53-^0 ainxmli ^£nm ^rlynnl Kibtatg Cornell University Library KFN5210.R97 Decedents' estates :a concise exposition 3 1924 022 809 267 Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022809267 DECEDENTS' ESTATES A CONCISE EXPOSITION OF THE LAW OF THE STATE OF NEW YORK GOVERNING THE RIGHTS, POWERS, DUTIES AND OBLIGATIONS OF ADMINISTRA- TORS, EXECUTORS, TRUSTEES AND THOSE INTERESTED IN DECEDENTS' ESTATES AS NEXT OF KIN, HEIRS, LEGATEES, DEVISEES AND CREDITORS BY JOHN EDWAKD RUSTON, B.S., LL.B. OF THE NEW YORK BAR Compliments of the Publisher. ERLE W. WHITFIELD NEW YORK CITY Copyrighted 1910 By John E. Huston PREFACE It is well known to every practicing lawyer that people gener- ally do not understand, or are wholly ignorant of the elementary legal principles governing decedents' estates and matters con- cerning the same. But in the experience of each of us, these legal principles affect us vitally. It has seemed to the author that a treatise devoted to the discussion of these subjects, written in as direct and simple form as possible, would be of decide^ Educational interest and value to the lay reader, to whom the^importance of a knowledge of such matters has perhaps been made Mparent by the death of some relative or friend, which has placed upon him the duty of ad- ministering an estate. This work is, therefore, offered for such purpose. It is not intended as a legal textbook in the ordinary sense, hence all specific reference to statutes and decisions has been studiously avoided in order to make the book as concise and simple as possible. All forms used in Surrogate's practice have been omitted, because this book is not intended to supplant the functions of a lawyer. The most unwise thing which an executor or adminis- trator, or anyone interested in an estate can do, is to endeavor to economize by doing the legal work involved himself. The value of this book rests in the fact that it will give the reader a general idea of his rights and duties, which, coupled with the advice and assistance to be rendered by a lawyer in the partic- ular matter in hand, will insure an intelligent and expeditious administration of the estate. It is hoped that the readers will find the book of real and meri- torious value. John E. Ruston. New York City, September 1st, 1910. [3] CONTENTS ' CHAPTER I How TO Proceed in the Case of a Decedent's Estate, — Definitions 1. Suggested steps to be taken 2. Definitions of legal terms CHAPTER II Succession to Property of Decedents Leaving no Will 1. Depends on whether property is real or personal 2. How real property descends 3. Proving heirship 4. How personal property is distributed CHAPTER III Administration of Estates op Decedents Leaving no Will 1. Administration generally 2. Administration by next of kin 3. Administration by creditor 4. Administration by County Treasurer or Public Adminis- trator 5. Letters of administration CHAPTER IV Wills 1. Wills generally, Definition and Execution 2. How to ascertain if a will exists 3. Proving a will, — Letters testamentary 4. Administration where executor is dead, cannot act or does not qualify [51 5. When probate may be revoked 6. How a will may be revoked 7. How wills are construed 8. Foreign wills CHAPTER V Tempokaby Administration CHAPTER VI Administration op the Property or a Foreign Decedent 1. Ancillary letters upon foreign probate 2. Ancillary letters upon foreign administrations 3. To whom letters are granted 4. Proceedings to obtain letters CHAPTER VII Rights, Powers, Duties and Obligations of Executors be- fore Appointment CHAPTER VIII Rights, Powers, Duties and Obligations op Executors, Administrators, Trustees and Others Interested in an Estate 1. Executors and Administrators 2. Trustees 3. Individual powers and duties of executors 4. Ascertaining the estate 5. Inventory 6. Transfer or inheritance tax 7. Title to personal property 8. Real estate 9. Bank accounts 10. Insurance policies 11. Continuation of decedent's business 12. Partnership property and continuation of partnership business [6] 13. Incurring liabilities to be paid by the estate 14. Payment of funeral expenses 15. Payment of debts 16. Payment of legacies 17. Unperformed contracts of decedent 18. Taxes and Repairs 19. Foreign executors and administrators 20. Accounting 21. Discharge of executors and administrators 22. Commissions of executors, administrators and trustees CHAPTER IX What Propehty Is Exempted from the Assets of an Es- tate, — Dower and Curtesy 1. Exemptions for the benefit of widow, husband or minor child 2. Dower 3. Curtesy [7] DPXEDENTS' ESTATES CHAPTER I HOW TO PROCEED IN THE CASE OF A DECEDENT'S ESTATE— DEFINITIONS 1. Suggested Steps to Be Taken Every person interested in the estate of a decedent, especially if he is an executor or an administrator, is anxious to know what his duties, rights, powers and obligations are; also what are his first duties regarding the estate, and what steps must be imme- diately taken and in what order, so that he may proceed in a proper and legal manner. Immediately upon the death of a person, although one's feel- ings naturally rebel against it, a search should be made for a will. The reason for this is patent, when it is considered that oftentimes a person directs therein the manner of his burial or the disposition of his remains. A will is usually to be found among the papers of the deceased; sometimes in a safe or safe deposit box; or sometimes in the pos- session of his lawyer, or a relative or friend. There is also a statutory provision that a will may be deposited for safe- keeping with the Surrogate or County Clerk. Hence, search must be made among all of the papers of the decedent, and in- quiry made of the persons above mentioned. It is also advisable immediately to ascertain, in a general way, of what the decedent's estate consists, in order that he may be buried in a manner befitting his station in life and consonant with the amount of his estate. The duty of opening and reading a will devolves upon no [9] particular person. This is usually done by the nearest of kin. In all fairness to the relatives, the will should be opened and read to all, or the original, or a copy thereof, should be shown to all immediately. When the will is found, it is proper that it should be kept temporarily b^i one of the executors therein mentioned, and should be offered^fe 'probate by them, or by some one of the persons interested, with the least possible delay. If no will can be found, application should be made for letters of adminis- tration. If it is necessary that some immediate action be taken to pro- tect and conserve the estate, and if there is any delay in proving the wiU, or in securing letters of administration, temporary letters of administration should be applied for. It is the duty of an executor or administrator immediately upon appointment to accurately ascertain the assets of the estate and to make a complete inventory of all known assets. The inheritance tax, or, as it is sometimes called, the transfer tax, should be fixed and paid within six months, especially if the estate is a large one, in order to take advantage of the rebate or discount allowed for the payment of said tax within such time. It is also advisable to place an advertisement in such news- paper, or newspapers, as the Surrogate may require, for the presentation of claims against the estate. All debts and legacies should be paid immediately where there is no doubt that the estate is solvent. Where a will is found, the distribution of the estate is to be made according to the provisions of the will. Where no will is found the distribution of the estate is governed by the law of intestate succession, the general provisions of which are given in the chapter on that subject. When the estate has been distributed, or is ready for distribu- tion, an account of the receipts and disbursements of the ex- ecutor or administrator should be filed with the Surrogate and he should be discharged. However, the discharge of an executor or administrator is only effective as to the matters contained in his account, and he is never discharged from such matters as [10] are omitted therefrom, and he is always authorized to act when- ever the necessity of the case may require. , In following the course of procedure as outhned above, ref- erence should be had to the table of contents and to the index. Full discussion of the law as it relates to the foregoing sugges- tions will be found in the other chapters of this book. 2. Definitions of Legal Terms In order that this book may be read intelligently, attention is called to the following definitions: An "intestate" is a person who dies without having made a disposition of his property by will. "Representatives" or "personal representatives" of a de- ceased are his executors and administrators. "Heirs" are those persons who take real property by descent, while "next of kin'' take personal property, under the intestate laws. "Relatives of the whole blood" are those whose ancestors are common to all. "Relatives of the half blood" are those who have but one common ancestor, as children by the same father, but different mothers. The term "real property" refers to lands, and buildings erected thereon, while the term "personal property" includes all other property. "Lineal descendants" are those in the direct line, all other relatives are "collateral relatives." By the word "consanguinity" is meant legal relationship. The term "degree of consanguinity" refers to the distance of relationship from a common ancestor. "Probate" is the proving of a will. A "legatee" is a person who receives personal property under a will. A " devisee " is a person who receives real property under a will. A "citation" is a summons to attend before the Surrogate. An "executor" is a person appointed to administer an estate under the will. [11] An "administrator" is a person appointed to administer the estate of an intestate. " Letters testamentary " are the letters authorizing a person to act as an executor. " Letters of administration " are the letters authorizing a person to act as an administrator. Letters are either "primary" or "secondary" in their char- acter. "Primary letters" are those issued in the county or state where the will is probated, or the administrator was originally appointed. "Secondary letters" are those which are afterwards issued from another jurisdiction, and the person receiving the same must act under and make returns to the person appointed to act under the primary letters. "An administrator de bonis non" is a person who is appointed to administer the estate of a person, the executor or adminis- trator of whose estate is dead or unable to act. The letters re- ceived by him are "letters of administration de bonis non." "Ancillary letters" are secondary letters, and may be either "ancillary letters testamentary," "ancillary letters of adminis- tration" or ancillary letters de bonis non," as the case requires. A person receiving such letters is an "ancillary executor" or "ancillary administrator." "Temporary letters of administration" are those which are issued to a person who administers the estate until the issu- ance of final letters of administration or letters testamentary. A "foreign executor" or "foreign administrator" is one ap- pointed in another state or country. "Tenants in common" are those who jointly own real estate and each may dispose of his undivided interest at will. A "life tenant" is one who has a life interest in certain prop- erty which at his death goes in fee to another. By the term "fee" is meant the absolute ownership of prop- erty. A "bequest" is the gift of personal property by will. A " devise " is the gift of real property by will. [121 By the word ''alienation" is meant the transfer or convey- ance of property. By the term "suspension of the power of alienation" is meant the inability under the provisions of a will or trust agreement to transfer or convey property for a certain period. A "remainderman" is the person who succeeds to property upon the death of the life tenant. An "attorney-in-fact" is a person empowered to act for an- other and in his behalf and in the name of such other person. 