mere gratuities. Where the legacy is given ior a debt, owing to the legatee, or for the relinquishment of any right, oi interest, as of her dower by a widow, such legacy will be entitled to a preference of payment over the general legacies, which are mere bounties. (1 P. Williams, 127 ; Williamson v. Williamson, 6 Paige, 298 ; 1 Russ's Ch. E., 543; 1 Edwards Ch., 411.) But where the will bequeathing the legacy, even in lieu of dower, directs that the legacies men- tioned in it shall abate ratably, then the rule above stated, that such legacy is preferred ' to mere bounties, does not apply. In such case the legacy will abate. {Orion v. Orton, 3 Abb. C. of App. Dec.) A legacy to a near relative, as a husband, for maintainance is not subject to abatement. {Scofield V. Adams, 12 Hun., 366.) A legacy for education, like one for maintain- ance, is to be preferred to general legacies, and in case of doubt as to a sufficiency of assets to pro- vide for such legacy, the legatee has a right to an accounting and to compel an investment of a sufli- 552 What Legacies do not Abate. cient sum to answer the purposes of the bequest. {Petrie v. Petrie, 7 Lans., 90.) A legacy of piety, as for headstones at a parent's grave will not be subject to abatement. {Woo(^ v. Vandenburgh, 6 Paige, 277.) In a proceeding for the payment of a legacy, the executor may set up in answer to the petition, any proper defense. The Statute of Limitations may be interposed with success when six years shall have elapsed from the time when the legacy was payable by the will. (Sawyer v. De Meyer^ 2 Paige, ij74.) PETITION FOR ORDER TO ACCOUNT AND FOR PAYMENT OF LEGACY. The petition of C D, of the town of in the county of , to Hon surrogate of said county, respectfully shows ; That your petitioner is a legatee named in the last will and testament of A B, late of the town of , in said county, deceased : That said will was submitted to probate, by said surrogate, and letters testamentary were thereon issued to J D, an executor named therein, on the first day of , 1879, and more than one year has elapsed since the issue of such letters. That in and by said will, a legacy of dollars was bequeathed to your petitioner, payable Executor Eequired to Account. 553 in one year after the decease of the testator. That said estator left a large personal estate amouuting to dollars, as by the inventory thereof on file in the office of said surrogate, will fully appear, ' and that such personal estate was amply sufficient, as your petitioner is informed and believes, to pay all the funeral expenses, and debts of the testator, the expenses of administration, and the legacies bequeathed in said will. Your petitioner has, since the expiration of one year from the issue of letters as aforesaiil, applied to said executor and requested him to pay the legacy so bequeathed to your petitioner, but he has not paid the same. Wherefore your petitioner prays that said exe- cutor may be required to account according to law for his proceedings as such executor, that it may be decreed that said executor pay said legacy to your petitioner and that such other or further pro- ceedings may be had as may be requisite to enforce the payment of such legacy as shall be just and equitable. (Signed), C D. Rensselaer county, ss : C D, being duly sworn, says that the foregoing petition by him subscribed is true, of his own knowledge, except as to the matters which are therein stated to be" alleged on informatian and 554 Citation to Account. belief, and as to those matters he believes it to be true. (Signed), C D. Sworn before me, this . . . . ) day of , 1880. j Notary Public. ORDER FOR CITATION. At a Surrogate's Court, held in the county of at the surrogate's office in the . . . of . . . ., on the day of , 1880. Present — Hon Surrogate. In the matter of the estate of A B, deceased. h On reading and, filing the petition of C D, one of the legatees named in the will of the above named deceased, and it appearing that more than one year has elapsed since the issue of letters tes- tamentary to E P, executor named in said will, and that the legacy to said C D, has not been paid: Ordered, that a citation issue to said executor requiring him to be and appear before said surro- gate on the day of , 1880, at his office in the village of , at ten o'clock Executor to Account. 555 in the forenoon, to show cause why a decree should not be made that he pay the legacy bequeathed in said will to said C D. , Surrogate. A legatee petitioned for an order that the ex- ecutor account, and for such further order as may be requisite to enforce his claim. The surrogate entered an order for a citation requiring the ex- ecutor to appear and " render a settlement of his accounts," and a citation was issued requiring the executor " to render an account of his proceedings and to show cause," etc. Held that the petition was sufficient to give jurisdiction. i^Pech v. Sher- wood, 56 N.Y., 615.) The proceeding for the early payment of a legacy or distributive share can be entertained by the surrogate, only in cases in which the title of the party claiming the legacy, or entitled to the distributive share is undisputed, and free from doubt, and where such is not the case, the surro- gate has no authority to hear and determine the proceedings. [Kettletas v. Green, 9 Hun., 599.) It seems to us that the change in the statute, has not changed the rule as to the necessity of an accounting, the filing of an intermediate account, as it would now be called, where the sufficiency of the assets is not admitted by the executor. For 556 Assets not Sufficient. as it appears by the next section of the statute (§ 2718), the proceeding must be dismissed, where it is not proved that there is a sufficiency of assets. The proof except by the express admission of the executor, could not well be made except by an accounting, either voluntary or compulsory. This is provided for by section 2723, post. Hearing. Decree. § 2718. Upon the presentation of a petition, as prescribed in the last section, the surrogate must issue a citation accordingly ; and upon the return thereof, he must make such a decree in the pre- mises, as justice requires. But in either of the following cases, the decree must dismiss the peti- tion, without prejudice to an action or an account- ing, ill behalf of the petitioner : 1. Where the executor or administrator files a written answer, duly verified, setting forth facts which show that it is doubtful, whether the peti- tioner's claim is valid and legal, and denying its validity or legality, absolutely, or upon informa- tion 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 satislaction of the petitioner's claim, and which Application may be Dismissed. 557 may be so applied,, without injuriously affecting the rights of others, entitled to priority or equality of payment or satisfaction. The account rendered, will necessarily be a full one, of all receipts and disbursements, and will not differ from the account on final or judicial settle- ment, more fully treated of hereafter. But the executor ma;y, doubtless, admit a suffi- ciency of assets, and thus render an account un- necessary. So also, the executor may plead in bar to the claim, a lapse of six years since the legacy became due and payable, for a proceeding in the Surro- gate's Court to obtain payment of a debt or legacy should be instituted within the same time in which suits are required to be commenced in Courts of Common Law or Equity. {McCarter v. Carnel, 1 Barb. Ch., 455 ; Warren v. Raff, 4 Bradf., 260.) In such proceedings, the Statute of Limitations is a bar to the claim for a legacy. The policy of limiting rights of action to si.v years, is founded upon the difficulty of obtaining proof to substan- tiate the claim of payment and settlement, after that lapse of time, and it applies peculiarly to cases of this kind. [Smith v. Remington, 42 Barb., 75.) 558 Decree for Payment. In all cases on payment of a legacy, the execu- tor should take a receipt for it. RECEIPT FOR LEGACY. Whereas, James Richards, late of the town of Schodack, in the county of Rensselaer, deceased, lately made his last will and testament, dated the . . . day of , 1862, in which he gave and bequeathed to me the sum of (five hundred dollars) : Now, therefore, I hereby acknowledge the receipt of said sum so bequeathed to me, of John Richards, executor named in said will. Dated, Schodack, March 1 , 1 862. (Signed), Mart Williams. But when a sufficiency of assets is admitted by the executor, or, if, upon accounting it shall appear proper, the surrogate will make a decree for the payment of the legacy, or distributive share, or a proportional share of it. DECREE. At a Surrogate's Court, held in the county of , at the surogate' s office in the .... of on the ... day of , 1880. Present — Hon , Surrogate. In the matter of the estate I of V , deceased. J A B, .having presented a petition, duly verified. Decree for Payment op Legacy. 559 praying that a decree of this court should be made, that , the executor of the will of the above named deceased, pay to the peti- tioner a legacy of . - dollars, be- queathed to the said A B, in and by the will of said deceased. And it appearing that more than one year has elapsed since the issue of letters tes- tamentary to the said , and upon an accounting had, it further appearing that there is a sufficiency of assets in the hands of the said executor to pay all the debts, which have been presented after due notice to creditors to present the same, and to pay all funeral expenses and ex- penses of administration, and after discharging the specific legacies bequeathed in said will to pay all the general legacies, It is adjudged and decreed, that said . . . , executor as aforesaid, pay to A B, the peti- tioner, his said legacy of dollars, with interest from the expiration of one year from the time letters testamentary were issued to him in this matter. And it is further decreed, that said , executor, pay to said A B, the further sum of , dollars, costs of this proceeding. Witness, , Surrogate, and the seal of the court the day and year first [l. s.] above written. , Surrogate. 560 Answer to Application for Legacy. But under subdivision one, of the section last quoted (2718), the executor may answer, and rais- ing an issue, procure a dismissal of the proceeding. ANSWER. Surrogate's Court. Itt the matter of the estate of deceased. A B, executor of the will of the above named deceased, for answer to the petition of , praying for payment of the legacy be- queathed to him by the said will, says : That notwithstanding the bequeathing of said legacy to the said , said executor has found among the papers of the said deceased, a paper purporting to be a promissory note, and to be signed by the said petitioner, for an amount larger than the amount bequeathed to him, payable to the order of the decedent, and he verily believes that said note is a genuine security and should be set off against the claim of said petitioner for said legacy. Wherefore said executor asks that the said peti. tion of the said be dismissed. Dated March 15th, 1880. (Signed) A B. Legacy Paid before One Year. 561 Alvah Traver, Attorney, Troy, N. Y. Rensselaer County, ss : A B, being duly sworn, says that he has read the foregoing answer by him subscribed, and that the same is true of his own knowledge, except as to the matters which are therein stated to be al- leged on information and belief, and as to those matters he believes it to be true. A B. Sworn, etc A decree will thereupon be made reciting the presentation of the petition, the appearance and answer of the executor, and dismissing the pe- tition. Payment of a legacy or a distributive share, or a part thereof, may be obtained in certain cases against any executor or administrator, except the public administrator of the city of New York, under the following section which is in place of 2 R. S., 98, §§ 82 and 83. Decree for payment before expiration of year, on giving security. § 2719. In a case specified in subdivision second of the last section but one, the surrogate may, in his discretion, entertain the petition, at any time 36 562 WheK Decree for Payment may after letters are granted, although a year has not expired. In such a case, if it appears, upon the return of the citation, that a decree for payment may be made, as prescribed 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, pecuniarj^ 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, upon the filing of a bond, .approved by the surrogate, conditioned as prescribed by law, with respect to a bond which an execntor, or an administrator with the will annexed, may require from a legatee, upon pay- ment or satisfaction of a legacy, before the expira- tion of one year from the time when letters were issued, pursuant to a direction to that effect, con- tained in the will. The forms for proceeding under these provisions Be Made and to Whom. 563 may readily be had, by adopting the forms already given for enforcing the payment of legacies after one year has elapsed which see. The following are the statutory provisions in re- gard to the payment of legacies to minors : § 46. (2 R. S., 91.) In caje any legatee be a minor, his legacy, if under the value of fifty dollars, may be paid to his father, to the use and for the benefit of such minor. § 47. If the legacy be of the value of fifty dollars or more, the same may, under the direction of the surrogate, be paid to the general guardian of a minor, who shall be required to give security to the minor, to be approved by the surrogate, for the faithful application and according for such legacy. The security required in this section, is in addi- tion to the security given on the appointment of the general guardian, obviously, for the reason that a legacy given after the appointment, made no part of the estate of the minor, on which the amount of the former security was based. The bond may run as follows : BOND ON PAYMENT OP LEGACY. Know all men by these presents, that we, John Dean, Samuel Stiles and John Doe, of the city of Troy, in the county of Rensselaer and State of S64: Bond foe Legacy to Minor. New York, are held and firmly bound unto James Dean, of the city of Troy, aforesaid, a minor, in the sum of two thousand dollars, to be paid to the said James Dean, his certain attorney, executors, administrators and assigns, to which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally firmly, by these presents : Sealed with our seals and dated this 26th day of November, 1874. The condition of this obligation is such, that if the above bounden John Dean, shall render a just and true account of the sum of one thousand dollars, received by him as guardian of the above named James Dean, from A R, the executor of the will of D F, late of the city of Troy, deceased, and being a legacy bequeathed to the said James Dean by the will of said deceased, and of the application thereof to any court having cognizance thereof, when thereunto required, and shall pay to said James Dean, his executors, administrators or assigns, such sum as such court shall direct said John Dean to pay, then this obligation to be void, otherwise to remain in full force and virtue. (Signed), John Dean. [l. s.J Samuel Stiles, [l. s.] John Doe. [l. s.] As to Justification of Sureties and Acknowledgment of Execution. § 48. (2 R. S., 91.) If there be no such guardian, When Surro&ate to Keep Securities. 565 or the surrogate do not direct such payment, the legacy shall be invested in permanent securities, under the direction of the surrogate, in the name and for the benefit of such minor, upon annual interest ; and the interest may be applied, under the direction of the surrogate, to the support and education of such minor. § 49. It shall be the duty of the surrogate, where there is no guardian of such minor, to keep in his office the securities so taken, and to collect, receive and apply the interest ; and when necessary, to collect the principal and reinvest the same, and also to reinvest any interest that may not be necessarily expended, as aforesaid. § 50. On such minor coming of age, he shall be entitled to receive the securities so taken, and the interest or other moneys that may have been re- ceived; and the surrogate and his sureties shall be liable to account for the same. § 51. In case of the death of such minor before coming of age, the said securities and moneys shal[ go to his executors or administrators, to be applied and distributed according to law ; and the surro- gate and his sureties shall, in like manner, be liable to account to such executor or administrator. The following are the provisions in ralation to 566 Action for Legacy to be Referred the trial of the actions provided for in these sec= tions. § 19. (2 R. S. 450.) Whenever an action shall be brought bj any legatee against an executor or administrator, and the want of assets to pay all the debts of the deceased, and all the legacies be queathed by him, or any of them, shall be pleaded, the cause shall be referred to referees, to examine the accounts of the defendants, and to hear and report upon the allegations and proofs of the par- ties in respect to such plea. § 20. Such referees shall proceed in the manner provided by law in respect to references of actions in which there is a long account ; and all the pro- visions of law in relation to such references shall apply to referees appointed pursuant to the last section, and to their proceedings and the judgment thereon. § 2i. In such cases, the costs of the action, or of either party, shall be paid as the court may direct, out of the estate of the deceased, or by the defend- ants personally, if their refusal to pay such legacy or their defense of the action shall appear to have been unreasonable. § 22. If the plaintiff in such suit shall recover only part of his demand, for the want of assets in the hands of the defendants, and assets shall And Proceedings Theeeon. 56T afterwards come to their hands, he shall have a new action for the recovery thereof, or of the pro- portionate share thereof to which he maj be enti- tled ; and the same proceedings, in all respects, shall be had in such action. 568 Accounting anp Settlement, CHAPTER XVIII. Accounting and Settlement.' Executors or Administrators may he ordered to Ac- count, and may have Settlement. The rightK of creditors and next of kin, are to some extent suspended, during twelve months from the time of granting letters. They may in- deed sue, but the creditor obtains no priority, and he pays his own costs, unless he can show that the executor or administrator refused to refer, or unreasonably resisted the payment of the claim, as we have seen. But twelve months having elapsed, a creditor, legatee, or one of the next of kin may petition for an accounting, and the creditor may obtain payment of his claim or its pro rata dividend if it has been established upon a trial or admitted by the executor or administrator; for the executor or administrator admits the jus- tice of a claim if he does not dispute it. {Matter of Jones, 6 N. Y., Legal Observer, 124.) There are two kinds of accounting, under the Intermediate Accounting. 569 present practice, as heretofore, and they are styled the intermediate accounting, and the accounting on judicial settlement. An executor or adminis- trator, may now file an intermediate account with the vouchers, in the surrogate's office, if he wishes to do so, either for the preservation of the vouchers, or to give information to the persons interested in the matter. The section is as follows. Intermediate accounting, when voluntary. § 2722. An executor or administrator may, at any time, voluntarily file in the surrogate's office an intermediate account, and the vouchers in support of the same. Intermediate account, when compulsory. § 2723. In either of the following cases, the surrogate may, in his discretion, naake an order requiring an executor or administrator to render an intermediate account : 1. Where an application tor an order, permitting an execution to issue upon a judgment against the executor or administrator, has been made by the judgment creditor, as prescribed in section 1826 of this act. 2. Upon the return of a citation, issued upon the petition of a judgment creditor, praying for a decree, granting leave to issue an execution upon 5T0 Compulsory Accounting a judgment rendered against the decedent in his lifetime, :-in^ to pay the debts of the deceased. And your petitioner will ever pray, etc. (Signed), C D. Dated March 30, 1880. State of New York, Rensselaer county, C D, being sworn, deposes and says that the above petition, by him subscribed, is true, of his T16 Contents of Petition. own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters, he believes it to be true. Sworn, etc. (Signed), C D. The circumstances and means of knowledge of a creditor are, ordinarily so different from those of an executor or administrator, that the petition of the creditor, verified as it must be, will be very different from the petition of the executor or ad ministrator. It is required as to both, that they state the same facts, or that the facts cannot, after diligent inquiry be ascertained by the petitioner. Again, in either petition, it would seem necessary to allege that an inventory had been made and filed, otherwise it would seem that the surrogate could not be certified as to the amount of personal property, which has come to the hands of the exe- cutor or administrator. The statute as it formerly stood. (2 R. S., 100, § 1, as amended by chap. 320 of Laws of 1830), required as a preliminary, the making and filing of an inventory. In regard to the petition of a creditor, the surro- gate may or may not, as he shall deem necessary, order the executor or administrator to render such an account or other statement, as he deems neces- sary for the purpose of the inquiry. It is seriously pRiOE Sale not a Bar. Ill suggested, that it would be hardly proper to direct the sale or disposition of real estate on the applica- tion of the creditor, without some such account or statement. Under the former practice, the account was a necessary preliminary. Upon an application to the surrogate by one who has recovered a judgment against the personal representatives of a decedent, upon a debt due from him in his lifetime, for an order to sell his real estate, the applicant, to prove his debt, shows only his judgment. But that does not prove that all the personal property of the deceased has been ap- plied to the payment of his debts so as to render the remaining debts a charge upon the real estate in the hands of the heir or devisee. This is done by the accounting and without it the judgment is no evidence of debt against the heir or devisee. And it Seems that the costs recovered against the executor on establishing the debt, are not a charge on the real estate. {Sam ford v. Granger, 12 Barb., 392.) The executors or administrators cannot set up, in bar to the proceeding, that the real estate has been regularly sold in partitiovi under a decree of a court of competent jurisdiction. [Richardson v. Judah, 2 Brad., 157.) 'TIS Creditoe's Proceedings. PETITION OF CREDITOR FOR SALE. To Hon , Surrogate of county : The petition of , of the of , respectfully shows as follows : Your petitioner is a creditoi- of , late of the of , deceased, intestate, said intestate having died indebted to your petitioner, in the sum of dollars, and interest, upon a promissory note, made by him to your peti- tioner, or order, dated the day of , 1873, and payable ninety days after date. Said claim is justly due to your petitioner, no payments have been made thereon, and there are no oft sets against the same to the knowledge of your petit- ioner, and the same is not secured by judgment, mortgage upon, or expressly charged on the real estate of the said deceased. Letters of administration of the goods, chattels and credits ot the said , deceased, were duly issued by the surrogate of the county of , on the day of , 1873, to , of the , and the same still remain in full force as your petitioner is in- formed and believes. That besides the debt (o your petitioner, he is informed and verily believes that there are other debts of the decedent unpaid, but your petitioner Creditor's Petition. 719 after diligent inquiry is unable to ascertain the names of the creditor or the amount of such debts. The said intestate died seized of the following described parcels of real estate, valued at the sum respectively affixed to each parcel, and occupied or not occupied as hereafter stated as to each ; that is to say (describe each parcel and names of occu- pants and value). Your petitioner has made diligent inquiry as to whether said deceased left any other real estate within the State, but is unable to ascertain whether or not he did so. is the widow, and , of full age, and , an infant, of the age of twenty years, and , an infant, of the age of thirteen years, neither of whom have a genei'al guardian, are the heirs at law of the said deceased. Your petitioner, therefore, prays that the sur- rogate will grant an order for the said , administrator as aforesaid, to shovv- cause why he should not be required to mortgage, lease or sell the real estate of the said deceased, for the pay- ment of his debts, and that such other or further proceedings, according to law, may be thereupon had, as may tend to the relief of your petitioner and the payment of his claim aforesaid. Dated, December 1, 1874. (Signed), T20 Citation to Issue. county, ss : , being duly sworn, says that the foregoing petition, by him subscribed, is true of his own knowledge, except as the matters which are therein stated on information and belief, and as to those matters he believes it to be true. Sworn, etc. (Signed), Citation. § 2754. 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 and funeral expenses, or either, cannot be paid, without resorting to the real property, or in- terest 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 de- cedent, as well as to the creditors named. Account may be Ordered. 721 The citation will issue upon an order of the court, for that purpose. It is presumed, that, where the proceeding is upon the application of a creditor, and the executor or administrator has not already accounted, an order may be made at the same time, for such executor or administrator to show cause, on the return oi" the citation, why he should not be required to render an account of his proceedings, and of all the claims which have been presented to him. ORDER FOR CITATION. At a Surrogate's Court, held in the county of at the surro- gate's office in the of on the .... day ol , 1880. Present — Hon , Surrogate. In the matter of the of real estate A B deceased. C D executor of the will of A B,late of the town of , deceased, having presented his peti- tion duly verified, showing that there are unpaid debts of the testator to the amount of $ and funeral expenses, as stated in said petition and owing to the persons therein named ; that the said deceased left certain real estate described in 46 '122 To Whom Citation Directed. said petition which may be disposed of for the payment of his debts and occupied as therein stated, that the said deceased left him surviving hiswidow and his children and and that the personal property which has come to the hands of said executor is $ and the same has been been applied in the payment of debts and expenses. On motion of of counsel for the peti- tioner, it is ordered that a citation issue to said credi= tors, occupants of the said real estdite, and to said creditors and heirs at law of the decedent requir- ing them to show cause why a decree should not be made for the mortgage, lease or sale of said real estate, for the payment of the said debts and funeral expenses returnable on the day of next. , Surrogate. As to the manner and time of service of this citation, see the general provisions, ante, p. 54. Where the application is made by a creditor, the citation will necessarily be directed also to the executors or adminstrators, as well as to Ihe credi- tors and other claimants. If the surrogate think proper to order the exe- cutor or administrator to render an account, the following may serve as a guide lor preparing it. Order for Accotjnt. 723 ORDER THAT EXECUTOR SHOW CAUSE WHY HE SHOULD NOT ACCOFNT. At a Surrogate's Court held in the county of , at the sur- rogate's office in the of on the . . . . , day of , 1880, Present — Hon , Surogate In the matter of the real estate of A B, deceased. ^ J B, claiming to be a creditor of A B, late of the town of , deceased, having presented his petition to the surrogate, duly verified, asking that proceedings be had for the mortgage, lease, or sale of the real estate of the said deceased, for the pay- ment of his debts and said petition not stating in detail the debts of the decedent. On motion of , of counsel for petitioner, it is ordered that C D, the executor of the will of the said deceased should come before said surro- gate, at his office in the of on the day of next, at ten o'clock in the forenoon, why he should not be required to render an account of his receipts and disbursements as such executor, and a statement of the claims presented to, or known by him. , Surrogate. ^24 iJFFECT OF Petition. All the executors or administrators should join in the application. An order for sale will be erroneous in allowing the petitioning executors to make a sale without the consent of all, especially when no reason is stated in the petition for not making the one, or those not joining in the petition a party or parties to the proceeding, [liteh v. Whltheclc. 2 Barb. Ch., 161.) By the presentation of the })etition in due form and time, the surrogate obtains jurisdiction as against all parties regularly brought into court (^Schneider v. McFarland. 4 Barb., 139), and the subsequent exercise of the jurisdiction cannot, generally, be questioned collaterally for error or irregularity, but only on appeal. [Farrington v. King, 1 Brad., 182.) A petition which states " that the amount of the persou.il property which actually came to the ex- ecutor's hands, as appraised by the inventory is," etc., sufficiently states the amount of personal pro- perty which actually came into his hands. And a statement of the amount leceived and that it is still in his hands unpaid and unapplied, sufficiently shows "• the application " of the money received. (^Richmond v. Fo(d(, 3 Lans., 244.) And a sworn statement in the petition for sale, that the decedent left no personal estate, was held Proof of Debts. 725 to answer the purpose of an inventory. {Butler v. Emmett, 8 Paige, 12.) Hearing. § 2755. Upon the return of the citation, the surrogate must proceed to hear the allegations and proofs of the parties, A creditor of the decedent, or a person having a claim for unpaid funeral ex- penses, although not named in the citation, may present and prove his debt and, thus make him" self a party to the special proceeding. An heir or devisee, or a person claiming under an heir or de- visee, of the property in question, although not named in the citation, may contest the necessity of applying the property to the payment of debts or funeral expenses, or the validity ol a debt re- presented as existing against the decedent, or the reasonableness of the funeral expenses ; may in- terpose any defense to the whole or any part thereof; and, for that purpose, may make himself a party to the special proceeding. Where such a defense arises under the Statute of Limitations, an act or admission by an executor or administrator does not prevent 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 question. 726 Special Guardian for Infants. Upon the hearing a special guardian is ap- pointed for the infants, habitual drunkards or lunatics as provided in section's 2530 and 2531. (See Index, Tit. Special Guardian.) If there is an infant heir or devisee, a guardian must be appointed for such infant by the surro- gate, even though it does not appear by the peti- tion that such infant is an heir or devisee. No one can be divested of his rights by being ignored. He has a right to a day in court before that power can rightfully be exerted. {AcMey v. Dygert, 33 Barb., 177.) When the general guardian of infants, being also administrator or executor, applies in the latter capacity for an order to mortgate, lease or sell, the appointment of a special guardian for the infants, is essential to give the surrogate jurisdic- tion. {Havens v. Sherman, 42 Barb., 636.) The appointment and appearance of a guardian for infants is a jurisdictional fact and necessary to the validity of the sale. {Schneider v. McFarland, 2 N. Y., 459 ; Ackley v. Dygert, 33 Barb., 177.) Proof of debt on which a judgment has been rendered. § 2756. Where a judgment or decree has been rendered against an executor or administrator, for a debt due from the decedent, the debt is, never- Judgment Debt, How Proved. 727 theless, deemed a debt of the decedent, to the same extent, and to be established in the same manner, and, except as prescribed in the next section, sub- ject to the same defenses, as if an action had not been brought thereon. But a judgment or decree, rendered upon a trial upon the merits, is presump- tive evidence of the debt upon the hearing before the surrogate. The last section qualified. § 2757. The last section is subject to the follow- ing exceptions : 1. The debt, for which the judgment was ren- dered, cannot be allowed, as against the property in question, at any greater sum than the amount recovered, exclusive of costs. 2. An heir or devisee of any of the property in question, or a party claiming under an heir or devisee, may interpose, in reduction of the amount claimed to be due upon a judgment or decree against the decedent or against the executor or administrator, any payment or counter-claim which might be allowed to him, or to the person under whom he claims, in an action founded upon the debt. There seems to be no class of claims, legal or equitable, which may not be presented, proved 728 What Claims may be Proved. and adjusted before the surrogate on the hearing. [Renioick v. Renwiclc, 1 Brad., !ii34.) The surrogate may, upon the hearing to esta- blish claims on the return of the order to show cause {citation) refuse to hear testimony offered for the purpose of establishing a disputed claim, and thus postpone the claims to the time of final distribution. (Bartiett v. Kiiicaid, 2 Lans. 320.) It was held by the Surrogate's Court (J Bedf Rep. 75), that the surrogate on the return of the order to show cause {citation) could not pass u[)on a claim presented against the estate and disputed by the executor. But the Supreme Court {Hopkins v. Van VaUcenburgh, 16 Hun, 3), expressly over rule the decision of the surrogate quoted as above. It may, and often does occur, that the executor or administrator, in ignorance of the extent of claims against the estate, has paid to some credi- tors in full, or more than their pro rata share from the personal estate. In such case, he is to be re- garded as the equitable assignee of the claims which he has so paid, and to have them satisfied out of the proceeds of the real estate, in the same man- ner as the creditors would have been paid. {Ball V. Miller, 17 How., 300.) The surrogate may appoint a referee to take and Eeference and Trial by Jury. 729 report to the surrogate evidence upon the facts, or upon a specific question of fact. (§ 2546.) Trial by jury when ordered. § 2547. The surrogate may, in his discrfetion, make an order, directing the trial by a jury, at a Circuit Court to be held within the county, or in the County Court of the county, or in the city and county of New York, in the Court of Common Pleas, of any controverted question of fact, arising in a special proceeding for the disposition of the real property of the decedent, as prescribed in title fifth of this chapter. The order must state, dis- tinctly and plainly, each question of fact to be tried ; and it is the only authority necessary for the trial. ORDER FOR TRIAL BY JURY. At a Surrogate's Court, held in the county of , at the surogate's office in the .... of on the • ... day of , 1880. Present — Hon , Surrogate. In the matter of the real estate I of deceased. 1 A B, having presented to the surrogate, upor: T3C Obder foe Jury Trial. the return of a citation to the creditors, heirs at law, and administrator of the estate of the above named deceased, a claim against the said deceased arising upon a promissory note, claimed to have been made by the said decedent in his lifetime, of which the following is a copy : (Here insert copy of note, or account.) And C D, the said administrator, having disputed said claim, and alleging that said decedent did not make said note, and that he did not deliver it to the payee ; and the surrogate having decided that the isssue should be tried at a Circuit Court to be held within this county (in the County Court of the county) : It is ordered, that such controverted questions of fact, to wit : Whether the said decedent made said promissory note in bis lifetime, and- whether he delivered said promissory note in his lifetime to the payee, for value, be tried by a jury at a Cir- cuit Court to be held as aforesaid. , Surrogate. Trial by jury how reviewed. § 2548. A trial by jury, pursuant to an order made as prescribed in the last section, can be re- viewed, 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 the Circuit Court, by the Supreme Court, in a case where a new trial of Appeal and Decree. 'TBI specific questions of fact, tried by a jury, pursuant to an order for such a trial, made in an action, would be granted. The verdict of the jury must be certified to the Surrogate's Court, by the clerk of the court in which the trial took place. Appeal. § 2549. 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. Decree to recite debts. § 2758. The decree must determine and specify the amount of each debt established before the sur- rogate, as a valid and subsisting debt against the decedent's estate, or as a just and reasonable charge for funeral expenses, and must, in like man- ner, specify what demands presented have been rejected. The vouchers presented before the sur- rogate, in support of each debt established, must be filed and remain in the surrogate's office. The formal entry, as to the claims, adjudged valid is not essential (under the former practice) to con- 732 Statute of Limitations. fer jurisdiction on the surrogate, to order the sale; the entry may be made afterwards nunc pro tunc. {Farrington v. King, 1 Bradf., 182.) But this is otherwise under the above section. A judgment is evidence of the debt, when recov- ered against the executor, or administrator, but does not charge the land for the costs, and the heir or devisee may insist on the Statute of Limita- tions, in the same manner as though the proceed- ing were an action against him for the debt. [Fer- guson V. Browne, 1 Bradf., 10.) But the Statute of Limitations ceases running against the creditors upon the filing of the petition or the return of the order to show cause (the citation) ; and it seems that the period of eighteen months after the grant ing of letters is also excluded. Moreover the sur- rogate's adjudication that a demand is valid and subsisting, disposes of all objections to its validity. {Farrington v. King, 1 Bradf, 182.) Proof necessary for a decree. § 2759. 