IMS' dnrn^U Slam ^rljnnl Kbtatg KFN5210j37l" ""''"^"'' '"•"'" The disposition of a decedent's real pro 3 1924 022 809 291 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/cu31924022809291 THE DISPOSITION 01* A DECEDENT'S REAL PROPERTY FOB THE PAYMENT OF DEBTS AND FUNERAL EXPENSES UNDER THE CODE OF CIVIL PROCEDUKE OF THE STATE OF NEW YORK BY WILLIAM NELSON NOBLE OF THE TOMPKINS COUNTY BAB BANKS AND COMPANY Albany, N. Y. 1908 Copyright, 1908, By banks and COMPANY. PREFACE. Priob to September 1, 1904, the Disposition of a Decedent's Eeal Property for the Payment of Debts and Funeral Expenses was regulated by a system of procedure which had been enacted in 75 sections of the Revised Statutes and, after various modi- fications and amendments during the succeeding half century, was codified in 52 sections bf the Code of Civil Procedure. Provision was thereby made for at least two distinct special proceedings ; and iw" om q4 th^ the real property was con- verted into monex and'-jpkid jnto\ourtjWh.ile in the other dis- tribution thereof was made to the persons entitled. The procedure was complicated and difficult by reason of its many particular requirements as to matters of detail, which, however, called for strict compliance ; and this made the practice nec- essarily technical. However, during its long period of develop- ment, it had become clarified by amendment and judicial construction. But by chapter 750 of the laws of 1904 this system was radically changed so as to make an altogether new procedure. Of the 52 code sections, 11 were amended and 29 were repealed while only 12 remained untouched; and by reason of this legislation very many of the reported decisions made in con- struing the earlier statutes during the last 75 years have become obsolete. Moreover the careful and elaborate treat- ment of the old procedure, in standard works on practice in the Surrogate's Court like Redfield and Jessup, antedates the present law and is no longer of value. Therefore this treatise is put forth. iii iv PREFACE. The new procedure retains but few of the features of its "Venerable predecessor and is rather a development of the simple original practice under the Act of 1786, which provided, among other things, that where only a part of the decedent's real property had been disposed of, pursuant to an order of the Court of Probates, the avails " shall be received by the execu- tors or administrators applying for such order and shall be considered as assets in their hands for the payment of debts." And like it, the special proceeding now authorized leads to a decree which merely empowers the executor or administrator to dispose of the real property as though he were acting under a testamentary power ; and he makes distribution of the pro- ceeds and accounts therefor in his general adtninistration of the estate as though he were acting under such a power. Indeed the practice has been simplified and much improved ; but it is far from being perfect. In the present treatise, the first chapter outlines the develop- ment of the procedure ; and two of the subsequent chapters- relate to the citation and its service, and to the proceedings upon the return day, although these subjects are more appro- priate to a work on general practice. But it has been con- sidered of some advantage to present these matters in connec- tion with this particular special proceeding itself, and thus indicate the entire practice from the petition to the decree. Numerous forms have also been given as sections in the body of the work ; but these are intended as suggestions rather than as precedents to be closely followed, for it is obvious that the- petitions, decrees and other papers must necessarily vary exceedingly according to the peculiarity of the particular case. It is the author's hope that the book may be of service to lawyers who practice in the Surrogate's Court. William Nelson Noblb. Ithaca, N.T., September 1, 1908. TABLE OF CONTENTS. CHAPTER I. DEVELOPMENT OP THE PROCEDURE. ^ PAGE Section 1.— Real Property of Deeedent not Liable for Debts at Common Law 1 " 3.— First Statutes authorizing Disposition of Decedent's Real Property for Payment of Debts 2 " 3. —Procedure under the Revised Statutes 4 ■' 4. — Modifications Prior to tlie Code 8 •' 5. — Procedure under the Code until September 1, 1904. . .. 