13] CHAPTER II SUCCESSION TO PROPERTY OF DECEDENTS LEAVING NO WILL 1. Depends on Whether the Property Is Real or Per- sonal A person is said to iiave died intestate if he leaves no will. A person leaving a will which does not dispose of all of his prop- erty is said to have died intestate as to the property which re- mains undisposed of. In cases of intestacy the rules governing succession to property vary in accordance with whether the property is real or per- sonal. 2. How Real Property Descends The real property of a person who dies without devising the same descends, (1) to his lineal descendants, or (2) to his father, or (3) to his mother, or (4) to his collateral relatives in the man- ner described hereinafter. If the intestate leaves descendants in the direct Une of descent, all of whom are of equal degree of consanguinity or relation- ship to him, the inheritance descends to them in equal parts, however remote the common degree of consanguinity may be. If any of the descendants of an intestate are living, and any are dead, the inheritance descends to the living and the descend- ants of the dead; so that each Uving descendant inherits such share as would have descended to him had all the descendants in the same degree of consanguinity, who may have died leav- ing issue been living; and so that the issue of the descendants who have died, take respectively the shares which their ancestors would have received. [14] If the intestate dies without lawful descendants, and leaves a father, the inheritance goes to the father, unless the inheritance came to the intestate on the part of the mother, and she is liv- ing; if she is dead, the inheritance descending on her part goes to the father for hfe, and the reversion goes to the brothers and sisters of the intestate and their descendants, according to the law of inheritance by collateral relatives hereinafter set forth. If the intestate leaves no brother or sister or descendant thereof the inheritance descends to the father in fee or abso- lutely. If the intestate dies without lawful descendants, and leaves a mother and no father (or leaves a father not entitled to take the inheritance as above set forth), the inheritance descends to the mother for life, and the reversion goes to the brothers and sisters of the intestate and their descendants, according to the law of inheritance by collateral relatives. If the intestate in such case leaves no brother or si.ster nor descendant thereof, the inheritance descends to the mother in fee. If there is no father or mother capable of inheriting the estate, it descends in the cases hereinafter specified, to the collateral relatives of the intestate; and if there are several such relatives, all of equal degree of consanguinity to the intestate, the inherit- ance descends to them in equal parts, however remote from him the common degree of consanguinity may be. The surviving brothers and sisters of the intestate share equally in the inheritance. The share of a dead brother or sister goes to his or her descendants. Each living brother or sister inherits such share as would have descended to him or her if all the brothers and sisters who have died leaving issue, had been living. Such issue collectively inherit the share which their parent would have received if living. The same rule prevails as to all direct lineal descendants of every brother and sister of the intestate whenever such descendants are of unequal degrees of relationship. If there is no heir entitled to take the inheritance, as above described, and if it shall have come to the intestate on the part of the father, it descends in the following order: [15] (1) To the brothers and sisters of the father of the intestate in equal shares, if all are living. (2) To the surviving brothers and sisters of the father of the in- testate if he is dead, and to the descendants of such as have died. (3) If all such brothers and sisters have died, to their descend- ants. (4) If there are no brothers or sisters of the father, and no descendants of his brothers or sisters, the inheritance descends to the brothers and sisters of the mother of the. intestate, and to the descendants of those who have died, or if all have died, to their descendants. If the inheritance came to the intestate on the part of the mother, it descends to her brothers and sisters and their de- scendants; and if there are none, to the brothers and sisters of the father and their descendants, in the manner aforesaid. If the inheritance did not come to the intestate on the part of either father or mother, it descends to the brothers and sisters both of the father and mother of the intestate, and their de- scendants in the same manner. In all cases just mentioned the inheritance descends to the brothers and sisters of the intestate's father or mother, or to their descendants in like manner as if they had been the brothers and sisters of the intestate. (5) If there are no brothers or sisters of the father or mother of the intestate, and no descendants thereof, the inheritance, if it came to the intestate on the part of his father, descends to his father's parents, then living, in equal parts, and if they are dead, then Ito his mother's parents, then living, in equal parts. If the inheritance came to the intestate on the part of his mother, it descends to his mother's parents, then living, in equal parts, and if they are dead, to his father's parents, then living, in equal parts. If the inheritance did not come to the intestate on the part of either father or mother, it descends to his Uving grand- parents in equal parts. If an intestate who shall have been illegitimate dies without lawful issue, or without illegitimate issue entitled to take, the inheritance descends to his mother; if she is dead, to his relatives [161 on her part, as if he had been legitimate. If a woman dies with- out lawful issue, leaving an illegitimate child, the inheritance descends to him as if he were legitimate. In no other case shall illegitimate children or relatives inherit. Relatives of the half blood and their descendants, inherit equally with those of the whole blood and their descendants, in the same degree, unless the inheritance came to the intestate by descent, devise or gift from an ancestor; in which case all those who are not of the blood of such ancestor are excluded from such inheritance. When the inheritance came to the intestate from a deceased husband or wife, and there is no person entitled to inherit as above described, then the real property of the intestate descends to the heirs of the deceased husband or wife, and such persons shall be deemed to be the heirs of the intestate. A descendant or a relative of the intestate begotten before his death, but born thereafter, inherits in the same manner as if he had been born in the lifetime of the intestate and had sur- vived him. When there is but one person entitled to inherit, he takes and holds the inheritance solely. When an inheritance or a share of an inheritance descends to several persons they take as tenants in common, in proportion to their respective rights. 3. Proving Heirship Where a person seized in fee of real property within the state dies intestate, or without having devised his real property to specific persons, his heirs or any of them, or any person deriv- ing title from or through such heirs, or any of them, may present to the Surrogate's Court, which has acquired jurisdiction of the estate, or if such jurisdiction has not been acquired, then to the Surrogate's Court of the county where the real property or any part thereof is situated, a written petition describing such property, setting forth the facts upon which the jurisdiction of the court depends, the interest or share of the petitioner and of each other heir of the decedent, in such property, and praying for a decree establishing the right of inheritance thereto, and that [17] all of the heirs of the decedent may be cited to attend the pro- bate of that right. A citation must be issued by the Surrogate accordingly, and must set forth the name of the decedent, and of the petitioner, and the interest or share which the petitioner claims and a brief description of the property. Upon the return of the citation, the Surrogate must hear the allegations and proofs of the parties, and must make his decree accordingly, which decree may be recorded in the office of the Register or Clerk of the county, in which the real property is situated, in the same manner in which a deed is recorded. 