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. ^hat the proceedings have been in conformity to this title. Facts to Waeeant Decree. Y33 2. That the debts, for the payment of which the decree is made, are the debts of the decedent, or are just and reasonable charges for his funeral expenses ; and are justly due. 3. That they are not secured by a judgment or mortgage, or expressly charged by the will upon the decedent's real property, or interest in real property ; or, if a debt is so secured or charged upon a portion of the real property, or interest in real property, that the remedies of the creditor, by virtue of that charge or security, have been exhausted. 4. That the property directed to be disposed of was not effectually devised, expressly charged with the payment of debts or funeral expenses, and is not subject to a valid power of sale for the pay- ment thereof; or, if so devised or subject, that it is not practicable to enforce the charge, or to exe- cute the power, and that the creditor has eflfectually relinquished the same. 5. That all the personal property uf the decedent, which could have been applied to payment of the decedent's debts and funeral expenses, has been so applied ; or that the executors or administrators have proceeded with reasonable diligence^ in con- verting the personal property into money, and applying it to the payment of those debts and T34 Liability op Lands Sold. funeral expenses ; and that it is insufficient for the payment of the same, as established by the decree. Where the petition set forth claims in the aggre- gate $4,311, and the executor admitted funds in his hands to the amount of $1,322, and debts are proved at $1,723 and the surrogate directed the sale of the real estate valued at $6,200, held that the order for sale should be sustained. [Ba/rnett V. Kincaid, 2 Lans., 320.) As to the real estate which may be mortgaged or sold, the liability attaches to lands, not only in the hands of the heirs or devisees, but in the hands of any subsequent purchaser. The heirs or devisees may sell and convey the real estate of which the testator died seized, at any time after his death. But if they convey before the expiration of three years, the lands pass subject to the power of the surrogate to direct the same to be sold for the pay- ment of debts. {Hyde v. Tanner, 1 Barb., 75.) Decree to mortgage or lease. § 2760. If the facts, specified, in the last section, are satisfactorily established, the surrogate must inquire, whether sufficient money can be raised, advantageously to the persons interested in the real property, by a mortgage or lease of the real property of which the decedent died seized, or of When Debts to be Raised by Mortgages. 735 a part thereof. If he ascertains that the money can be so raised, the decree must direct the exe- cution of one or more mortgages or leases accord- ingly ; but a lease shall not be made for a longer time, than until the youngest person, interested in the property leased, attains full age. A mortgage or lease, executed pursuant to such a decree, has the same effect, as if it had been made by the decedent, immediately before his death. The surrogate's order giving leave to dispose of the real estate of a decedent for the payment of his debts, is conclusive upon the parties as to the question of the sufficiency of assets ; and where the administratrix, by virtue of such order mortgaged the estate and subsequently became the purchaser of the mortgage, held, that the heir or devisee, or those claiming under them could not resist fore- closure, by proving that she concealed assets be- longing to the estate, and purchased the mortgage with them. [Qraham v. Lindsey, 50 N. Y., 547.) It was the former practice to enter a special order adjudicating as to the debts proved before the surrogate, which was distinct from the order to mortgage, lease or sell, but the present practice would seem to require that the decree for the dis- position of the property should also establish the 736 Decree for Mortgage. debts ; that the adjudication upon the claims, and the adjudication to mortgage, lease or sell, should be in the same decree. (§ 2758, 2759.) DECREE FOR MORTGAGE. At a Surrogate's Court, held in the county of at the surrogate's office in the of on the day of , 1880. Present — Hon , Surrogate. In the matter of the real estate of , deceased. C D, the executor of the last will and testament of , late of the town of , deceased, having lately presented his petition to the surrogate of the county of , for authority to mortgage, lease or sell so much of the real estate of the said deceased, as shall be neces- sary to pay the debts and funeral expenses of the de- ceased, andsuch proceedings having been thereupon had that the surrogate is satisfied that the said exe- cutor has fully complied with the several provisions of the statute ; that the debts, outstanding against the deceased, as far as the same can be ascertained, are the debts of the decedent, and the just and Decree op Mortgage. 'TST reasonable funeral charges for his funeral expenses, are justly due and are as follows, amounting to $1200.00 : To A B, debt established, " C D, " " " E P, for funeral expenses, " G H, " " " That the said debts are not secured by judg- ment, mortgage, or other lien, on the real estate of the said deceased nor expressly charged by the will upon the decedent's real property, or interest in real property ; that the property hereinafter directed to be disposed of was not effectually de- vised or expressly charged with the payment of debts or funeral expenses, and is not subject to a valid power of sale for the payment thereof : That the said executor has proceeded with reasonable diligence, in converting the personal property into money, and applying it to the payment of the debts and funeral expenses of the decedent ; and that it is insufficient for the payment of the same as herein established ; and whereas it has been made to appear that sufl&cient moneys for the pay- ment of such debts can be raised advantageouly to the interests of the estate by a mortgage on land; and the said executor having, with two sureties executed a bond, in the manner required by law which is duly approved, acknowledged and filed : It is ordered adjudged and decreed that the said executor execute in due form for record, a 47 738 When Decree Made to Sell. mortgage upon the following described premises (describe premises), and it is further ordered that said mortgage be made for the sum of dollars, and be made payable in year from the date thereof, with semiannual interest, and be secured by an assignment of the policy or policies of insurance against fire, procured upon the build- ings on said premises. Witness surrogate, and the [l. s.] seal of the court, the day and year first above written. , Surrogate. Decree to sell. § 2761. Where it appears to the surrogate, upon the inquiry made as prescribed in the last section, that sufficient money cannot be raised, advanta- geously to the persons interested in the real property, by mortgage or lease, the decree must direct a sale of the real property, or interest in real property, or of so much thereof as is necessary, in order to pay the debts and funeral expenses of the decedent^ as established in the decree. Where a sale of all the real property, or interest in real property, is not necessary for that purpose, but enough of either cannot be sold, without manifest prejudice to the persons interested, the decree may direct a sale of all the real property, or all When Entire Estate to be Sold. 739 the interest in real property, or both, or of such a part of either as tlie surrogate thinks proper. If a sale shall be ordered, the entire estate (in- terest in the property), of the decedent, is to be sold. The surrogate cannot protect a life estate, created by the will of the decedent, by selling the remainder first. [Pelletreau v. Smith, 30 Barb., 494.) And the surrogate has no jurisdiction to pass upon the title, where the lands were prima facie, vested in the decedent. {^Hewitt v. Hewitt, 3 Bradf , 265.) Decree when title is in controversy. § 2762. Where it appears that any of the real property, of which the decedent died seized, can- not be sold, without manifest prejudice to the persons interested therein, by reason of a contro- versy respecting the decedent's title thereto, or interest therein, the decree may direct that the execution thereof, with respect to that property, be postponed, until the special direction of the surrogate. In that case, a party may apply at any time afterwards, upon notice to the others who appeared, for an order directing the execution of the decree, with respect to the property so reserved. 740 Ordee in which Lands are to be Sold. Order in wliich parcels are to be sold. § 2763. Where the decree directs the sale of two or more distinct parcels of real property, of which the decedent died seized ; or his interest under two or more contracts for the purchase of distinct parcels of real property ; the decree may direct the sale to be made, in the order which the surrogate deems just, unless it appears that one or more distinct parcels, of which the decedent died seized, have been devised by him, or sold by his heirs ; in which case, the several distinct parcels must be sold in the following order : 1. Property which descended to the decedent's heirs, and has not been sold by them. 2. Property so descended, which has been sold by them. 3. Property which has been devised, and has not been sold bjr the devisee. 4. Property so devised, which has been sold by the devisee. Sale when undivided estate exists or precedent estate created. § 2764. Where the decedent's will devises an undivided interest in real property, but not the whole of his estate therein ; or creates a precedent estate in real property ; or where an heir of the When the Entire Property to be Sold. 741 decedent has sold an undivided interest, or created a precedent estate, in real property which de- scended to him ; the entire property, to which the undivided interest or precedent estate attaches, must be sold. But, in applying the proceeds to the payment of debts and funeral expenses, the application of the proportion of the proceeds, be- longing to the devisee or grantee of the undivided interest, or of the precedent estate, must be post- poned to the application of the residue, in the order prescribed in the last section, in like manner, as if that undivided interest or precedent estate was a distinct parcel of the property. (See Pelletreau v. Smith, sup.) Form of decree of sale. § 2765. A decree directing that real prop- erty be mortgaged, leased, or sold, or that an in- terest in real property be sold, as prescribed in this title, must describe it with common certainty; and must direct that a mortgage, lease, or sale thereof, for the purpose of paying the debts or funeral ex- penses, established by the decree, be made by the executor or administrator, upon his giving the bond prescribed by law ; or, in case of his failure so to do, by a freeholder, to be appointed by th^ surrogate, as prescribed by law. 742 How Lands to be Described. Although the order must specify the lands to be sold, it need not describe it by metes and bounds. And a description which would not be sufficient in a conveyance, has been held good in the_ order. {Bloom V. Burdick, 1 Hill, 130 ; Jackson v Irwin, 10 Wend., 441.) Bond to be" given and its terms. § 2766. Before an executor or administrator can execute a decree, directing that property be niort gaged, leased, or sold, he must 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 sura to be raised, if the decree directs a mortgage ; or, if it directs a lease, in such a penalty as the surro- gate thinks proper ; or, if it directs a sale, in a pen- alty not less than twice the amount 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 ; for the payment into the Surrogate's Court, within twenty days after the re- ceipt thereof, by the principal, of all money arising from the mortgage, lease, or sale ; for the delivery to the surrogate, within the same time, of all the securities taken thereupon ; and for the accounting Bond on Mortgage ok Sale. T43 by the principal, for all money received by him, whenever he is required so to do, by a court of competent jurisdiction. See Holmes v. Cock (2 Barb. Ch., 426). The bond given upon the order to mortgage, was formerly different in its terms from one on an order to sell (2 R. S.,. 103, § 21), and the money in the former case, was to be paid by the executor or administrator, directly to the claimants whose debts were established. Under the present prac- tice, the money received is to be paid into the court, in either case. BOND ON DISPOSITION OF REAL ESTATE. Know all men by these presents : That we John Doe, executor of the will of , de- ceased, A B and C D, of the city of Troy, in the county of Rensselaer, are held and firmly bound unto the people of the State of New York, in the sum of (double the value of the real estate to be sold), lawful money of the United States, to be paid to the said people ; to the which payment, well and truly to be made, we bind our ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this ) 10th day of September,A.D. 1872. [ Whereas the surrogate of the county of Rensse 744 Forms of Bond. laer, upon an application to dispose of the real es- tate of , late of the city of Troy, de- ceased, for the payment of his debts and funeral expenses, has made a decree that the real estate of the said deceased, described in said applica- tion, shall be sold (or mortgaged) for the pay- ment of such debts and expenses, by said John Doe, as executor as aforesaid ; now, the condition of this obligation is such, that if the said John Doe shall faithfully perform the duties imposed upon him by the said decree ; shall pay into the Surro- gate's Court, within twenty days after the receipt thereof all money arising from such sale (or mort- gage) ; shall deliver to the surrogate, within twenty days after their receipt by him, all the securities taken by him upon such sale ; and shall account for all money received by him, whenever he is re- quired so to do, by a court of competent jurisdic tion, then this obligation to be void, otherwise to remain in full force and virtue. (Signed), John Doe, [l. s." A B, [l. s.' C D, [l. s.; Add acknowledgment and justification of sureties. DECREE FOR SALE. At a Surrogate's Court, held for the county of , at the surrogate's office in the . . . . , on the day of , 1880. Present — Hon , Surrogate. In the matter of the real estate I of deceased. ] C D, the executor of the last will and testament Decree for Sale. 745 of , of , deceased, having lately presented his petition to the surrogate of the county of , for authority to mortgage, lease or sell so much of the real estate of the said deceased as shall be necessary to pay the debts and funeral expenses of the deceased, and such proceedings having been thererefore had, that the surrogate is satisfied that the said executor has fully complied with the several provisions of the statutes ; that the debts, for the payment of which this decree is made, are the debts of the decedent, and the funeral charges allowed herein, are just and reasonable, and that such debts and funeral charges are justly due, and are as follows : To A B, $350.00 "CD, 109.00 " E F, 65.00 G H for funeral charges, 95.00 u Amounting in the whole to $619.00 That such debts are not secured by a judgment or mortgage, or expressly charged by will upon the decedent's real' property, or interest in real property, that the real property hereinafter de- scribed and directed to be disposed of was not efiectually devised, expressly charged with the payment of debts or funeral expenses, and is not subject to a valid power of sale for the payment thereof; that the said executor has proceeded with reasonable diligence, in converting the personal property of the decedent into money, and applying 746 Forms of Decree of Sale. it to the payment of such debts and funeral ex- penses ; and that it is insufficient for the payment of the same as established h^'reby ; and whereas it appears to the surrogate upon inquiry made that sufficient money cannot be raised, advantageously to the persons interested in the real property, by mortgage, or lease. It is ordered, adjudged and decreed that upon his giving the bond prescribed, the said executor, or in case of his failure to give such bond, the free- holder to be appointed by the surrogate, as pre- scribed by 1-iw, sell at public vendue, the following described real estate of the decedent, to wit : (^Describe with common certainty, the several parcels.) It is further ordered that the several parcels be sold in the order in which they are above described, and that on such sale, the executor be authorized to give such length of credit, not exceeding three years, for not more than three-fourths of the pur • chase money as shall seem best calculated to pro- cure the highest price, and shall secure the moneys for which credit shall be so given by a bond of the purchaser, and a mortgage upon the premises sold. And it is further ordered that before any deed or deeds of the premises sold shall be executed, the said executor make return of the proceedings had on this decree to the said surrogate, to the end that the said surrogate may examine said proceed- ings and the fairness and the legality of the said sale. Witness, , surrogate, and the [l. s.] seal of the court the day and year first above written. , SwrrogaAe. Second Decree may be Made. Y4rt If lands were omitted in the first order to sell, by reason of a naistake in the boundaries, they may be sold by virtue of a second order, granted on the petition of the administrator, showing the mistake, without any new order to show cause. {Sheldon v. Wriglit, 7 Barb., 39.) But in such a cast, the lands must have been properly described in the petition for sale, for it would be held that, if they were not described in the petition, the surrogate would not acquire juris- diction of them. If executor or administrator fails to give bond free- liolder to be appointed. § 2767. 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-admin- istrators in giving, a bond, as prescribed in the last section, the s'irrogate may direct those who have given the bond, to proceed to execute the decree. But if a sole executor or adminiptrator, or all the executors or administrators so fail, the surrogate must make an order, appointing a disin- terested freeholder to execute the decree. He may vacate such an appointment, and make a new appointment, from time to time, as the case re- quires. A person so appointed must give a bond. Y48 Freeholder to be Appointed. in all respects like that required irom an executor or administrator, as prescribed in the last section. In making such an appointment, the surrogate must give a preference to a competent person, nominated by the creditors, whose debts have been established, or a majority of them in number and amount. ORDER APPOINTING FREEHOLDER. At a Surrogate's Court, held in the county of at the surrogate's office in the of on the day of , 1880. Present — Hon , Surrogate. In the matter of the real estate 1 h JA B, deceased. I The surrogate having heretofore made an order in this matter^ that all persons interested in the estate of the above named deceased, appear on a day and at a place in said order fixed, and show cause why the real estate of the above named deceased should not be sold for the payment of his debts, which said order was dated on the day of , last, and the surrogate having heard the proofs and allegations of the parties, and having determined that a sale of said real Appointment of Freeholder. 749 estate was necessary for the purpose aforesaid, and having decreed such sale, and having given notice to the said executor appying for such dis- position of said real estate, and having requested him to execute and file in this court, the bond re- quired by law and a reasonable time having elapsed, and the said C D, having neglected to make and file such bond : It is ordered that E F, of the town of...., , a disinterested freeholder, nominated by the credi- tors of the said deceased, be and he is hereby appointed in place of said C D, to make sale of said real estate upon his executing and filing with the surrogate a bond in the penalty of dollars with the condition required by the statute in such case made and provided. , Surrogate. Order directing execution of decree. § 2768. Where an executor or administrator, or a freeholder appointed as prescribed in the last section, has given the requisite bond, an order must be made, reciting the fact, and directing him to proceed to execute the decree. The order may direct the execution of the decree, with respect to all or any part of the real property, or any of the interests in real property, specified in the decree. Where it directs the execution of the decree, with respect to part only, an order to execute it with respect to any other part or parts, may be made from time to time, as the case requires. 750 Order that Sale'be Made. ' "1 ORDER DIRECTING EXECUTION OF DECREE. At a Surrogate's Court, held in the county of at the surrogate's oflSce, in the of on the day of , 1880. Present — Hon , Surrogate. 1 In the matter of the real estate of ' , deceased. J The surrogate having made his decree in this matter directing , executor of the will of the above named deceased, to sell certain real estate of the said deceased, upon his giving the bond prescribed by law (and the said executor having failed to give such bond, and the surrogate having appointed a disinterested free- holder, to make such pale upon his giving such bond, and said having filed a bond in from and as to the sufficiency of the sureties ap- proved by the surrogate), and said executor having filed such bond approved by the surrogate. It is ordered that said proceed to execute said decree for sale. -...., Surrogate. Sale delayed by appeal, part of property may be sold. § 2769. Where the only question, upon an appeal On an Appeal, Part may be Sold. Y51 taken from a decree directing a sale of real pro- perty, or of an interest in real property, or both, relates to the validity or amount of debt established by the decree ; and the real property directed to be sold, or to which the interest directed to be sold attaches, consists of two or more distinct parcels, the sale of, or .with respect to, one or more of which will sufl&ce to pay all the other debts so established, leaving enough real property, or in- terest in real property, unsold, to satisfy the claim drawn in question upon the appeal ; the Appellate Court may, upon the motion of any party to the special proceeding in the Surrogate's Court, made upon notice to all parties to the appeal, direct the Surrogate's Court to cause the decree to be executed, with respect to the distinct parcels of real pro- perty, which will suffice to pay the debts not in controversy ; and the proceeds of a sale, made pursuant thereto, to be distributed, in like manner as if the decree related only to those parcels and those debts ; except that any surplus, which may remain for distribution after payment of those debts, or so much thereof as will suffice to pay the demand in controversy, must be paid into the Surrogate's Court and retained by the county treasurer, subject to the order of the surrogate, to abide the event of the appeal. But this section T52 Executions not Effected by Death, etc. does not authorize a sale of any distinct parcel, otherwise than in the order prescribed for that purpose, in sections 2764 and 2765 of this act. Execution of decree not affected by death, etc. § 2770. The death, removal, or disqualification, before the complete execution of a decree, of all the executors or administrators, who have been directed to execute it, or of a freeholder appointed for the purpose, does not suspend or affect the ex- ecution thereof; but the successor of the person who has died, been removed, or become disqualified, must proceed to complete all unfinished matters, as his predecessor might have completed the same ; and he must give such security for the due per- formance of his duties, as the surrogate prescribes. What, credit may be allowed on sale. § 2771. The surrogate may, in the order direct- ing the execution oi 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 mort- gage on the property sold, except \^ here the sale is that of an interest under a contract ; in which case, the order may prescribe the security to be given. , Surrogate cannot Compel, etc. 753 The executor or administrator may sell the real estate in separate parcels, if he deems it beneficial to the estate, although the order for sale described the property as a single parcel. [Delaplaine v. Lawrence, 3 N. Y., 301.) The Surrogate's Court has no power to compel a purchaser to take his deed, and therefore there should be a reasonable percentage of the purchase money paid on the sale, sufficient at least, to pay the expenses of a new sale, in case the purchaser should fail to fulfil the terms, and a new sale should be necessary. Mode of sale and notice thereof. § '.^772. Each distinct parcel of real property must be sold in the county where it, or a part thereof, is situated. The provisions of sections 1384, 1385, 1386, 1434, 1435, and 1436 of this act, apply to a sale of real property, or of an inter, est in real property, as prescribed in this title. In making the application, each provision relating to the sheriff is deenied to apply to the person mak- ing the sale, pursuant to the decree, and the order directing the execution thereof. These sections provide that (1) sale shall be be- tween nine o'clock in the morning and sunset s48 i5i Penalty for Defacing Notice. (§ 1384.) That (2) a person taking down or wil- fully defacing a notice forfeits $50. 00 (§ 1385) . But (3) that an omission to give the notice, as required by law, or the taking down or defacing of a notice, to when put up, does not affect the validity of a sale a purchaser in good faith and without notice of the omission or offense (§ 1386). Notice of sale of real property ; how given. § 1434. The sheriff (executor, administrator or freeholder) who sells real property, by virtue of an execution (decree of a surrogate) . must previously give public notice of the time and place of the sale, as follows : 1. A written or printed notice thereof must be conspicuously fastened up, at least forty two days before the sale, in three public places, in the town or city where the sale is to take place, and also in three public places in the town or city where the property is situated, if the sale is to take place in another town or city. 2. A copy of the notice must be published, at least once in each of the six weeks, immediately preceeding the sale, in a newspaper published in the county, if there is one, or, if there is none, in the newspaper printed at Albany, in which legal notices are required to be published. As TO The Notice. ^55 IPropdrty how described in notice. Part may be sold. § 1485. In each notice, specified in the last sec- tion, the real property to be sold, must be described with common certainty, by setting forth the name ol township or tract, and the number of the lot, if there is any, or by some other appropriate descrip- tion. The validity of a sale is not affected by the fact that the property sold, is part only of the prop- erty advertised to be sold. As to matters of description see O'Donnell v. Lindsay (39 N. Y. Sup., 523). The description in the notice must follow the description in the petition, and order of sale, especially the latter. Penalty for irregularity in sale. § 1436. A sheriff (executor, etc.), who sells real property by virtue of an execution (decree) with- out having given notice thereof, as prescribed in the last two sections, or otherwise than as pre- scribed in this chapter, forfeits one thousand dollars to the party injured, in addition to the damages which the latter sustains thereby. (See Paise v. Halbut, 1 How., Ii3? ; Wood v. Morefimiae, 45 N. Y., 368.) Distinct parcels to be sold separately. § 2773. Where real property to be sold consists of one or more distinct parcels, the person making *756 Executor not to Buy. the sale must cause each distinct parcel to be sepa- rately exposed for sale, unless otherwise directed in the decree, or in the order to execute the same, or in an order subsequently made by the surrogate. Who not to purchase. § 2774. 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 suirogate, purchase in his name of office, for the benefit of his ward. A violation of this section readers the purchase void. This section is substantially a transcript of section 27 (2 R. S., 104) and is only declaratory of the common law. If an executor join with others in the purchase, the sale may be avoided. [Mltchum V. Mitchwm, 8 Dana; Paul v. Squibb, 12 Penn. St., 296.) The authorities adjudicating upon the last sec- tion above quoted, are Moore v. Moore, 5 N. Y., 256; Baermon V. Schenk, 41 Id., 132; and Ter- wUliger v. Brown, 44 Id., 237 ; Forbes v. Halsey, 26 N. Y., 53. Effect of Ptjechase by Executor. 767 If, however, the estate is sold in good faith to a stranger, with no collusion between him and the executor, there is nothing to prevent the executor from purchasing it afterwards, like any other property. {Silverthorn v. McRinister, 12 Penn. St., 67.) So, a long acquiescence in a purchase made by an executor, by all parties concerned, would prob- ably be held to be a confirmation. [Hawley v. Gramer, 4 Cow., 719 ; Ward v. Smith, 3 Sandf. Ch., 592.) But if an administrator purchases the estate at his own sale, and afterwards conveys it to a third person, the purchaser will be charged with notice of the defect of title, as it would be apparent upon the face of the deed, shown by the search. [Laz- arus V. Bryson, 3 Binn., 59 ; Ward v. Smith, 3 Sandf., 592; Smith v. Drake, 23 N. J. Eq., 302 ; Potter v. Pearsoyi, fiO Me., 220.) NOTICE OF SALE. Executors Sale of Real Estate. In pursuance of an order of the surrogate of the county of Rensselaer, the undersigned, the execu- tor of the last will and testament of , late of the of , deceased, will sell at public vendue on the day of , at 758 Notice of Sale and Eeport. the front door of the court house in the of day of , at ten o'clock in the forenoon of that day, the following described real estate, to wit (describe the parcels) ; upon said premises are a farm house, and the ordinary iarm buildings. Dated Dec. 1, 1880. A B, Executor. ■-J Report of sale and proceedings thereon. § 2775. The person making the sale must, with all convenient speed, file with the surrogate, a re- port of the sale. The surrogate must, upon notice, given in such a manner and for such a length of time as he thinks proper, to each party who has appeared, inquire into the proceedings ; and he may take oral testimony respecting the same. If he is of opinion that the proceedings were unfair; or that the sum bid for the whole, or for a distiuct parcel of real property separately sold, was less than the value thereof at the time of sale, and that a sum exceeding that bid at least ten per centum, exclusive of the expenses of a new sale, may be obtained upon a resale ; he must make an order, vacating the sale, either wholly, or with respect to the distinct parcel affected, and directing another sale ; notice of which must be given, and the same must be conducted, as prescribed for the first sale. Eeport of Sale. 769 REPOKT OF SALE. Surrogate's Court, Rensselaer county. In the matter of the real estate 01 A B, late of the of . , deceased. In pursuance of a decree of the surrogate of the county of Rensselaer, bearing date the day of , 1872. I, the subscriber, executor, of the last will and testament ol John Doe, late of the of , in said county, did on the day of , 1872, at the front door of the court house, in the city of Troy, in said county, at 10 o'clock in the forenoon, sell at public vendue, the whole of the premises in said order described, to , for the sum of dollars, which was the highest sum bid for the same. And I further report, that before the said sale, I caused notice of the time and place thereof, to be regularly published, once a week, for six weeks successively, in the , a newspaper printed in said county, and like notices to be posted for six weeks in , thereof, the most public places in the town of , and further, that sa d sale was legally made and fairly conducted, and that a greater sum could not be obtained for said premises. Dated, Nov. 20, 1872. (Signed), A B, Executor. teo Notice for Confirmation. Rensselaer county, ss : A B, being duly sworn, says that the foregoing report by him subscribed, is true of his own knowl- edge, except as to the matters which are therein stated to be lUleged on information and belief, and as to those matters he believes it to be true. A B. Sworn before me this 18th ) Dec, 1874. j X Y, Commis. Effect of Conveyance. 773 suant 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 admin- istrator, or his assignee, has the same right to en- force performance, with respect to the residue, as the decedent would have had, if he was living Any title acquired by the executor or administra- tor, or his assignee, with respect to the part not sold, must be held in trust for the use of the per- sons entitled to the decedent's interest ; subject to the dower of the widow, if any. Purchaser's title not affected when. § 2784. 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 mort- gage or lease made as prescribed in this title, in any way affected by any of the following omissions, errors, defect.-^, or irregularities ; 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 in an action : 1. Where a petition was presented, and the proper persons were duly cited, and a decree di- recting a mortgage or lease, or a decree for a sale? 17i Effect of Conveyance. and an order directing the execution thereof were made, as prescribed in this title ; and the decree and the order, if any, were duly recorded, as pre- scribed in article first of title first of this chapter : by any omission, error, defect, or irregularity, oc- curring between the return of the citation, and the making of the decree, or the order directing the execution of the decree. 2. Where an order, confirming a sale and direct- ing a conveyance, has been made, upon proof, satisfactory to the surrogate, that all the acts have been done, which are required by law to be done, after the order directing the execution of the decree, to authorize the surrogate to make such an order of confirmation : by the actual omission to do such an act, or by any error, defect, or irregularity in the same, or by any omission in the recitals of the conveyance. Presumption in certain cases. § 2785. Where the records of the Surrogate's Court have been heretofore, or are hereafter, re- moved 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 appointraept of ^ Burden of Impeaching Sale. TY5 guardian for each infant party to the special pro- ceeding must be presumed, and can be disproved only by affirmative record evidence to the contrary. This act throws upon the party seeking to im- peach a sale of real estate, under the order of a surrogate, the whole burden of proof; and if he fails to show a want of jurisdiction in the surro- gate, to make the order, the law presumes that it was properly made. {Wood v. McGhesney, 40 Barb., 417.) Proceed to be paid into court. Effect thereof. § 2786. The proceeds arising from a mortgage, lease, or sale, made as prescribed in this title, must be paid into the Surrogate's Court by the executor, administrator, or freeholder receiving the same. For that purpose, he must pay them to the county treasurer, to the credit of the special proceeding, to be retained by him as prescribed in section 2587 of this act. Upon paymeiit being so made, the heirs and devisees of the decedent, and their assigns, and all the decedent's remaining real property, and interest in real property, held under a contract for the purchase thereof, are exonerated from the debts established by the decree, or es-. tablished as prescribed in the next section but pne, as f^r s^s the proceeds so paid pye;- are suffix 776 Proceeds Must be Paid Into Court. cient, after deducting the costs and expenses allowed by the surrogate, to satisfy those debts. The entire proceeds of the sale should be paid into court, without retaining for fees and disburse- ments ; they are afterwards to be allowed by the surrogate. [Matter of Lamhersoa, 63 Barb., 297.) As to the section referred to (2537), see ante.) Notice of distribution of proceeds. § 2787. Immediately after the payment into court of the proceeds of a mortgage, lease, or sale, as prescribed in the last section, the surrogate must cause notice of the time and place of making the distribution, to be published, at least once in each of the six weeks immediately preceding the same, in a newspaper published in the county nf the surrogate. ORDER FOR NOTICE OF DISTRIBUTION. At a Surrogate's Court, held in the county of at the surrogate's oiBce in the . . . of . . . ., on the day of ,1880. Present — Hon Surrogate. In the matter of the real estate of A B. . . ., deceased. The proceeds of the real estate of the above Distribution op Proceeds. T77 named deceased, sold for the payment of his debts, having been paid into court : Ordered the same to be distributed in this court on the day of next, at ten o'clock in the forenoon, and that notice thereof be published for six weeks succesively in the , a news- paper printed in the city of , Surrogate. NOTICE OF DISTRIBUTION. Rensselaer county, ss : To all persons interested in the estate of A B, late of the town of , in said county. Notice is hereby given that the surrogate of said county will proceed to distribute the proceeds of the real estate, of the above named deceased, sold for payment of his debts, at his office in the city Troy, on the day of next, at ten o'clock in the forenoon of that day. Dated Troy, Dec. 19, 1880. , Surrogate. Hearing. § 2788. At the time and place designated in the notice, or at the time and place to which the hear- ing is adjourned, the surrogate must hear the allegations and proofs of the creditors, and of the persons interested in the estate, or in the applica- tion of the proceeds, respecting any demands 778 Further Sale may be Made. against the decedent, or for his funeral expenses, then presented, which had not been established or rejected, before making the decree. The provisions of this title, relating to contesting and establishing debts, and preserving the evidence thereof, before making Ihe decree, apply to the proceedings respect- ing any demand so presented. A debt, which was established by the decree, may be again contro- verted, upon the hearing provided for in this section, upon the discovery of new evidence im- peaching the same, and upon such a notice to the claimant as the surrogate directs, but not otherwise. If proceeds insuflcient, more may be sold, etc. § 2789. Where the decree was executed with respect to a part only of the real property, or in- terests in real property, sjoecified therein, and the proceeds of the sale are insufficient, after paying the costs and expenses thereof, to satisfy all the debts established by the decree, together with the demands established as prescribed in the last sec- tion, and all other sums payable out of the same, as prescribed in this title, the surrogate must make an order, as prescribed in section 2768 of this act, directing the execution of the decree, with respect to the remainder, or so much thereof as is necessary. The proceedings thereupon and subsequent thereto Surrogate must hear all Claims, etc. II'-) are the same, as upon and subsequent to the first order for the execution oi the decree. Proofs to be made as to claim on surplus. § 2790. Upon the hearing, provided for in the last section but one, or upon the hearing after the further execution of the decree, as prescribed in the last section, the surrogate must also hear the allegations and proofs of any person, who claims a right to the surplus money, or any part thereof. A claim so made may be contested by any other person making a like claim. Decree for distribution. § 2791. The surrogate must, by a supplementary decree, made and recorded in like manner as the first decree, determine the rights of the creditors and other persons interested, to share in the pro- ceeds, and direct the distribution thereof accord ingly. Where the rights of creditors are estab- lished, and there is a surplus, respecting the dis- tribution of which a contest arises, he may make a supplementary decree, providing for the payment of the creditors only ; and reserving all questions, as to the distribution of the surplus, to be settled by a second supplementary decree. An appeal may be taken from either of the supplementary decrees, by any person aggr^ived thereby, as from 'rSO Distribution. the first decree ; except that it is not necessary or proper, to make any creditor a party to an appeal from the second supplementary decree. County Treasurer to pay. § 2792. Each supplementary decree must fix the sums to be paid or invested, as prescribed in the following sections of this title, as far as they can be then fixed. If any sum cannot be then fixed, it may be fixed by the order of the surro- gate subsequently made. The surrogate must cause a certified copy of each supplementary decree, and of each order, to be delivered to the county treasurer, who must distribute, pay over, or invest the proceeds in his hands, as directed thereby. Distribution, how made. § 2793. Money paid into the Surrogate's Court, as prescribed in this title, must be distributed by the supplementary decree in the following order : 1. The charges and expenses of the mortgage, lease, or sale, and of the publication of the notice of distribution, and the other actual disbursements attending the distribution, must first be paid. 2. Where an interest under a contract for the purchase of real property was sold, all sums of money, which were due at the time of the sale. Distribution to be Made of Moneys. V81 pursuant to the contract, and were not assumed by the purchaser, must next be paid out of the pro- ceeds of the sale of that interest. 