11 " 6.— The New Procedure 12 CHAPTER IL THE NEW PROCEDUKE. Section 7.— Outline Sketch 13 " 8. — Same Subject: Power of Disposition under Will 14 " 9. — Same Subject: Power of Disposition under Decree 16 " 10. — Same Subject: Jurisdictional Fact 17 " 11. — Same Subject:Conceming Proof of Claims and Estab- lishment of Debts 18 CHAPTER in. PROPERTY SUBJECT TO DISPOSAL. :8bction 13. — What Real Property may be Disposed of for Payment of Debts and Funeral Expenses 30 " 13. — Same Subject: Estates in Common and in Joint Ten- ancy and by the Entirety 25 " 14. — Same Subject: Real Property of a Partnership 37 ■" 15. — Same Subject: Avails of Real Property of Infant or Incompetent 28 V Vi TABLE OF CONTENTS. PAGE-. Section 16.— Same Subject: Interest in Sheriff's Certificate on Exe- cution Sale 29 ' ^' 17. — Same Subject: Judgment Debtor's Estate after Execu- tion Sale and before Sheriff's deed 31 " 18. — Same Subject; Real Property Converted into Money before Sale in Surrogate's Court 33. " 19. — Same Subject: Surplus Moneys arising on Foreclosure. 35 " aO.^Same Subject : Proceeds of Partition Sale 38 " 31. — Same Subject: Real Property Conveyed in Fraud of Creditors 43 " 22. — Same Subject: Contracts for Purchase of Real Property. 46 " 23 — Real Property exempt from Sale under Execution, Ex- cepted , . 47 " 24. — Real Property bought with Pension Money, Excepted. . 47 " 25. — Real Property Devised expressly charged with the Pay- ment of Debts, Excepted 51 " 26. — Real Property impliedly charged with the Payment of Debts, not Excepted 53 " 27. — Real Property subject to Valid Power of Sale for Pay- ment of Debts or Funeral Expenses, not Excepted. . 54 CHAPTER IV. LIMITATION AS TO TIME. Section 28. — When Proceeding may be Instituted 56 " 29.— Same Subject: Prior to the Code 58- " 30. — Extension of Time in Certain Cases 59 " 31. — Notice of Pendency of Action 60 " 32. — Form : Creditor's Notice of Pendency of Action 63 " 33. — Disability of Creditor or Vacancy in Administration. ... 63 " 34. — Extension of Time by Creditor's Action 64 " 35. — Further Limitation in Certain Cases ,.... 65 CHAPTER V. THE PETITIONER AND THE PETITION. Section 36.— Proceeding by "Whom Instituted 67 " 37. — Same Subject: By Executor or Administrator 69 " 38. — Same Subject: Not by Ancillary Executor or Admin- istrator 70' " - 39.— Same Subject: By Creditors 7a TABLE OF CONTENTS. yji PAGE Section 40.— Same Subject : Not by Creditor whose Claim is not Bue. 74 41.— Same Subject: Creditor's Claim must be against De- cedent 76 42. — Petition : Where Presented 77 43.— Of the Petition 78 44. — Petition must be Verified 79 45. — Contents of Petition 79 46.— Same Subject : No Ascertainment of Debts 81 47.— Same Subject : Inadequacy of Personal Estate 82 48.— Same Subject : The Real Property 83 49. — Same Subject : Parties Respondent 84 50.— Death of Party Respondent 87 51.— Form : Petition by Executor or Administrator 88 52. — Form : Petition by Creditor 98 53. — Where Facts are Unknown 96 54. — Form : Subpoena upon Inquiry 99 55. — Form: Order requiring an Account or Statement from Executor or Administrator 100 56. — Unknown Parties constituting a Class 101 CHAPTER VI. THE CITATION AND ITS SERVICE. Section 57. — Of the Preliminary Determination 105 58.— The Order for a Citation 106 59.— Form: Order for Citation 107 60.— Of the Citation 109 61.— Form: Citation 112 62.— Service of the Citation 114 " 63, — Personal Service of Citation upon Adult within the State 114 " 64. — Personal Service upon Infant within the State 116 " 65. — Personal Service upon Judicially declared Lunatic etc. . 118 " 66. — Form: Order requiring Additional Service in case of Infant , 119 " 67. — Form: Order requiring Additional Service in case of Incompetent 120 " 68. — Personal Service upon a Corporation 121 " 69. — Substitute for Personal Service upon a Resident 121 " 70. — Form: Affidavit to Procure Order for Substituted Service 123 " 71. — Form : Order for Substituted Service 124 " 72.— Personal Service upon Lunatic: When Dispensed with. 124 viii TABLE OF CONTENTS. PAGE Section 73.— Foi-m: Affidavit to Procure Order dispensing with Serv- ice upon Lunatic 135 " 74. — Form: Order Dispensing with Service upon Lunatic .. . 