4. How Personal Property Is Distributed If the deceased died intestate, the surplus of his personal property after payment of debts; and if he left a will, the sur- plus, after the payment of debts and legacies, if not bequeathed, must be distributed to his widow, children, or next of kin, in the following manner: (1) One-third part to the widow, and the residue in equal por- tions among the children, or if any of them have died before the deceased, among their children. (2) If there are no children, or other descendants, then one- half of the whole surplus goes to the widow, and the other half to the next of kin of the deceased. (3) If the deceased leaves a widow, and no descendant, parent, brother or sister, nephew or niece, the widow is entitled to the whole surplus. But if there is a brother or sister, nephew or niece, and no descendant or parent, the widow is entitled to one-half of the surplus and to the whole of the residue if it does not exceed two thousand dollars. If the residue exceeds that sum, the widow is entitled to the one-half, and two thousand dollars in addition. The remainder is then distributed to the brothers and sisters and their representatives. (4) If there is no widow, the whole surplus is distributed equally to and among the children, and such as legally represent them. (5) If there is no widow or child, and no representatives of [18] a child, the whole surplus is distributed to the next of kin, in equal degree to the deceased, and their legal representatives or next of kin. Then the whole surplus shall be distributed to the brothers and sisters of the intestate or their descendants; so that each living brother or sister shall receive such share as would have been distributed to him or her if all the brothers and sisters of the intestate who have died leaving issue had been living; and so that the issue of a dead brother or sister shall collectively receive the share which their parent would have re- ceived if Uving. The same rule prevails as to all direct lineal descendants of every brother and sister of the intestate when- ever such descendants are of unequal degrees. (6) If the deceased leaves no child, no representative of a child, and no father, but leaves a widow and a mother, the half not distributed to the widow is distributed in equal shares to his mother and brothers and sisters, or the representatives of such brothers and sisters. And if there is no widow, the whole surplus shall be distributed in like manner to the mother, and to the brothers and sisters, or the representatives of such brothers and sisters. (7) If the deceased leaves a father and no child or descendant, the father shall take one-half if there is a widow, and the whole, if there is no widow. (8) If the deceased leaves a mother, and no child, descendant , father, brother, sister, or representative of a brother or sister, the mother, if there is a widow, shall take one-half; and the whole, if there is no widow. (9) If the deceased was illegitimate and leave a mother, and no child, or descendant, or widow, the mother takes the whole and is entitled to letters of administration in exclusion of all other persons. If the mother of such deceased is dead, the rela- tives of the deceased on the part of the mother take in the same manner as if the deceased had been legitimate, and are entitled to letters of administration in the same order. (10) Where the descendants, or next of kin of the deceased, entitled to share in his estate, are all in equal degree to the de- ceased, their shares are equal. [191 (11) When such descendants or next of kin are of unequal degrees of kindred, the surplus is apportioned among those en- titled thereto, according to their respective stocks, so that those who take in their own right receive equal shares, and those who take by representation receive the share to which the parent, whom they represent, if living would have been entitled. (12) No representation is admitted among collaterals after brothers' and sisters' descendants. (13) Relatives of the half blood take equally with those of the whole blood in the same degree; and the representatives of such relatives take in the same manner as the rej^resentatives of the whole blood. (14) Descendants and next of kin of the deceased, begotten before his death, but born thereafter, take in the same manner as if they had been born in the lifetime of the deceased, and had survived him. (15) If a woman dies leaving illegitimate children, and no lawful issue, such children inherit her personal property as if legitimate. (16) If no husband, wife, child, representative of a child, or next of kin survives the deceased, then the whole surplus is distributed equally to and among the next of kin of the husband or wife of the deceased. But the surplus shall not, and shall not be con- strued to, embrace any personal property except such as was received by the deceased from husband or wife, by will or by virtue of the laws relating to the distribution of personal prop- erty. The above provisions apply to the personal property of mar- ried women who leave descendants surviving them. The husband of a deceased married woman is entitled to the same distributive share in the personal property of his wife, to which a widow is entitled in the personal property of her hus- band. The personal property of a married woman leaving no de- scendants, goes to the surviving husband. 201 CHAPTER III ADMINISTRATION OF ESTATES OF DECEDENTS LEAV- ING NO WILL 1. Administration Generally The Surrogate's Court of each county has jurisdiction ex- clusive of the Surrogate's Court of every other county, to grant letters of administration, in either of the following cases: (1) where the decedent was at the time of his death a resident of that county, and whether his death happened there or else- where, (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 unadministered, (3) where the decedent not being a resident of the state, died outside the state leaving personal property within that county, and no other county; or leaving personal property which has since his death come into that county, and no other and remains unad- ministered. 2. Administration by Next of Kin Administration must be granted to the relatives of the de- cedent entitled to succeed to his personal property, who will accept the same, in the following order: (1) to the surviving husband or wife, (2) to the children, (3) to the father, (4) to the mother, (5) tp the brothers, (6) to the sisters, (7) to the grand- children, (8) to any other next of kin entitled to share in the dis- tribution of the estate, and (9) to any executor or administrator of a sole legatee named in a will whereby the whole estate is devised to such deceased sole legatee. While an absolute divorce of a husband or wife precludes the [21] divorced party from receiving letters of administration, or shar- ing in the estate of the deceased party, a divorce in another state without personal service of process, or the voluntary ap- pearance of the defendant, does not deprive such party of the right to letters or to share in the estate of the other. The ques- tion of the vaUdity of a divorce iriay be determined by the Sur- rogate. If a person entitled to administration is a minor, administra- tion must be granted to his guardian, if competent, in preference to creditors or other persons. If several persons are of the same degree of kindred to in- testate or entitled to administration, they must be preferred in the following order, (1) men to women, (2) relatives of the whole blood to those of the half blood, (3) unmarried women to mar- ried. If several persons are equally entitled to administration the Surrogate may grant letters to one or more of them. Adminis- tration may be granted to one or more competent persons, al- though not entitled to same, with the consent of the persons entitled to be joined in the administration, which consent must be in writing and filed in the office of the Surrogate. 3. Administration by Creditor If no relative or guardian of a minor relative will accept let- ters of administration, they must be granted to the creditors of the deceased, the creditor first applying, if otherwise competent, to be entitled to preference. If no creditor applies, letters must be granted to any other person or persons legally competent. If, in an action brought, or about to be brought, the intestate, if living, would be a proper party thereto, any party to the action interested in the subject thereof, may apply to the Surrogate's Court for the granting of letters of administration to himself or some other qualified person. 4. Administration by County Treasurer or Public Ad- ministrator The County Treasurer of each county, except New York and [221 Kings counties, by virtue of his office, has authority to collect and take charge of the assets of every person dying intestate, amounting to $100 or more, on which letters of administration are not granted, in the following cases: (1) When an intestate leaves assets in the county of the Treas- urer, and there is no widow or relative in the county entitled or competent to take letters of administration. (2) When the assets of an intestate's estate come into the county of the Treasurer, and there is no person in the county, entitled and competent to take letters of administration of the estate. In the counties of New York and Kings there is an especially appointed officer, who is called and acts as Public Adminis- trator. In New York County, the Public Administrator has author- ity to collect and take charge of the goods, chattels, personal estate and debts of persons dying intestate, and for that purpose to maintain such suits as Public Administrator, as any executor might by law in the following cases: (1) Whenever a person shall die intestate either within this state or out of it, leaving any goods, chattels or effects within the county of New York. a. Whenever any goods, chattels, or effects, of an intestate shall arrive within the county of New York, after his death. b. Whenever any person coming from any place outside of this state, in a vessel bound to the port of New York, and ar- riving at the quarantine, near the city of New York, shall there die intestate, leaving effects either at the said quarantine or in the county of New York, or elsewhere. c. Whenever any effects of an intestate, so arriving and dying intestate at the said quarantine, shall arrive either at the said quarantine or within the county of New York. d. Whenever any person, coming from any place outside of this state in a vessel bound to the port of New York, shall die intestate on his passage, and any of his effects shall arrive at the said quarantine. In Kings County, the Public Administrator has the prior [23] right and authority to collect, take charge o.", and administer upon the goods, chattels and personal property and debts of persons dying intestate, and for that purpose to maintain such suits as Public Administrator, as any executor or administrator might by law in the following cases: (1) Whenever an intestate leaves any assets or effects in the county of Kings and there is no widow, husband or next of kin entitled to a distributive share in the estate of such intestate residing in the state, entitled or willing to take out letters of administration on such estate. (2) Whenever assets or effects of an intestate come into the county of Kings after his death, and there is no person entitled, competent or willing to take administration of the estate. In cases of administration by the County Treasurer or Pub- lic Administrator, intestacy is presumed until a will is proved and letters testamentary are issued thereon 5. Letters of Administration The appointment of an administrator is evidenced by letters of administration, which are issued by the Surrogate to the persons, and in the order of priority, hereinbefore set forth in this chapter. Letters of administration shall not be granted to the follow- ing persons: (1) a person convicted of an infamous crime, (2) anyone incapable by law of making a contract, (3) a person not a citizen of the United States, unless he is a resident of the state, (4) a person under twenty-one years of age, (5) a person adjudged by the Surrogate to be incompetent to execute the duties of such trust by reason of drunkenness, improvidence, or want of understanding. Any person entitled absolutely or contingently to administra- tion, or any person having a claim for funeral expenses, or a creditor, may present to the Surrogate a written petition, pray- ing for a decree awarding letters of administration to himself or other person or persons having right