3. Out of the remainder of the money, arising upon a sale, the claim of dower, of the decedent's wife, if any, which has not been assigned to her, must be satisfied by setting apart for investment, one- third of the gross proceeds of the property to which her right of dower attaches ; unless, within such time, and upon such a notice to her, as the surrogate deems reasonable, she presents an in- strument under seal, acknowledged or proved, and certified, in like manner as a deed to be recorded in the county, whereby she consents to accept, in lieu of her dower, a sum, to be ascertained by the surrogate, equal to the value of her right of dower in the gross proceeds, according to the principles applicable to life annuities ; and, if she presents such an instrument, by paying to her such a sum. 4. Out of the remainder of the money, arising upon a mortgage, lease or sale, must be paid the costs of the special proceeding, awarded to the pe- titioner in the decree. 5. Out of the remainder of the money, must be paid the sum, if any, which has been found to be due to the executor or administrator, upon a judi- cial settlement of his acccount, after applying ^82 DiSTEIBUTION, HOW MADE. thereupon the proeeeds of the personal property. But this subdivision does not authorize the repay- ment, to an executor or administrator, of any sum paid by him to a creditor of the decedent, exceed- ing the proportion which that creditor would be entitled to receive from the estate of the decedent, upon the distribution of all the assets of the dece- dent, and the proceeds of property disposed of as prescribed in this title. 6. Out of the remainder of the money, must be paid, in full, the reasonable funeral expenses of the decedent, to the persons whose claims therefor were established and recited as debts, in the first degree, and were not rejected upon the second hearing. 7. Out of the remainder of the money, must be paid, in full, the other debts, which were estab- lished and recited in the first decree, and were not rejected upon the second hearing ; or, if there is not enough for that purpose, they, or so much thereof as the money applicable thereto will pay, must be paid in the order pr -scribed by law for payment of decedent's debts by an executor or ad- ministrator out of the personal assets, without giv- ing preference to rent, or to a specialty, or to any demand on account of an action pending there- upon ; and paying debts not yet due, upon a rebate of legal interest. Dower, how Computed. 783 8. Out of the remainder of the money, must be paid, in like manner, the debts first established by the supplementary decree, or so much thereof as the remainder will pay. 9. If any surplus remains, it must be distributed among the heirs and devisees of the decedent, or the persons claiming under them, and among those persons who have presented and proved liens upon the interests of those heirs or devisees, or persons claiming under them, which were cut off by the sale ; according to their respective rights and priorities, as established in the supplemen- tary decree. But if the proceeds of any of the property sold had been, or were to be, converted into personal property, pursuant to a direction con- tained in the decedent's will, the surplus proceeds of that part of the property must be paid to the person entitled thereto, by the terms of the will. Dower in land under contract, how computed. § 2794. The claim of dower of the decedent's wife, in real property held by the decedent, under a contract for the purchase thereof, which must be satisfied, as prescribed in subdivision third of the last section, extends only to the annual interest during her life, upon one-third of the balance re- maining, after deducting from the money arising upon the sale, all suras due from the decedent, at 784 Dower Fund how Invested. the time of the sale, for the real property so con- tracted and sold. Dower fund how invested, etc. § 2795. The surrogate must cause a sum set apart for a widow's dower, as prescribed in the last two sections, to be invested by the county treas- urer, under the direction of the surrogate, in the public securities of the State, or of the United States, or in permanent mortgage securities, bear- ing interest payable annually, or oftener. The in- terest, or other income, must be paid by the county treasurer to the widow, during her life. After her death, the county treasurer, under the direction of the Surrogate's Court, manifested in an order duly entered, must sell the public securities, or collect the sums loaned upon mortgage, and distribute the proceeds, less the costs and expenses, as prescribed in the last section but one, for the distribution of the remainder of the money, after satisfying the claim for dower. No executor or other person authorized to sell any real estate by order of any surrogate, shall be allowed any commission for receiving or paying to the surrogate the proceeds of such sale ; but shall be allowed their expenses in conducting such sale, including two dollars for every deed prepared and executed by them thereon, and a compensation not Allowance fob Expenses, etc. 785 exceeding tvYo dollars a day for the time necessa- rily occupied in such sale. (S. L , 1844, ch. 300.) The claim for the expenses and for the per diem allowance should properly be put in to the surro- gate, in items and on the oath of the executor or administrator. The State contemplates a fer diem allowance only for the days necessarily and actu- ally employed about the sale. It does not warrant the idea that the executor or administrator is upon a salary from the commencement to the con- clusion of the business. [Highie v. Westlake, 14 N. Y., 281.) In regard to the expenses proper to be allowed, the statute seems to suppose that these proceed- ings shall be conducted wholly by the executors or administrators with the aid of the surrogate. Not- withstanding, so necessary and proper are the ser- vices of a skilled attorney in conducting the pro- ceedings, wliich affect the title to real estate, that the court will make a liberal interpretation of the statutory claim as to expenses, and will allow a reasonable sum for professional advice and assist- ance. But where there is no contest, charges such as were allowed by the chancery fee bills for servi- ces in litigated cases, would be excessive. {Highie V. Westlake, sup.) 50 786 Dower, how Adjusted. NOTICE TO WIDOW TO ELECT. In the matter of the real estate of ... , deceased. To , widow of said deceased : You are hereby notified and required to elect, whether you will accept such sum in gross, as shall be deemed upon the principles of law, applicable to annuities, a reasonable satisfaction of your claim for dower in the lands of the above deceased, in lieu of your dower ; and you are notified, so to elect before the surrogate of the county of Rensse- laer, at his office in Troy, on the day of , 1872 (the day for distribution of pro- ceeds.) Dated, November 20, 1872. A B, Executor of the will of said deceased. CONSENT OP WIDOW TO ACCEPT A SUM IN GROSS. In the matter of the real estate I of \ deceased. I Whereas, certain lands and tenements of the above named deceased, in which the undersigned is entitled to dower, as the widow of said deceased Election by Widow. 787 have been recently sold by virtue of an order of the surrogate of county, in this matter, and whicli said lands and tenements are bounded and described as follows : (deHcription as in order for sale). And whereas, the moneys arising from the said sale have been brought into the said Surrogate's Court for distribution : now, therefore, know all men by these presents, that I, A B, the widow of the said deceased, do by these presents consent to s-ccept in lieu of my dower, in the lands and tene- ments aforesaid, such sum in gross, as shall be deemed, upon the principles of law applicable to annuities, a reasonable satisfaction, for my said dower. In witness whereof, I have hereto set my hand and seal, .this day of ,187... A B. [l. s.] Rensselaer county, ss : On this day of , 187 . . ., before me personally came A B, to me known to be the same person described in ai'd who executed the foregoing instrument, and acknowledged that she executed the said instrument for the uses and purposes therein mentioned. L. W. Rhodes, Gontmissioner of Deeds, Tray, N. Y. 788 Annuity Table. ANNUITY TABLE AND RULE. Age !To. of years purchase. No Age. Of years purchase. No. o Age. r years purchase. No. of years Age. purchase. 1 10,107 25, 12,063 49, 9,568 73, 4,781 2 , 11,724 26, 11,992 50, 9,417 74, 4,565 3 12,848 27, 11,917 51, 9,273 75, 4,354 4 , l:i,769 28, 11,841 bz, 9,129 76, 4,154 5 12,962 19, 11,768 53, 8,980 77, 3,952 6 18,156 30, 11,682 54, 8,827 78, 3,742 7 13,275 31, 11,598 55, 8,670 79, 3,514 8 13,387 32, 11,512 56, 8,509 80, 3,281 9 13,335 33, 11,423 57, 8,343 81, 3,156 .0 13,285 34, 11,331 58, 8,173 82, 2,926 11 13,212 35, 11,236 59, 7,999 83, 2,713 12 13,130 36, 11,137 60, 7,820 84, 2,551 13 13,044 37, 11,035 61, 7,637 85, 2,402 14 12,953 38, 10,929 62, 7,449 86, 2,266 15 12,857 39, 10,819 63, 7,253 87, 2,138 16 , 12,755 40, 10,705 64, 7,052 88, 2,031 17 12,655 41, 10,589 65, 6,841 89, 1,882 18 , 12,562 42, 10,478 66, 6,625 90, 1,689 19, 12,477 43, 10,356 67, 6,405 91, 1,422 20 12,398 44, 10,235 68, 6,179 92, 1,136 ■11 12,329 45, 10,110 69, 5,949 93, ,806 22 12,265 46, 9,980 70, 5,716 94, ,518 23 12,200 47, 9,846 71, 5,479 24 12,132 48, 9,707 72, 5,241 Rule Jor Computation. Calculate the interest, at six per cent, for one year, upon the sum to the income of which the person is entitled, and multiply this interest by Number of Years Purchase. 789 the number of years purchase set opposite the person's age in the table, and the product is the gross value of the life estate of such person. EXAMPLE. Suppose a widow's age is forty, and she is en- titled to dower in real estate worth $1 500 ; one- third of this is $500 ; interest on |500, one year, at six per cent, is $30 ; multiply this by 10,705, the number of years purchase set opposite her age, and you have $321.15 as the gross value of her dower right § 38. (2 R. S., 106). If, after the deduction aforesaid, from the proceeds of such sale, there shall not be sufficient remaining to pay all the debts of the testator or intestate, then the balance of such proceeds shall be divided by the surrogate, among the creditors, in proportion to their re- spective debts, without giving any preference to bonds or other specialties, or to any demands on account of any suit being brought thereon. § 39. Every person to whom the deceased shall have been indebted, on a valuable consideration. The sum to be set apart for the widow, if she does not accept a sum in gross is, one- third of the whole purchase money, without first deducting the ex- penses of the sale. [Highie v. Westlake, 14 N. Y., 281.) 790 Disposition of Proceeds. In the disposition of the proceeds, regard may be had tp the fact that some of the debts are also entitled to be partially or fully paid out oi the fund arising from the sale of other real estate in another State. {Lawrence v. Elmendorf, 5 Barb.) The heirs or devisees may set up equitable as well as legal defenses, to claims on the proceeds (Campbell v. Benwick, 2 Bradf., 80 ) Fund invested for infants, etc. § 2796. Where surplus money is distributable to an infant ; or where the interest in the property represented by it, consisted of a precedent estate, and a remainder or reversion ; the decree must provide, as the judgment of the Supreme Court would provide, in an analogous case, for the invest- ment of the money in the public securities of the State, or of the United States ; or for the loan thereof, secured by bond, and by mortgage upon unincumbered real property within the State, worth at least, exclusive of buildings thereupon, twice the sum lent ; and for the payment of the income, until the majority of the infant or the de- termination of the temporary interest ; and then, for the payment of the principal, to the person or persons entitled thereto. But where surplus money, distributed to an infant, is less than one Where the Money to be Deposited. 791 hundred dollars, the decree may, in the discretion of the surrogate, direct that the same be deposited by the county treasurer in a savings bank or trust company, designated by the surrogate ; and that the interest or income thereof be applied in like manner. Partition or foreclosure not to effect proceedings ex- cept, etc. § 2797. The commencement of pendency of an action or special proceeding, having for its object the sale, either absolutely or contingently, of pro- perty liable to be disposed of as prescribed in this title ; or the foreclosure by advertisement, of a mortgage thereupon ; or any proceeding to sell such property, taken pursuant to a judgment, or by virtue of an execution, does not affect any of the procee lings taken as prescribed by this title, unless the surrogate so directs. After making a decree directing a mortgage, lease, or sale, the sur- rogate may, and, in a proper case, he must, stay the order to execute the decree, with respect to the property affected by the action, or special proceed- ing, or by the proceedings then pending, until the determination ther.^of, or the further order of the surrogate with respect thereto. If, in the course thereof, a sale of any of the property has been made, before making the decree in the Surrogate'? T92 Decree for Distribution. Court, the decree must provide for the application of the surplus proceeds belonging to the decedent's estate. If such a sale is made afterwards, the di- rections contained in the decree, relating to the property sold, are deemed to relate to those pro- ceeds. SUPPLEMENTARY DECREE ESTABLISH- ING CLAIMS AND DECREEING DIS- TRIBUTION. At a Surrogate's Court, held in the county of , at the surrogate's office in the . ... of , on the .... day ot , 1874. Present — Hon , Surrogate. 1- The proceeds of the real estate of A B, late of the town of , deceased, sold under the order of this court for the payment of his debts, having been paid into court to the amount of ten thousand dollars,and the surrogate having caused a notice to be published for six weeks, that distri- bution would bo made of such proceeds according to law, and due proof of such publication having been filed, and sundry creditors having attended and proved their claims to the satisfaction of the In the matter of the real estate of A.. . . .. B .. . , deceased. Decebe for Distribution. 793 surrogate ; and C B, widow of said deceased, hav- ing filed her consent to accept a sum in. lieu of her dower in the premises sold, which consent is exe- ecuted and acknowledged by the said C B, in the manner required as to deeds to entile them to be recorded, and X Y, the executor of the will of said deceased having appeared in person by James Lan- sing, his counsel, and having filed his claim for expenses paid by him and for compensation in mak- ing such sale, which claim was duly verified and is allowed by the surrogate : It is ordered, adjudged and decreed that of the proceeds as aforesaid paid into court, there be paid by the county treasurer of Rensselaer county, to said C B, widow as aforesaid, in lieu of her dower, the sum of twenty-two dollars dollars, and to said X Y, said executor, for his expenses and compensation the sum of thiity-nine and 50-100 dollars, and to James Lansing, his counsel, twenty-five dollars, and that the remainder, amounting to seven thou- sand seven hundred and thirty-five dollars and fifty cents, be distributed pro rata among the creditors of the said deceased who prove their claims as shown in the schedule hereto annexed showing the amount of the claim by each creditor as proved and the sum payable to each. "Witness, , Surrogate, and [l. S.J the seal of the court, this day of , 1880. Surrogate. } 794 Decree for Distribution. SCHEDULE REFERRED TO IN THE FORE- GOING DECREE. Amount paid into court, . $10,000 00 There shall be paid to C B, widow, $2,200 00 There shall be paid to X Y, executor, 39 50 There shall be paid to J L, attorney, 25 00 2,264 50 And the remainder, . . . 7,735 00 shall be be distributed to the creditors who have proved claims, as follows : Amount claimed. Distribution. J L, $900 00 $450 00 A R, 250 00 125 00 J D, 2,000 00 1,000 00 If the executor or administrator, shall have paid debts in the course of administration, beyond the assets which came to his hands, he shall have the right to be reimbursed out of the proceeds of the sale, being considered the equitable assignee of such claims. {lAvimjston v NewkirTc, 3 John. Ch. 318.) But if the proceeds are not sufficient to pay debts in full, the executor or administrator as above, gets only his pro rata dividend with other creditors. Sum Due Exr., may be Eepaid. 795 So, also (S. L., 1863, chap. 400), any sum which may have been found due to the executors or ad- ministrators, upon the settlement of their accounts, after applying thereon the proceeds of the personal estate of the testator or intestate, shall be paid in full, before distribution shall be made among the creditors. In making the distribution of the surplus, the surrogate may admit claims by lien against the heirs as a valid charge against their interest. {Sears v. Mack, 2 Bradf., 394 ; Eddy v. Traver, 6 Paige, 521.) Securities and investments to be in name of county treasurer. § 2800. Except as otherwise specially prescribed in this title, a security taken or an investment made, pursuant to any provision thereof, must be taken or made in the name of the county treas- urer, adding his official title, and his successors in office. Each security so taken, and all the papers connected therewith, or with such an investment, and each lease, taken as prescribed in this title, must be immediately delivered to the surrogate for his approval and, when approved by him, must be delivered to the county treasurer, who must, from time to time, collect the money due thereupon, and apply it, under the direction of the surrogate, as Y96 Surplus in Certain Cases to be Paid. prescribed by law for that purpose, or for the ap- plication of the money represented by the security. Surplus moneys on mortgage, or judgment sale in cer- tain cases, to be paid to the surrogate. § 2798. 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 a special pro- ceeding, specified in the last section, to satisfy a mortgage or other lien thereupon, which accrued during the decedent's lifetime ; and letters testa- mentary or letters of administration, upon the de- cedent's estate, were, within four years before the sale, issued from a Surrogate's Court of the State, having jurisdiction to grant them; the surplus money mu.si be paid into the Surrogate's Court from which the letters issued. 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, charge- able 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 re- And how Distribtjted. Y97 ceiving that money. The receipt of the surrogate, or the clerk of the Surrogate's Court, or the county treasurer, as the case may be, is a sufficient dis- charge to the person paying the money. Surplus moneys, how distributed. § 2799. Where money is paid into a Surrogate's Court, as prescribed in the last section, and a peti- tion 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 money must be distributed as if it was the pro- ceeds of the decedent's real property^ sold pursuant to the decree. Tf such a petition is not pending or presented, or if a decree for the disposition of the docodonl's property is not made thereupon, a verified petition, praying for a decree, directing the distribution of the 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 ; and, upon the return of the citation, the rights and priorities of the persons in. terested must be established, and a decree for dis- tribution must be made, as prescribed in this title, for the distribution of the the proceeds of real property sold. 798 Restitution to Heirs, etc. Restitution may be made to heirs, etc. § 2801. Where a decree has been made, for the application of the proceeds of real property to the payment of the decedent's debts or funeral expen- ses, as prescribed in this title, and assets, which should have been applied thereto, are afterwards discovered ; or, for any other reason, money or other personal property of the decedent, which should have been applied thereto, afterwards comes to the hands of the executor, administrator, lega tee, or next of kin ; the heir, devisee, or other person aggrieved, may maintain an action to procure re- imbursement therefrom. Provisions as to Sales. 799 CHAPTER XXI. Statutory Provisions as to Sales by Executors UNDER Power given in the Will, and as to Confirmation of Sales Originally Made un- der Surrogate's Order. As a general rule, where the testator directs that certain real estate be sold, and the proceeds divi- ded among persons named in the will, the legatees, if of full age, may elect to take either the lands or the money, provided the rights of others are not affected thereby. Therefore, where the legatees have elected to take the land, the executor, who was directed by the will to sell the same, is not a necessary party to an action to partition it. [Prentice v. Jamessen, 14 Hun, 518.) § 55. (2 R. S., 109.) Where any real estate or any interest therein, is given or devised by any will legally executed, to the executors therein named, or any of thetn, 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 ex- ecutor shall neglect or refuse to take upon him the execution of such will, then all sales made by 800 Accounting fob Proceeds. the executor or executors, who shall take upon them the execution of such will shall be equally valid, as if the other executors had joined in such sale. § 57. Where b_y any last will a sale of real estate shall be ordered to be made, either for the payment of debts or legacies, the surrogate in whose office such will was proved, shall have power to cite the executors in such will named, to ac- count for the proceeds of the sales, and to compel distribution thereof; and to make all necessary orders and decrees thereon, with the like power of enforcing them, as if the said proceeds has been originally personal property of the deceased, in the hands of an administrator. § 58. 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 the land sold, to be recovered by the person entitled to an estate of inheritance therein. § 59. No oJ[fense, in relation to the giving of notice of sale, or the taking down, or defacing, such notice, shall affect the validity of such sale to any purchaser in good faith, without notice of the irregularity. Irregularities may be Eectified. 801 § 60. The several surrogates shall record, in books to be provided by them for that purpose, all orders and decrees by them made, upon any pro- ceedings before them in relation to the sale of real estate, and shall file and preserve all papers, re- turns, vouchers and documents connected with ^uch proceedings. § 61. Wherever a sale of any real estate has heretofore been made, by virtue of an order of the Court of Probates, or of any surrogate, and a con- veyance executed in pursuance thereof, but with- out the concurrence of any discreet person besides the executor or administrator, as heretofore re- quired by law ; and wherever any conveyance has been executed, or shall be executed in pursu- ance of such sale, without setting forth at large the order of the surrogate directing such sale, or the order confirming the same, the said irregulari- ties may be rectified, and the sales confirmed by the chancellor of the State. (Supreme Court.) § 62. Upon any application to the chancellor, (Supreme Court) for confirmation of such sales, he shall direct a reference to a master in chancery (referee) to examine and report touching the pro- ceedings on such sale, and whether any heirs or devisees of the real estate sold, or persons claiming under them, reside within this State. 51 §02 Defects in sale Cured. § 63. Upon the coming in of the master's (referee's) report, notice shall be published for eight weeks successively in the State paper, of such report being filed, and requiring all persons in- terested, to appear before the chancellor (Supreme Court) at such time and place as he shall have directed, to show cause why such sa^e and con- veyance should not be confirmed. § 64. If it appears by the master's (referee's) report, that any heirs or devisees of the real estate, or any person claiming under them, reside within this State, then a copy of such notice shall be served on such heirs or devisees, or persons claiming under them, either personally or by leav- ing the same at their usual dwelling place, in case of their absence, at least fourteen days, before the time appointed for such hearing. § 65. K upon the hearing of such application, and the examination of the proceedings, it shall appear to the satisfaction of the chancellor (Su- preme Court) that the said sale was made fairly, and in good faith, he shall make such order for confirming the sale and conveyance, as he shall deem equitable, and such sale and conveyance shall from that time, be confirmed and valid, according to the terms of the order. Guardians and Wards. 803 CHAPTER XXII. Guardians and Wards. Guardians, are persons having, by reason of their relation or by appointment, the care and custody of infants, during their minority. Their relation to their wards is one of trust and confidence, so much so, that they cannot, in any beneficial transaction substitute themselves for their wards. Guardianship by relation, arises under the pro- visions of the statute. § 5. (1 R. S., 718). Where an estate in lands shall become vested in an infant, the guardianship of such infant, with the rights, powers and duties of a guardian in socage, shall belong 1. To the father of the infant ; 2. If there be no father, to the mother ; 3. If there be no father or mother, to the nearest male relative of full age, not being under any legal incapacity ; and as between relatives of the same degree of consanguinity, males shall be preferred. § 6. To every such guardian, the statutory pro- visions that are or shall be in force, relative to guardians in socage shall be deemed to apply. 804 How Guardians Appointed. § 7. The rights and authority of every such guardian shall be superseded, in all cases where a testamentary or other guardian shall have been appointed, under the provisions of the third title of the eighth chapter of this act. Guardianship in socage arose, when socage land, or lands held upon the payment of certain services, other than military services, descended to an heir of a tenant of such lands under fourteen years of age. The provision is inoperative in this State, and the distinction of guardians, as such, in socage, is a mere legal curiosity. Guardians may be appointed by the father or mother, by the Supreme Court, or by the surrogate. § 1. (2 R. S., 150, amended by laws of 1871, chap. 31.) Every father, whether of full age, or a minor, of a child likely to be born, or of any living child under the age of twenty one years, and un- married, may, by his deed or last will duly exe- cuted, or in case such father be dead, and shall not have exercised hia said right of appointment, then the mother, whether of full age, or a minor, of every such child, may, by her deed or last will duly executed, dispose of the custody and tuition ol t^uch child during its minority, or for any less Effect of Deed or Will. 805 time, to any person or persons in possession or re- niainder. § 2. Every such disposition, from the time it shall take eflFect, shall vest in the person or per- sons to whom it shall be made, all the rights and powers, and subject him or them to all the duties and obligations of a guardian of such minor, and shall be valid and effectual against every other person claiming the custody or tuition of such minor, as guardian in socage or otherwise. [Clarh V. Montgomery, 23 Barb., 464.) § 3. Any person to whom the custody of any minor is so disposed of, may take the custody and tuition of such minor, and may maintain all proper actions for the wrongful taking or detention of the minor, and shall recover damages in such actions, for the benefit of his ward. The appointment by the father by deed, is not defeated by a subsequent appointment by the sur- rogate. [People ex el Brooklyn Industrial School V. Kearney, 21 Barb., 430.) He shall also take the custody and manage- ment of the personal estate of such minor, and the profits of his real estate during the time for which such disposition shall have been made, and may bring such actions in relation thereto, as a guar- dian in socage might by law. 806 Guardians by Deed or Will Directed. Such guardians, appointed by deed, or by will, are subject to the supervision of the Supreme Court, as the successor of the Court of Chancery. It may compel them to account from time to time, and may, for cause, remove them. The surrogate also has jurisdiction to compel an accounting by testament- ary guardians, as will presently be noLed. It is optional, however, with the persons appointed by will or by deed, whether they will accept the trust, but if they do so accept, there is no discharge ex- cept for good cause shown, by the Supreme Court. Acceptance of the trust, may be inferred from some act done by the guardian appointed, or assum- ing some care of the minor's estate, or some di- rection of his conduct. A guardian, wherever or by whomsoever ap- pointed, is limited as to the exercise of his power to the State wherein the appointment is made. The appointment is an act of jurisdiction depend- ent upon the situation of the person or the pro- perty, within the territory of the State. This authority is not limited to the cases of citizens of the State. {McLosky v. Reid, 4 Brad., 334.) But it is difficult to conceive that a father, resident in one State, may not appoint a guardian of his infant child with authority over real estate in another State. The authority granted is as great Guardian de non tort. 807 as the authority of the father, and the substitution is complete. But it was held that a guardian appointed by a foreign court, was not entitled to receive from the administrator here, the portion of his ward, and that a legacy to the minor, must be paid into court and invested as we have heretofore considered in relation to legacies to minors, unless the guardian shall be appointed here. {MoGlosky v. Reid, sup.) See also, Matter of Hosford, 2 Redf Sup. Eep., 168, limiting this case.) So the rule that one may become an executor de son tort, applies also to guardianship, and it was held that an agent of the administratrix, who from mere friendship, assumed to act as guardian of in- fant heirs, and received rents and profits of their real estate was chargeable with interest thereon, not as agent of the administratrix, but as guardian. (Mason v. Bosevelt, 5 Johns., Ch., 534.) So a father or any other person, who enters upon a minor's lands or take , possession of his personal property, may be treated by the minor as a guard- ian, and compelled to account as such. (Sherman V. Ballou, 8 How., 304 ; Van Erppes v. Van Duesen, 4 Paige, 64.) The authority of two or more guardians is joint, and that of each extends to the entirety, per my 808 Responsibility of Guardian. •et per tout, so that should one die, the authority continues in the survivor. \People v. Voyron, 3 Johns. Cas., 53.) They are jointly responsible for joint acts, and each is solely responsible for h-'s own acts and de- faults in which the others do not participate, and the fact that t'ey gave a joint and several bond to the surrogate, and with the same sureties, for the discharge of their trust, does not vary such liability. {Kirhyv. rittrwer, Hopk., 309. But see People V. Downing, 4, Sanf., 189.) The Supreme Court will, upon petition, appoint a guardian for a minor, and control him in the exercise of his duties ; will compel him to make suitable provision for his ward, to account when necessary, and remove him for cause, as in case of a testamentary guardian ; will audit his final ac- count, and discharge him from his trust. The guardian appointed by the Supreme Court continues until the majority of the infant, and is not controlled by the election of the infant, when he arrives at the age of fourteen years. [Matter of William NicoU, 1 Johns. Ch. Rep., 25.) We will proceed to consider the appointment or allowance by the surrogate. When the minor is under the age of fourteen years, the surrogate is said to appoint the guardian, but when the minor Married Woman may be Guardian. 809 is fourteen years of age, or upward, he makes choice of his guardian, and petitions for his allow- ance, and the surrogate is said to allow the choice of the guardian. By act of 1867 (p. 783, § 2), a married woman, formerly ineligible, may be appointed guardian, and their bond given on the granting of letters, have the same force and effect as though they were unmarried. Power of Surrogate's Court to appoint guardians. § 2821. The Surrogate's Court has the like power and authority to appoint a general guardian, of the person or of the property, or both, of an infant, which the chancellor had, on the thirty- first day of December, eighteen hundred and forty- six. It has also power and authority to appoint a general guardian, of the person or of the pro- perty, or both, of an infant whose father or mother is living, and to appoint a general guardian, of the property only, of an infant married woman. Such power and authority must be exercised in like manner as they were exercised by the Court of Chancery, subject to the provisions of this act. The same person may be appointed guardian of an infant in both capacities ; or the guardianship of the person and of the property may be com- mitted to different persons. 810 Guardian Selected by Infant. Petition by infant over fourteen years of age. § 2822. In either of the following cases, an infant, of the age of fourteen years or upwards, may present, to the Surrogate's Court of the county in which he resides ; or, if he is not a resident of the State, to the Surrogate's Court of the county in which any of his property, real or personal, is situated ; a written petition, duly verified, setting forth the facts upon which the jurisdiction of the court depends, and praying for a decree appointing a general guardian, either of his person, or of his property, or both, as the case requires; and, if necessary, that the persons, entitled by law to be cited upon such an application, may be cited to show cause, why such a decree should not be made : 1. Where such a general guardian has not been duly appointed, either by a court of competent jurisdiction of the State, or by the will or deed of his father or mother, admitted to probate or authenticated, and recorded, as prescribed in sec- tion 2851 of this act. 2. Where a general guardian so appointed has died, become incompetent or disqualified ; or refuses to act ; or has been removed ; or where his term of office has expired. Where the petitioner is a non-resident married woman, and the petition relates to personal pro- Eesidence of Infant. 