to letters. The petition must set forth the facts on which the jurisdiction of the court depends, the names of the husband or wife, if any, and of the [24] next of kin of the decedent, so far as they are known to or can be ascertained by the petitioner. Every resident of tlie state, who has a right to administration, prior or equal to that of the petitioner, and who has not re- nounced such right, must be cited to appear before the Surrogate prior to the issuance of letters. Upon the return of the citation, the Surrogate must make such decree as justice requires. A person appointed administrator must qualify as such be- fore letters are issued to him, by filing his official oath with the Surrogate, and by executing to the people of the state, the joint and several bond of himself, and two or more sureties, in an amount fixed by the Surrogate, which must be not less than twice the value of the personal property of the estate. :25i CHAPTER IV WILLS 1. Wills Generally, Definition and Execution A will is a disposition of real or personal property, or both, to take effect after death. In ancient times the making of a will was not permitted, but as civilization progressed, the absolute right of property became more and more to be recognized, and with this recognition came the right to dispose of one's property by will. This right was originally very limited, and in fact only permitted in certain cases, but gradually as civilization has become of a higher type, the right of disposition by will has become absolutely unlimited, provided that certain provisions of law, to guard against fraud and against the perpetual suspension of the power of alienation, are observed. In England, during the reign of Charles II., a statute was passed permitting the absolute alienation of property by will. The law as it existed and still exists in England, was with colo- nization imported into this country, and the law of New York to- day essentially embodies the Enghsh statute. It is not required that wills should be executed in any partic- ular form of words, nor upon any particular sort of paper or material, but it is requisite that the rules laid down by statute regarding the manner of execution should be observed. While a will must be attested by at least two witnesses, as provided by statute, no formal attestation clause is nec- essary, although one usually precedes the signatures of the wit- nesses. There are two principal reasons of, or advantages in making a will. The first is that the testator may direct who shall handle [26] the estate, and thereby be assured of its proper administration. The second is that the testator may prescribe the manner in which his property shall be divided. Another reason for making a will is that oftentimes a testator desires to leave a beneficial interest to some friend or relative, without actually bequeathing or devising property in fee, for instance, where it is desired to provide for the support and main- tenance of a person during his life. It is customary, where desired, to create a trust to provide for the perpetual care of a grave or cemetery plot, and such a provision is permitted by statute, and is an exception to the rule, that in creating a trust the suspension of the power of aliena- tion cannot be perpetual. Except in the cases of soldiers in actual service and marines at sea, a will must be in writing. All persons, except idiots, persons of unsound mind, and infants may devise their real property. Every male person of the age of eighteen years or upwards, and every female of the age of sixteen years or upwards, of sound mind and memory, and no others, may give and be- queath their personal estate. Every estate and interest in real property descendable to the heirs, may be devised by will. Such a devise of real property may be made to any person capable by law of holding real estate, but no devise to a corporation shall be valid, unless such corpo- ration is expressly authorized by its charter, or by statute, to take by devise. A citizen of the United States, is capable of holding real prop- erty within this state and of taking the same by descent, devise or otherwise. Any citizen of a state or nation, which by its laws, confers similar privileges upon a citizen of the United States, may take, acquire, hold or convey lands, or real estate, within this state, in the same manner and with like effect as if such person were at the time, a citizen of the United States. A child born after the making of a last will, either in the life- time or after the death of a testator, who by the death of the testator is left unprovided for by any statement or by any pro- vision or mention in the testator's will, is entitled to the same [271 portion of the parent's real or personal estate as the child would have received if the parent had died intestate. Where a will cannot 'be proved without the testimony of a subscribing witness thereto, any beneficial devise, legacy, interest or appointment of any real or personal estate therein made to such witness shall be void. The testimony of such witness shall be competent and compellable respecting the execution of the said will, in like manner as if no such devise or bequest had been made. But if such witness would have been entitled by descent or distribution to any share of the testator's estate, in case the will was not established, then so much of that share shall be saved to him, as will not exceed the value of the devise or bequest made to him in the will. The Clerk, or Surrogate of every county in the state, and the Register of New York County, upon being paid the fees allowed by law shall receive and deposit in their respective oflEices, any will delivered to them for safe-keeping, and such will shall be delivered only: (1) to the testator in person, or (2) upon his written order, duly proved by the oath of a subscribing witness, or (3) after his death to the persons named in the indorsement on the wrapper of such will, or (4) if there be no such indorse- ment, and if the same shall have been deposited with any other officer than the Surrogate, then to the Surrogate of the county. Wills of real and personal property executed outside the state, but within the United States, Canada, Great Britain and Ireland, according to the laws of the country where executed, or of per- sonal property executed by a person not a resident of the state, according to the laws of the place of his residence, may be proved in this state. The validity and effect of a testamentary 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 in- testate, and the manner in which such property or such an in- terest 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 [28] 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. Every will of real or personal property, or both, must in this state be executed and attested as follows: (1) it must be sub- scribed by the testator at the end of the will, (2) such subscrip- tion must be made by the testator in the presence of each of the attesting witnesses, or must be acknowledged by him to have been so made, to each of the attesting witnesses, (3) the testator at the time of such subscription must declare the instrument so subscribed to be his last will and testament, (4) there must be at least two attesting witnesses, each of whom must sign his or her name as a witness at the end of the will, at the request of the testator. 2. How to Ascertain if a Will Exists It is the duty of the Surrogate to determine if a will exists. This may be accomplished at the instance of any person in- terested, either upon an application for letters of administration or for probate. 3. Proving a Will, — Letters Testamentary A person designated in a will as executor, devisee or legatee, or any person interested in the estate, or a creditor of the de- cedent, or any party to an action brought, or about to be brought, and interested in the subject thereof, in which action the de- cedent, if living, would be a proper party, may apply for the probate of a will. The application is made by a written peti- tion, duly verified, describing the will, setting forth the facts upon which the jurisdiction of the court to grant probate thereof depends, and praying that the will may be proved, and that the proper persons be cited to attend the probate thereof. The following persons must be cited to attend the probate: (1) if the will relates exclusively to real property, the husband or wife, if any, and all of the heirs of the testator; (2) if the will relates exclusively to personal property, the husband or wife, if [29] any, and all next of kin of the testator; (3) if the will relates to both real and personal property the husband or wife, if any, and all heirg and aU next of kin of the testator; (4) any person des- ignated in the will as executor. Where the Surrogate is unable to ascertain to his satisfaction, whether the decedent left surviving him any person who would be entitled to the property affected by the will if the decedent had died intestate, the citation must be directed, where the will relates to real property, to the Attorney-General of the state; where it relates to personal property, to the Public Adminis- trator, who would have been entitled to administration if the decedent had died intestate. The citation must state the name of the decedent and the person by whom the will is propounded. It must state whether the will relates to real or personal property, or both. Upon the return of the citation, the Surrogate must cause the witnesses to be examined and the proofs reduced to writing. At least two of the subscribing witnesses must be so produced and examined. The Surrogate may dispense with the testimony of a witness because of his lunacy or other incompetency, or where a subscribing witness is absent from the state or unable by reason of sickness or infirmity to attend before the Surro- gate, his deposition may be taken by a Commissioner. Where a witness is dead or unable to attend, and his testimony is dis- pensed with, the will may nevertheless be established upon proving the handwriting of the testator, and of the subscribing witnesses, and also such other circumstances as would be suffi- cient to prove the will upon the trial of an action. A lost or destroyed will, which was in existence at the time of the testator's death, or was fraudulently destroyed in his life- time, and the provisions^ of which are clearly and distinctly proven by at least two credible witnesses, — a correct copy or draft being equivalent to one witness, — ^may be admitted to probate. Where a will is proven to the satisfaction of the Surrogate, letters testamentary are issued to one or more of the persons named therein as executors. [30] 4. Administration Where Executor Is Dead, Cannot Act or Does Not Qualify If no person is named as executor in a will, or if by reason of death, incompetency, or renunciation, the office of executor under a will becomes vacant, the Surrogate must, upon the applica- tion of a creditor of the estate, or a person interested therein, or having a lien upon real property which is a part of the estate, upon notice to the other creditors and persons inter- ested, issue letters of administration with the will annexed, as follows: (1) To one or more of the residuary legatees who are qualified to act as administrators, and if any one of such legatees who would otherwise be so entitled, is a minor, administration must be granted to his guardian, if competent. (2) If there is no such residuary legatee or guardian, or none who will accept, then letters must be issued to one or more of the principal or specified legatees, so qualified, and if any one of them, who would be otherwise so entitled, is a minor, administration must be granted to his guardian, if competent. (3) If there is no such legatee or guardian, or none who will accept, then letters must be issued to the husband or wife, or to one or more of the next of kin, or to one or more of the heirs and devisees. (4) If there is no qualified person as aforesaid, who will accept, then letters must be issued to one or more of the creditors so qualified, except that in the counties of New York and Kings, the PubUc Adrhinistrator shall have preference after the next of kin, and over the creditors and all other persons. (5) If there is no quaUfied creditor, who will accept, then letters must be issued to any proper person designated by the Surrogate. Where an apphcation is made for letters of administration, and any person or persons, have the right to appointment prior to that of the petitioner the apphcation must be made by peti- tion, unless a written renunciation of every person having such prior right is filed with the Surrogate, and such petition must [31] pray that all persons having such prior right, who have not re- nounced, be cited to show cause why, letters should, not be issued to the petitioner. The' proceedings for such application are the same as upon an apphcation for administration of the estate of an intestate, and an administrator must, before letters are issued to him, qualify as prescribed by law with respect to administering upon the estate of an intestate, and in fixing the amount of the bond, the Surrogate must take into consideration the value of the real property, or of the proceeds thereof which may come into the ha;nds of an administrator. 5. When Probate May Be Revoked A person interested in the estate of a decedent may, within one year after the recording of the decree admitting the will to probate, present to the Surrogate's Court in which the will was proved, a written and duly verified petition, containing allega- tions against the validity of a will, or the competency of the proof thereof, and praying that the probate thereof be revoked. The Surrogate must then issue a citation to the executor or ad- ministrator, all devisees an,d legatees named in the will, and to all other parties to the original probate proceedings. Upon the return of the citation; a hearing must be had of the allegations and proofs of the parties. If the Surrogate decides that the will is not satisfactorily proved to be the last will of the testator, or is for any reason invalid, he must make a decree revoking the probate thereof; otherwise he must make a decree confirming the probate. The validity or invalidity- of the probate of a will may be determined in an action instituted in the Surrogate's Court of the county in which the probate was had. The action may be instituted by any person interested as devisee or legatee under the will, or by any person interested as heir at law, or next of kin, or otherwise in the estate. The action must be tried by jury, and the verdict therein is conclusive as to the real and per- sonal property, unless a new trial be granted, or the judgment thereon be . reversfid or vacated. The action above described [32] must be instituted within two y€ars after the will has been ad- mitted to probate. 6. How a Will May Be Revoked A will may be revoked by destroying the same, or by the ex- ecution of a later will revoking the former will, or by the sub- sequent marriage of the testator and the birth of issue, or in the case of an unmarried woman, by her subsequent marriage. 7. How Wills Are Construed The validity, construction or effect of any of the provisions of a will may be determined either in an action brought for that purpose, or by the Surrogate's Court in which the will was pro- bated. The function of the court is not to construct a will for the testator, but to interpret and carry out the testator's in- tention regarding the division of the property. In determining the intention of the testator, the court must take into consideration the entire scheme of the will, the circum- stances surrounding the execution of the will, and the general situation of the estate. It has been held, that mere words of disinheritance are not enough to cut off an heir, but there must be in addition to such words, a legal and vaHd disposition of the property. It is better practice in case of the necessity of construing a will, to have the will construed in the probate proceeding, thereby fixing at the outset the relative and respective rights of those interested in the estate, in order that the executor may intelligently administer the same. 8. Foreign Wills Where real property situated within this state or an interest therein is devised by the will of a person, who at the time of death was a resident of another state, or foreign country, it is provided where the will is duly executed in conformity with the laws of this state, and where it has been admitted to probate within the state or country of the decedent's residence, that the will or a properly authenticated copy or record of it may be re- [33] corded in the office of a Surrogate of any county in this state where such real property is situated. It is further provided that such record shall be presumptive evidence of such will and of the execution thereof in any action or special proceeding relating to such real property. [34] CHAPTER V TEMPORARY ADMINISTRATION Where a delay necessarily occurs in the granting of letters testamentary or letters of administration, or where a person of whose estate the Surrogate would have jurisdiction, if he were dead, disappears or is missing, or has become a lunatic, and the appointment of a temporary administrator is necessary for the protection of the real or personal property of such decedent or absentee, the Surrogate may issue letters of temporary adminis- tration, and an apphcation for such letters may be made by a creditor, or a person interested in the estate. The letters may be issued in the discretion of the Surrogate to one or more persons competent and qualified to serve as executors. A temporary administrator must qualify in all respects as must an adminis- trator in chief. It is the duty of a temporary administrator to take possession of the personal property, to secure and preserve it, and for either of these purposes he may maintain an action or special proceed- ing. The Surrogate may authorize the temporary administrator to sell the personal property of the estate where necessary to pay debts and funeral expenses or any expenses of the adminis- tration of his trust, to pay a legacy or other provision under the will, to take possession of real property in the same or another county, which is affected by the will, and receive the rents and profits thereof, to lease property for a period of one year, and to do any act necessary for the preservation of the estate. The temporary administrator of an absentee may be directed by the Surrogate to make proper provision for the maintenance of the absentee's family. All moneys received by a temporary administrator must be [35] deposited in such institution as the Surrogate directs, and cannot be withdrawn except upon the order of the Surrogate. This order of the Surrogate may direct the payment of a single item or may cover disbursements in general or certain classes of disbursements, in accordance with the discretion of the Surro- gate and as the circumstances of the individual case require. [36] CHAPTER VI ADMINISTRATION OF THE PROPERTY OF A FOREIGN DECEDENT 1. Ancillary Letters upon Foreign Probate Where a will of personal property, made by a person outside the state, has been admitted to probate within a foreign country or within another state, the Surrogate having jurisdiction of the estate, must, upon application accompanied by a properly certir fied or authenticated copy of the will and foreign letters, record . the will and letters and issue thereupon ancillary letters testa- mentary, or ancillary letters of administration with the will annexed, as the case requires. 2. Ancillary Letters upon Foreign Administration Where a decedent resided at the time of his death outside this state, or outside the United States, the Surrogate having jurisdiction of his estate, upon presentation of satisfactory proof that the. party applying for ancillary administration is entitled to possession in the foreign country, or state, of the personal property of the decedent, must issue ancillary letters of adminis- tration, unless ancillary letters have been issued theretofore to some other person, or unless primary letters of administration have already been issued upon the estate. Such application may also be made in behalf of such party by his attorney-in-fact. 3. To Whom Letters Are Granted Where the will specially appoints one or more persons as ex- ecutors with respect to property situated within the state, an- cillary letters testamentary must be issued to such persons. If there are none such, or if all are incompetent, or fail to qualify, [37] or if there is no will ancillary letters testamentary, or ancillary letters of administration must be issued to the person named in the foreign letters, or to the person otherwise entitled to posses- sion of the personal property of the decedent, imless another person applies therefor, and files with his petition a properly executed power of attorney. 4. Proceedings to Obtain Letters An application for ancillary letters must be made by the petition of a person interested in the estate. The Sun'ogate must ascertain whether any creditors or persons claiming to be such, reside within the state, and if so the name and address of each. A citation must be issued to and served upon all of such persons. Before letters are issued, the person to whom they are awarded must qualify, as provided by law, for an administrator upon the estate of an intestate, except that the penalty of the bond may, in the discretion of the Surrogate, be such a sum, not exceeding twice the amount which appears to be due from the decedent to residents of the state, as will effectually secure the payment of such debts. '381 CHAPTER VII RIGHTS, POWERS, DUTIES AND OBLIGATIONS OF EXECUTORS BEFORE APPOINTMENT • The duty of the burial of a decedent devolves upon the rela- tives of the deceased or any person under whose roof death occurs, and it is also the duty of an executor to see that the decedent is buried in accordance with his station in life. Funeral expenses are a preferred charge and must be immediately paid in full, if reasonable. An executor may dispose of sufficient of the de- cedent's personal property to pay such charges and to preserve the estate. An executor may immediately take charge of the effects of a decedent, if necessary to protect the same, and may deposit same in a place of security. Immediate search should be made for a will and the same should be opened and read at once in the interest of the estate and of the testator's wishes, especially regarding his burial or the disposition of his body, as provision is often made in a will re- garding same. One who takes the property of a decedent without authority is liable for its full value. The issuance of letters testamentary causes the responsibility of an executor to relate back to his first act of interference with the estate. 