811 perty only, it must affirmatively show that the projiorty is not subject to the control or disposition of her husband, by the law of the petitioner's resi- dence. The residence of a minor, is determined by the residence of the parent ; if but one survive, then of that parent. [Bi-oxcn v. Lyndi, 2 Brad., 214 ; Matter of Hughes Infant, 1 Tucker, 38.) But this residence must be actual, not legal, to confer jurisdiction upon the surrogrte. {Matter of Pierce, 12 How., 532.) So when a guardian was appointed in one county for a minor under the age of fourteen years, and the guardian changed the residence of the minor into another county within this State, it was held that an application by the minor for a subsequent appointment must be made in the county of the new residence^ {Ex- parte v. Bartlett, 4 Brad., 221.) But a relative, not a guardian by the mere removal of the minor^ cannot change the legal residence of the minor. {Matter of Hughes, 1 Tuck., 38.) Contents of petition ; citation. § 2823. A petition, presented as prescribed in the last section, must also state whether or not the father and mother of the petitioner are known to be living. If either of them is known to be living, and the petition does not pray that the father, or 812 Who to be Cited. if he is dead, that the mother, may be appointed the general guardian, it must set forth the circum stances which render the appointment of another person expedient ; and must pray that the father, or, if he is dead, that the mother, of the petitioner- may be cited to show cause, why the decree should not be made. A citation, issued to the father of the petitioner, must be served at least ten days before it is returnable. Where the case is within subdivision second of the last section, the petition must pray that the person formerly appointed general guardian may be cited, unless it is shown that he is dead. The surrogate must inquire and ascertain as far as practicable, what relatives of the infant reside in his county ; and he may, in his discretion, cite any relative or class of relatives of the infant, residing in that county or elsewhere, to show cause why the prayer of the petition should not be granted. Petition in case of married woman. § 2824. The last section applies, where the petitioner is a married woman ; except that her husband must also be cited, and that the surrogate may, in his discretion, make a decree, appointing a guardian of her property, without citing her father or her mother. Petition by Infant. 813 FORM OF PETITION BY INFANT OVER FOURTEEN YEARS OF AGE. To Moses Warren, Esq., Surrogate of Rensselaer county : The petition of A B, of the town of Lansing burgh, in the county of Rensselaer aforesaid, respectfully shows : That your petitioner is a resident of the county of Rensselaer, and is a minor over fourteen years of age ; that he was sixteen (16) years of age on the 15th day of May last; and your petitioner's father and mother are both dead (or, that the father of your petitioner is dead, and the mother of your petitioner is in feeble health and unused to the transaction of business), that your petitioner is entitled to certain property and estate, and that to protect and preserve the legal rights of your petitioner, it is necessary that some proper person should be appointed the guardian of his person and estate during his minority. Your petitioner therefore nominates, subject to the approbation of the surrogate, C D, of the town of Lansingburgh aforesaid, the maternal uncle of your petitioner (or, in no way related to your petitioner), to be such guardian, and prays his appointment accordingly and that said be cited to show cause why such appointment should not be made. And your petitioner, etc. (Signed), A B. Dated, April! 5th, 1874. 814 "Petition by Infant. Rensselaer county,|ss : A B, the foregoing petitioner, being duly sworn, says that he has read the foregoing petition, and knows the contents thereof, and that the same is true of his own knowledge except as to the matters which are therein stated to be alleged on informa- tion and belief, and as to those matters he believes it to be true. AB. Sworn before me, this .... 1 day of , 1874. , j Chas. J. Lansing, Justice of the Peace. Consent of Person to he Appointed. I, C D of the town of Lansingburgh, consent to be appointed the guardian of the person and estate of the above named minor during his minority. CD. Dated, April 15, 1874. AFFIDAVIT AS TO PROPERTY. Rensselaer county, ss : E F, of the town of Lansingburgh, in said county, being duly sworn, says that he is acquainted with the property and estate of the above named minor : that the same consists of personal property only, which does not exceed in value the sum of five hundred dollars ; (that the same consists of real and personal estate ; that the value of the personal Citation on Petition of Infant. 815 estate of said minor does not exceed the sum of five hundred dollars), and that the annual rents and profits of the real estate of said minor, do not exceed the sum of fifty dollars, or thereabouts. EF. Sworn this 15th day of April, ) 1874, before me, j Chas. J. Lansing, Justice of the Peace. ORDER FOR CITATION. At a Surrogate's Court, held in the county of , at the sur- rogate's office in the of on the .... , day of , 1880, Present — Hon , Surrogate In the matter of the person and estate of . . , an infant. The above named infant having presented his petition praying for the appointment of as the guardian of his person and estate and it appearin g therefrom that the mother of said infant is living. Ordered, that a citation issue to the said , requiring her to show cause why such appointment should not be made. (Signed) , Surrogate. 816 Hearing and Appointment. Appointment of guardian. § 2825. Upon the return of the citation, the surrogate must make such a decree in the premises, as justice requires. He may, in his discretion, hear allegations and proofs from a person not a party. Where a citation is not issued, the surrogate must, upon the presentation of the petition, inquire into the circumstances. For the purpose of such in- quiry, or of an inquiry into the amount of security to be required of the guardian, he may issue a subpoena, requiring any person to attend before him, to testify respecting any matter involved therein. If he is satisfied that the allegations of the petition are true in fact, and that the interests of the infant will be promoted by the appointment of a general guardian, either of his person or of his property, he must make a decree accordingly, except that a guardian of the person of a married woman shall not be appointed. In a proper case, he may appoint a general guardian in one capacity, without a citation ; and issue a citation, to show cause against the appointment ol a general guardian, in the other capacity. Guardian to be nominated by infant. § 2826. A guardian, appointed upon the application of an infant of the age of fourteen of Infant must Nominate Guardian. 817 years, or upwards, as prescribed in this article, must be nominated by the infant, subject to the approval of the surrogate. DECREE FOR APPOINTMENT OF GUARDIAN. At a Surrogate's Court, held in the county of Rensselaer, at the surrogate's office in the ... of on the . . . day of , 1880. Present — Hon , Surrogate. In the matter of the pereon and estate of an Infant. The above named infant having petitioned for the appointment of , as the guardian of his person and estate, and the surrogate having in- quired into the circumstances, and being satisfied that the allegations of the petition are true in fact, and that the interests of the infant will be promo- ted by the appointment of a general guardian : It is ordered, adjudged and decreed, that , be appointed general guardian of the per- son and estate of said infant, as his taking and fil- ing the official oath required, and on his filing a 52 816 GUAKDIAN FOR NoN-BeSIDENT IlinPANT. bond approved by the surrogate, in the penalty of dollars. Witness, , Surrogate, and the seal of the court the day and year first [l. S.J above written. ". , Surrogate. The provision in the following section, as to ap- pointment of a guardian of a non-resident infant is new, but is in accordance with the policy to give the surrogate's jurisdiction co-extensive with that of the Supreme Court. Appointment of guardian for infant under fourteen. § 2827. A relative of an infant under fourteen years of age, or any other person in behalf of such an infant, may present, to the Surrogate's Court of the county in which the infant resides ; or, if he is not a resident of the State, to the Surrogate's Court of the county in which any of the infant's property, real or personal, is situated ; a written petition, duly verified, setting forth the facts upon which the jurisdiction of the court depends, and praying for a decree appointing aguardian of the per- son, or of the property, or both, of the infant, to serve until the infant attains the age of fourteen years, and a successor to the guardian is appointed. The cases in which such a guardian may be appointed, the contents of the petition, and the proceedings Petition by Mother. 819 thereupon, are the same, as prescribed in the fore- going sections of this article, with respect to the appointment of a general guardian, upon the peti- tion of an infant of the age of fourteen years or upwards ; except that the surrogate must nomi- nate, as well as appoint, the temporary guardian. PETITION FOR GUARDIAN, INFANT UN- DER FOURTEEN YEARS, BY MOTHER. To , Esq., Surrogate of the county of , The petition of Sarah Dean, of the city of Troy, in the county of Rensselaer, respectfully showeth that your petitioner is the mother of James Dean, an infant ; that said infant resides in the county of Rensselaer, and is under fourteen years of age ; that the father of said infant is dead ; that said James was ten years of age on the 14th day of August last past ; that said infant is entitled to personal property to the value of about four hund- red dollars, as your petitioner is informed and verily believes, and that he is also seized of certain real estate, the annual rents and profits whereof do not exceed the sum of fifty dollars, and to protect and to preserve the legal, rights of said infant, it is necessary that some proper person should be duly appointed the guardian of his person and estate. Your petitioner, therefore, prays that you will 820 Petition by Mother. appoint John Dean, of the city of Troy, in the county of Rensselaer, the guardian of the person and estate of said infant, until he shall arrive at the age of fourtevsn years, and until another guar- dian shall be appointed. And your petitioner will ever pray. Dated, this 15th day of April, A. D 1874. Saeah Dean. CONSENT. I, John Dean, of the city of Troy, county of Eenselaer, do hereby consent to be appointed the guardian of the person and estate of the above named infant during his minority. Dated, this 15th day of April, A. D. 1874. John Dean. State of New York, Eensselaer county, Sarah Dean, of the city of Troy, the above peti- tioner, being duly sworn, deposes and says, that the foregoing petition by her subscribed is true of her own knowledge, except as to the matters which are therein stated to be alleged on information and be- lief, and as to those matters, she believes it to be true. Sarah Dean. Sworn before me this 15th day ) day of April, A. D. 1874. j Moses Warren, Surrogate. '' I ss. Appointment when Immediate. 821 It will be observed, that if the surrogate shall, on inquiry into the circumstances, be satisfied of the propriety of the appointment, he may appoint without a hearing (§ 2825). Under the former practice, he was under the necessity of appointing a day for the hearing, but might a appoint same day on which the petition was presented. [Wilcox V. Wilcox, 22 Barb., 178.) Term of oflce of temporary guardian. § 2828. The term of office of a guardian, ap- pointed as prescribed in the last section, expires when the infant attains the age of fourteen years. But after the infant attains that age, the person so appointed continues to retain all the powers and au- thority, and is subject to all the duties and liabili- ties, of a guardian of the person, or of the property, or both, pursuant to his letters ; until his successor is appointed and has qualified, or until' his letters are revoked, for some other cause, by the decree of the Surrogate's Court ; and his sureties are respon- sible accordingly. Inquiry as to value of property. § 2829. Where a general guardian of the pro- perty of an infant is appointed, as prescribed in this article, the surrogate must inquire into the infant's circumstances, and must ascertain, as 822 Bond to be Given. nearly as practicable, the value of his personal property, and of the rents and profits of his real property. Oath of office and bond as to property. § 2830. Before letters of guardianship of an infant's property are issued by the Surrogate's Court, the person appointed must, besides taking an official oath, as prescribed by law, execute to the infant, and file with the surrogate, his bond, with at least two sureties, in a penalty, fixed by the surrogate, not less than twice the value of the personal property, and of the rents and profits of the real property ; conditioned that the guardian will, in all things, faithfully discharge the trust reposed in him, and obey all lawful directions of the surrogate touching the trust ; and that he will, in all respects, render a just and true account of all money and other property received by him, and of the application thereof, and of his guardian- ship, whenever he is required so to do, by a court of competent jurisdiction. Oath of office and bond < s to person. § 2831. Before letters of guardianship of an infant's person are issued by the Surrogate's Court, the person appointed must take the official oath. Bond of Guardian. 823 as prescribed by law. The surrogate may also require him to execute to the infant a bond, in a penalty fixed by the surrogate, and with or with- out sureties, as to the surrogate seems proper; conditioned, that the guardian will in all things faithfully discharge the trust reposed in him, and duly account for all money or other property which may come to his hands, as directed by the Surrogate's Court. BOND OF GUARDIAN. Know all men by these presents, that we, John Dean, Samuel Stiles and John Doe, of the city of Troy, in the county of Rensselaer, are held and firmly bound unto James Dean of the city of Troy, aforesaid, a minor, in the sura of two thousand five hundred dollars, to be paid to the said James Dean, his certain attorney, executors, administra- tors or assigns, to which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly by these present. Sealed with our seals, and dated ) this 15th day of April, 1874. ( The condition of this obligation is such, that if the above bounden John Dean, as guardian of the person and estate of said James Dean, will, in all things, faithfully discharge the trust reposed in 824 Bond of G-uaedian. him, and obey all lawful directions of the surrogate touching the trust, and that he will, in all respects, render a just and true account of all money and other property received by him, and of the appli- cation thereof, and of his guardianship, whenever he is required so to do, by a court of competent jurisdiction (where the guardianship is as to the person merely, the condition is, that the guardian will, in all things, faithfully discharge the trust reposed in him, and duly account for all money or other property which may come to his hands, as directed by the Surrogate's Court), then this obli- gation to be void, otherwise to remain in full force and virtue. John Dean. [l. s.] Samuel Stiles, [l. s.] John Doe. [l. s.] Kensselaer county, ss : Samuel Stiles and John Doe, of the city of Troy, in said county, being severally sworn, depose and say, and each for himself say, that he is worth the sum of two thousand five hundred dollars, over and above all debts due from, or liabilities incurred by him. Samuel Stiles. John Doe. Sworn before me, this 15th ) day of April, 1874. f Justwe of the Pecuce. Who shall be Appointed. 825 State of New Y,-rk, ) ' > ss. Kensselaer County. On this 16th day of April, 1874, before me per- sonally appeared John Dean, Samuel Stiles and John Doe, to me known to be the persons described in and who executed the foregoing bond, and severally acknowledged that they executed the same. Justice of the Peace. Endorsed. Appointed. , Surrogate. The subject as to who shall be appointed the guardian of an infant, is not to be lightly considered by the surrogate. Formerly, under the Revised Statutes, an order of preference was created, pro- viding for the appointment: 1, of the mother ; 2, the grandfather on the father's side ; 3, the grand- father on the mother's side ; 4, either of the uncles on the father's side ; 5, either of the uncles on the mother's side ; 6, any one of the next of kin to the minor, who would be entitled to a distributive share in his personal estate, in case of his death. But in 1830, the sections were repealed, leaving to the surrogate a large discretion. The surrogate, therefore, acting as the chancellor formerly would do, will see that all the safeguards which the law 826 Who to be Appointed. has thrown around the infant, to prevent an inju- dicious appointment shall be regarded. [White v. Pomeroy, 7 Barb. Ch., 640.) For it depends upon the guardian, whether the infant shall be trained for a station of honor and respectability, or whether he shall be surrounded by such influence, as to plunge him into profligacy, and ruin. The sole executor of a father's will, is not a per- son proper to be appointed general guardian of his orphan child, as it might lead to gross wrong. It offers too many opportunities for wrong. [RicJi- arcTs Case, 15 Abb. N. S., 6.) The surrogate will, therefore, consult the inter- ests of the infant, rather than even his wishes, or the wishes of those desiring the appointment, {Bennett v. Bt/rne, 2 Barb., Ch., 216.) The requirements of the statute as to the notice to be served only on such relatives as the surrogate shall think reasonable (§ 5, sup.), does not relieve the surrogate from the duty of making inquiry, for ihe purpose of ascertaining who are the relatives of the infant residing in the county, and of requiring notice to such, and so many of them as may be deemed reasonable, to secure the proper attenJ;ion to the rights of the infant ( UnderhUl v. Dennis, 9 Paige, 202), and if he omits ,to make the proper Hearing on Petition. 82T inquiries, or to cause the near relatives to be noti- fied, the appointment may be set aside. (Id.) The relatives are not summoned as parties, but to give information upon the matters to the surro- gate. {Killinger v. Boe, 7 Paige, 362 ; Cozine v. Horn, 1 Brad., 143.) But while it is imperative that a day shall be assigned for the hearing, he may assign the day on which the petition is presented, if he shall de- termine that notice to the relatives need not be given. And where there is nothing to show that this course was not taken, it will be presumed that the surrogate assigned the day of the applica- tion for the hearing. {Wilcox v. Wilcox, 22 Barb., 178.) Where the appointment was made without no- tice and, on application to the Supreme Court, it appealed that the relatives would have opposed the appoinment, if notice had been given to them, the appointment was set aside and a new guardian appointed. (Richard's Case, 15 Abb. N. S., 6.) The jurisdiction of the surrogate who has ob- tained it by proper cognizance of the subject mat- ter, is as broad as that of the Supreme Court, or the English Court of Chancery, and his course in regard to making inquiries is just as discretionary 828 Force of Letters. as that of those courts. {Eoop, Dawson, 3 Bradf., 130.) The appointment once made, is valid until it is reversed or vacated by a direct proceeding for that purpose, and although the infant never resided in the county of the surrogate appointing the guard- ian, an action to vacate the appointment cannot be maintained {Button v. Dutton, 8 How., 99 ; Matter of Pierce, 12 Id., 532.) The letters issued must be in the name of the people of the State (§2590). They are condusive evidence of authority until they are revoked (§2591). We may here remark again that, although guardians in socage and other guardians, are men- tioned in the statutes and in the books upon the subject, there are virtually but two guardians, viz; guardians appointed by the will or deed of the father, and guardians appointed by the Supreme Court or the surrogate, and the powers and duties of ^ach of them are the same. The guardian is entitled to the custody and con= trol of the person of his ward, to the same extent as a father, under the supervision of the court, and his duty is to attend to the proper care, nurture and education of his ward, in a manner suitable to his condition in life. He shall not permit him to Duty of Guardian. 829 remain in idleness, if able to earn his support by his own industry, if he do so permit him, he will not be allowed for his support in such idleness, but he will be allowed the expenditures necessary to educate him for future usefulness, and his support wnile so educating him for future usefulness, and his support while so educating him. [Clark v. Clark, 8 Paige, 152 ; State v. Clark, 16 Ind., 97.) Though a father is liable for necessaries furnished to his child, without his consent, because he is bound to support him and is entitled to his ser- vices, yet a guardian is not so liable. {Cole v. Ward, 4 Watts & Serg., 118). But where the ward's estate was ample, the law will presume a promise by a guardian to pay for necessary medical services rendered at the re- quest of the ward's mother, with whom the ward was residing {Walker v. Browne, 3 Bush (Ky.) 686). In case the guardian abuse the power he has over the person of the ward, the court will inter- fere and remove him, if necessary. In relation to the personal estate, the power of the guardian, and consequently his duty, extends only to the collection and investment of it in good, permanent securities, and the receipt and expendi- ture of the income for the necessary care, nurture, 830 Power of Guardian. education and clothing of his ward ; and for the purpose of such collection, he may sell such per- sonal property as he may think perishable, and for the interest of the minor. {Field v. Shieffelin, 1 Johns. Ch., 150.) He may arbitrate for his ward. {Weed v. EW^, 3 Caiues, 253.) He may settle with executors for a legacy due to his ward and bind him until an error be shown on accounting. {Dahin v. Deming, 6 Paige, 95.) He may assign a bond and mort- gage belonging to his ward, without leave of the court. {Tuttle v. Heavy, 59 Barb., 334.) He may bring actions relative to the personal property of his ward. {Thomas v. Bennett, 56 Barb., 197.) He may collect money due to his ward and give discharge and receipt and receive payment of money secured by bond and mortgage before it is due and give a proper satisfaction piece. {Chapman v. TihUts, 33 N. Y., 289.) He may extend the time for the payment of a mortgage, after it shall have become due. {Willick V. Taggart, 17 Hun., 611.) His power and duty in regard to the real estate, is to lease it and receive the rents and profits thereof, and after paying the taxes and for the necessary repairs, to expend the surplus for his ward as above, when necessary, or invest it, and Power op GtUardian. 831 suffer it to accumulate for his benefit. (Genet v. Tallmadge, 1 Johns. Ch., 561.) It is his duty to lease it, if possible, and if he willfully neglect to do so, or occupy It himself, he will be accountable for the fair value of the rents anf] profits. He can lease only for a period ending with the minority of his ward. (Field v. Schieffelin, 7 Johns., 154 ; Putnam v. Ritchie, 6 Paige, 390.) A guardian oocuping for a minor heir, whose ancestor's debts are not paid, and receiving rents, is not liable for rents applied to the maintenance of the heir prior to due notice or application from « the ancestor's creditors. (Thompson v. Brown, 2 Johns. Ch., 619.) He ma,}' maintain trespass for entry on his ward's land. (Holmes v. Seeley, 17 Wend. ; Byrne v. Van Hoosen, 7 Johns., 66.) Where timber has been cut upon an infant's land by a trespasser, the guardian may receive the proceeds, and has power, in good faith, for a valuable consideration, to release the claim for the trespass. (Torry v. Blach, 58 N. Y., 185.) The general guardian has no right to purchase his ward's real estate, even though a special guar- dian was appointed. The sale is not absolutely void, but voidable, and where the ward suffered eighteen years to elapse without impeaching the 832 J, What G-uakdian must Not Do. conveyance to the guardian, it was held that he waived the objection and affirmed the sale. (Bost- wich V. Atkins, 3 N. Y., 53.) But where a guardian violates his .duty towards infants, and makes a contract for them which is voidable by them when they arrive at age, they only, can disavow the authority of the guardian. It is not for the party dealing with the guardians, to raise the objection that, in making the contract, the guardian exceeded his authority. {Burdick v. Jackson, 7 Hun, 488.) A trustee or a guardian cannot purchase for his own benefit, property which, although not the sub- ject of his trust, is connected with it, in this, that a sale of it for less than its value, will diminish the trust fund. A purchase by him for less than the value of the property, enures to the benefit of the cestui qiie trust, or the ward. This will be the case, notwithstanding a provision in the decree for sale, that any party to the action might become a purchaser. Even a decree by the surrogate settling the account, is no bar to an action to charge the trustee or guardian for the full value of the pro- perty purchased. {Fulton v. WTiitney, 66 N. Y., 548.) If on foreclosure sale of his ward's land, the guardian purchase as such, the only effect is to Duty of the General Guardian. 833 merge and extinguish the mortgage. {Low v. Purdy, 'A Lans., 422.) But it seems that if he purchase with his own funds, he may stand as assignee of the mortgage. (Id.) It is the duty of the general guardian to pro- vide for the infant's support, maintainance and education, out of his estate, notwithstanding he has a father Uving, if the father is poor and una- ble to support him. For sums expended for that purpose he will be allowed on the settlement of his account. {Glark v. Montgomery, 23 Barb., 464. Matter of Marx, 5, Abb. N. C, 224.) Guardians are not entitled to expend moneys derived from insurance on his ward's buildings in the rebuilding of them. [Hazzard v. Rowe, 11 Barb., 22 ; GopUy v. ONdl, 39 How., 41.) He has no power to mortgage or sell the real estate, but may make, as guardian, an application to the Supreme Court (the infant, if over fourteen years of age, joining therein), that a special guar- dian be appointed to sell the real estate at any time it may become necessary for the support, etc., of his ward, or advisable for the reason that the same is unproductive in proportion to its value, or that it is depreciating in value ; and the court, if satisfied of the propriety or necessity of the sale, 53 834 Supreme Court may Direct Sale!. •will allow it, and direct the least price at which it may be sold. And whenever it shall appear to the Supreme Court, by due proof, or on the report of a referee appointed for the purpose, that any infant holds real estate in joint tenancy, or in common, or in any other manner which would authorize his being made a partyto a suit in partition, and that the interest of such infant requires that partition of such estate should be made, such court may direct and authorize the general guardian of such infant to agree to a division thereof, or to a sale thereof, or of such a part of the said estate, as in the opinion of the court shall be incapable of division, or as shall be most for the interest of the infant, to be sold. It is a sufficient ground for this last proceeding, that the real estate is held jointly or in common with adults, and that the value of the estate is small in comparison with the expenses of a parti- tion suit, to which it must otherwise be subjected. These proceedings are specially and fully treated in Crary's Treatise on Special Proceedings, and in Barbour's Chancery Practice, which see. § 20. (2 E. S., 152.) Every guardian in socage, " and every general guardian, whether testamentary or appointed, shall safely keep the things that he Duty of Guardian as to Real Estate. 835 may have in his custody, belonging to his ward and the inheritance (the real estate) of his ward, and shall not make or suffer any waste, sale or destruction of such things, or such in- heritance, but shall keep up and sustain the houses, gardens and other appurtenances to the lands of his ward, by and with the issues and profits thereof, or with such other moneys belong- ing to his ward as shall be in his hands, and shall deliver the same to his ward, when he comes to his full age, in as good order and condition, at least, as such guardian received the same, inevitable decay and injury only excepted; and he shall answer to his ward for the issues and profits of real estate received by him, by a lawful account. § 21. If any guardian shall make or suffer any waste, sale or destruction of the inheritance of his ward, he shall lose the custody of the same, and of such ward, and shall forfeit to the ward thrice the sum at which the damages shall be taxed by the jury. (See Tarry v. Blaxih, 58 N. Y., 185.) But the guardian shall not be held to repair from his own moneys, where the income of the estate of his ward is insufficient, although such insuffi- ciency is a good ground for an application to the Supreme Court for a sale. A guardian who invests the funds of his ward 836 Responsibility of GtUardian in personal securities, assumes the risk of loss, thereby. And if he have litigations to recover moneys so inveHted, he must personally bear the expenses of it. (Torry v. Frazer, 2 Redf. Sur. Rep., 486.) The relation of the guardian to his ward is one of confidence, and the guardian cannot in any way derive ben 'fit from the funds or property of the ward, beyond his fees. If he compromise a claim against his ward, or purchase i debt against him at a discount, it will be for the benefit of his ward only. (2 Kent's Com., 229.) Ee cannot substi- tute himself for his ward in any beneficial transac- tion, although if he do so put himself in place of his ward, and a loss accrue, he himself will have to bear it. If he purchase land in a sale where his ward is interested, and take the conveyance to himself, his ward, on coming of agfe, may, if he elect, claim the benefit of the purchase. If he settle a debt due to his ward and take a promissory note, running to himpelf, he will be held accountable for it, whether it be collected or not ; otherwise, if he take the note to himself as guardian. If the guardian use the moneys of his ward in trade, the ward may elect, on coming of age, to take either the profits of the trade, or his money, And When Charged Interest 837 with coTnpound interest, to meet the profits. If he neglect to invest the money of his ward after a reasonable time (and he is usually allowed six months), he must pay interest, and in case of gross neglect he will be charged compound interest. The proper rate of interest is six per cent with annual rests, adding to the principal at each rest. {King v. Talhot, 40 N. Y., 76 ; see also, 2 Wend. 77 ; 8 Barb., 48.) He may not employ an agent or attorney, at the expense of his ward, to do those acts which he ought to do himself, such as the collection of rents, etc. ; his commissions are for such services. If he have his ward in his own family, he will be allowed a reasonable sum for his board, if the ward does not earn enough to remunerate him. \^Rait V. Rait, 1 Brad., 345.) But a guardian, being the father, supporting his child and ward according to his own means and station in life, cannot be allowed for such support. {Matter of Kane, 2 Barb. Ch., 375.) A guardian may not expend the capital of his ward, but only the income, except under the direc- tion of the Supreme Court, which will, upon the petition of the guardian, if considered necessary and advisable for the interest of the minor, au thorize the guardian to expend so much as may be 838 Held to only Ordinary Diligence. directed, in support and education, especially edu- I cation, wisely considering this in the highest de- gree important. A guardian, however, acting within the scope of his powers, like an executer or administrator, is bound only to findelity and ordinary diligence and prudence in the execution of his trust, and his acts, n the absence of fraud, will be liberally construed. {White V. Parker, 8 Barb., 48.) A guardian appointed in another State, cannot receive of an executor or administrator in this State, a legacy or distributive share to his ward ; but, to acquire the right, he must be appointed in this State and give the proper security. And a guardian appointed in this State, has no power over the real estate of his ward situated in an- other State. But a non-resident guardian may obtain ancil- lary letters under the following sections : Ancillary letters to foreign guardian. § 2838. Where an infant, who resides without the State and within the United States, is enti- tled to property within the State, or to main- tain an action in any court thereof, a general guardian of his property, who has been appointed by a court of competent jurisdiction, within the State or territory where the ward resides, and has Petition to Foreign Guardian. 839 there given security, in at least twice the value of the personal property, and of the rents and profits of the real property, of the ward, may present to the Surrogate's Court having jurisdiction a writ^ ten petition, duly verified, setting forth the facts, and praying for ancillary letters of guardianship accordingly. The petition must be accompanied with exemplified copies of the records and other papers, showing that he has been so appointed, and has given the security required in this section, which must be authenticated in the mode pre- scribed in article seventh of title third of this chap- ter, for the authentication of records and papers, upon an application for ancillary letters testamen- tary, or ancillary letters of administration. Proceedings on petition. § 2839. Where the surrogate is satisfied, upon the papers presented, as prescribed in the last sec- tion, that the case is within that section, and that it will be for the ward's interest, that ancillary letters of guardianship should be issued to the petitioner, he may make a decree, admitting the exemplified copies of the foreign letters to be re- corded, and g! anting ancillary letters accordingly. Such a decree may be made without a citation ; or the surrogate may cite such persons as he thinks proper, to show cause why the prayer of the peti- 84:0 ■ Effect op Ancillary Letters. tion should not be granted. But before the ancil- hiry letters are issued, the surrogate must in- quire, whether any debts are due from the ward's estate to residents of the State ; and if so, he must require payment thereof. Eflfect of ancillary letters. § 2840. Ancillary letters are issued, as pre- scribed in the last section, without security, and without, an oath of office They authorize the per- son, to whom they are issued, to demand and re- ceive the personal property, ar d the rents and pro- fits of the real property, of the ward; to dispose of them in like manner as a guardian of the pro- perty, appointed as prescribed in this article ; to remove them from the State ; and to maintain or defend any action or special proceeding in the ward's behalf. But they do not authorize him to receive, from a resident guardian, executor, or ad- ministrator, or from a testamentary trustee, sub- ject to the jurisdiction of, a Surrogate's Court, money or other property, belonging to the ward, in a case, where letters have been issued to a guar- dian of the infant's property, from a Surrogate's Court of a county within the State, upon an alle- gation that the infant was a resident of that countyj except by the special direction, made Power of Guaedian Local. 84:1 upon a good cause shown, of the Surrogate's Court from which the principal letters were issued ; or unless the principal letters have been duly revoked. Application to former guardian. § 2841. The last section applies to letters granted) before this chapter takes effect, by a Surrogate's Court of the State, to a guardian appointed by a court of another State, or a Territory of the United States, upon presentation of an exemplified tran- script of the record of his appointment. The rights and powers of guardians are striLtly local and cannot be exercised in other States. [Morrill v. Dickey, 1 Johns. Ch., 156 ; Story Conf. Laws, 414.) Nor have they any authority over the real property of their wards, situate in other countries ; for such property is governed by law rei dtce. (Story, id., 414, 417.) We have already seen, that a legacy to a minor, of fifty dollars or under, may be paid to his father, for the use and benefit of such minor ; but when the legac}' exceeds that sum, the same may be paid, under the direction of the surrogate, to the general guardian, who must first give security to the minor, to be approved by the surrogate, for the faithful application of such legacy ; and this secu- rity is additional to that previously given on the 842 When Distbibutive Share to be Pah). appointment, unless that so previously given, was estimated especially in view of the legacy. When a distributive share is to be paid to a minor, the surrogate may direct that it be paid into court, and invested under his orders ; or he may direct that it be paid to the general guardian. A general guardian has the same powers in rela- tion to the collection of a legacy or distributive share by actions or proceedings before the surro- gate, that his ward would have if of full age. Accounts of Guaedians. 843 CHAPTER XXIII. AcooiJNTS OF Guardians. How Compelled to Ac- count, AND HOW Removed, or Relieved of their Trust. Guardians appointed by deed or by the Su- preme Court, are subject to the jurisdiction of that court, and may account personally to their ward, on their coming of age, or may be compelled to do so by the court. The court on petition, or after action brought, will appoint a referee to take and state the account, and will compel the attendance of witnesses, and on the coming in of the report will confirm or modify it, according to the facts. But the Surrogate's Court has no jurisdiction of that class of guardians, but guardians appointed by the surrogate must account annually to him, and he must supervise their accounts. Guardian to file annual inventory and account. § 2842 A general guardian of an infant's prop- erty, appointed by a Surrogate's Court, must, in the month of January of each year, as long as any of the infant's property, or of the proceeds thereof, 844 Inventory and Account. remains under his control, file in the Surrogate's Court the following papers : 1. An inventory, containing a full and true statement and description of each article or item of personal property of his ward, received by him, since his appointment, or since the filing of the last annual inventory, as the case requires ; the value of each article or item so received ; a list of the articles or items, remaining in his hands; a statement of the manner in which he has disposed of each article or item, not remaining in his hands ; and a full description of the amount and nature of each investment of money, made by him. 2. A full and true account, in form of debtor and creditor, of all his receipts and disbursem.ents of money,during the preceding year ; in which he must charge himself with any balance remaining in his hands, when the last account was rendered, and must distinctly state the amount of the bal- ance remaining in his hands, at the conclusion of the year, to be charged to him in the next year's aacount. Afadavit to inventory and account. § 2843. With the inventory and account filed as prescribed in the last section, must be filed an affidavit, which must be made by the guardian, unless, for .good cause shown in the affidavit, the Affidavit to Inventory, etc. 845 surrogate permits the same to be made by an agent or attorney, who is cognizant of the facts. The affidavit must state, in substance, that the in- ventory and account contain, to the best of the affiant's knowledge and belief, a full and true statement of all the guardian's receipts and disbursements, on account of the ward ; and of all money and other personal property of the ward, which have come to the hands of the guard- ian, or have been received by any other person by his order or authority, or for his use, since his ap- pointment, or since, the filing of the last annual inventory and account, as the case requires ; and of the value of all such property ; together with a full and true statement and account of the manner in which he has disposed of the same, and of all the property remaining in his hands, at the time of filing the inventory and ac- count; and a full and true description of the amount, and nature of each investment made by him, since his appointment, or since the filing of the last annual inventory, and account, as the case requires ; and that he does not know of any error or omission in the inventory or .account, to the prejudice of the ward. The surrogate must annex a copy of this and the last section, to all letters of guardianship of the property of an infant issued from his court. 