39] CHAPTER VIII RIGHTS, POWERS, DUTIES AND OBLIGATIONS OF EXEC- UTORS, ADMINISTRATORS, TRUSTEES AND OTHERS INTERESTED IN AN ESTATE 1. Executors and Administrators The duties generally speaking of an executor or administrator ■ are to marshal the assets, conserve the estate and distribute the same with the least possible delay. The duties of executors and administrators are prescribed by the statutes, and the provisions of the statutes are construed in the various decisions of the courts. 2. Trustees The duties generally speaking of a trustee consist of taking the fund created by the trust instrument, investing and keeping the same invested in the securities provided by law, and at the termination of the period contemplated by the terms of the trust, to distribute the fund in accordance therewith. The duties of trustees are fixed and determined by the terms of the instrument creating the trust, together with statutory provisions regardmg the manner in which trust funds must be invested, as hereinafter referred to. Where a trust is created under a will, a trustee must be ap- pointed to hold and handle the fund. Sometimes the executor is also appointed trustee. Sometimes another person is appointed to act as trustee. In either event the functions of an executor and trustee are separate and distinct. When the same person acts as trustee and executor, it is sometimes hard to determine between his acts in the two separate capacities. However, as a general proposition, the duties of an executor consist of marshal- |40] ing and distributing the assets, while the duties of a trustee consist of holding, investing and re-investing, a fund for a spe- cific purpose, and finally upon the happening of a certain con- tingency, of distributing the fund. The duties of a trustee require a great amount of good faith in the execution thereof, a total absence of conflicting personal interests, and oftentimes the sacrifice of personal convenience and chance of profit. Trustees are held by the court to the strictest good faith in their dealings in connection with the trust. A trustee must invest the trust funds only in the same kind of securities as those in which savings banks in this state are by law authorized to invest, that is to say: in real estate first mortgages only, to the extent of 60 per cent of the value of the property mort- gaged, or in state and municipal bonds or certain railroad bonds. 3. Individual Powers and Duties of Executors Where more than one executor has qualified, a single executor has been held to have no authority to borrow money without the consent of all; nor can he alone give a good conveyance of real estate. If only one of several executors designated in the will has qualified, then such executor may give a vahd conveyance of real estate. One of several qualified executors has been held to have the power to dispose of the personal property of a decedent, and to satisfy a mortgage held by the decedent. Where one of several executors dies, the remaining executors continue the administration of the estate. The executor of the deceased executor has no authority with respect to the estate which was being administered by such deceased executor, and may only take charge of and control the assets of the &st estate, (1) for the purpose of delivering same to the proper person, and (2) for the purpose of making accounting with respect thereto. 4. Ascertaining the Estate One of the first duties of an administrator or executor is to ascertain and marshal the assets of the estate. [411 An executor or administrator may present to the Surrogate's Court, from which letters were issued to him, a written petition setting forth any facts tending to show that personal property of the decedent, which should be delivered to the petitioner, is in the possession, or under the control, or within the knowledge or information of a person who withholds same, or who refuses to give information concerning the same, which might aid the ex- ecutor or administrator in discovering and taking possession of such property. If the Surrogate is satisfied on the papers pre- sented, that there are reasonable grounds for inquiry, he must issue a citation and have a hearing, and make such order as the circumstances demand. 5. Inventory The law provides for the making by the executors or adminis- trators of an accurate inventory of assets which is to be filed in the office of the Surrogate. This is advisable, especially where the estate is of considerable size, although in active practice inven- tories are seldom made, except upon order of the Surrogate, as the law as to the filing of an inventory is not mandatory. This is particularly true since the transfer or inheritance tax law has been in existence, as the investigation and report of the transfer tax appraiser are a substitute for an inventory. 6. Transfer or Inheritance Tax One of the first things which should be accomplished by an executor or administrator is to see that the transfer tax is fixed, determined and paid. The law provides that every transfer, under a will or the intestate laws, of real or personal property of the value of $100, or over, or any interest therein, or income therefrom, is taxable. The tax imposed is five per cent on the clear market value of such property at the time of the death of the decedent except in certain cases hereinafter stated. If the real or personal properly transferred is of a value less than S500 and passes to the immediate relatives of the deceased, it is not taxable. If the real or personal property so trans- [42] ferred is of the value of $500 or more, it is taxable at the rate of one per cent on a fair market value, except as hereinafter stated. Where property goes to a father, mother, widow, or minor child, and is less than $5,000, in amount, no tax is assessed, but if the property is in excess of said sum the tax is one per cent. The foregoing rates are known as primary rates. Whenever property goes to any person or corporation it is taxed as follows: From $25,000 to $100,000, inclusive, twice the primary rates; from $100,000 to $500,000, inclusive, three times the primary rates; from $500,000 to $1,000,000, inclusive, four times the primary rates. When property is devised or bequeathed to certain educational or eleemosynary institutions it is not subject to any tax. The method of fixing this tax is by presenting to the Surrogate a petition praying for the appointment of an appraiser, who will ascertain and fix the clear market value of the deceased's estate. There are, in each county, certain appraisers who are designated to act under the transfer tax law, when appointed to a case by the Surrogate. Testimony is presented to the appraiser so ap- pointed by the Surrogate in each estate, in a more or less formal manner, and a complete statement is made of the assets and lia- bilities of the estate, and the tax is fixed upon the clear market value of the estate, after deducting all liabilities of the estate and the estimated administration expenses. It is particularly important in estates of large size, that the transfer tax should be immediately fixed, because the law pro- vides for a discount based upon the promptness with which the tax is paid. The tax accrues immediately upon death, and if such tax is paid within six months from the accrual thereof a discount of five per cent is allowed. If not paid within eighteen months, interest is charged at the rate of ten per cent per annum from the time of accrual. If, by reason of claims made upon the estate necessitating litigation, or for other unavoidable cause, such tax cannot be determined and paid as above provided, [43] interest at the rate of six per cent per annum is charged upon such tax from the accrual thereof, but only until the cause of the delay is removed, from which time ten per cent is charged. 7. Title to Personal Property The title to personal property of a deceased person has been held to rest in his personal representatives, and the next of kin cannot question such title or recover possession of such prop- erty. 8. Real Estate An administrator is not authorized to interfere with the real property of a decedent. His jurisdiction over the affairs of the estate does not extend beyond the personal property. An executor is not authorized to interfere with the real prop- erty of a deceased testator unless the will vests such authority in him, and then his authority is measured strictly by the terms of the will. - 9. Bank Accounts In order that an executor may withdraw money from a com- mercial or savings bank, he must present to the bank a waiver from the attorney for the State Comptroller and a certificate of the issuance of letters; and, if a savings bank, the bank book. The object of the waiver is to keep the state authorities notified of the assets of decedents, in order that the payment of the transfer or inheritance tax may not be avoided; hence the law provides that no money standing in the name of the decedent may be withdrawn from a bank without the consent of the at- torney for the State Comptroller. It frequently happens that bank accounts stand in the name of a decedent in trust for another. The court decisions in such cases hold that, upon the death of the trustee, the deposit im- mediately becomes the property of the person for whom it was deposited in trust. In such cases no letters of administration are necessary. In some instances money is deposited in the joint [441 names of husband and wife, and upon the death of one, the de- posit becomes the absolute property of the other if such was the intention of the depositor. 10. Insurance Policies Policies of life insurance are made payable either to the estate of the insured, or to some other person or persons. In the first instance, the proceeds pass to the executor or administrator and become a part of the estate and are liable for the payment of debts the same as any asset of the estate. In the second instance, the proceeds do not become a part of the estate, but are paid direct to the person or persons specified in the policy, and hence are not applicable for the payment of debts. In mutual benefit associations, the certificates or policies usually provide that the benefit is to be paid to the widow, or some relative or friend of the insured, and the proceeds do not become assets of the estate. The rules applied to ordinary Ufe insurance are also ap- plicable to accident insurance. 