846 Annual Account, etc. GUARDIANS' ANNUAL ACCOUNT, AND INVENTORY. Inventory. Surrogate's Court, Rensselaer county. In the matter of A B. . . . , a minor. A just and true inventory of the estate and effects of the above named minor on the first day of April, 1862: Cash received of C D, execu- tor, etc., of C D, deceased, $350 00 1861. Dk. John La Fountain, bond and mortgage, $200, interest oneyear,|U, 214 00 R. Thompson, bond and mort- gage, $300, interest six months, $10.50, 310 50 Ten shares Central Rail Road stock par value $1000, actually worth, 830 00 House and lot No. 164 Ful- ton street, Troy, valued at, 800 00 Farm in Sand Lake valued at, 2,000 00 $4,504 50 Inventory and Account. 847 Account. J K, Guardian, in Accotmt with AB, a Minor. 1861. Dr. April 1, To interest on La Fountain mort- gage, $14 00 Oct. 1. To int., on Thomp- son mortgage,... 21 00 1862. F.eb. 1, To dividend Central Rail Road, 3 per cent, 30 00 To 3 quarters' rent house 164 Fourth street, 180 00 March 1, To 1 year's rent farm in Sand Lake, 200 00 $445 00 Contra. 1861. Cr. April 10, By board paid J H, 26 weeks at $2, $52 00 July 1, By clothing pur- chased of J N,... 10 00 9, By hats purchased "'ofGF, 50 848 Inventory and Account. Oct. 1, By board paid J H, 26 weeks, 52 00 10, By clothing of J N, 15 00 Oct. 1, By repairs No. 164 Fourth street, ... 8 50 1862. Feb. 10, By taxes 164 Fourth street, 11 00 By taxes farm in Sand Lake, 22 00 April 1, By interest on $350, uninvested 6 months, 12 25 Commission for re- ceivingincome2J percent on $445, 11 12 Commission on pay- ing out income 2 J per cent on 195.37, 3 87 Balance due estate, 234 64 $445 00 Rensselaer county, ss : J K, of the city of Troy, being duly sworn, says that the foregoing inventory and account contains to the best of his knowledge and belief, a full and true statement of all his receipts and disburse- ments as guardian, as therein stated ; and of all money and other personal property of the ward which have come into deponent's bond as guardian, or have been received by any other person by his Accounts to be Examined. 849 order or authority, or for his use, since his ap- pointment (or, since the filing of the last annual inventory and account) ; and of the value of such, together with a full and true statement and account of the manner in which he has disposed of the same, and of all the property remaining in his hands, at the time of filing said inventory and account; and a full and true description of the amount and nature of each investment made by him since his appointment, (or, since the filing of the last annual inventory and account,) and that he does not know of any error or omission in the in- ventory or account to the prejudice of said ward. J. K. Sworn before me this 13th May, 1880. A B., Justice of the Peace. Annual examination of accounts. § 2844. In the month of February of each year, the surrogate must, for the purposes specified in the next section, examine or cause to be examined, under his direction, all inventories and accounts of guardians filed since the first day of February of the preceding year. The examination may be made by the clerk of the Surrogate's Court, or by a person specially appointed by the surrogate to make it, who must, before he enters upon the examination, subscribe and take, before the surro- gate, and file with the clerk of the Surrogate's 54 850 Further Account may be REQumBD. Court, an oath faithfully to execute his duties, and to make a true report to the surrogate. Where the surrogate seasonably certifies in writing to the board of supervisors, or, in the county of New York, to the board of aldermen, that the examination required by this section cannot be made by him, or by the clerk of the Surrogate's Court, or by any clerk, employed in his oflBce and paid by the county, the board must provide for the compensation of a suitable person to make the examination. Proceedings when account is defective. § 2845. If it appears to the surrogate, upon an examination made as prescribed in the last section, that a general guardian of an infant's property, appointed by letters issued from his court, has omitted to file his annual inventory or account, or the affidavit relating thereto, as prescribed in the last section but one ; or if the surrogate is of the opinion, that the interest of the ward requires that the guardian should render a more full or satisfac- tory inventory or account; the surrogate must make an order, requiring the guardian to supply the deficiency, and also, in his discretion, requiring the guardian personally to pay the expense of serving the order upon him. Where the guardian fails to comply with such an order, within three Duties of Surrogate. 851 months after it is made ; or where the surrogate has reason to believe that sufficient cause exists for the guardian's removal, the surrogate may, in his discretion, appoint a fit and proper person special guardian of the ward, for the purpose of filing a petition in his behalf, for the removal of the guardian, and prosecuting the necessary pro- ceedings for that purpose. Svirrogate may direct as to infants maintenance. § 2846. Upon the petition of the general guardian of an infant's person or property ; or of the infant or any relative or other person in his behalf; the sur- rogate upon notice to such persons, if any, as he thinks proper to notify may make an order, direct- ing the application, by the guardian of the infant's property, to the support and education of the infant, of such a sum as to the surrogate seems proper, out of the income of the infant's property; or, where the income is inadequate for that purpose, out of the principal. The provisions in this section extend the power of the surrogate and give him the power hereto- fore exercised by the Court of Chancery and the Supreme Court. 852 Petition for Leave to JExpend Capital. PETITIONS FOR LEAVE TO EXPEND FOR INFANT. Surrogate's Court, Rensselaer county : In the matter of the person and estate of A B, an infant. The petition of C D respectfully shows to this court. That your petitioner was heretofore appointed by this court the general guardian of the person and estate of the above named A B, an infant, and has faithfully discharged his duty as such general guardian. That said infant is now of the age of fourteen years and your petitioner deems it desirable to take proper steps for his education, but the in- come of the estate of said infant, is insuflScient (if this be the case) to properly educate and maintain said infant while acquiring an education. The income will not exceed the sum of $ per annum, and the sum requisite for the aforesaid purposes is at least $ per annum. Your petitioner therefore prays that he may be authorized to make application of the income of the estate of said infant to his support and educa- How Compelled to Account. 863 tion and that he may further apply annually to of the principal of said estate for that purpose. And your petitioner will ever pray, etc. Dated May 13, 1880. CD. Kensselaer county, as : C D, being duly sworn says that the foregoing petition by him subscribed is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief and as to those matters he believes it to be true. CD. this . . . . ] of May, 1880. Sworn before me this . . . . ) ., Notary Public. Judicial settlement how compelled. §2847. A written petition, duly verified praying for the judicial settlement of the account of a general guardian of an infant's property, and that he. may be cited to attend the settlement thereof, may be presented to the Surrogate's Court, in either of the following cases : 1. By the ward, after he has attained his majority. 854 Petition for Settlement of Account. 2. By the executor or administrator ot a ward, who has died. 3. By the guardian s successor, including a guar- dian appointed after the reversal of a decree, ap- pointing a person so required to account. There is no provision of the statute for a judicia, examinatinn and settlement of the guardian's ac- counts, at the instance of either the ward or the guardian, while the guardianship continues. [D7-a- per V. Anderson, 37 Barb., 168.) On the removal of a guardian by the surrogate, it is a matter of course to require him to account and pay over to his successor. {Skid/mor^ v. Do- mes, 10 Paige, 316 ; see Seaman v. Dwyea, 11 N. Y., 324.) The guardian of an infant's person may apply for a judicial settlement. Accounting by guardian of person. 2848. A petition, for the judicial settlement of the account of a general guardian of an infant's person, may be presented, as prescribed in the last section, or by the general guardian of the infant's property; but, upon the presentation thereof, proof must be made, to the surrogate's satisfaction, that the guardian so required to account has re- ceived money or property of the ward, for which Settlement by Guabdian. 866 he has not accounted ; or which he has not paid, or dehvered, to the general guardian of the infant's property. Voluntary settlement, petition for. § 2849. A guardian may present to the Surro- gate's Court a written petition, duly verified, pray- ing for a judicial settlement of his account, and a discharge from his duties and liabilities, in any case, where a petition for a judicial settlement of his account may be presented by any other per- son, as prescribed in either of the last two sections. The petition must pray that the person, who might have so presented a petition, may be cited to at- tend the settlement. The provisions of the act in relation to an ac- counting of executors and administrators (ante, p. 568), are applicable to an accounting, either com- pulsory, or voluntary. Citation and proceeding. § 2850. Upon the presentation of a petition, as prescribed in either of the last three sections, the surrogate must issue a citation accordingly. Sec- tion 2727, sections 2733 to 2738, both inclusive, and section 2741, of this act, apply to a guardian accounting, as prescribed in this article, and regu- 850 Citation to Ward. late the proceedings upon such an accounting. The accounting party must annex to every account produced and filed by him, an affidavit, in the form prescribed in the last article, for the affidavit to be annexed by him to his annual inventory and account. The service of a citation to a ward, to attend an accounting of a guardian, before the surrogate, is properly made by delivering a copy to the ward, personally, in the presence of his legal guardian ; but it the guardian has an interest adverse to the ward, a s|)ecial guardian should be appointed. {Brick's estate, 15 Abb., 12.) Even if the service should be defective, the ward's actual appearance, gives j urisdiction to the surrogate. {Ii>-) On the return of the citation, if the ward be still an infant, an idiot or of unsound mind, a special guardian will be appointed, and will appear for him (see cmte as to forms and statute in full p. 54). The petition made by the guardian, should state the jurisdictional facts; the appointment by the surrogate and the arrival of the ward at full age, or the superseding of the guardian, and pray that proceedings be had for the settlement of his ac- counts. Instead of procuring a citation in these cases. Accounting of Guardian. 85T the parties may voluntarily appear before the sur- rogate, and proceedings will be had the same as on the return of the citation. The form of the account differs so little from the account filed by an executor or administrator on final settlement (see ante), that it is not deemed necessary here to present one. The proceedings, in all respects, except the mere matter of form, resemble the proceedings of a final settlement. The guardian should file his account in full ; which should give dates and names of parties to whom payments may have been m£^de,/and should charge the guardian with the whole of the per- sonal property received by him, and with all interest received or for which he is liable, for funds uninvested after six months from the receipt of such funds. It should also contain the reasonable expenses of the guardian, which are regulated by the same rule as the allowance for expenses of executors and administrators and his commissions. It was held in Morgan v. Morgan (39 Barb,), that a guardian performing services outside of his official duties, for the benefit of his ward, as where he personally made repairs on the real estate, bestowing his personal labor, was entitled, on settlement, to a fair allowance for such services. But in Morgan v. Hamas (49 N. Y., 667), the 858 Commissions of GuAEDiAiir. rigid rule as to executors and administrators, that however beneficial their services to the estate ; however onerous the trust, they could be allowed only commissions. The case then of Matter of the Bank of Niagara (6 Paige, 213), must be consid- ered as overruled. The commissions for receiving and paying out moneys, are the same as allowed to executors, to wit : five per cent on all sums up to one thousand dollars ; two and a half per cent dn sums above one thousand dollars, up to ten thousand dollars, and one per cent on all sums above ten thousand , dollars. {Foley v. Egan, 13 Abb. N. S., 361.) And in making his annual account, as well as on settlement, the guardian may charge five per cent or two and a half per cent, as the sums may demand, on his receipts and disbursements for each year. But an investment, or reinvestment of the fund from time to time, is not such a paying out of the trust fund as entitles the guardian to commissions for paying out the same ; nor is he entitled to charge a commission for collecting or receiving back of the principal of the fund which he has so invested, {Matter of Kellogg, 7 Paige, 265.) He should also file all vouchers received by him, and verify the whole by his oath ; and the account- Settlement of Account. 859 ing will be conducted, in all respects, like an ac- counting by executors or administrators, and may be contested in the same manner. When the proofs are all in, the surrogate will make a decree settling the accounts of the guar- dian and directing the payment of any remainder in the hands of the guardian, to the ward. This decree can readily be formed from the decree on judicial settlement of the accounts of an executor. [Ante, p. 648.) Should the decree be against the guardian, a cer- tificate thereof may be filed in the clerk's oflSce so as to make it a lien against the real estate, and an execution may be issued thereon. The payment may likewise be enforced by attachment as in the case of an executor, or after return of execution unsatisfied, by suit upon the bond of the guardian (§ 2553, ante, p. 684.) The decree may be discharged in the same man- ner as a decree against an executor or administra- tor. (For form see ante, p. 703.) So a guardian may be removed and his letters revoked under § 2832, quoted ante, and we will consider that question now. The section is as fol- lows : When letters may be revoked for miseonduet, ete. § 2832. In either of the following cases, the 860 Revocation of Letters of Guardian. ward, or a.ny relative or other person in his behalf, or the surety of a guardian, may, at any time, pre- sent to the Surrogate's Court a written petition, duly verified, setting forth the facts, and praying for a decree, revoking letters of guardianship, ei- ther of the person or of the property, or both ; and and that the guardian complained of may be cited to show cause why such a decree should not be made : 1. Where the guardian is disqualified by law, or is, for any reason, incompetent to fulfil his trust. 2. Where, by reason of his having wasted or im- properly applied the money or other property in his charge, or invested money or other property in his charge, or invested money in securities unauthor- ized by law, or otherwise improvidently managed or injured the real or personal property of the ward, or by reason of other misconduct in the execution of his office, or his dishonesty, drunkenness, improvi- dence, or want of understanding, he is unfit for the due execution of his office. 3. Where he has wilfully refused, or, without good cause, neglected, to obey any lawful direction ot the surrogate, contained in a decree or order ; or any provision of law, relating to the discharge of his duty. Removal op Guardian. 861 4. Where the grant of letters to him was ob- tained by a false suggestion of a material fact. 5. Where he has removed, or is about to remove from the State. 6. In the case of the guardian of the person, where the infant's welfare will be promoted by the appointment of another guardian. Citation, hearing, and decree. § 2833. Upon the presentation of a petition, as prescribed in the last section, the surrogate must inquire into the matter; and, for that purpose, he may issue a subpoena to any person, requiring him to attend and testify in the premises. If the sur- rogate is satisfied that there is probable cause to believe, that the allegations of the petition are true, he must issue a citation to the guardian com- plained of; and, upon the return thereof, if the material allegations of the petition are established, he must make a decree, revoking the guardian's letters accordingly ; except that, where the case is within subdivision third or fourth of the last sec- tion, he must dismiss the proceedings, under the like circumstances and upon the like terms, as pre- scribed in sections 2686 and 2687 of this act, where a similar complaint is made against an ex- ecutor or administrator. 862 EeMOVAL of GrUABDIAN. PETITION TO KEMOVE A GUARDIAN. To the Surrogate of the county of : The petition of , of the of , respectfully shows : That on or about the day of , 187., one was duly appointed by the surrogate of said county, the guardian of the person and estate of , a minor; that the said entered upon his trust and assumed control of the person and estate of said minor. And your petitioner further shows that since his appointment, as aforesaid, the said has become incompetent and an unsuitable person to perform the duties of such guardian, by reason of habitual intemperance in the use of alcoholic liquors (or, that the said has wasted and continues to waste, and misapply the estate of said minors, or other cause) ; that your petitioner is one of the sureties of said as such guardian (or, a relative of said minor) Your petitioner, therefore, prays that an exami- nation may be had in the premises, and that a ci- tation issue to the said , to the end that he may_ be removed as such guardian and his appointment revoked. Dated, this ... day of , 1880. (Signed), Guardian to be Cited. 863 Rensselaer county, ss : , being duly sworn, says that he has read the petition by him subscribed and that the same is true of his own knowledge except as to the matters which are therein stated to be alleged on information and belief and as to those matters he believes it to be true. (Signed), Sworn before me this 25th 1 May, 1880. j Notary Puhlw. ORDER FOR CITATION THEREON. At a Surrogate's Court, held in the county of at the surrogate's office in the of on the day of , 1874. Present — Hon , Surrogate. In the matter of the person and estate of a minor, On reading and filing the petition of one of the sureties of , the guardian of the person and estate of the above named minor, setting forth, that the said has be- come incompetent by reason of intemperance and praying for his removal (or, that the said has removed or is about to remove from this State). 864 Cause for Eemoval. Ordered that a citation issue to the said , requiring him to appear in this court to show cause why he should not be removed from his guardianship. . , Surrogate. The insolvency of the guardian, or one of his sureties, is cause for removal. {Matter of Cooper, 2 Paige, 34.) Gross intemperance of the guardian, is also good cause. {Kettletas v. GkirdTier, 1 Paige 488.) The guardian was removed for misconduct, in having trusted his ward's money to his brother-in-law, on personal security: [Matter of Mary ONeil, 1 Tucker, 34.) Insanity is a cause for removal [Damarell v. Walher, 2 Redf Sur. Rep., 198). The citation should be served on the guardian, even if he is insane (Id). Suspension of guardian. § 2834. Upon issuing a citation as prescribed in the last section, the surrogate may, in his discre- tion, make an order suspending the guardian, wholly or partly, from the exercise of his powers and authority, during the pendency of the special proceeding. A certified copy of an order so made must accompany the citation, and be served there- with; but, from the time when it is made, the Revocation of Letters. 865 order is binding upon the guardian and upon all other persons, without survice thereof, subject to the exceptions and limitations prescribed in sec- tions 2603 and 2604 of this act, with respect to a decree revoking letters. The following may serve as a decree for re- moval. DECREE FOR REVOCATION. At a Surrogate's Court, held in the county of at the surro- gate's office in the of on the .... day ot , 1874. Present — Hon , Surrogate. ....,..., Surrogate. In the matter of the person and estate of , deceased. On filing the citation heretofore issued in this matter, returnable this day, with proof of the due service thereof on the guardian of the above named minor, and the said not appearing (or, the said having ap- peared), and the surrogate being satisfied, after hearing the proofs and allegations of the parties of the truth of the matters stated in the petition of 55 866 New Bond may be had. in this matter, it is ordered and decree that the said be removed from the office of guardian oJ the person and estate of said minor, and that his appointment heretofore made be revoked. Witness surrogate, and the [l. s.] seal of the court, the day and year first above written. , Smrrogaie. Any person interested in the estate or fund, or any relative of the infant, may present petition for further sureties. New bond may be required. § 2597. Any person, interested in the estate or fund, may present to the Surrogate's Court, a written petition, duly verified, setting forth that a fciurety 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 in- adequate in amount ; and praying that the prin- cipal 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 New Sureties Eequired 86T' infant. When the bond is that of an executor or administrator, the petition may also be presented by any creditor of the decedent. If it appears to the surrogate, that there is reason to believe that the allegations of the petition are true, he must the principal cite in the bond to show cause, why the prayer of the petition shoUd not be grknted. PETITION THAT GUARDIAN GIVE NEW SURETIES. To the surrogate of the county of : The petition of of the town of respectfully shows : That your petitioner is.a relative of , a minor, of said of : Thaton or about the day of , 1869, one was appointed by this court^ the guardian of the person and estate of said minor, and on such appointment , and united with said as sureties in his bond filed in this court to said minor. That your petitioner is informed and believes that , one of said sureties, is becoming, or has become insolvent, as your petitioner is informed and verily believes (or has removed, or is about to remove from this State ; or, that the said sureties are insufficient, for the reason that the estate of said minor has increased S68 New Bond Eequirbd. very much in value since appointment of such guardian). Your petitioner, therefore, prays that your honor will investigate the matter to the end that the said should give further sureties, or be removed from his guardianship. Dated this day of , 1870. (Signed), county, ss : , being duly sworn, says that the foregoing petition by him subscribed is true of his own knowledge, except as to the matter which are therein stated to be alleged on information and belief, and as to those matters he believes it to be true. Sworn before me this ) day of ,1880. j , Cleric of Surrogate' s Oiwrt. New bond may be required. § 2598. Upon the return of a citation, issued as pi escribed 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, requiring the prin- cipal in the bond to give new or additional sureties, or a new bond in a larger penalty, as the case re- quires, within such a reasonable time, not exceeding five days, as the surrogate fixes ; and directing that, in default thereof, his letters be revoked. From Gtuardian. S69 ORDER FOR ADDITIONAL SURETIES. At a Surrogate's Court, held in the county of at the surrogate's office, in the of on the day of , 1874. Present — Hon , Surrogate. In the matter of the person and estate of On the return of the citation issued to , the guardian of the person and estate of said minor, witli due proof of the service thereof on said , and the said , having appeared, and it appearing that , one of his sureties has removed from this State : Ordered, that said give further sureties, approved by the surrogate, in a bond in a penalty of $ , to said minor within days from this date. , Surrogate. Decree revoking letters. § 2599. If a bond with new or additional sure- ties, or in a larger penalty, is approved and filed m the surrogate's office, as required by such an order, the surrogate must make a decree, dismiss- ing the proceedings^ upon such terms, as to costs, ^TO Removal of G-uardian. as justice requires ; otherwise, he must make a decree, removing the delinquent from office, and revoking the letters issued to him. DECREE REMOVING GUARDIAN, FOR NE- GLECT TO GIVE SURETIES. At a Surrogate's Court, held in the county of , at the surrogate's office in the of on the day of , 1874. Present — Hon , Surrogate. In the matter of the person and estate of An order having been heretofore made in this matter on the day of requiring , the guardian of the person and estate of said minor to give further sureties within days from that day ; now on reading due proof of the service of said order on the said , on the day , 1872, and the said ■ , having neglected to give such further sureties : It is ordered and decreed that said , be removed from his trust as such guardian, and that a revocation issue under the seal of this court, of the letters heretofore granted to him. Witness ..™., surrogate, and th [l. s.] seal of the court this day and yea,, first above , written. , Swrrogate. SXJRETIES MAY BE RELEASED. 871 So, it would also seem that the sureties of a guardian may be released on their own applica- tion. Sections 29 of chap. 460, of Laws of 1837, providing for the release of the sureties of an executor or administrator, was, in 1876 (chap. 278), so amended, as to permit the sureties of a guardian to make a like application, and the proceedings therein are similar to those in relation to the sure- ties of an executor or administrator. B72 Eesignation of Guardian. CHAPTER XXIV. Resignation of Guardian. As the Court of Chancery, in the exercise of its supervisory power over guardians, permitted them, when they become incapacitated to discharge their duties, or to resign when the interests of their ward required it ; so the statute permits the surro- gate to accept the resignation of a guardian. Guardian's petition for revocation. § 28H5. A guardian, appointed as prescribed in this title, may, at any time, present to the Surro- gate's Court a written petition, duly verified, set- ting forth che facts upon which the application is founded, and praying that his account may be judicially settled ; that a decree may thereupon be made, revoking his letters, and discharging him accordingly ; and that the ward may be cited to show cause, why such a decree should not be made. The surrogate may, in his discretion, entertain or decline to entertain the application. He may show as a reason for the revocation, his physical disabilit}., arising from age or illness, his Guardian may Eesign 8'rS removal, actual or contemplated, to a distance from where the property of his ward is situated ; the marriage of his ward, if a female, or any other cause which would render it for the interest of the infant that he should resign. PETITION OF GUARDIAN FOR A REVO- CATION. To the Surrogate of the county of : The petition of , of the of , respectfully shows : That heretofore your petitioner was, on the day of ^ 1868, duly appointed by the surrogate of said county, the guardian of the per- • son and estate of , a minor, and has, as your petitioner verily believes, conducted him- self honestly in the execution of his trust. That , and , are the next of kin of said minor, residing in this county above the age of fourteen years. That your petitioner is desirous of resigning his trust as such guardian, and that his letters be re- voked for the reason that he has removed from this State (or is about to remove, or, other cause, and he prays that he may be permitted to render an account of his proceedings as such guardian and 874 Proceedings in Petition that the same be judicially settled, to the end that a successor may be appointed and your petitioner may be relieved therefrom. Dated, this ... day of , 1880. (Signed), Rensselaer county, ss : , being duly sworn, says, that the foregoing petition by him subscribed is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be true. (Signed), Sworn before me this • ■ • 1 day of ... . -, 1874. j Proceedings tliereupon. § 2836. If the surrogate entertains an applica- tion, made as prescribed in the last section, he must issue a citation, as prayed for in thelpetition . and he^may also require notice of the application to be given to such other persons, and in such a manner, as he deems proper. Upon the return of the citation, a guardian ad litem for the ward must be appointed ; and the surrogate may also, in his discretion, allow any person to appear and contest the application, in the interest of the ward. Upon the hearing, the surrogate must first determine Of Guardian Allowed to Design. 876 whether sufficient reasons exist for granting the prayer of the petition. If he determines that they exist, and that the interests of the ward will not be prejudiced by the resignation of the guardian, the surrogate must make an order accordingly, and allowing the petitioner to account, for the purpose of being discharged. Upon his fully ac- counting, and paying all money which is found to be due from him to the ward, and delivering all books, papers, and other property of the ward in his hands, either into the Surrogate's Court, or in such a manner as the surrogate directs, a decree may be made, revoking the petitioner's letters, and discharging him accordingly. The citation should be served on the ward, and to such other persons as the surrogate shall direct, formerly the next of kin of the ward. If se rved in the same county or adjoining county, it must be served at least eight days before the return day, if in any other county of the State, fifteen days. 876 Citation to Ward ORDER FOR CITATION THEREON. At a Surrogate's Court, held in the county of , at the surogate's office in the .... of on the ... day of ,,1874. Present — Hon , Surrogate. In the matter of tlie person and estate 01' , a minor. , the guardian of the person and estate of the above named minor, having presented his petition to the surrogate, setting forth that he hasconducted himself honestly in the execution of his trust, but has removed from the State : Ordered, that a citation issue to said minor, and to his next of kin residing in this county, requir- ing him to appear and show cause why the letters issued to said should not be re- voked. , Surrogate. Upon the return of the citation, the surrogate will appoint a special guardian for the infant and take the account of the guardian, which differs in no respect from an account of an executor or ad- ministrator, and with the same verification. On Guardian's Petition. 877 If the surrogate shall find the account satisfac- tory and the reason for the revocation good, he will make a decree revoking the formeir letters. The infant can then proceed to another appoint- ment. ORDER FOR DELIVERY OF ASSETS TO SURROGATE. At a Surrogate's Court, held in the county of , at tlie surrogate's office in the . . . . , on the day of , 1872. Present — Hon , Surrogate. In the matter of the person and estate of It appealing to the satisfaction of the surrogate, that ,...-. , guardian of the ahove named minor, has in all respects, conducted himself honestly in the execution of his trust ; that he has rendered a full, just and true account, and that the interests of the said minor would not be pre- judiced by allowing the guardian to resign his trust. Ordered that said , who has accounted, deliver over all the books, papers, money, choses in action, or other property of said minor, appearing 8T8 Decree Eevoking TvEttees. in his hands by his said account to the surrogate, and that he take duplicate receipts for the same. , Surrogate. Thereupon follows the decree revoking the letters. DECREE REVOKING LETTERS. At a Surrogate's Court, held in the county of , at the surrogate's oflSce in the city of ...,.., on the day of ,1880. Present — Hon , Surrogate. In the matter of the pereon and estate j _l '■'0t . , a minor, ., , guardian of the above named minor, having heretofore petitioned this court to be allowed to resign his trust, and the said minor having been cited, and such further proceedings having been had that the said rendered his account as such guardian and the said having, according to the order of this court, delivered over to the said surrogate all the books, papers, moneys, choses in action or other property of said minor, and having filed in this court one of the receipts taken therefor : It is ordered and decreed that the said , on his own application has been, and is, permitted to resign his trust as guardian for the said minor, New Account may be had. 8T9 and he is discharged from any further custody or care of said minor, or of his estate and the letters issued to said guardian be and they are hereby re- voked. Witness, , surrogate, and the [l. s.] seal of the court the day and year first above written. , Swrogate. Ward or new guardian may require another accounting. § 2837. Notwithstanding the discharge of a guardian, as prescribed in the last section, his suc- cessor or the ward may compel a judicial settle- ment of his account, as prescribed in article second of this title, in the same manner /and with like effect, as if the decree discharging him had not been made. With respect to all matters connected with his trust, his sureties continue to be liable, until his account is judicially settled accordingly. Guardians appointed by will or deed are also regulated and jurisdiction of them and their accounts, which was formerly vested in the Supreme Court, is given to the surrogate. They must take out letters founded upon the will, which must also be previously proved, or in case of a deed, recorded. Will or deed to be proved or recorded, etc. § 2851. A person shall not exercise, within the State, any power or authority, as guardian of the 880 Testamentary Guardian. person or property of an infant, by virtue of an appointment contained in the will of the infant's father or mother, being a resident of the State, and dying after this chapter takes effect, unless the will has been duly admitted to probate, and re- corded in the proper Surrogate's Court, and letters of guardianship have been issued to him thereupon ; or by virtue of an appointment contained in a deed of the infant's father or mother, being a resident of the State, executed after this chapter takes effect, unless the deed has been acknowledged or proved and certified, so as to entitle it to be recorded, and has been recorded in the office for recording deeds in the county, in which the person making the appointment resided, at the time of the execution thereof. Where a deed containing such an appointment is not re- corded, within three monhts after the death of the grantor, the person appointed is presumed to have renounced the appointment ; and if a guardian is afterwards duly appointed by a Surrogate's Court, the presumption is conclusive. Testamentary guardians to qualify. § 2852. Where a will, containing the appoint- ment of a guardian, is admitted to probate, the person appointed guardian must, within thirty How Guardian Qualifies. 881 days thereafter, qualify as prescribed in section 2594 of this act; otherwise he is deemed to have renounced the appointment. But the surrogate may extend the time so to qualify, upon good cause shown, for not more than three months. And any person interested in the estate may, before letters of guardianship are issued, file an affidavit setting forth with respect to the guardian so ap- pointed, any fact which is made by law an objec- tion to the issuing of letters testamentary to an executor. Sections 2636 to 2638 of this act, both inclusive, apply -to such an affidavit and to the proceedings thereupon. A person appointed guar- dian by will may, at any time before he qualifies, renounce the appointment by a written instrument, under his hand, filed in the surrogate's office. The section referred to (§ 2594), requires the filing of the usual oath of office. The other sec- tions (§§ 2636 to 2638) relate to objections to the issuing of letters and the manner of disposing of them, and are fully treated of hertofore. Security may be required, when, § 2853. Where a guardian of an infant's person or property has been appointed by will or by deed, the infant, or any relative or other person in his behalf, may present to the Surrogate's Court in 56 882 SECtnjITY MAY BE EeQUIKED which the will was admitted to probate ; or to the Surrogate's Court of the county in which the deed was recorded; a written petition, duly verified, set' ing forth, either upon his knowledge, or upon his information and belief, any fact, respecting the guardian, the existence of which, if it was inter posed as an objection to granting letters testamen- tary to a person named as executor in a will, would make it necessary for such a person to give a bond, in order to entitle" himself to letters; and praying for a decree, requiring the guardian to give security for the performance of his trust; and that he may be cited to show cause why such a decree should not be made. Upon the presenta- tion of such a petition, and proof of the facts therein alleged, to the satisfaction of the surrogate, he must issue a citation accordingly. Upon the return of the citation, a decree requiring the guar- dian to give security may be made, in the discre- tion of the surrogate, in a case where a pt-rson so named as executor, can entitle himself to letters testamentary only by giving a bond ; but not oth- erwise. The practice under this section has already been discussed, under the head of security from an ex- ecutor. And what Security. 883 What security to be given. § 2854. The security to be given, as prescribed in the last two sections, must be a bond to the same effect, and in the same form, as the bond of a general guardian, appointed by the Surrogate's Court. Each provision of this chapter, applicable to the bond of such a guardian, and to the rights, duties, and liabilities of the parties thereto, or any of them, including the release of the sureties, and the giving of a new bond ; applies to the bond so given, and the parties thereto. The guardian appointed by will or deed, is sub- ject to the same obligations in regard to filing an inventory and account, only after he shall have been ordered to file them. After such order he is liable as guardian appointed by the surrogate. Inventory and account may be ordered. § 2855. Upon the petition of the ward, or of any relative or other person in his behalf, the Sur- rogate's Court having jurisdiction to require secu- rity, as prescribed in the last three sections, may, at any' time, in the discretion of the sur- rogate, make an order, requiring a guardian, appointed by will or by deed, to render and file an inventory and account, in the same form, and ver- ified in the same manner as the inventory and ac- 884 iNVENfORY AND AcCOUNT* count required to be filed annually by a guardian appointed by a Surrogate's Court, as prescribed in article second of this title. The order may also require such an inventory and account to be filed in the month of January of each year thereafter. Sections 2842 to 2845, of this act, both inclusive, apply to such an inventory and account, and to the filing thereof, as if the guardian had been ap- pointed by the Surrogate's Court. Surrogate may compel settlement. § 2856. The Surrogate's Court, having jurisdic- tion to require security, may compel a judicial set- tlement of the account of a guardian, appointed by will or by deed, in any case where it may compel a judicial settlement of the account of a guardian appointed by it; and the proceedings to procure such a settlement are the same, as if the guardian had been so appointed. But the decree would seem to be different from an ordinary decree of the Surrogate's Court. Effect of decree. § 2857. A decree, made upon the judicial settle- ment of the account of a guardian appointed by will or by deed, as prescribed in this article, or the judgment rendered upon appeal from such decree, Guardian may be Eemoved. 885 has the same force, as a judgment of the Supreme Court to the same eifect. So a guardian, in this case, may be removed and he may resign as another guardian, and a suc- cessor may be appointed. Guardian may be remored. § 2858. Upon the petition of the ward, or of any relative or other person in his behalf, the Sur- rogate's Court, having jurisdiction to require secu- rity from a guardian appointed by will or by deed, may remove such a guardian, in any case where a testamentary trustee may be removed, as prescribed in title sixth of this chapter; and the proceedings upon such a petition are the same, as prescribed in that title for the removal of a testamentary trus- tee. Where a citation is issued, upon a petition for the removal of such a guardian, he may be suspended from the exercise of his powers and au- thority, as if he had been appointed by the Surro- gate's Court. Guardian may resign. § 2859. A guardian appointed by will or by deed, may be allowed to resign his trust, by the Surro- gate's Court, having jurisdiction to require secu- rity from him. The proceedings for that purpose, and the effect of a decree made thereupon, are the same, as where a guardian appointed by the Sur- 886 New Guardian Appoikted. rogate's Court presents a petition, praying that his letters may be revoked, as prescribed in article first of this title. Successor may be appointed. § 2860. Where a sole guardian, appointed by will or by deed, has been, by the decree of the Surrogate's Court, removed or allowed to resign, a successor may be appointed by the same court, with the effect prescribed in s ction 2605 of this act; unless such an appointment would contravene the express terms of the will or deed. It seems unnecessary to give forms under these sections, as those already given may so readily be adapted. Dower of Widow, 887 CHAPTER XXV. Dower of Widow, and how Admeasured. Dower, is the estate which the widow of a de- ceased person takes in the lands of her husband, being a life estate in one-third of the lands whereof he was seized of an estate of inheritance at any time during the marriage. (1 R. S., 740 ) Under this rule, a devisee of land subject to a power given to the executor to sell and convey, has a vested estate, in which, on his death after the testator's death, and before the exercise of the power of sale, his widow is entitled to dower, and on a subsequent exercise of the power of sale, the widow is entitled to share in the distribution of the proceeds, when brought into the Surrogate's Court, for distribution. (Timpsons estate, 15 Abb., 230; Daraudo v. Dumndo, 23 N. Y., 331.) And a widow can be barred of her dower, only by her own act, as by uniting with her husband, in conveying the land ; by ante-nuptial settlement • by acceptance of a devise or bequest, in lieu of dower, or by conjugal unfaithfulness; but to make Widow of Alien has Dower. this la<'t effectual, a divorce must be decreed against her for adultery, in the lifetime of her husband. (1 R. S., 741 ; Hawley v. James, 5 Paige, 318, 453 ; Pitts V. Pitts, 52 N. Y., 5',.i3 ; Levns v. Smith, U N. Y., 517; Schiffer v. Pruden, 39, Supr. C. Rep., 167.) But a' widow is not endowed in lands taken from the husband by the right of eminent domain {Moore V. Mayor, 8 N. Y., 110,) or by virtue of a paramount lien prior to the marriage. [Van Dwyne v. Thayre, 14 Wend. 233; 19 Id., 162.) And the widow of an alien entitled to hold real estate, if she be an inhabitant of this State at the time of his death, is entitled to dower in the same manner as if such alien had been a native citizen. (§9.) Also any woman, being an alien, who has heretofore married, or who may hereafter marry a citizen of the United States, shall be entitled to dower, within this State, to the same extent as if a citizen of the Pnited States. (S. L., 1845, ch. 115.) The general rule given by the statute above quoted, is, however, subject to some restrictions. Thus, if a husband exchanges lands, the wife not uniting in the conveyance completing the exchange, she shall not be entitled to dower in both, but shall make her election ; and if she shall not com- When She has no Dower. 889 mence proceedings to recover her dower in the lands given in exchange, within one year after the death of her husband, she shall be deemed to have elected to take her dower in the lands received in exchange (1 K. S., 740 ; 7 Barb., 633 ; 12 Barb., 537.) And where a person mortgages his lands before his marriage, his widow shall not be entitled to dower, as against the mortgagee, or those claim- ing under him, but shall be entitled to, dower as against every other person. When a husband alone executes a mortgage for purchase money, his widow will not be entitled to dower, as against the mortgagee or those claiming under him, but shall be entitled, as against all other persons; and if the lands so mortgaged be sold under such mortgage, the widow will be en- titled to dower in any surplus remaining after pay- ment of the mortgage, and the costs and expenses of sale, and shall be entitled to the interest or income of one-third of such surplus, during her life. A wife may cut off her incohate dower, by uniting in the conveyance of land with her husband during the marriage, or, before her mar- riage by consenting to receive a settlement, either in lands or money as a jointure or provision in lieu of dower. If such settlement be made 890 Election foe Dower. without her assent, or a testamentary provision be made to her, in lieu of dower, she shall have one year after the death of her husband to elect whether she will take the settlement, or the provision of the will, or her dower in the lands ; and if she do not commence proceedings for the recovery of her dower in the lands within one year, she will be deemed to have accepted the settlement, or the testamentary provision in lieu thereof. (1 K. S , 742.). To put a widow to her election between her right of dower and testamentary provisions in her favor, the will must contain, either an express direction that the provisions in her favor contained in the will, are in lieu of dower, pr provisions wholly inconsistent with her claim of dower in the particular portion of the estate, as to which it is made. {Bond v. McNiff, 38 N. Y. Sup'r C. Rep., 83.) A devise of the use of the whole estate during minority of youngest child, is not incon- sistent with a claim for dower. {Ih.) A petition filed by a widow, for admeasurement of dower, is not the commencement of proceedings for the recovery of dower, as contemplated by the statute, and is not evidence of the election of a widow to take dower instead of a testamentary provision. Nor is a letter to the executors, that Widow's Quarantine. 891 she rejected the provisions of the will, and that she did thereby " elect to claim dower," such an elec- tion. [John Walton's estate, 1 Tuck., 10.) Where a widow is entitled to dower in her husband's lands, and is not bound to elect whether to take a settlement or testamentary provision in lieu thereof, within one year after her husband's death, she may demand her dower at any time within twenty years after such death ; but, if at the time of such death, she be under the age of twenty-one years, or insane, or imprisoned on a criminal charge or conviction, the time during which such disability continues shall not form any part of the said term of twenty years. And in case of recovery of her dower, shall be entitled to receive damages for withholding it, to the extent of onerthird part of the annual value of the mesne profits of the land for not exceeding six years. (1 R. S., 742.) Upon the death of her husband, a widow is entitled to tarry in the chief house of her husband forty days after his death, whether her dower be sooner assigned or not. (2 R. S., 742.) This is called the widow's quarantine, and the right relates to lands of which the widow is dowable, that is, in which her husband had an estate of inheritance. [Voelcknerv. Hudson, 1 Sandf., 215.) 892 How Dower Ascertained. But upon the expiration of the forty days, the right ceases, whether her dower has meanwhile been assigned or not, and thereupon the heirs may expel. {Jackson v. O'Donagley, 7 Johns., 247 ; Siglar v. Van Riper, 10 Wend., 414 ; Gory v. People, 45 Barb., 262.) A widow may bequeath the crop in the ground of the land holden by her in dower (§ 25, 743), and in default of any testamentary disposition, it would go to her administrator. The dower interest of a widow may be ascer- tained and admeasured, either by an action in the Supreme Court, or by special proceedings upon the petition of a widow, or heirs or persons claiming under them, to the Supreme Court ; or to the County Court of the county where the lands are situated, or to the surrogate of the same county. When the lands are situated in the city of New York, the proceedings may be had in the Court of Common Pleas of that city, and in the city of Buffalo, in the Superior Court, when the premises are situated in that city. Under the former practice, a bill in equity could be filed in the Court of Chancery, seeking as relief, the admeasurement of dower and the adjudi- cation of the title to it, and an action could un- Admeasurement of Dower. 893 doubtedly be maintained in our Supreme Court, seeking the same relief. But we think that it is judicious in all cases, to apply for admeasurement of dower, when the extent of the dower only is questioned. When the right to the dower is to be litigated, an admeasurement before ejectment brought, simpli- fies the proceedings, and confines them to the single issue of the title. When admeasurement is sought, the Surrogate's Court is to be preferred, where all the lands in which dower is demanded, lie in one county, from the fact the court is always open and notice may be given for any day. Where, however, the lands lie in different counties, and dower is demanded in all, the proceedings must be had in the Supreme Court. The statutory provisions are as follows : § 1. (2 R. S., 488; 3 R. S., 5th ed., 791.) "Any widow who shall not have her dower assigned to ner within forty days after the decease of her hus- band, may apply for admeasurement of her dower (to the courts specified above), specifying therein the lands to which she claims dower." She may apply by petition, notwithstanding a partition suit has been commenced of the pre- mises, to which suit she is a party. Her title, 894 How Dower Admeasueed. after admeasurement, is superior to that of fee heirs of her deceased husband; and if she can secure admeasurement before decree of sale, she is entitled to the fruits of her diligence, and after admeasurement, she may enjoy it and it will not be affected by a decree of sale. {In re AchsaJi Sipperly, 44 Barb., 370. § 2. " A copy of such petition, with notice of the time and place when it will be presented, shall be served at least twenty d ays previous to its pre sentation, upon the heirs of her husband; or, if they are not the owners of the lands subject to dower, then upon the owners of such lands claim- ing a freehold estate therein, or their guardians, where such heirs or owners are minors. It is not essential that the petition show that forty days had elapsed since the husband's death, although the proceedings cannot be maintained unless that is the fact. {Jackson \,Waltei"m,eyer, 7 Cow., 353.) PETITION FOR DOWER, BY WIDOW. To the Surrogate of the county of Rensselaer : The petition of M B, of the town of Schodack, in the county of Rensselaer, respectfully shows : That she is the widow of A B, late of said town, deceased ; that she was lawfully married to said Petition for Dowee. 895 I A *B, in his lifetime, and lived with him as his wife until his death, on the 15th day of June, 1860 ; that the said A B, at the time of his decease, was seized of an estate of inheritance of and in the fol- lowing lands and premises, situated in the said town of Schodack, bounded and described as fol- lows : On the noi th by lands of Barent Van Hoesen, east by lands of said Van Hoesen and Joseph Hare, south by lands of Joseph Hare, and west by lands of James Van Voorhies, containing one hun- dred acres, be the same more or less. Your petitioner further shows : That A B, and C B, children and heirs of said A B, deceased, claim to own said premises, and your petitioner verily believes that they are the owners thereof, subject to your petitioner's right of dower. Your petitioner, therefore, prays that an order made for the admeasurement of her dower in said lands and premises, and that three reputable free- holders may be appointed for the purpose of making such admeasurement. And she shows that A B, the said child and heir of said A B, deceased, is a minor under the age of twenty-one years and over fourteen years old, and having no general guardian. Dated Schodack, April 1, 1862. MB. ESS, Attorney /or Relator. 896 Petition andNotioe. Rensselaer county, ss : M B, the petitioner above named, being duly sworn, says that the foregoing petition, by her subscribed, is true of her own knowledge, except as to the matters which are therein stated to be alleged on information and belief; and as to those matters, she believes it to be true. MB. Sworn before me, this 1st day ) of April, 1880. j MR, Justice of the Peace. NOTICE TO HEIRS OR OWNERS. To C B, and A B, heirs at law of A B, late of the town of Schodack, deceased, arid all others claiming a freehold in the lands described in the annexed petition. Take notice, that a petition, of which the annexed is a copy, will be presented to Moses Warren, E^q., Surrogate of the county of Rensselaer, at his office in the city of Troy, on the 25th day of April 1862, at ten o'clock in the forenoon of that day, and that a motion will be then made that the prayer of the petition be granted. Dated April 3, 1862. MB. ESS, Attorney for Petitioner. Who to be Served. 897 Mere tenants for years need not be joined, or served with notice, but will be barred by the pro- ceedings to which the owners are parties. ( Ward v. Kilts, 12 Wend., 137.) § 3. Such notice may be s.irved personally, on any party of full age ; or upon the guardians of minors ; or by leaving the same with any person of proper age, at the last residence of such party or guardian, in case of his temporary absence; and if any such heir or owner be a resident out of this State, the service of such notice may be upon the tenant in actual occupation of the lands, or if there be no tenant, by publishing the same, for three weeks successively, in some newspaper printed in the county where such lands are situated. § 4. Where such heirs or owners are minors and have no general guardians (within this State), the court or surrogate, on application of the widow, shall appoint some discreet and substantial free- holder a guardian of such infants, for the sole pur- pose of appearing for and taking care of the inter- ests of such infants in the proceedings, and the notice of application, and all notices in the subse- quent proceedings shall be served on the guardian so appointed, whether the infant resides in the State or not. 57 i98 GUAEDIAN FOR MiNOES. ORDEE APPOINTING GUARDIAN FOR MINORS. At a Surrogate's Court, held in the county of , at the surrogate's office in the . ... of , on the .... day ot , 1874, Present — Hon , Surrogate. 1 , a widow. I In the matter of the dower of , claiming to be the Tvidow of , late of the town of , having filed her petition for the admeasurement of her dower, and it appearing that and , heirs at law of said deceased, are in- fants interested in the roal estate described in said petition : Ordered, that , of the of , a discreet and substanial freeholder be, appointed guardian for said infants, for the sole purpose of appearing for and taking care of the interests of such infants in the proceedings in this matter. , Surrogate. § 5. Notice of the application for the admeasure- ment of dower, and all notices in the subsequent proceedings shall be served on such guardian, Heirs may Demand Election. 899 whether the infant reside within the State or not. An admission of service of the application and notice, signed by the general guardian of minor heirs, may b" deemed sufficient proof of service, especially if the gurdian was present and attended the proceedings. {Board v. Board, 4 Abb., 295.) § 6. After the expiration of forty days from the death of any husband, his heirs, or any of them, or the owner of any land subject to dower, claim- ing a freehold estate therein, or a guardian of any such heirs or owners, may by notice in writing, re- quire the widow of such husband to make demand of her dower, within ninety days after the service of such notice, of the lands of her deceased hus- band, or of such part thereof, as shall be specdifie in such notice. NOTICE TO WIDOW, TO DEMAND DOWER. To Mrs. M B, widow of J B, late of the town of , in the county of , de- ceased. You are hereby notified, that you are hereby re- quired to make demand of your dower in the fol- lowing described lands, of your deceased husband in which the undersigned claims a freehold estate to wit : All that (description), within ninety days after the service of this notice upon you- Dated , December 29, 1874. (Signed), J D. 900 Heirs may Petition. § 7. If such widow shall not make her demand of dower within the time specijfied in such notice, by commencing a suit, or by an application for admeasurement, as herein prescribed ; or if such widow shall not make such demand within one year after her husband's death, although no notice to that effect shall have been given ; the heirs of the husband of such widow, or any of them, or the owners of any land subject to dower, claiming a freehold interest therein, or the guardian of any such heirs or owners may apply by petition to the Supreme Court, or to the County Court of the county where such lands are situated, or to the Surrogate of the same county, for the admeasure- ment of the siiid widow's dower of the lands of her husband, or of such part thereof as shall be speci- fied in the said petition. § 8. A copy of such petition, with notice of the time and place of presenting the same shall be served personally on such widow, twenty days previous to its presentation. The petition and notice can readily be framed from the petition of a widow heretofore given and the notice annexed thereto. § 9. (Id.) Upon application being made, either by a widow or by any heir or owner, or by the guardian of such heir or owner, the court to whom Order for Admeasurement. 901 the same shall be made may, upon hearing of the parties, order that admeasurement be made of such widow's dowLT, of all the lands of her husband, or of such part thereof as shall have been specified in the application. The proofs on this hearing are, the seizin or ownership of the husband, in the lands specified ; which, when no opposition is made, is evidenced by possession with claims of title, and the marriage of the deceased with widow. The record of the probate of the will of the husband, is not competent to prove his death. The widow's dower has no connection with, and is not affected by the will of the deceased husband or by the adjudication of the surrogate thereon. {Carroll v. Carroll, 60 N. Y., 121.) Marriage, in this State, is a civil contract, re- quiring no especial ceremony, and the essential is, the consent of parties capable in law of con- tracting. (2 R. S., 138.) This consent may be proved as having been given at a ceremony of marriage performed by a civil magistrate, or by a minister of the gospel, or it may be inferred from circumstances, and the long continued conduct of the parties. This last, be it borne in mind, will not prove the fact that the contract had been actually made, but will be merely circumstantial. 902 Proof of Marriage. Long continued cohabitation, until the death of the alleged husband, the woman being received and treated as his wife, is prima facie evidence that a marriage had taken place. {Young v. Foster, .14 N. Y., 114.) But the evidence being merely circumstantial if it be proved that the cohabitation was meretricious, the presumptions in favor of marriage fail, for co- habitation may be continued for base purposes, no less than in honorable marriage. § 10. Such court or surrogate shall thereupon appoint three reputable and disinterested free- holders, commissioners for the purpose of making such admeasurement, by an order which shall specify the lands of which dower is to be ad- measured, and the time at which the commissioners shall report. ORDEK FOR APPOINTMENT OP COM- MISSIONERS. At a Surrogate's Court, held in the county of at the surrogate's oflEice in the of on the day of , 1874. Presents Hon , Surrogate. In the matter of the dower I \ , a widow. I On reading and filing the petition of the above Appointment of Commissioners. 903 named widow, praying for the admeasurement of her dower in the lands therein described, and proof of the due service of a copy of said petition with notice of the presentation of the same, and it ap- pearing by proof duly taken, that said petitioner is the widow of , late of the of , deceased, and that the said was in his lifetime s^eized of an estate of inherit- ance in the lands therein desciibed. Now on motion of , attorney for the petitioner : Ordered, that ,, and three respectable and disinterested freeholders, be and, they are hereby appointed commissioners, for the purpose of making admeasurement in the following described land. (Description.) And it is further ordered that said commissioners report to this court their proceedings, on the day of , then next. , Surrogate. § 11. (2 R. S., 489.) The commissioners so appointed, before entering upon their duties, shall be Hworn, before the surrogate who appointed them, or before some officer authorized to take affidavits, that they will, faithfully, honestly and impartially discharge the duty and execute the trust reposed in them by such appointment^ 904 Commissioners Qualify. OATH OF COMMISSIONERS. Surrogate's Court, county. In the matter of the dower ) of y I , a widow. I We do severally swear that we will faithfuly, honestly and impartially discharged the duty and execute the trust reposed in us as commissioners' appointed by the surrogate of the above named county, to admeasure the dower of the above named widow. (Signed), A B. CD. EF. Sworn before me, this 28th ) December, 1874. J Justice of the Peace, Eensselaer county. ■ §12. If the persons so appointed commissioners, or either of them, shall die, resign, or neglect or refuse to serve, others may be appointed in their places, by the court or surrogate who appointed the first commissioners, and shall take the same oath. {White v. Story, 2 Hill, 542.) The commissioners should give notice of their Before the Commissioners. 905 meeting, or it should be given by the moving party to all parties interested, and proceedings without notice would be irregular. But where it appears that all parties had actual knowledge of this time of meeting, and no unfairness or injustice appears to have been done, the mere omission to give formal notice affords no ground for refusing to confirm the report. [Smith v. Smith, 6 Lans., 313.) § 13. The commissioners so appointed shall execute their duties as follows : 1. They shall, if it be practicable, and in their judgment for the best interests of all the parties concerned, admeasure and lay off, as speedily as possible, the one third part of the lands embraced in the order "for their appointment, as the dower of such widow, designating such part with posts, stones, or other permanent monuments. (As amended, 1869, chap, 433.) 2. In making such admeasurement, they shall take into view any permanent improvements made upon the lands embraced in the said order by any heir, guardian of minors or other owners, since the death of the husband of such widow, or since the alienation thereof by such husband, and, if practi- cable, shall award such improvements within that part of the lands not allotted to such widows, and 906 AwAED OF Commissioners. if not practicable so to award the same, they shall make a deduction from the lands allotted to such widow, proportionate to the benefit she will derive from such part of the said improvements as shall be included in the portion assigned to her 3. They shall make a full and ample report of their proceedings, with the quantity, courses and distances of the land admeasured and allotted by them, to the widow, with a description of the posts, stones, and other permanent monuments thereof, and the items of their charges, and in case it be not practicable, nor in their j udgment, for the best interest of all parties concerned, to admeasure and lay off the one^third part of the lands and prem- ises embraced in the order for their appointment, and designate such part, with posts, stones or other permanent monuments, then they shall so report ; and also make full and ample report of all the facts of the case, to the court by which they were appointed, at the time specified in the order for their appointment. (As amended S. L.^ 1869, chap. 433.) 4. They may employ a surveyor with neces- sary assistants, to aid them in such admeasure- ment. § 14. The court or surrogate appointing such commissioners, may, upon their application, or Eeport of Oommissionees. 90Y that of either party, enlarge the time for making their report, and may, by order, compel such re- port, or discharge the commissioners neglecting to make the same, and appoint others in their places. ' REPORT OF COMMISSIONERS. In the matter of the dower of y M. . . . B J To Moses Warren, Esq., Surrogate of Rensselaer county : The undersigned, A B, CD, and E F, commis- sioners appointed by the surrogate of said county of Rensselaer, by order dated the 25th day of April, 1862, to make admeasurement of the dower of M B, above named, widow of A B, late of the town of Schodack, in said county, deceased, in the land and premises described in said order, and sit- uated in said town of Schodack, do respectfully re- port : That having first been duly sworn, faith- fully, honestly and impartially to discharge the duty and execute the trust reposed in us by said appointment, we met on said premises on the 30th day of April, 1862, to discharge the duty and exe- cute the trust aforesaid ; having first given notice of our intention so to meet, to M B, C B, and J H, guardians of A B, who did appear at said time and place. Whereupon we caused a survey to be made 908 Eeport of Commissioners. of the premises, and a map to be made thereof, which map and survey is hereto annexed. And we do further report, that we have ad- measured and allotted to the said M B, for her dower in the said lands and premises, the one-third part, thereof, which is bounded and described as follows : {describing hy meies aiid hounds, and desig- nating the 'permanent monumetits) being the part designated on the said map, hereto annexed, by the letter A, and included within the red lines. The items of the charges of said admeasurement, including our fees, are as follows : Two days' service for each commissioner, |2 per day for each, |8 00 One day's service of S D G, surveyor, ... 5 00 Paid for chain and flag bearers, one day each, $2 per day 4 00 |17 00 Witness our hands, this 12th day of May, 1862. C D, y Commissioners. E F,J § 15 (2 R. S., 90.) Such report shall be filed and entered at large in the minutes of the court to which the same shall be made, or in a book to be provided by the surrogate for that purpose, when made to him. § 16. The court or surrogate, to whom such re- port shall be made, may, at the time appointed Confirmation of Report. 909 for receiving the same, or at such other time to which the hearing shall have been adjourned, on good cause shown, set aside the said report, and ap- point, as often as may be necessary, new commis- sioners, who shall proceed in the manner hereinbe- fore directed ; and if not set aside, the said court or surrogate, shall, by order, confirm the said re- port and admeasurement. A notice of motion to confirm the report is not necessary, if the order appointing the admeasur- ers specifies the time of their reporting, and if, in case of delay, regular adjournments have been had. {White V. Story, 2 Hill, 643.) § 17. (2 R. S., 491.) The admeasurement so made and confirmed, shall, at the expiration of thirty days from the date of such confirmation, unless appealed from, be binding and conclusive, as to the location and extent of the said widow's right of dower, on the parties who applied for the same and on all parties to whom notice shall have been given, as hereinbefore directed. But no per- son shall be precluded thereby from controverting the right and title of such widow, to the dower so admeasured. The setting off of the land to the widow, for her dower, carries with it the title to the growing crop to her, notwithstanding that it was inventoried by 910 Effect of Admeasurement. the administrators of her husband's estate, as a part of his estate, and notwithstanding that when it was sold, she made no claim on it. The admin- istrators ace iunted to her for the proceeds, and it was held that they should not account to the next of kin. {GlarTe v. Battorf, 1 Th. & C, 58.) The admeasurement does not conclude the right and title, but it is conclusive as to the location and extent of her dower, and, after confirmation, the widow has no right of dower in the part not as- signed to her. (Graham v. Linden, 50 N. Y., 547.) But it may occur that it would be injurious to lay off and admeasure the dower and provision for such a case is made by chap. 433. Laws of 1869. In case said commissioners shall report, that it is not practicable, or, in their judgment, for the best interests of all the parties concerned, that the one- third part of the land or premises embraced in the order for this appointment, be admeasured and laid off, with posts, stones or other permanent monu- ments, then the said court or surrogate, may, upon competent evidence being adduced, as to the net rental value of such lands, or premises, order and decree that a sum equal to one-third part of such net rental value, be annually, or oftener, paid over to such widow, during the term of her natural life, as and for her dower, in such lands or premises ; Income for Dower. 911 and such widow may sue for, recover, and collect, such sum of, and from the owner of such lands or premises, during the natural life of such widow. If, at any time, it shall appear to the Supreme Court, or to the County Court of the county in which such lands and premises are situated, or to the surrogate of the same county, upon the appli- cation of any party interested, that the net rental value thereof has materially increased, or dimin- ished, such court or surrogate, may, upon a hear- ing of all proper parties in interest, of which they shall have had due and proper notice, order and decree that such sum be correspondingly increased or diminished. An appeal may be brought to the Supreme Court, within thirty days from the confirmation o^ the report of the commissioners, and unless it is so brought, the admeasurement shall be binding and conclusive, as to the location and extent of the said widow's right of dower, on the parties who applied for the same, and on all parties to -whom notice shall have been given. But no person shall be precluded thereby from controverting the right and title of such widow to the dower so admeasured, and the widow may bring an action of ejectment, when she will be obliged to show the seizen of her husband, her marriage and his death, and the de- 912 Costs how Apportioned. fendaiits may controvert those facts, and show any other facts which could cut off the right of the widow to her dower. Upon receiving or recovering possession of the land so admeasured to her, such widow may hold the same during her natural life, subject to the payment of all taxes and charges accruing thereon subsequent to her taking possession, and may oc- cupy or lease the same. (§§ 18 and 19.) She may bequeath the crops in the ground at her decease. (1 R. S., 743.) Or, in default of a testamentary disposition, they would go to her ad- ministrator. The costs and expenses of the admeasurement, taxed by the surrogate, or by a judge of the court in which the proceedings are had, shall be paid equally, one-half by the widow, and one half by the the adverse party (§ 20). and these costs like all other costs in the Surrogate's Court shall be taxed and allowed, as formerly in the courts of Common Pleas. Appeals. 913 CHAPTER XXVI. Appeals. Appeals lie from the surrogate to the Supreme Court. When a party may appeal. § 2568. Any party aggrieved may appeal from a decree or an order of a Surrogate's Court, in a case prescribed in this article, except where the decree or order of which he complains was ren- dered or made upon his default. The remedy for an order entered by default is to move to vacate the order and appeal from the order denying it. When a person not a party may appeal. § 2569. A creditor of, or person interested in, the estate or' fund affected by the decree or order, who was not a party to the special proceeding, but was entitled by law to be heard therein, upon his application ; or who has acquired, since the decree or order was made, a right or interest which would have entitled him to be heard, if it had been pre- 914 Effect of Api-eal. viously acquired; may intervene and appeal, as prescribed in this article. The facts, which entitle such a person to appeal, must be shown by an affidavit, which must be filed, and a copy thereof served with the notice of appeal. To what court. § 2570. An appeal to the Supreme Court may be taken from a decree of a Surrogate's Court, or from an order affecting a substantial right, made by a surrogate, or by a Surrogate's Court, in a special proceeding pending in that court, or after a decree in such a special proceeding. Effect of appeal on intermediate order. § 2571. An appeal, taken from a decree, brings up for review each intermediate order, which is specified in the notice of appeal, and necessarily affected the decree, and which has not already been reviewed by the Appellate Court, upon a separate appeal taken from that order. Time to appeal. § 2572. An appeal by a party must be taken within thirty days after the service, upon the appellant, or upon the attorney, if any, who appeared for him in the Surrogate's Court, of a copy of the decree or order from which the appeal is taken,, and a written notice of the entry thereof. Parties to Appeal. 915 An' appeal by a person who was not a party, taken as prescribed in this article, must be taken within three months after the entry of the decree or order, unless the appellant's title was acquired by means ot an assignment or conveyance from a party ; in which case, the appeal must be taken within the time limited for the taking thereof by the assignor or grantor. Who must be made parties. § 2573. Each party to the special proceeding in the Surrogate's Court, and each person not a party, who has, or claims to have, in the subject-matter of the decree or order, a right or interest, which is directly affected thereby, and which appears upon the face of the papers presented in the Surrogate's Court, or has become manifest in the course of the proceedings taken therein, must be made a party to the appeal. A person not a party, but who must be made a party, as prescribed in this sec- tion, may be brought in by an order of the Appel- late Court, made after the appeal is taken ; or the appeal may be dismissed on account of his absence. The Appellate Court may prescribe the mode of bringing in such a person, by publication, by per- sonal service, or otherwise. But this section does not require a person interested, but not a party to 916 How TO Appeal. be brought in, if he was legally represented, or was duly cited in the court below. Appeal, how taken. § 2574. An appeal must be taken by the ser- vice, within the State, upon each party to the special proceeding, other than the appellant, and upon the surrogate, or the clerk of the Surrogate's Court, of a written notice, referring to the decree or order appealed from, and stating that the appellant appeals from the same, or from a- spe- cified part thereof Where a party to the special proceedings in the court below appeared in person, the notice of apptuil must be personally served upon him ; where he appeared by an attorney, it must be served personally, either upon him or upon his attorney. Where a party, who was duly cited, did not appear in the Surrogate's Court, notice of appeal must be served upon him per- sonally, if ho can, with due dilligence, be found within the county ; otherwise it may be served by depositing it, indorsed with a direction to the party, with the surrogate, or the clerk of the Sur- rogate's Court. Where a person to be served can- not, with due diligence, be found, to make personal service upon him, as prescribed in this section, the surrogate, or a justice of the Supreme Court, may, Notice op Appeal. 