11. Continuation of Decedent's Business The death of a decedent terminates the business in which he was engaged, and it cannot be continued by an executor or ad- ministrator, except temporarily for the purpose of disposing of same and converting the assets therein employed into cash. A testator may authorize and direct the continuation of his busi- ness, and if such a provision in a will is carried out strictly, the executor or administrator de bonis non is protected against all persons claiming under the will, and he is entitled to be indemni- fied out of the estate for any liability incurred by him within the general scope of such provision. However, a debt contracted by such representative in continuing the business of a decedent is his personal liability, and does not bind the estate, even though contracted for the benefit of the estate. Although authorized so to do by will, it is discretionary with such representative whether or not he will continue the business of the decedent. An executor or administrator de bonis non is also .liable for dam- ages arising from his negligence for personal injury received by [45] a person growing oat of the continuation of the business of a decedent. 12. Partnership Property and Continuation of Partner- ship Business The rules applying to a continuation of a decedent's business where the business was conducted by him alone, also apply in a general way to the continuation of a business which was a part- nership. The general rule is that the death of a partner ter- minates the partnership. Executors and administrators de bonis non have no authority to continue such business, except for the purpose of converting the assets into cash. Where a decedent and another own property as partners, it is the duty of the surviving partner to dispose of the firm assets and pay the firm debts, and the surviving partner has the legal title to partnership assets for this purpose. Articles of copartnership which provide that the surviving partner may purchase the firm property upon certain terms and conditions are binding upon the estate of the deceased partner; likewise the provision in a will for the continuation of a partner- ship business, has been held to be valid. The position of a surviving partner is one involving trust and confidence, and the relationship between him and the estate is fiduciary in character, and he is not permitted to benefit himself at the expense of the estate; nor is he to be allowed compensa- tion for such services as he may perform in liquidating the busi- 13. Incurring Liabilities to Be Paid by Estate It is the duty of an executor, administrator or trustee to em- ploy such prudence and diligence in the care and management of the property of a decedent's estate as a man of his discretion and intelligence exercises in relation to his own affairs, and in this connection to disburse such moneys and assume such obli- gations as the circumstances warrant. It is the dut^ of every executor and administrator to see that the deceased is given such funeral and burial as his station in [46] life and the amount of his estate may warrant. It is likewise proper that a headstone or monument should be erected in accordance with such rule. An executor or administrator should advise the heirs of a de- cedent to continue the fire insurance on any real estate owned by the decedent, or if the executor is specifically charged with the care of such property under the will, he should himself as such executor obtain and pay for the insurance. When the affairs of the estate require it, bookkeepers and agents may be employed for the collection and protection of the assets thereof, and if necessary attorneys may be employed for these purposes, but care must be exercised in such matters to avoid possible objection and criticism on accounting. 14. Pa3rment of Funeral Expenses If the fimeral expenses of a decedent are not paid, action may be instituted against the representatives of the estate. The law also provides that where sixty days have expired from the is- suance of letters the Surrogate may upon petition of an under- taker, or a person having a claim for the payment of funeral expenses, make an order directing that the same be paid im- mediately, such expenses being regarded as an administration charge of the estate. 16. Payment of Debts The law provides that an executor or administrator, may at any time after the granting of his letters, advertise for debts in such newspaper, or newspapers, as the Surrogate may direct, once a week for six months. The effect of this notice is to re- Heve and protect the representative from liability to creditors whose claims are not presented, for assets thereafter disposed of in good faith. A claim which. has not been presented within the time pre- scribed by the notice, must nevertheless be paid, if there are assels applicable for such payment. When claims are presented the representative must with promptness, admit or reject the same. When a claim is admitted, it becomes undisputed in [47] character. Where a claim is rejected, or where the representative serves notice stating that he doubts the justice of the claim, suit may be instituted on the same, or the claim may be referred to a referee for determination, or the claim may be rrferred to the Surrogate for this purpose upon the judicial settlement of the representative's accounts. If a claim is disputed and no reference is agreed upon, the claimant must commence an action against the executor or ad- ministrator within six months. Where there is not suflScient cash in the estate to pay funeral expenses and debts the Siurogate may direct a sale of the dece- dent's property to provide funds for this purpose. 16. Payment of Legacies It is the duty of executors to pay legacies at the end of one year from the date when letters testamentary were granted, and if not paid at that time, they begin to draw interest at the legal rate of six per cent. It is frequently directed by wills that a legacy shall be paid within one year. In such case the executor may require from the legatee a bond to indemnify him against the event that the assets of the estate are not sufficient to pay the debts, and pro- viding for the return proportionately of so much as may be necessary of the legacies so paid, in order to pay the debts. In other words, where the assets are insufficient to pay all of the legacies in full, the legacies directed to be paid must be reduced proportionately. The Surrogate in certain cases, upon the petition of a legatee, and after a hearing is had, may direct the payment of a legacy. He may not so direct, however, where the executor files a written answer, alleging that it is doubtful whether the petitioner's claim is valid, and legal, or denying that it is valid or legal; nor where it is not proved to his satisfaction that there is money or other personal property of the estate applicable to the payment or the satisfaction of the petitioner's claim, which may bfe so applied without injury to those entitled to a priority or equality of payment or satisfaction. [48] Unless the will provides that the payment of a legacy is charge- able upon the real estate of the testator, the legacy must be paid from the personal property, and if the personal property is in- sufficient to pay the same, the legacy must abate absolutely or proportionately. \ Where a legacy is of specific property, it lapses when the testa- tor has delivered the particular property to the legatee prior to death, or has otherwise disposed of the property bequeathed in such manner as to make it evident that it was his intention to revoke the bequest. In such event the legacy is said to have adeemed. 17. Unperformed Contracts of Decedent Generally speaking an executor or administrator has no au- thority to perform a contract of decedent. The courts have frequently been called upon to decide questions of this sort regarding contracts for the sale of real property. It has been held that the fact that such contract has been executed by the decedent, does not give an executor an implied power of sale, even though the purchaser is in possession, and the proper prac- tice is to permit an action for specific performance to be begun. 18. Taxes and Repairs The taxes and repairs on property held by life tenants must be paid by them. 19. Foreign Executors or Administrators In using the terms " foreign executor '* or "foreign adminis- trator," the courts do not refer to the mere non-residence of the individual holding the office, but to the foreign origin of the representative character. The general rule in this state is that a foreign executor can neither sue nor be sued herein in his representative capacity. However, persons holding personal property of a foreign estate may safely recognize the appointment of an executor or adminis- trator by a foreign jurisdiction and voluntarily surrender to him any assets of such estate which may be within this state. [49] If there are assets of a foreign estate within this state, proper action should be taken to have letters issued in this state, thereby vesting in some one authority to take charge of the property within this state, and to institute and maintain such suits as may be necessary in connection therewith. 20. Accounting In either of the following cases, the Surrogate's Court may from time to time, compel a judicial settlement of the account of an executor or administrator: (1) Where one year has expired since letters were issued to him. (2) Where letters issued to him have been revoked, or, for any other reason, his powers have ceased. (3) Where a decree for the disposition of real property, or of an interest in real property, has been made, and the property, or a part thereof, has been disposed of pursuant to such decree. (4) Where the executor or administrator has sold, or otherwise disposed of, any of the decedent's real property, or the rents, profits or proceeds thereof, pursuant to a power contained in the decedent's will, where one year has elapsed since letters were issued to him. The Surrogate's Court may compel a judicial settlement of the account of a temporary administrator at any time. The law also provides, that an executor or administrator may himself present his petition to the Surrogate praying, that his account may be judicially settled, where one year has elapsed since letters were issued to him, or where a notice requiring all persons having claims against the estate to exhibit same, has been published according to law. When an accounting is had a citation must be issued to the co-executor or administrator, if any, the sureties upon the bond of the representative, and to all persons and creditors interested in the estate. It is customary for trustees to account each year. A hearing is always had upon an accounting and an oppor- tunity is given for any person interested, to contest or object to [50] any of the items therein set forth. The Surrogate after such hearing, makes his decree in accordance with his judgment in the matter, setthng the account, and if necessary and proper, discharging the executor or administrator. 