917 by order, prescribed such a mode of service as he thinks proper; and service in that mode has the same effect as personal service. NOTICE OF APPEAL. Surrogate's Court, Rensselaer county. In the matter of the will of , deceased. Please take notice that , appeals from the decree of the Surrogate, made in this matter, dated May 20, 1880, that the said will, be ad- mitted to pr..)bate, and that the testator was of sound mind and memory, and from every part of said decree. Dated June 30th, 1880. Yours, etc. To Hon surrogate, and to , attorney, for appellant. Certain provisions applicable. § 2575. The provisions of the following sections of this act, to wit : s ctions 1295, 1297, ] -'98, 1299, 1303, and 1305 to 1309, both inclusive, apply to an appeal taken as prescribed in this article. 918 Case on Appeal. It is deemed best to refer the reader to thofe sections of the code, which comprises appeals from this court to appeals in other cases Appeal on law and facts. § 2576. The appeal may be taken upon questions of law, or upon the facts, or upon both. If it is taken from a decree rendered upon th<^ trial, by the surrogate, of an issue of fact, it must be heard upon a case, to be made and settled by the surrogate, as prescribed by law, for the making an'l settling of a case upon an appeal in an action. Security to perfect the appeal. § 2577. To render a notice of appeal effectual for any purpose, except in a case specified in the next section, or where it is specially prescribed by law, that security is not necessary to perfect the appeal, the .appellant must give a written under- taking, with at least two sureties, to the effect that the appellant will pay all costs and damages which may be awarded against him upon the appeal, not exceeding two hundred and fifty dollars. UNDERTAKING ON APPEAL. Surrogate's Court. In the matter of the will | y , deceased. Whereas, on the 20th day of May, 1880, the Undertaking on Appeal. 919 surrogate of Rensselaer County made a decree ad- mitting the will of the above named deceased to probate, and that the said was of sound mind and memory, and feeling aggreived thereby, intends to appeal to the Supreme Court from said surrogate : Now therefore we, of and of do hereby undertake that the appellant will pay all costs which may , be awarded against him on said appeal, not exceeding two hundred and fifty dollars. Dated June 30, 1880. State of New York ) ^^ County of J and on this day of A. D, 187..., before me, the subscriber, appeared to me personally known t"> be the same persons described in and who exe- cuted the above undertaking, and severally ac- knowledged that they executed the same. County of. ss : and being severally sworn, each for himself says, the said that he is a of the county of in this State and is worth in property not exempt Irom execution, the sum of $ over and above all debts and responsibilities which he owes or has incurred ; and the said for himself pays, that he is a of the county of for State and is worth in property not exempt from execu- 920 Security on Appeal. tion, the sum of f over and above all debts and responsibilities which he owes or has in- curred. Severally sworn to and subscribed before me, \ this day of 187. J Security where decree is for payment of money, etc. § 2578. Notice of appeal by an executor, admin- istrator, testamentary trustee, guardian, or other person appointed by the Surrogate's Court, from a decree, directing him to pay or distribute money, or to deposit money in a bank or trust company, or to deliver property; or by an executor or administrator from an order, granting leave to issue an execution against him, as prescribed in section 1825 of this act; is not effectual, for any purpose, unless the appellant gives an undertak- ing, with at least two sureties, in a sum therein specified, to the effect that, if the decree or order, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay all costs and damages, which may be awarded against him upon the appeal, and will pay the sum so directed to be paid or collected, or, as the case requires, will deposit or distribute the money, or deliver the property, so directed to be deposited, distributed, or delivered, or the part thereof as to which the decree or order ik affirmed. Appeal from Commitment. 921 Security in case of commitment. § 2579. An appeal from a decree or an order, directing the commitment of an executor, admini- strator, testamentary trustee, guardian, or other person appointed by the Surrogate's Court, or an attorney or counsel employed therein, for disobe- dience to a direction of the surrogate, or for neglect of duty; or directing the commitment of a person refusing to obey a subpoena, or to testify, when required according to law ; does not stay the execution of the decree or order appealed from, unless the appellant gives an undertaking, with at least two sureties, in a sum therein specified, to the eJBfect that, if the decree or order appealed from, or any part thereof, is afl&rmed, or the appeal is dismissed-, the appellant will, within twenty days after the affirmance or dismissal, surrender himself, in obedience to the decree or order, to the custody of the sheriff of the county, wherein he was directed to be committed If the undertaking is broken, it may be prosecuted in the same man- ner, and with the same effect, as an administra- tor's official bond ; and the proceeds of the action must be paid or distributed, as directed by the surrogate, to or among the persons aggrieved, to the extent of the pecuniary injuries sustained by 922 Undertaking how Fixed. them; and the balance, if any, must be paid into the county treasury. Amount of undertaking how fixed. § 2580. The sum specified in an undertaking, executed as prescribed in either of the last two sections, must, where the appeal is taken from a decree directing the payment, depositing, or dis" tribution of money, be not less than twice the sum directed to be paid, deposited, or distributed- Where the appeal is taken from an order granting leave to issue an execution, it must be not less than twice the sum, to collect which the execution may issue. In every other case, it must be fixed by the surrogate, or by a judge of the Appellate Court, who may require proof, by affidavit, of the value of any property, or of such other facts as he deems proper. The respondent may apply to the Appellate Court, upon notice, for an order requir- ing the appellant to increase the sum so fixed. If such an order is granted, and the appellant makes default in giving the new undertaking, the appeal may be dismissed or the stay dissolved, as the case requires. • ^ RecLuisites of undertaking in last cases. § 2581. An undertaking, given as prescribed in the last four sections, must be to the people of the Security how Approved. 923 State ; must contain the name and residence of each of the sureties thereto ; must be approved by the surrogate or a judge of the Appellate Court; and must be filed in the surrogate's office. Except as otherwise specially prescribed, the filing of a proper undertaking, and service of the notice of appeal, perfects the appeal. The surrogate may at any time, in his discretion, make an order, authorizing any person aggrieved to bring an action upon the undertaking, in his own name, or in the name of the people. Where it is brought in the name of the people, the damages collected must be paid over to the surrogate, and distributed by him, as justice requires. Decree for probate, how far aflfeeted by appeal. § 2582. An appeal from a decree of a surrogate, admitting a will to probate, or granting letters tes- tamentary, or letters of administration, does not stay the issuing of letters, where, in the opinion of the surrogate, manifested by an order, the preser- vation of the estate requires that the letters should issue. Letters so issued confer upon the person named therein all the powers and authority, and subject him to all the duties and liabilities of an executor or administrator in an ordinary case, ex- cept that they do not confer power to sell real 924 Decree not Staid. property by virtue of a provision in the will, or to pay or satisfy a legacy, or to distribute the unbe- queathed property of the decedent, until after the final determination of the appeal. Appeal does not stay in case of decree revoking pro- bate, etc. 2583. An appeal from a decree revoking the probate of a will, or revoking letters testamentary, letters of administration, or letters of guardianship j or from a decree or an order, suspending an execu- tor, administrator, or guardian, or removing or suspending a testamentary trustee, or a freeholder, appointed to execute a decree, as prescribed in title fifth of this chapter, or appointing a temporary ad- ministrator, or an appraiser of personal property, does not stay the execution of the decree or order appealed from. The power of executors after appeal from pro- bate extends to every thing except payment of debts. {Thomson v. Tracy, 60 N. Y., 174.) Perfected appeal stays, in other cases. § 2584 Except as otherwise expressly prescribed in this article, a perfected appeal has the effect, as stay of the procedings to enforce the decree or or- der appealed from, prescribed in section 13 1 of this act, with respect to a perfected appeal from a judgment. Hearing and Judgmemt. 925 Appeal, hearing, on. § 2585. In the Supreme Court, an appeal from a decree or an order of a Surrogate's Court must be heard, the judgment, or an order made there- upon, must be entered, and the papers must be filed, in the same manner, and the effect of the judgment, with respect to the proceedings in the Surrogate's Court, is the same, as where an appeal is taken to the Supreme Court, from a final judg- ment or an order of an inferior court, as prescribed in title third of chapter twelfth of this act. Power of Appellate Court to receive further testimony. § 2586. Where an appeal is taken upon the facts, the Appellate Court has the same power to decide the questions of fact, which the surrogate had ; and it may, in its discretion, receive further testimony or documentary evidence, and appoint a referee. Judgment on appeal. § 2587. The appellate court may reverse, affirm, or modify the decree or order appealed from, and each intermediate order, specified in the notice of appeal, which it is authorized by law to review, and as to any or all of the parties ; and it may if may, if necessary or proper, grant a new trial or hearing. The decree or order appealed from may 926 Jury Trial may be Ordered. be enforced, or restitution may be awarded, as the case requires, as prescribed in title first of chapter twelfth of this act, with respect to an appeal from a judgment. Incase of probate. Appellate Court may order jury trial. § 2588. Where the reversal or modification of a decree by the Appellate Court is founded upon .a question of fact, the Appellate Court must, if the appeal was taken from a decree made upon a petition to admit a will to probate, or to revoke the probate of a will, make an order, directing the trial, by a jury, of the material questions of fact, arising upon the issues between the parties. Such an order must state, distinctly and plainly, the questions of fact to be tried ; and must direct the trial to take place, either in a Circuit Court, speci- fied in the order ; or in the County Court of the county of the surrogate ; or, in the city and county of New York, in the Court of Common Pleas. After the trial, a new trial may be granted, as prescribed in section 2548 of this act. Cost of Appeal. § 2589. The Appellate Court may award to the successful party the costs of the appeal; or it may direct that they abide the event of a new trial, or of the subsequent proceedings in the Sur- Appeal in Sundry Cases. 92T rogate's Court. In either case, the costs may be made payable out of the estate or fund, or person- ally by the unsuccessful party, as directed by the Appellate Court ; or, if such a direction is not given as directed by the Surrogate. An appeal does not lie from the surrogate's order appointing admeasurers of dower, but only after filing the admeasurer's report. [Qardiner v. Spikerman, 10 Johns., 368.) The court has no power to enlarge the time for appealing, fixed by statute. {Stone v. Morgan, 10 Paige, 6i5.) Where an executor on being ordered to account does so, and an order is entered thereon without citation to parties interested, so as to make it a final settlement, an appeal must be made from the order in thirty days. {Quild v. Peck, 11 Paige, 475.) So also a decission of a surrogate confirming pro- bate after allegations against a will, must be appealed from in thirty days. {Williams v. Fitch, 15 Barb., 654.) Upon the question as to who may or may not appeal, we will c:te the following cases, A devisee or legatee may appeal from an order admitting a will to probate, notwithstanding tbat he was a petitioner for probate and he is not 928 Who may Intervene. estopped by his petition. [Vandertnarlc v. Van- dermark, 26 Barb., 416.) Parties to a proceeding to prove a will and codi- cils, who if the will is proved take nothing under the codicils, and whose interests are therefore unaffected whether the codicils be proved or not, may nevertheless appeal from an order admitting the codicils to probate. (^Pariah v. Parish, 42 Barb., 274.) Legatees may intervene in the proceedings for probate before the surrogate and may do the same on the appeal ; but if they do not intervene, and a final judgment is rendered declaring the invalidity of the instrument propounded as a will, they cease to be interested parties and cannot appeal from the order annulling the record and awarding costs against the executor, and directing him to file an inventory. The executor thus represents the lega- tees, and they are bound by his acts. [Marvin v. Marvin, 11 Abb. N. S., 97.) But a legatee who is not a party to the proceed- ings for probate, may appeal from the order re- fusing probate ; and this without leave of the court. {Lewis v. Jones, 50 Barb., 645.) A husband cannot appeal in his own name from a decree allowing probate, by virtue of his wife being one of the next of kin. {Foster v. Foster, 7 Paige, 48.) In the Appeal. 929 One whose interest is determined, ceases to have a right to prosecute an appeal, as where an heir at law apparent prosecuting an appeal, a posthumous child is born to the decedent. {Reid v. Vander- heyden, 5 Cow., 719.) In proceedings for the sale of real estate, a pur- chaser who bid off the property, can appeal from an erroneous order of the surrogate setting aside the sale. If an appearance before the surrogate was necessary to constitute him a party, the ad- ministrator appearing in behalf of himself and the purchaser is sufficient. {Delaplame v. Lawrence, 10 Paige, 602.) If the surrogate denies an application for the appointment of a guardian of a minor, and the ap- plicant appeals, the minor must be made respond- ent. The relatives of the minor who approved the appointment are not the proper parties respond- ent as to the appeal. {Kellinger v. Roe, 7 Paige, 362.) But it seems it is not necessary, in all cases, to make the infant a party, on an appeal from an order appointing or removing a guardian. ( Under- hill V. Dennis, 9 Paige, 202.) On an appeal from a decree, all persons interested, (as those to whom sums were awarded by the sur- rogate), should be made parties; although they 59 930 Nature of Decree. were not parties before the surrogate. (Wiicox v. Smith, 26 Barb., 316.) Parties interested in the establishment of a will, may intervene on an appeal from a decision against it ; but must come in by petition in the proper form^ and make themselves parties to the proceed- ings before they can take any part therein. (Foster V. Foster, 7 Paige, 48.) A writ of prohibition from the Supreme Court, cannot affect the rights of parties to bring and carry on an appeal. (T/iomson v. Tracy, 60 N. Y., 31.) A decree of a Surrogate's Court is in the nature of a decree in equity, and costs on an appeal there- from are discretionary. Therefore in the case before the court all the parties were held entitled to costs out of the estate. {Lawrence v. Lindsay, 70 N. Y., 566.) INDEX OF FORMS. ACCOUNT, *''""■ order that petitioners render 355 on settlement 589 oath to 592 allegations to contest 597 order to show cause why executor should not 723 ACCOUNTING, petition of creditor for 574 order that executor be cited to 576 order for reference on 600 decree on 648 ADMINISTRATION, petition for 283 consent of person to be joined 285 right to renunciation of,. 286 order for citation on petition for 287 citation on petition for 288 decree for letters 291 ADMINISTRATOR, oath of office of. 292 bond of. 295 petition that administi'ator give further bond 325 order requiring to give further sureties... 326 ADMISSION, of service 66 ofjsefvjce ofcitation 44 932 Index of Forms. Page. AFFIDAVIT, of service of citation ... , 43 to proure substituted service 46 of service of citation and order 48 of service of citation 66 as to signature. 67 to procure commission 83 to procure examination of sick witness... 91 of intention to object to letter 214 toprocure return of inventory 399 to attach to claim 441 to procure leave to issue execution 489 to annex to account 592 of service, copy, decree, and demand 695 AGREEMENT, to refer claims 447 ANSWER, to objections to letters testamentary 219 on petition for payment of legacy 560 ANCILLARY LETTERS, petition for 237, 235 order for citation for 239 APPEAL, notice of ,917 undertaking on 918 APPOINTMENT, of guardian, decreefor 817 APPRAISAL, notice of. 375 APPRAISERS, order for 372 warrant of 373 Index of Forms. 933 ATTACHMENT, ^'^' order for, for not filing inventory 402 for not filing inventory 403 petition for 693 affidavits to annex to 695 decree for 696 form of 698 ATTESTATION, clause of will :. 258 ASSIGNMENT, of bond, petition for 684 decree for 687 BOND, of administrator 295 petition for another 325 sureties on, petition for relief 329 petition to compel executor to give 340 on payment of legacy before due 544 on payment of legacy 563 on disposition of real estate Y43 petition for assignment of. 684 decree for assignment of 687 of guardian 823 o CERTIFICATE, of probate on or annexed to will 171 of decree for docket 680 execution on 681 CITATION, affidavit of service of 43 admission of service of 47 affidavit to procure substitutes service of.. 46 934 Index of Forms. Page. CITATIOIf— Continued. order for substitutes service of 44 aflSdavit of service 66 admission of service of 66 order for to attend proof 146 to attend proof 149 petition for new 152 order for on objection to letters 217 on objection to letters 218 order for on petition for ancillary letters... 239 to attend issue of ancillary letters 240 order for to attend rehearing of proof..... 249 order for on petition for probate of heirship 264 order for on petition for administration... 287 to widow and next of kin 288 orderfor to relative 815 CONTEST, of probate within a year petition for 247 of special guardian to be appointed 62 of person to be joined in administration... 285 CLAIMS, order to' advertise for , 438 notice to creditors to prevent 438 affidavit to 441 agreement to refer 447 petition by creditor for payment of 499 order that administrator show cause why heshould not pay 502 CODICIL, to will 260 COLLECTOR, (See Tbmpokakt Administratok.) COMMISSION, affidavit for 83 notice of application for 84 Index of Forms. 935 Page. COMMISSION— ttnEX OP Forms. 977 Page. 'EXECVTOHS—Oontinued. letters issue to 308 oath of offlce of 311 by whom admmistered ?11 competency of, may be questioned 314 intention to object to competency, affidavit of 314 Objections as to one, suspends as to all 314 objections, form of. 315 order for citation to, on objections 317 incompetence of, not preserved 320 objection to, proof on 330 cases where required to give bond 330 non-resident to give bond 331 may renounce 333 Rbntjnciation, how made 338 form of 334 may propound will 140 may be allowed expenses of suing before. 154 may be nominated under power in will 308 not prohibited from being trustees for self 309 when named on a contingency 309 citation to, on objection 317 Renoticiation may be retracted 333 may be summoned to qualify or renounce 338 order decreeing renunciation of 230 must qualify , . . 328 bonS'of, when given 323 appointed under power in will 326 time for appointing, under power 335 selection of, under power, form of 336 objections to, selected 337 FoBBiGN entitled to ancillary letters, 383 cited to rehearing, must suspend 351 power of, with letters 303 one dying, remainder to act 331 successor to, when 333 on disagreement, surrogate to direct 834 may be cited on petition for revocation 338 because incompetent, revocation follows 338 wasting property, subject to revocation 338 for dishonesty, letters may be revoked 339 drunkenness, letters may be revoked 339 improvidence, letters may be revoked 839 refusal to obey decree, letters may be revoked 886 6S *78 Index of Forms. Page. BXECVTORB-Contimed. where circumstances precarious, letters may be revoked. . 3S9 about to remove, letters may be revoked 339 non-resident, letters to be revoked 339 Mat bb enjoined, when 392 when required to give security 343 Sectjmtt, by form of 344 letters of revoked, fo account 348 may apply for settlement and revocation 351 petition of, for revocation 353 petition of for revocation 353 order that he account 355 decree revoking letters of 357 may petition for inquiry as to assets 359 To MAKE INTBNTOKY, 374 may make more than one 374 may be cited to correct inventory 389 claim against, to be inventoried 392 debt of, discharged at common law 394 how treated by statute 394 cannot compromise his own 394 may show defense to 394 bequest does not discharge 395 to file inventory 395 Oath of, to inveatory 396 may have further time to file inventory 897 may be ordered to file inventory 398 may be attached, for not filing inventory 398 order that he file inventory 400 attachment against 403 not filing inventory, letters may be revoked 405 to have no power 405 may make new inventory 406 several are one person in law 407 one can act for all 407 one may sell, release, etc 407 retain assets 407 cannot waive just claim 407 whole personal estate vests in 408 have power to compromise debts, who 408 acting as trustees must all act 410 in certain cases, majority act 410 should keep estate fund separate 410 General Index 979 Page. 'EXECUTORS— Oontinued. . may be required to deposit in savings bank 410 being certui que trust, not entitled to assets 411 may petition surrogate for direction 411 cannot indorse note 413 No COSTS against, when 412 costs against. .... 412 foreign, may convey lands, when 412 should keep assets insured 413 should get interest on fund 413 for failure to collect, is liable 413 in another state can transfer property, how 412 must collect estate 413 may bring suits 414 may treat, transfers of testator as void 414 maintain action 415 chargeable for wrongs of testator 416 not chargeable for slander, etc., of testator 416 may recover for injury causing death 416 chargeable for waste of testator 416 may maintain action for causing death 418 may set up counter-claim -, . 431 counter-claim against 431 bond to collect 433 in foreign state may assign claim 433 pleadings by 423 may settle with surving parties 434 may arbitrate '. 434 liable only for gross negligence 434 may retain share of legatee 434 cannot sue co-executor 435 extension of actions for and against 435 waives statute when 437 may sell assetts to pay debts, etc 437 Title of purchase from guardian 438 selling without security may lose 439 of deceased parties may demand sale 43O is trustee for parties interested 430 cannot buy at his own sale. 430 should keep money invested ^ 43I care of, as to investments 433" what must invest in 433 •liable to loss on investments 433 980 GrENERAL InDEX Page. EXECUTORS— Coaforaaed should sell unauthorizecl stocks 483 personally liable for loss when 433 May puechasb on their own foreclosure 434 purchasing how take deed 434 care of, as to paying debt 486 should advertise for claims 486 provisions as to advertising r 436 order that he advertise for claims 438 notice of, to present claims 438 claim must be presented to, personally 439 may select place for claims 439 requisites of notice to present claims 440 when not entitled to notice of claim 440 may require vouchers with claim 440 affidavit with claim 440 how claims mfl,y be presented to. . . 441 may admit claims 443 is trustee for creditors 444 may offer to refer claim ". 445 omission to refer not admission of 446 rejection of claim must be certain 446 agreement of, to refer claim 447 on reference may make any defense 450 claim of, cannot be refered 451 Rejecting claim offers to refer 454 may waive rejection of claim 456 liable for funeral expenses 460 liability of, for own engagements , 461 cannot bind himself to pay decedent's debt 463 entitled to be reimbursed 463 couldoompromise at common law 463 surrogate may authorize compromise by 463 bound to compromise, when 463 petition of, for compromise 464 order permiting compromise of 466 to pay debts and order of payment 469 should not pay mortgage interest 470 may pay debts not due 471 when not to pay taxes 473 not to pay mortgages 474 Not to pAy debt barred by statute 476 duty of as to rents due estate , 476 Index of Fokms. 981 Paffc. 'EX'ECVTOIiB—Oontmued. liable on covenants in lease 477 sued, may show debts unpaid 477 judgmentjagainst, how entered 477 how to sue or]be sued (Code) 478 may join in suit personal and representative actions 479 judgment, how entered against 479 one served to appear 480 separate answers of, not allowed 480 execution against, when to issue 480 leave for execution against, how got 481 ExEcuTroN against,' when allowed 482 may be cited to show cause why 483 may plead set off 485 judgment against, not lien on land 485 how to collect debt due himself 495 proof of debt made 495 must swear to his claim 496 cannot retain for his outlawed debt 497 surrogate can try his debt 497 not competent witness in his own behalf 498 may be compelled to pay debt, when 498 order for citation to, form of 503 payment of debt by, may be decreed 503 actiug in good faith protected 504 not to plead want of assets 505 judgment against execution on 505 after notice may pay claims 511 distribute estate 511 Bound to plead statute of limitations 531 not protected paying outlawed claims 531 may pay legacy before due 543 take bond 544 after one year, pay legacies 545 legacy, how enforced 546 action for 546 bond to be given before action 547 minor may sue, for legacy 548 may apply for settlement : 580 contents of petition of, for settlement 581 petition of, for settlement, foim of 583 On accounting of, who may appear 586 affidavit of, to account, form of , . . , 593 982 General Index P»ge. 'EXECXJTOIS.S— Continued. to produce vouchers on accounting 593 allowed small payments 593 course of, wfien vouchers are lost 593 what to state in account. 594 should notcharge 595 any party may contest account of 596 allegations to contest account of, form of 597 Refbebncb of account of, form of 600 allowed on accounting payments 600 inventory not conclusive against , 601 taking assets at inventory, charged with them 601 surcharged by property transferred by decedent 601 interest charged against 603 may be examined on accounting • . . 598 Allowance to, for property lost 611 not to make profits on estate »613 may be charged with interest 612 benefit to, of inventory 613 on accounting of inventory not conclusive 613 liability of uncollected demands 613 commissions of, and rate 615 cannot claim extra compensation 618 commissions apportioned to several 619 no commissions to, or specific bequest 619 Bbqttbst to, in addition to commissions 630 not filing inventory, not entitled to commissions, when . . 634 Allowancb to, for expenses 634 examination of, on accounting 634 allowance to, for clerical hire 625 not allowed for use of horse 625 allowed for traveling expenses 625 counsel fees, when 026 costspaid, when g27 when not excused from paying interest 633 When trustee may be compelled to account, etc 653 (See Testamentary Trustee). may be charged notwithstanding settlement 669 Dbckbb against, how enforced g7g petition for assignment of bond of, form of 684 decree assigning bond of ggij' bond of, may be sued , ggg Attachment may issue against gag GrENEEAL INDEX 983 Paire. SXECVTO^B— Continued. attacliinent may issue against 689 delinquent punished for felony 699 may petition for disposal' of real estate 706 account may be requii-ed of. 716 order that he account, may be made in real estate proceed- ings 721 order for an account 723 act of, does not affect statute of limitations 725 treated as equitable assignee of claims 728 death of, not to .affect sale of real estate 753 not to purchase on sale 756 Allowances to, on sale of real estate .: 784 reimbursed on sale of real estate 794 Sale of real estate by, under power 799 one refusing, remainder may execute 800 may be cited by surrogate to account 800 selling fraudulently, forfeit double 800 what does not affect validity of sale by 800 sales may be confirmed by supreme court 801 EXECUTION, decree enforced by ; . 676 form of 681 EXECUTING, included in terms executors 209 EXPENSES, of executor in serving paper allowed 154 allowance for, on accounting 624 EATHER, heir at law and next of kin, when 142 when guardianship belongs to 803 FEES, book to be kept for 28 surrogate to report 29 of county clerk 174 of appraisers 871 how made out and proved 371 rELONY, executor or administrator, delinquent punished for 699 984 General Index final settlement, (See AccotJNTiNG). FINDING, either party may request 99 PINE, to be imposed on delinquent executor or administrator, etc 700 how to be collected 701 FIXTURES, what are 385 FUNERAL EXPENSES, executor may sell to pay 136 allowed in preference 137 temporary administrator to pay 318 allowed to husband 458 what are 458 executor liable for. 460 real estate liable for 705 to be proved before surrogate , 778 a GENERAL GUARDIAN, when interested, special guardian to be appointed 57 (See Guardian.) eiFTS, causa mortis 535 inter mvos, 535 what perfects title 535 delivery essential 535 inter mvos irrevocable 535 causa mortis ambulatory 537 not presumed 53g what delivery, suflacient 53g any chattel, subject of 537 may be set aside for creditors. .• 533 causa mortis, near death 538 General Index 985 Page GUARDIANS, surrogate may enjoin 34 special clerk, not to be 31 special, to be appointed, on proof of wiU 155 to appear in person 156 entitled to administration 377 when not entitled to letters 305 attachment, may issue against , 689 delinquent, punished for felony 699 DBPrNSD 803 relation, one of trust 803 by relation, who are 803 in socage defined 804 may be appointed by father 804 mother 804 supreme court 804 statute as to appointment by father 804 powers of, appointed by father, etc 805 appointed by father, not superseded by surrogate 805 subject to supreme court. 805 limited to state, where appointed 806 appointed by foreign court, power of 807 one may become de non tort 807 authority of two or more is joint 807 jointly responsible 808 efiect of bond of ... 808 appointed by supreme court, supervision of 808 Makeibd woman, may be 806 power of surrogate to appoint 809 infant over fourteen, may apply for 810 on petition for citation to issue when 813 by married woman, husband to be cited 813 petition for, by infant over fourteen 813 consent to be appointed. 814 hearing on petition and appointment 816 to be nominated by infant 816 decree for appointment of 817 for non-resident infant 818 how appointed for infant under fourteen 818 petition for by mother 818 when appointment immediate 831 terms of office of temporary 821 on petition for inquiry as to property 831 986 Index of Forms. Page. QVARDIANS— Continued. bond and oath of office 823 who proper to be appointed 825 effect of appointment of 838 entitled to custody in control of infant 828 llabHity of 839 power of T 830 may not purchase ward's property 831 when he purchase in foreclosure 833 duly of, as tosupport 838 no power to mortgage or sell 833 supreme court may authorize sale by 834 duty of, as to real estate 835 must not suffer waste 835 not held to repair beyond income 835 relation to ward 836 may be charged with interest 836 may not employ agent 837 father not allow for support 837 may not expend capital 837 bound only to fidelity and diligence 838 of another state, no authority here 838 non-resident may have ancillary letters 838 petition for ancillary letters to 839 effect of ancillary letters to 840 to file annual inventory and account 843 contents of annual account, etc 844 affidavit of, to account, etc 845 form of inventory and account of 846 affidavit of, form of 848 may be required to make new account 849 surrogate may direct as to infant's support petition for leave to expend capitol 853 judicial settlement of bond compelled 853 on renewal of 854 accounting by, of 854 may have settlement and discharge 855 proceedings on petition of 855 affidavit to account of 856 contents, of petition of 856 form of account of 857 contents of account of 857 not to charge for personal services.. 858 General Index. 9«7 Page. GtVAKDlANS— Continued. commissions of 858 should file vouchers 858 decree to settle • 859 certiflcatc of decree may be filed 859 form of, may be sued 859 may be attached 859 , decree against, how discharged 869 letters of, may be revoked 860 may be suspended 864 Decrbb for revocation of letters of 865 new bond may be required from 866 removed for not filing new bond 866 petition for removal, by whom 866 petition for new sureties by, form of 867 when new bond required , 868 order for additional sureties, form of 869 decree revoking letters, when 869 Removal of, for not giving new bond 870 sureties of, may be released ... 871 may resign 873 petition of, for leave to resign : 873 must account before resignation 875 proceedings on petition of 875 may be ordered to deliver assets to surrogate 877 decree revoking letters of, form of 878 may be required to account after resignation 879 appointed by will or deed to record same 880 when appointment takes effect 880 By deed when allowed to have renounced 880 to be appointed in dower proceedings 897 GlJARDlAN TESTAMENTARY, to qualify, and, bond 881 may renounce 881 objections to 881 security from 881 what security required of 883 inventory and account from , 883 settlement of account of 884 may be removed 885 resign 885 successor appointed to 886 988 GrENBEAL InDEX Page. HABITUAL DRUNKARD, how service made on 55 special guardian for, on, accounting 586 on rehearing 251 in real estate proceedings 736 HANDWEITINO, to be proved when witness dead 163 HEARING, I on revocation of proceedings 351 HEIR, purchaser from, protected. 170 may have right determined 263 HEIRSHIP, proceedings for, proof for, 363 Pkobatb of, petition for, form of. 263 order on 364 hearing on 265 . decree on 367 HEIRS AT LAW. who are 143 when to be cited 148 claim may be collected of 526 action against, regulated 527 may contest real estate proceedings 735 HUSBAND,1 to be cited on probate 148 entitled to administration 279 Legacy to, does not abate , 551 I IDIOT, how service made on. ,. -55 special' guardian, appointed for. 57 to be appointed on proof 155 for, on accounting 586 notice for, form of 587 for in real estate proceedings 736 General Index. 989 Page. IDIOCY, what is 188 not readily distinguished from imbecility 189 does not extend statute of limitations 435 ILLEGITIMATE, person heirs, and next of kin of 143 heir of mother, when 143 letters on estate of 378 children when to take and inherit. 643 IMPRISONMENT, in suit, on bond, does not suspend attachment 689 IMBECILITY, witness may give opinion as to 181 INABILITY, to read or write, surrogate may refuse letters for 380 INCOMPETENCE, of executor, what constitutes 330 INDICTMENT, of executor, administrator, etc., for delinquency. . , 700 INFANT, how service made or 56, 55 special guardian to appear for 61 appointed on notice 63 how served with citation 151 special guardian to be appointed on proof of 155 for, on rehearing 351 for, on accounting 586 how appointed 587 notice for, form of 588 distribution to, to whom paid 645 special guardian for, on real estate proceedings 736 fund from real estate to be invested for 790 guardians of 803 who guardians by relation 803 guardian may be appointed by father or mother 804 powers of such guardian 805 who may" be guardian for 809 over fourteen, may apply for guardian 810 residence of, as to court 811 contents of petition of , 811 on petition for guardian of, cited to be cited 813 990 General Index Page. INFA.NT—GonUnued. petition of, for guardian 813 aflldavit as, to property of 814 (See Guardian.) NoN-BBsiDBNT. may have guardian 818 how served with citation 856 appearance of sufiBcient 856 special guardian to be appointed for 856 how cited before resignation of guardian 875 special guardian for, on petition for resignation 876 may have new guardian 877 guardians to be appointed for, in dower proceedings 897 INFLUENCE, without artifice or fraud, does not avoid will 303 INJUNCTION, surrogate may grant, when 34 surrogate may issue 343 INSPECTION, of paper, court may compel 83 INTEEE8T, on mortgage, not a debt 470 charged on accounting, when .... 603 charged, may also be allowed 605 no more charged than received 605 rule on death of co-partner 605 when legacies begin to draw 630 executor not execused from, when 633 When charged against guardian 887 INTERROGATORIES, to prove will 87 INTERVENE, parties may intervene on proof 157 INTERVENTION, petition for, form 147 order allowing, form 159 on appeal 913 INTESTACY, distribution in case of 638 GrENERAL IndEX. 991 Page. INVENTORY, when default in filing letters to be revoked 345 statute as to 371 duty of taking 371 appraisers to be appointed for 371 • form of appraisers on 371 executors and administrators to take 374 notice of, to be given 374 form of notice for 375 form of 376 how to be made 376 to be made in duplicate 378 what to be included 379 what to include 383 how partnership estate to be included 384 may be corrected 389 what to contain, and how stated 391 Statute of limitations, how affected by 393 to be filed 395 oath to, form 396 time to file may be extended 397 order extending time to file ^ 397 return of land compelled 398 for not returning attachment issues 398 order for filing, form of 400 attachment issues for not filing 398 order for 403 for not filing, letters may be revoked 405 executor filing, to have estate 405 new, may be made 406 annual, what to contain 844 affidavit to 845 form of 846 GuAEDiAN to file annual 843 an account required of testamentary guardian 883 benefit of, on accounting 613 not conclusive on accounting 613 not conclusive on accounting 601 INVESTMENTS, executor or administrator should make 431 care as to 433 rule in equity as to 432 executor failing to make, charged with interest 603 &92 GrENERAL InDEX ^ Page J JAILOR, execute mandate by surrogate 33 JUDGMENT, preference of, as a debt 469 in justices court, not preferred 470 what entitled to preference 473 in another state has, in preference 473 against executor or administrator, how entered 478 proceedings to collect 480 when bar to suit against executor or administrator 484 remedies on after death of debtor 485 (see ExBOUTioN.) against executor or administrator, not lien on real estate. 