21. Discharge of Executors or Administrators Although an executor or administrator may have finally set- tled his accounts before the Surrogate and a decree may have been entered thereon formally discharging him, he is nevertheless not discharged from his trust, so as to prevent him from taking possession of such property as may' thereafter be discovered, or from taking any action which may thereafter become necessary, by reason of facts or circumstances theretofore unknown. 22. Commissions of Executors, Administrators and Trustees The commissions of executors, administrators and trustees are based upon the amount of property handled by them. These commissions are as follows: for receiving and paying out all sums of money not exceeding $1,000, five per cent; for receiving and paying out an additional sum amounting to not more than $10,000, two and one-half per cent; for all sums above $11,000, one per cent. If the gross amount of the personal property of a decedent is $100,000, or more, each executor or administrator is entitled to fuU compensation on the principal and income, un- less there be more than three, in which case the commissions to which three would be entitled may be charged, and divided equally between all of the executors or administrators. If the estate is less than $100,000, a single commission must be divided ' among all of the executors and administrators. [51 CHAPTER IX WHAT PROPERTY IS EXEMPT FROM THE ASSETS OF AN ESTATE, — DOWER AND CURTESY 1. Exemption for Benefit of Widow or Husband, and Minor Child If a man having a family dies, leaving a widow or minor child or children, the household articles and articles of strictly family use, together with fuel and provision necessary for sixty days, are not deemed assets, but are to be included and stated in the inventory of the estate without being appraised. If there is a widow and no minor child, all the articles and property mentioned belong to the widow. If a married woman dies, leaving surviving her a husband, or a minor child or children, the same articles and personal prop- erty are set apart with the same effect for the benefit of the hus- band, or minor child or children. Where a deceased leaves a widow, and no descendants, parent, brother or sister, nephew or niece, the widow is entitled to the whole estate, but if there is a brother or sister, nephew or niece, and no descendants or parent, the widow is entitled to one-half of the estate and the whole of the residue, if it does not exceed two thousand dollars; if the residue exceeds that sum she is en- titled to receive in addition to the one-half, the sum of two thousand dollars and the remainder is distributed to the brother or sister, and their representatives. A widow possesses a right which is known as a "widow's quarantine," which is a provision of the statute which permits her to remain in the chief house of her husband for a period of forty days after his death, whether her dower is sooner assigned to her or not, without being Uable to pay any rent, and in the [52] meantime she may have her reasonable sustenance out of the estate of her husband. 2. Dower A widow has the right of dower, which is a Ufe estate in one- third of the husband's real estate. A husband cannot dispose of his real property free of his wife's right of dower, without her consent. Any pecuniary provision made by the testator for the benefit of his wife in lieu of dower, if consented to, and accepted by the wife, bars all right of dower. In such cases it is the duty of the widow to elect whether she will accept such provision or stand on her dower right. She cannot both stand on her dower right and accept a provision made by her in lieu thereof. Such a provision is paid in preference to other general legacies. Where a wife is divorced for her misconduct, she loses her right of dower and the distributive share in her husband's per- sonal property. Where the husband is divorced for his miscon- duct, the wife's dower right is not affected by the judgment of the court. 3. Curtesy A husband has a right of curtesy, which is a life estate in all lands owned at the time of her death, by a wife who has borne him a child. A married woman may dispose of her real property during her lifetime free of her husband's right of curtesy. 53 INDEX accountino, 10, so, 51 Administbation, 10, 12, 21 Application for letters, 12, 21, 24 Application for temporary let- ters, 12 By County Treasurer, 22-24 By creditor, 22 By next of kin, 21 By Public Administrator, 22-24 Generally, 21 Letters of, 24 Temporary, 35, 36 Who entitled to, 21-24 With the will annexed, 31, 32 Administbation de bonis non, 10, 12, 31, 32 Administratobs, Commissions of, 51, 52 Duties of, 24, 25, 39-51 Powers of, 39-51 Adveetisbment fob Claims, 10, 47,48 Ancillary Administration, 37, 38 ' Application for, 37, 38 To whom issued, 37, 38 What is, 12 Alienation, 13 What is, 13 Ascertainment op Estate, 10, 41,42 Ascertainment if Will Exists, 9,29 Assets, 9, 10,41,42 Ascertainment of, 9, 10, 41, 42 Inventory of, 10, 42 ATTOBNET-IN-rAOT, 13, 37, 38 What is, 13 Bank Accounts, 44 Beqdest, 12, 27 What is, 12 Bond op Administrator or Ad- ministrator de bonis non, 25,32 Brothers, Rights op, 14-20 Burial op Decedent, 9, 39, 47 Expense of, 39, 47 Whose duty to attend to, 39, 47 Children, Rights op, 14^20, 52 Citation, 11, 18, 25, 29, 30, 32, 38 What is, 11 Claims, 10, 47, 48 Advertisement for, 47, 48 Payment of, 47, 48 Collateral Relatives, 11, 14- 20 What are, 11 Commissions, 51 Of administrators, 51 Of executors, 51 Of trustees, 51 Consanguinity, 11 What is, 11 Construction op Wills, 33 Continuation op Decedent's Business, 45, 46 Continuation op Partnership Business, 46 Contracts op Decedent, 49 County Treasueer, 22-24 Administration by, 22-24 Creditor, 22 Administration by, 22 Curtesy, 53 55] Debts, 10, 47, 48 Advertisement for, 10, 47, 48 Payment of, 47, 48 Sale of real property to pay, 48 Decedent's Business, 45, 46 Decedent's Estates, 9, 10 How to proceed in, 9, 10 Steps to be taken, 9, 10 Suggestions regarding, 9, 10 Definitions, 11-13 Degree of Consanguinity, 11 What is, 11 Descent of Keal Property, 14- 17 Devise, 12, 26-28 What is, 12 Devisee, 11 What is, 11 Discharge, 10, 50, 51 Of administrator, 10, 50, 51 Of executor, 10, 50, 51 Distribution of Estate, 14-20 Of personal property, 18-20 Under Intestate Laws, 14-20 Under will, 26-28," 33 Distributive Shares of Next OF Kin and Heirs,' 14-20 Divorce, Effect of, 21, 22 Dower, 53 Duties, 39-42, 45-50 Of administrator, 40-42, 45-50 Of executors, 39, 41, 42, 45-50 Of trustees, 40, 41 Estate, 40-42, 44-48, 51 Administration expenses of, 46, 47,51 Ascertaining, 41, 42 Bank accounts, 44, 45 Claims against, 47, 48 Debts of, 46, 47 Employment of attorneys, 47 Employment of clerks, 47 Insurance policies, 45 Inventory of, 42 Liabilities of, 46, 47 Personal property, 44 Real estate, 44 Executors, 9-11, 31, 32, 39-41, 42, 45-51 Accounting, 50 Commissions of, 51 Discharge, 10, 51 Duties of, 9, 10, 39, 40-42, 45- 49 Individual powers of, 41 May keep will until probated, 10, Obligations of, 9, 10, 40, 45-47 Powers of, 9, 10, 39, 40, 45-49 What are, 11 When dead, — appointment of successor, 31, 32 Exemptions, 52, 53 Father, Rights of, 14-21, 42, 43 Fee, 12, 44 What is, 12 Foreign Executor or Adminis- trator, 12, 37, 38, 49, 50 What is, 12 Foreign Probate, 12, 33, 49, 50 Foreign Wills, 33, 34, 37, 38, 49, 50 Funeral Expenses, 9, 39, 47 Amount of, 9, 39, 47 How paid, 39, 47 Payment how compelled, 47 Preference in payment, 39, 47 Furniture and Personal Ef- fects of Husband or Wife, 52 Half Blood, 11, 17 Heirs, What Are, 11 Household Goods, 52 Husband, Rights op, 17, 20, 21, 52, 53 Illegitimate Children, 14-20 56] Individual Rights, Powebs, Du- ties AND Obligations of Executors, 41 Inheritance Tax, 43, 44 Discount for prompt payment, 43 Exemptions, 43 Procedure, 43 Rates, 43 When due, 43, 44 Insurance Moneys, 45 Intestate, 11, 14 What is, 11 Inventory of Assets, 10, 42 Kings County, 23, 24 Public Administrator, 22-24 Legacies, 48, 49 Payable out of personal estate, 48 Payment of, 48, 49 When they bear interest, 48 When a charge against real es- tate, 49 Legatee, 11 What is, 11 Letters of Administration, 10, 12, 21-25, 31, 32 Application for, 24, 25 De bonis non, 10, 12, 31, 32 Who entitled to, 21-24 Letters Testamentary, 29, 30 Application for, 29, 30 Liabilities of Estate, 46, 47 Life Tenant, 12 What is, 12 Lineal Descendants, 11, 14 What are, 11 Married Women, Property of, 53 Minor Children, 42, 43, 52, 53 Mother, Rights of, 14-21, 42, 43 New York County, 22-24 Public Administrator, 22-24 Next of Kin, 11, 18-22 Administration by, 21, 22 What are, 1 1 Obligations, 40, 45-47, 49 Of administrators, 40, 45-47, 49 Of executors, 40, 45-47, 49 Of trustees, 40 Partnership Business, 46 Continuation of, 46 Partnership Property, 46 Payment, 10, 39, 47, 48 Of debts, 10, 47, 48 Of funeral expenses, 39, 47 Of legacies, 48 Personal Property, 11, 18-20, 44 Distribution of, 18-20 Succession to, 18-20 What is, 11 Personal Representatives, 11 What are, 11 Policies or Insurance, 45, 47 Powers, 9, 10, 39-51 Of administrators, 39-51 Of executors, 9, 10, 39, 40, 45-49 Of trustees, 40, 41 Primary Letters, 12 What are, 12 Probate, 11, 17, 29, 30, 32-34, 37, 38 Foreign, 33, 34, 37, 38 Revocation of, 32 What is, 11 Procedure, 9, 10 Property, 14-20, 52, 53 Exempt, 52, 53 Succession to, 14-20 Proving Heirship, 17, 18 Public Administrator, 22-24 Administration by, 22-24 57' Real Phopbrty, 11, 14-17, 44, 48 Administrator's duties regard- ing, 44 Descends how, 14^17 Executor's duties regarding, 44 Proving heirship, 17, 18 Sale of, 48 Succession to, 14-17 What is, 11 Relatives of the Half Blood, 11, 14-17 What are, 11 Relatives of the Whole Blood, 11, 17 What are, 11 Remaindeb-man, 13 What is, 13 Repairs, 49 Representation, 14-20 Representatives, 11 What are, 11 Revocation of Probate, 32 Revocation of Wills, 33 Sale of Real Property, 48 Secondary Letters, 12 What are, 12 Sisters, Rights op, 14-21 Statute of Descent, 14-18 Statute OP Distribution, 18-20 Succession to Property, 14-20 Support of Family, 35, 52 Suspension of Power of Alien- ation, 13, 26 What is, 13 Taxes, 49 Temporary Administration, 35, 36 Application for, 35, 36 Temporary Letters op Adminis- tration, 35, 36 Tenants in Common, 12, 17 What are, 12 Title, 44 Transfer Tax, 42-44 Discount for prompt payment, 43 Exemptions, 42, 43 Procedure, 43 Rates, 42 When due, 43, 44 Trustees, 40, 41 Duties of, 40, 41 Obligations of, 40, 41 Powers of, 40, 41 Trusts, 40, 41 Whole Blood, 11, 17 Widow, Rights of, 18-20, 21, 22, 42, 43, 52, 53 Will, 9, 26-34 Ascertainment of existence of, 9, 29 Construction of, 33 Deposit of, with surrogate or county clerk, 28 Execution of, 26-28 Executors may keep until pro- bate, 26 Foreign, 33, 34 History, 26 How revoked, 33' Letters Testamentary, 29, 30 Probate of, 29, 30 Reasons for making, 26, 27 Revocation of, '33 When to open and read, 9, 10 Where to look for, 9, 10 Who can make, 27 Who can probate, 29 Witnesses to, 26-30 58] ■f Date Due ADD 1 5 Kyl-9 Library Bureai Cat. No. 1137