489 against executor or administrator, execution on 505 surrogate may hear dispute on 609 effect of, in real estate proceedings. . .- 737 does not charge land for costs in real estate proceedings . . 733 JUDICIAL' settlement, and revocation 35I of account of testamentary guardian 848 (see ACCOUNTESTG,) JURISDICTION, of court 13 presumed 14 presumed, when 14 not lost by defect of record 15 concurrent, when 16 first surrogate to exercise, retains 16 debt to recedent confers 17 in case of new county 18 petition confers 39 concurent as to administration 374 how conferred for administration 375 JURY TRIAL, by way be ordered Iqq how regulated , lOi how renewed 101 motion for new, when bearing 101 GrENERAL INDEX. 99S JURY TRIAL -Gontinved. verdict to be certified to surrogate 101 by, ordered in real estate proceedings 729 order for, form of 729 how reviewed 730 appeal from 731 JUSTICE'S COURT, Judgment of, not preferred 470 L LAPSE, certain legacies do not 540 LEA.8ES, rent on, may be paid in preference, when 471 duty of executor as to 476 liability of executor or administrator as to 477 proceedings for, to pay debts, etc 705 (See Sale of Real Estate.) when order, made for 734 LEGACIES, executor may sell assets to pay 428 debts preferred to , 468 payment of, may be compelled 499 on petition for payment, citation to issue 501 petition for to be dismissed, when 501 defined 539 general and specific 539 demonstrative 539 misnomer of legatee will not vitiate 539 vested and contingent 540 absolute and conditional 540 General preferred 540 legatee may accept or decline 540 certam, do not lapse 540 construed by law of domicile 541 do not lapse by death of legatees, when 541 to creditor not satisfaction of debt, when 541 courts have concurrent power to compel payment of 542 payment of before due, when 542 due one year after letters 543 when paid before due, bond may be taken 543 Bond on payment of 544 64 994 General Index. Pag«. LEGACIES— Continued. to be paid after one year 545 Spbcific, to be turned over ... 546 Increase of, goes with legacy 546 payment of, how enforced 546 Suit may be brought on 547 before suit, bond to be given 548 abatement, in case of deficiency 548 petition to collect, in surrogate's court 550 do not abate, when 550 specific, does not abate 550 for debts or duty, do not abate 550 For education, does not abate 551 headstone, does not abate 553 on proceeding for, executor may plead statute 553 petition for account and payment of, fonn 553 hearing on petition for 556 statute of limitations a bar 557 receipt for, form of. 558 Decebb for payment of, form of 558 answer on hearing, form of 560 commissions, not chargeable on , 630 when interest begins to run on 630 when to be paid 630 to child, interest on, fi-om death 632 widow, interest from death 682 charged on land, interest rule 634 Spbcific claim no interest 633 To PERSON UNKNOWN, to be paid to state treasurer 646 not paid in two years after decree, to county treasurer . . . 647 Trustee compelled to pay , 653 when paid to guardian , 841 bond on payment of 841 LEGATEE, may propound wUl 140 may intervene on proof 157 executor may retain share of for debt 434 misnomer of, not fatal 539 how entitled to, administrators , 305 claim may be collected of 533 GrENEEAL InDEX. 995 Page. LETTERS OF ADMINISTRATION, surrogate to grant 13 book to be kept for 37 tenor and effect of 313 conclusive, as to what 313 sureties liable for acts before 313 on estate of foreign intestate 333 petition for ancillary 337 Ancillary, duty of administrator 343 are of three kinds 371 General 271 Special 371 With will annexed 371 surrogate of each county to issue 373 to issue on estate of resident 373 to issue on estate of non-resident 373 conclusive until reversed 373 onus of, proving want of jurisdiction on contestant 373 concurrent jurisdiction to grant 374 order of persons entitled to 376 issue to widow 376 children 276 father 376 mother , 376 brothers 376 sisters 376 grand children 276 other next of kin 377 guardians of minors 377 creditors, 377 public administrator 377 on estate of illigitimate 378 not to issue to one hot entitled to succeed 377 widow 278 children 278 mother ,. 378 relatives of mother. 278 on insane of, preference 277 males preferred to females 278 on estate of married women 279 issue to foreign administrator 27j Not to issue to criminal 280 alien, except 280 minor, 880 996 General Index. fage. LETTERS OF ADMINISTRATION— Confanaerf. surrogate may refuse 380 to issue to guardian of minor 281 may be granted to another on consent 381 issue on petition 281 objection to issue of 282 petition for form of. 283 not to be refused except 283 on petition for proceedings 389 order for citation on petition for 387 right to personal 380 consent of third party to take 385 trial as to right to 385 citation on petition for • 285 to whom issued 385 parties may renounce 386 citation on petition for 288 granted before return of cita;tion, when, 389 K on return of citation 290 renunciation of, may be retracted 390 how issued, when several apply 290 not to be granted, without renunciation 391 Decreb for, form of, 291 before issue, bond to be filed 292 prima fade, evidence of appointment 299 not to be attacked collaterally. 399 surrogate cannot delegate power to issue 399 requisites of .. . 301 Priority between. 303 effect and force of 303 ^ honii non, when issued 303 priority, as to 803 petition for 304 with will annexed 804 With will annexed, to whom 304 order of preference 3O5 affect of. 305 with will annexed, proceedings to procure 307 will to be observed 3O7 revoked as to one, others to act 33^ revoked when will proved 338 to be revoked, when procured on false statements to be revoked 339 GrENERAL INDEX. 997 LETTERS OP ADiimiSTUATON— Continued. ^"^"^ give no power over real estate 331 Decree revoking from 338 revoked peremptorily when 345 LETTERS OF COLLECTION, see temporary administrator 309 LETTERS OF GUARDIANSHIP, book for record of 38 tenor and eflFect of 313 conclusive as to what. . : ' 313 sureties liable for acts before 313 requisites of 301 effect and force of , 802 non-resident guardian may have 838 LETTERS TESTAMENTARY, surrogate to grant 13 book kept for 37 when to issue on contingency 309 issue after prool 309 to whom 309 order for 310 requisites of. 213 tenor and eflFect of 212 conclusive as to what ^ 313 sureties liable for acts of before 313 objections to issue of. 314 not to be issued unless to all on 227 ANCiLiyAKY issue when 331 to whom issued 333 petition for ancillary 335 ancillary duties of execute 343 of requisites of 301 effect and force of 303 Peiokity between 303 effect of 305 when give no power over real estate 321 when revoked as to one, others to act 321 decree revoking power 328 to be revoked, when 338 Revoked peremptorily, when 344 are local in character 413 LIMITATIONS, Statute of, presentation of petition stops 40 ^98 General Index. Page. LIMITATION, of action, sec. 3593, limited 319 LOANS, to be distinguished from advancements 636 LOSS, executor or administrator not liable for, when 611 LUCID INTERVAL, will may be made in 195 not occurring often 195 discussed 195, 194 rule as to, in England 196 LUNATIC, how service made on 55 special guardian for, on accounting 586 notice for, form of 587 for, in real estate proceedings. . . ., 726 m: MAINTENANCE, surrogate may direct as to infants 851 MANDATES, clerk may issue , 23 MARK, will may be subscribed by 107 MARRIAGE, how proved, for letters 379 how proved 901 MARRIED WOMAN, estate of, how distributed 644 may be guardian ....( 809 on petition for guardian, husband to be cited 813 MARSHALLING OF ASSETS, orderof,.., .,,.,,,. ,,.,,.-,,. -,■: 468 General Index. 999 Page MINOR, how service made on 55 how served with citation 151 Special guardian to be appointed in proof of 155 special guardian for, on rehearing 251 incompetent for administration 380 letters to issue to guardian of 381 children, what set off to in inventory 886 special guardian for on accounting 586 how appointed 587 notice for, form of. 587 DiSTKrBTJTiON to whom paid 645 special guardian for, in real estate proceedings 736 fund from real estate to be invested for 790 Guardians for 803 who guardians, by relation 803 guardian appointed by father or mother . 804 power of such guardian of 805 who may be guardian for 809 over fourteen yeai-s may apply for guardian 810 residence of, as, to court 811 contests of, petition of 811 who to be cited on petition of 813 petition of, for guardian 813 affidavit as to property of 818 (see GrUARDiAisr.) how served with citation 85g appearance of, sufficient 85g special guardian to be appointed for 856 how cited before resignation of guardian 875 special guardian for, on petition for leave to resign 876 may have new guardian 877 guardian for, in dower proceedings 897 MISSING PERSON, administrator appointed for , , . , . , 310 MONEY, to bepaid to county treasurer. . . , , , , 74 to be inventoried , , . . , 883 MONOMANIA, when it invalidates -syjll. ..,..,...,, ..,,,,...,,.,,,..,, Jgg 1000 GrENEEAL INDEX. Paga. MOTHER, heir at law and next of kin 143 when guardianship belongs to 803 MORTGAGE, to be inventoried 383 one of several executors may sell or release 407 preeedings for, to pay debts, etc 705 (see Sale op Real Estate ) when order made for 734 decree for 736 decree for, form of 736 NEGLIGENCE, executor or administrator liable for own 434 NEXT OF KIN, who are 143 subpoena may issue to ascertain 147 to be cited on probate 148 citation to, on petition for administrator 388 may sue for share 549 claim may be collected of 533 NON-RESIDENT, when to give bond as executor 221 not to give bond as executor 231 people trustees as to bond ... 323 infant 818 letters to be granted to foreign administrator 379 NOTE, one of several executors may sell 407 NOTICE. to creditors, temporary administrator to give 313 of appraisment. form of 375 to present claims, form of 438 to motion for leave to issue execution 49I of application for leave to issue execution 507 How SERVED 318 to extend time for disposal of real estate 708 what to be given of sale of real property 754 how published, etc 754 of sale of real estate 757 General Index. 1001 Page. NOTICE— Continued. of distributing, order for, form of 776 form of 777 how published 776 to widow, to elect on sale 786 to heirs of petition for dower, form of 896 how served 897 heirs may serve on widow for dower 899 of appeal, form of 917 o OATH, who may administer 145 official, before whom taken 211 of executor, form of. 311 how verified out of state 311 to he taken by guardian 833 of administrator, who may administer 392 form of 292 of appraisers, form of 376 of commissioners, and form 904 to inventory, form of. 396 OBJECTIONS, to probate, how made 156 to executor may be filed 210 how verified 210 to issue of letters, form of 215 surrogate will not try 314 on filing citation to issue 317 to executor, answer to, form 219 on contest of account, form of 597 OBLITERATING, revokes will 126 OPINIONS, subscribing witnesses may give 178 1002 General Index Page, ORDER, surrogate may vacate, etc 34 for citation on proof of will 146 may contain directions for service 147 for letters testamentary, form of 210 for citation on petition for ancillary letters 239 to revoke probate 349 on petition for probate of beirship, form 264 tbat temporary administrator deposit 317 for furtber bond, form of 836 For citation on petition of surety 330 that petitioner account 355 for citation to discover assets 363 extending time to file inventory 397 To ADVURTISB for claims, form of 438 refering claim, form of 448 permiting compromise, form of 466 to show cause why execution should not issue 491 for citation to pay legacy, etc 554 to pay debt, form of 503 on petition to open decree 675 made ex parte may be opened 676 for citation in real estate proceedings 731 that sale be made 749 form of 750 vacating sale, form of 763 confirming sale, form of 764 for citation on petition of infant 815 to guardian 863 for additional sureties by guardian 869 for appointment of commissioners 903 PARTNERSHIP, estate how inventoried 384 property, executor or administrator may demand sale of. . 430 PARTY, surrogate may compel attendance of. . .' 23 PARTIES, all of each class interested are 40 wUo are, on appeal. ,,.,.,..,,,. t . . ,,.,.•.,,., , . 915 General Index 1003 Page PAYMENT, after notice, may be made of claims 411 of decedent's debts enforced 467 property liable for 467 how compelled of debt or legacy 498 petition for to be dismissed, when 501 decree for conclusive evidence of assets 503 of legacies and distributive shares 542 voucher to be produced for 593 less than twenty dollars, oath enough 598 decree on accounting to provide for 638 decree conclusive as to 669 of legacy by trustee, how compelled 653 PEOPLE OF STATE, verification by 70 PERJURY, witness may be committed for 36 PERSUASION, does not avoid will 203 PETITION, court acquires jurisdiction by .■ 39 must set forth all names 40 who may make, for probate 140 for proof, what to contain 141 for proof, form of 148 who may certify verification 145 supplementary for proof of will 153 form of, for ancillary letters 287 335 for revocation of probate, form of 347 letters to be issued on 381 contents of 382 on presentation of, for letters what to be shown 383 subpoena may issue on 283 letters to issue on 282 For letters, form of 283 that temporary administrator pay debt 314 citation therein 314 for new sureties, who may 324 form of 335 of surety to be released, form of 339 of executor in case of disagreement 336 for revocation, form of ,,.,,,.,., ..,,.,.,., 840 1004 Index of Forms. Page' PETITION— Continued. may be made for discovery 359 persons to be cited on 360 form of , 361 Fob compeomisb of claims, form of 464 for leave to issue, execution from 492 for execution against executor or administrator 506 for payment of legacy, effect of 542 for order to account and payment of legacy, form of. 552 For accounting, care as to prayer for relief 578 for final settlement, form of 583 for assignment of bond, form of 684 for opening a decree, form of 673 order on, form of 675 for attachment, form of 693 contents of, for disposal of real estate 710 for sale, etc, of real estate, form of 713 by creditor, form of 718 by mother for appointment of guardian 818 that guardian give new sureties 867 of guardian for leave to resign 873 proceedings therein 874 Of widow roR dower, form of 894 in surrogate's court 86 under civil law 37 by petition 37 com-t moved by petition 37 petition, not always written 89 always presumed 39 surrogate may order written 68 unless otherwise ordered may be oral 68 verifications of 68 how denials, etc., stated 69 by executor or administrator, how 423 POSTHUMOUS CHILD, birth of, revokes will, when 129 PREFERENCE, between debts, new debts and legacies 469 none to be given, except to leases 471 PRIORITY, between letters 303 General Index 1005 Page. PRESUMPTION, in real estate cases 774 PROBATE, ■who may petition for 140 objections to, liow made. .2 156 form of. 156 decree for 167 liow far conclusive 16S may be revoked on new hearing 344 definition of 244 who may apply for revocation 244 application for revocation when made 245 petition for 247 To HBiBSHip, proceedings for 262 petition for, form 263 order on 364 hearing on 265 decree on 265 PROCESS, may be served in any county 39 PROFIT, . executor or administrator shall not malie 612 PROOF, of service of citation. 43 of service, how made of papers of 64 Of Will, who may petition for 140 who to be cited on 148 supplementary petition for 152 all parties may join in petition for I59 proceedings in case of death of parties 153 proceedings on return of citation 155 objections to, may be made 156 to be filed 156 form of 156 legatees may intervene on I57 witnesses to be examined on 156 parties may intervene on I57 surrrogate may allow discontinuance I59 burden of proof on Ig5 decree on 1q7 administration revoked on 333 PUBLIC ADMINISTRATOR, entitled to letters, wheu ; 377 1006 GrENERAL InDES: Page. PUBLICATION, service of citation, by 49 in caBe of unknown parties , 51 order of 53 when made "^^ in county paper 173 slate paper • '^^ Of will, how made 113 of notice to creditors 437 PURCHASER, from heirs when protected 169 title of, not affected, when 743 Q QUARANTINE, What is, and how allowed 891, 885 what applies to 891, 385 R REAL ESTATE, will of, to be recorded as deed 173 rights may be determined 363 temporary administrator, may dispose of 315 place of, governs law of 333 (See Saib of Real Estate.) duty of guardian as to 835, 833 supreme court may authorize sale of » . . . . 834 RECEIPT, for legacy, form of 558 RECORDS OP COURT, clerk, may sign 23 may issue mandates 32 certify papers 23 adjourn 23 certify acknowledgments 23 General j Index. 1 00 Y RECOVERY OF DEBT, ^*^*' against distributee or legatee 523 action for 523 to be apportioned 534 requisites of 525 against heir or devisee 536 action for 537 requisites of 538 regulated 529 judgment not to effect title, when 530 when land is aliened 531 defenses 533 REFEREE, clerk not to be, where executor is interested 31 court may appoint, for discovery 83 may be appointed, when 9 power of 100 compensation of 100 report to be conformed 100 may be appointed on claim 445 power of, on claim referred 453 hearing, by , 453 report of, must be confirmed 458 may be appointed, on accounting 598 supplemental report from 589 exceptions to, report of 599 may be appointed in real estate proceedings 728 REFERENCE, when ordered 99 of claims, does not take right to arbitrate 434 how made 447 orders for, form of 448 agreement for, must present issues 448 orders for, forms of 600 RELEASE, decree for, of sureties 333 for discharge of decree, form of 703 REMOVAL OF TRUSTEE, may be had 663 successor appointed after 664 does not effect him as executor 664 of guardian, causes for and how 860 follows not giving new bond 870 of testamentary guardian 885 1^08 GrENERAL InDEX. t'agc RENT, when may be paid in preference 471 how inventoried 381 generally not preferred 472 RENUNCIATION, executor may make 323 how made 223 may be retracted 223 form of 224 to be ordered unless 230 order declaring. 230 order for, may be revoked 231 Of administrtors, form of 286 letters not to be granted without : 291 parties may retract 290 when deemed by guardian 880 conclusive 880 Testamentary guardian may make 881 REPORT OF SALE, to be made 758 form of 759 REPRESENTATION, distribution by 643, 641 RESIDENCE, of infant, how settled 811 RESIDENT, how service made on 43 substitute for personal service in 44 RESIGNATION, permitted to trustee '..... 660 of guardian, how regulated 872 of testamentary guardian 885 REVOCATION, of will, how made 134 of probate, discretionary 14g on allegations 343 who may apply for 345 application for, within one year 345 of probate, proceedings do not abate 353 decree for 253 notice of to be published 354 General Index 1009 Page. RE VOC XmO^—OonUntied. Of administration on proof of will 333 for failure to give new sureties 327 decree for 328 when principal fails to give new sureties 331 decree for 333 Of letters for disqualification 338 application must be by petition , 338 petition for 340 may be prevented by bond, when 340 when to be made • 342 petition for, to be dismissed, when 342 recover for and against 343 when peremptory 345 contents and effect of, decree of 346 SuccEssoK may be appointed after 347 of letters not to effect trusts 351 executor or administrator may apply for 351 and settlement, petition for 353 recover for , 352 on application of executor 357 mav be for not filing inventory , . 405 Op guardian's letters for misconduct. 869 petition for, form of 862 decree for, of guardian's letters 865 follows not giving new bond 869 may be made on guardian's request 872 Decree for on request of guardian 878 s ■ SALE, executor or administrator may make a 428 without security not allowed 429 SALE OF REAL ESTATE, proceedings for, to pay debts 705 what property liable to 705 who may apply for 706 application must be within three years 706 65 1010 General Index P«ge SALE OF REAL ESTATE— Uontinued. time for cxt nded, how - ^07 notice to extend time 708 after time, when void ■ 709 contents of petition for 710 surrogate may require account 712 what debts proceeding for T13 not to be made for costs 713 decree, conclusive as to what 713 petition for by executor or administrator 713 account on petition of creditor. , 716 sale in partition uo bar to 717 petition for by creditor 718 citation to whom directed 730 order for citation 731 accounting may order 733 order that executor account. 733 all should join in proceeding 734 what petition sufficient 734 hearing on return of citation 735 claims to bo settled on hearing 735 special guardian to be appointed 736 to appear 276 how judgment proved on hearing 726 debt only exclusive of costs allowed 737 counter-claims may be proved 737 surrogate may suspend hearing 728 executor or administrator to be repaid 738 Rbfbbbb may be appointed 728 jury trial may be ordered 739 order for jury trial, form of 729 Dbcrbb to recite debts 73I proof necessary for decree on 732 decree conclusive as to what 734 what lands may be sold 734 surrogate to decide whether to mortgage or lease 734 decree to sell j^og when title is in controversy 730 entire interest of decedent sold 730 surrogate cannot pnss on title ; 739 execution of decree postponed, when 730 order in which parcels iire to be sold 740 sale in care of precedent estate, etc 74O decree what to contain 1^4-. G-ENERAL Index 1011 Page. SALE OP REAL ESTATE— Continued. description necessary, in decree 743 Bond to be given 742 form of bond 743 decree for sale, form gf 744 freeholders, when appointed to sell 747 order appointing freeholder 748 on filing bond, order to sell 749 order that sale proceed 750 When appeal made, part may be sold 750 not to be affected by death 753 what credit to be allowed on 753 mode of sale and notice 753 parcels to be sold separately 755 executors or administrators, not to purchase 756 Notice of sale, form of 757 sale to be reported 758 report of sale, form of 759 new sale, when ordered 758 notice to be given of confirmation 760 form of 760 may be confirmed as to part 761 when sale should not be confirmed 761 order vacating sale 763 confirming sale. . , 764 conveyance, when to be made 764 efl'ect of 765 form of 767 effect of , deed on 769 contract, interest in, how sold 770 purchaser's title not affected 773 Pkbsumption in certain cases 774 proceeds to be paid into court 775 more may be ordered to be sold 778 surplus on sale, how disposed of 779 DiBTBiBTjTiON of procecds of 779 Bt executobs under power 799 proceeds to be paid to county treasurer 780 distribution, how made 780 dower on, how computed '. . . . 783 fund, how invested 784 no commissions allowed on 784 compensation of executor or administrator 784 expenses of executor or administrator 785 1012 General' 'Index: Psye SAVINGS BANK, deposit may be directed in 411 SEAL, not necessary to will 118 SECIjEITT, surrogate may take froin clerk 31 may be deposited to reduce official bond 294 when inadequate, letters to be revoked 339 when executor required to give 343 when given by executor, form of. , 344 liow given by executor 344 may be given to prevent warrant 368 executor or administrator should take, on sale 429 trustee may be compelled to give. 661 on sale to be taken to county treasurer 795 on investment of surplus in same 795 what required of testamentary guardian 883 to be given on appeal from decree for money 920 in case of commitment 921 amount of, how fixed 922 requisites of 922 to be delivered to county treasurer 74 SELECTION, of executor under power 229 SENILE IMBECILITY, is dementia 204 discussed 205 SERVICE, how made in state 42 substitute for personal 44 by publication 49 how long time for , 54 proof of, how made 55 substituted, order for 58 how proof shall be made of 64 affidavit of gg for whom made. .. , 79 manner of , gO by mail, double time 81 of interlocutory order need not be made, when 81 when mad© on clerk , 81 Q-EMTRAL Index 1013 Page SETTLEMENT, (see AccotWTiNG.) executor or administrator may apply for 351 of accounts of trustee 657, 655 SHERIFF, to provide for court, when 20 must execute and serve process 32 SIGNATUKE, affidavit as to 67 SISTERS, heirs at law and next of kin 143 SLANDER, action does not survive death 416 SOUNDNESS OF MIND, to be proved 166 SPECIAL GUARDIAN, clerk not to be 31 to be appointed 57 appointed on return day 61 must appear in person 61 consent of 62 appointed on notice 02 ordered to show cause why 68 to be appointed on proof of will 155 to appear in person 156 to be appointed on re-hearing 251 to be appointied on accounting 586 notice for to be given 587 form of 588 appointed in real estate proceedings 726 to appear " " " " 726 may be appointed on executor of accounts 851 appointed when guardian resigns 876 STATE TREASURER, legacy to be paid, to when 646 STAUTE OF LIMITATIONS, how waived by statement in inventory 393 time of, extended one year 425, 419 a year and a half 425, 419 not available if claims presented at first accounting 426 executor or administrator, not precluded from 426 1014 General Index. Page. STATUTE OF LIMITATIONS -CflafeTOsd when sums in case of reference. 429 waived by including, inventory 427 short as to rejected claims 425 must be sti'ictly construed 455 applicable only, when 455 charge on lands does not suspend 467 executor, or administrator, not probated in paying 476 not waived by provision in will . . . ■ > 470 bar to claim of executor, or administrator, when. . . . 496 on hearing any person may set up 497 generally considered 520 executor or administrator bound to plead 521 applies to claims of husband and wife 522 answer to suit for legacy 557, 552 on proceeding to compel account 579 effect of, on accounting 607 To LATE to plead after proofs are closed. . 608 any party may plead on accounting 608 as to claim of executor or administrator 610 act or omission of executor^or administrator does not effect 725 when ceases to run in real estate proceedings. 732 STENOGRAPHER, may be appointed 31 compensation of , 31 duty of 32 his minutes to be authenticated 32 minutes to be bound 32 duty of 97 SUBPCBNA, surrogate issues 34 disobedience to, punished. . 24 form of 24 duces te cum, may be issued 24 surrogate may issue before citation 41 may be issued to ascertain next of kin to 147 may issue to witness to will 154 to issue on petition for letters 283 SUCCESSORS, appointed after revocation 347 powers of '. 348 SUMMARY STATEMENT, to be in decree g48 General Index. 1015 SUPEEVISORS, ^"*^' may appoint surrogate, when 10 to provide for court 19 fix compensation of olerk 21 SURCHARGE, (See AccouHTiNG.) SUPREME COURT, to act as surrogate 5 may appoint surrogate 7 transfer to surrogate's court 9 proceedings in, regulated 8 SURETIES, surrogate to file bond with 3 liable for acts of principal before letters 313 when required on objections 331 need not justify unless 397 how far liable 397 when about to remove, new may be required 324 revocation for not giving new 327 New, when required 326 order for new 326 may apply to be released 329 petition for release 339 released on giving new bond 331 in default of letters to be revoked 331 decree releasing 33i on revocation, may be prosecuted 349 may be prosecuted on decree ; 679 decree conclusive against 669 insolvency of, cause for removal of guardian 864 New, may be required of guardian 867 petition for, form of 867 order for, foi-m of 869 of guardian may be released 871 may be demanded of testamentary guardian 881 SURPLUS, On mort&agb or judgment sale, paid to surrogate 796 )iow distributed 797 1016 General Index. Page. SURROGATE, may be removed • • • • 2 to file bond and oath 2 in New York, term of 3 salary of 3 to hold court 3 when disqualified, to certify 4 to designate one to act ^ temporary, when appointed 10 court open at all times 30 court to be held on Mondays 20 may issue citations 33 subpoenas 34 may enforce orders 34 exemplify papers 35 punish contempt 35 issue commissions 36 what books, he shall keep 37 deliver papers to successor 39 may not be counsel, etc 33 appoint and remove clerk 31 compel attendance of party 38 enjoin executor, etc 24 To Report fees 29 to transmit certain papers to secretary of state 30 liable. for acts of clerk 30 disqualifications of 34 his father or son may not practice 35 power to order written pleadings 68 to pay over to county treasurer 74 controls money with county treasurer 77 may compel production of paper 82 exception may be taken to ruling of. 98 must file decisions 99 to retain will a year 174 may settle custoily of fund, efc 334 SURROGATE'S COURTS, original jurisdiction to prove wills 1 for letters testamentary : 1 of administration u 1 constitution provides for 1 regulated by statute 1 General Index. 1017 Page. SURROGATE COVKTS—Gontirmed. are courts of record 1 of special jurisdiction 1 attorneys, oflBcers of 3 held by county judge 2 jurisdiction of 12 supervisors to provide for 19 costs in 518 sheriff to provide for, when , 20 always open -. . 20 to he held Monday 20 when and where to be held 31 power of, to appoint guardians 809 bURVEYOK, commissioners may employ 906 SUSPENSION, of authority of guardian, when 864 T TAXES, a preferred debt 469 liability of estate when fixed 470 do not include assessments 470 TEARING, revokes will 126 TEMPORARY ADMINISTRATOR, when appointed 309 when allowed 309 appointed for missing person 310 how appointed 810 notice for order for 311 appointed for absentee, how 311 to qualify 312 general powers of 313 power to pay debts. 314 may sell, etc., real property 315 provide for family 315 to deposit fund 316 how compelled to deposit 317 ati! ched 317 may be compelled to account 319 may have settlement 330 sureties of liability 320 when letters to be revoked 340 1018 General Index. Page. TESTAMENTARY TRUSTEE, may account at any time • • 653 be compelled to account 652 cited to pay legacy 653 cited to settlement 655 wlio may apply for settlement of 655 may petition for judicial settlement 657 proceedings tliereupon 658 effect of decree in 659 may resign trust 660 be compelled to give security 661 removed 662 proceedings tor removal 663 effect of removal 664 successor to, may be appointed 664 attachment may issue against. . 689 TESTAMENTARY GUARDIAN, (See GuABDiAu) TESTIMONY, commissions to take 83 of aged or sick witness in county 90 of aged witness, notice of examination 92 how stenographer to take 97 how authenticated 97 to be bound in volumes 97 TREASURER, COUNTY, holds court money 74 subject to control of surrogate 77 TRESPASS, executor or administrator may have action for 415 TRIAL, exception may be taken on 98 surrogate must tile decision on 99 BY JURY, may be ordered and how lOO how reviewed 101 may be ordered in real estate proceedings 739 order for, form of 729 how reviewed 73O appeal from 731 General Index. 1019 Page. TRUSTEE, may intervene on proof 157 executor not prohibited from being, for self 209 executor or administrator is, in selling 430 one claimiUg to purchase for heirs becomes 431 executor or administrator is 444 (See Tbstambntaet Trustee.) testamentary, commissions of 621 delinquent punished for felony 699 UNDERTAKING, on appeal, form of 918 amount, how fixed on appeal 932 requisites of 922 how approved 938 UNDUE INFLUENCE, avoids will 199 presumed, when 200 may be proved, how 201 not presumed, when 301 how determined 202 amount of, varies , 203 usually complicated with imbecility 304 UNITED STATES, debt to, preferred 469 UNSOUNDNESS OF MIND, varieties of 188 VACATE, surrogate may, a decree 670 petition to, a decree, form of 673 proceeding to, only remedy in certain cases 676 surrogate may, sale of real estate 758 order for 763 VACANCY, whotofill 5,3 VERDICT, of jury to be certified|to surrogate 101 1020 General Index. Page- VEKIFICATION, rule as to, and effect of 61 8 how, and by whom made '''0 by corporation '''0 people of state ,. 70 attorney 71 form of 71 of account fixed by court 593 VOUCHERS, may be required with claim 440 effect of filing 605 to be produced on accounting 593 when lost, loss to be proved 593 guardian should file 858 WAIVER, appearance is a 151 WARRANT, issues, to recover assets 369 form of 870 WASTE. executor or administrator chargeable for, of decedent. . . . 416 WIDOW, entitled to administration 276 entitled to quarantine 385 what set off to, on inventory 386 articles set apart to her property 387 entitled to articles, whether decedent freeholder or not. . . . 887 if non-resident 388 husband cannot divest of benefit 388 entitled to $150 , 388 on failure to get articles set apart, may have it ordered 389 may apply for'beneflt to court 39O legacy to, for dower does not abate 54O Notice to, to elect whether to have investment or 786 consent of, to accept a sum in gross 786 notice to, to elect, form of 786 consent of, to take sum in gross 789 sum in gross to, how computed 789 sum to be set apart for 7gg may bequeath crop on dower lands 892 Quarantine of 891 heirs may require admeasurement for 900 (See DowBK.) General Index. 1021 Page. WIPE, to be cited on probate 148 WILL, exclusive jurisdiction of surrogate, as to 13 of non-resident, surrogate to prove 14 resident surrogate to prove 14 surrogate to keep book for 37 commission to prove 83 bequest to witness does not disqualify 98 definition of 103 who may make 103 married woman may make 103 infants may make 103 shall be in writing, except 103 nuncupative, who may make 103 limitations on power to make 104 cannot bar dower 104 when to religious, etc., society, how far valid 104 any citizen may take lands, by 104 any person may take bequest except witness 104 what law governs as to executing of 105 may be in any form 105 may be on any number of papers 106 joint, is valid 106 may be conditional 106 paper merely nominating executors is a 107 how to be executed 107 to be subscribed by testator 107 may be subscribed by third person 107 mark 107 must be subscribed at end 107 third person signing for testator, must witness 107 SuBSCKiPTiON, discussion as to place of 108 subscribed or acknowledged before witnesses 110 publication of, and how made 113, 113 requires two witnesses at end 115 witnesses shall sign on request 115 may sign by mark 115 request how made 116 witness need not sign in presejice of testator 117 reading attestation clause, good publication, etc 117 order of execution, not material 118 must be completed, during testator's life 118 1022 GrFNEEAL InDEX. WILL — OontinuM. nuncupative, statute as to 120 soldiers and mariners may make 121 proof of 123 two -witnesses required 134 Bevocablb 134 how revoked or altered 125 by subsequent will 125 codicil 135 burning 126 tearing 136 cancelling 126 obliterating 126 destroying 126 by marriage 128 birth of child 129 offemme sole, revoked by marriage 139, not revoked, by change of circumstances 130 bond, deed or conveyance : 180 civil law, as to revocation of 131 partial revocation as to devise to witness 131 petition for proof, who made by 140 contents of petition 141 citation for proof of, how served 54 appearance of party is waiver of service 151 seal not necessary to 118 to be made by law of domicile 119 what may be proved 139 change of residence not to affect 139 petition for proof of 143 who to be cited on proof of 148 contents of citation on proof of 148 supplementary petition for proof of 153 Immediate proof, how obtained 153 proceedings in case of death of parties to proof 153 expenses of serving citation for proof I54 proceedings on return of citation I55 objections to probate, how made 15g f form of 158 Pboob' of, surrogate may allow .discontinuance 159 deposition on iq^ handwriting to be proved on 163 on proof of, two witnesses to be examined 160 all witnesses may be examined 160 General Index. i02S Pgae. WILL — Continued. ■when must remain in surrogate's office 163 may be proved against witnesses 168 ■wliat proof necessary 165 lost, how proved 164 destroyed, Iiow proved , 164 proof may be had as to possession of 165 to be recorded 165 burden of proof on 165 ■when probate refused 166 decree on proof to decide construction of 166 surrogate to state grounds on proof of 167 decree for proof of 167 proof of, how far conclusive 168 Certificate of proof of, to be indorsed 170 form of 171 proved in other counties to be recorded 172 certain ancient evidence 172 of real estate to be recorded as deed 173 surrogate to retain a year 174 to whom to be given After probate 175 proved in other states to be recorded 175 proof of, in other states how exemplified 176 witnesses tn, may give opinion 178 who may make 188 degree of intelligence necessary 191 no presumptions against, in old age 192 may be made during lucid interval 195 monomania, effect of 198 drunkenness, effect of 199 undue influence, effect of 199 persuasion does not avoid 203 of aged persons respected 206 made in delirium invalid 207 proved in another state, ancillarj' letters issued 231 probate of, conclusive until revoked 243 definition : 244 notwithstanding probate, may be contested 243 petition for revocation of probate 247 who to be cited on 247 proceedings on rehearing 251 on rehearing, probate of, revoked 352 decree for revocation of, form of 253 notice of, to be published 254 i024 GtBneralJIndex. Page. WILL — Oontimied. FoRM.of, with various clauses 254 attestation clause of. 257 special.clauses, form 259 codicil to 260 form of 260 administration Tvith, annexed 304 when proof delayed, administrator appointed 310 on proof of, administration revoked 323 WITNESSES, subpoena may issue for 24 may be committed for perjury 26 aged, etc., in same county, how examined 90 notice of examination 92 in another county 92 proceedings for examination 93 forms for^taking testimony 94 in another county 93 forms for examination 94 bequest to, does not disqualify 98 one signing testator's name shall sign as 107 subscription of, need not be in testator's presence 110 to will, may be subpoenaed 154 how punished for not appearing 155 Fees of 155 to will, subpoena will issue for 154 may be compelled to produce will 155 how punished for disobedience to subpoena 155 committed to jail, may be discharged, when 155 two to be examined on probate 160 DiSABluTT of, to be shown to surrogate 160 party may demand that all be examined 160 deposition of, to will 161 when all dead, handwriting to be proved 163 will may be sustained against 163 SoBSCKiBmG, may give opinions 178 ' may give opinions as to imbecility 180 intoxication 181 identity 181 age 182 rule as to opinions of 183 opinions of, in criminal cases 185 opinions of, distinct from impressions 186 rule as in opinion of, in &»»on v. Conger 186 /. > «l m,. J