126 " 75. — Service by Publication 126 " 76. — Same Subject: Application for Order 127 " 77. — Order for Service.by Publication: "When and how made. 128 " 78. — Form: Order for Service out of State, or by Publication. 131 79.— Order: How executed 133 " 80. — Time when Citation must be Served 1-34 " 81. — Service of Citation : By whom made 136 " 82.— Proof of Service .137 " 83.— Form: Proof of Service '. 139 84.— Waiver of Citation 142 " 85. — Form : Waiver of Citation 144 CHAPTER VIL THE RETURN OP THE CITATION. Section 86. — Some Statutory Provisions .- 145 " 87. — Supplemental Citation. 146 " 88. — Form: Petition for Supplemental Citation 147 " 89. — Form : Order for Supplemental Citation 148 90.— Death of Petitioner 148 " 91. — Death of Party named in Citation 150 " 92. — Form: Petition to Substitute Party Respondent 151 " 93. — Form; Order Substituting Party Respondent '. . . 152 " 94. — Intervention of Parties 154 " 95. — Form: Petition for Intervention 156 " 96. — Form: Order Allowing Intervention 1.57 " 97. — Appearance of Party 157 " 98. — Special Appearance 159 " 99. — Form: Notice of Appearance by Attorney. 159 " 100. — Appearance of Infant or Incompetent Person 160 " 101. — Special Guardian for Infant or Incompetent Person. . . 161 " 102. — Special Guardian : How Appointed 164 " 103.— Form: Consent of Special Guardian T 167 " 104.— Form: Order Appointing Special Guardian 167 105.— Duty and Compensation of Special Guardian 168 106.— Return of Citation : Default 170 " 107. — Discontinuance of Proceeding 172 " 108. — Dismissal for Failure to Prosecute 173 TABLE OF CONTENTS. ix CHAPTER VIII. THE ISSUES AND THEIR TRIAL. PAGE Section 109.— Preliminary Objections • Technicalities 174 " 110. — SameSubject: Amendments 176 " 111. — Of the Answer: Defense on the Merits 177 112.— Of the Hearing: Code Provisions 179 " 113. — SameSubject: Claims against Decedent may be Con- tested 181 114.— Debts of Decedent : Burden of Proof 183 " 115. — Judgment against Representative. Not Evidence of Debt 184 " 116. — Judgment against Decedent 185 " 117. — Reasonableness of Funeral Expenses 187 " 118. — Expenses of Administration 193 " 119. — Debts must be those of Decedent 196 130.— Statute of Limitations 197 " 121. — Same Subject: Various Statutes of Limitations 200 " 122. — Same Subject: Time of Limitation how Computed : Exceptions 203 123.— The Personal Property 206 " 124. — SameSubject: Misappropriation of Assets 208 " 125. — Contested Hearing : Reference 209 126.— Contested Hearing: Trial by Jury 210 " 127.— Form: Order directing Trial by Jury 211 128 —Review of Trial by Jury 212 129.— Of the Decision 213 CHAPTER IX. the decree. Section 130. — Proof necessary for a Decree 215 131.— Same Subject : Valid Power of Sale 218 " 132.— Same Subject: Equities of the Parties. Title in Con- troversy 219 183.— Same Subject: Right of Dower 220 " 134. — Costs and Expenses of the Proceeding 224 " 135. — Decree not granted if Bond be given 826 " 136. — Decree to Mortgage, Lease or Sell 237 " 137.— Former Section 2758 Entitled " Decree to Recite Debt and Liens " - . 239 " 138.— Former Section 2760 Entitled "Decree to Mortgage or Lease '' 330 X TABLE OF CONTENTS. PAGE Section 139.— Former Section 3761 Entitled " Decree to Sell" 231 140.— Former Section 2762 Entitled " Decree when Title is in Controversy " 332 141. — Former Section 2763 Butttled " Order in which Par- cels are to be Sold " 233 142. — Former Section 2764 Entitled "Decree where undi- vided Interest or Precedent Estate is Created by the Will" 283 143.— Former Section 2765 Entitled " Form of Decree " 234 144. — Form: Decree empowering Disposition 335 CHAPTER X. EXECUTION OP DECREE. Section 145. — Duty of Executor or Administrator to file Bond 244 " 146. — Form: Bond of Executor or Administrator 346 " 147. — Proceeding upon Failure to file Bond or Execute Decree 348 " 148. — Where one of Several Executors or Administrators fails to give Bond 249 " 149. — Revocation of Letters on Failure to Execute Bond. . . . 249 " 150. — Same Subject: Proceedings for Revocation of Letters . 250 " 151. — Grant of Letters after Revocation 352 " 152. — Execution of Decree not affected by Death etc 254 153.— Present Section 2761 Entitled " Effect of Decree ; Man- ner of executing same, applying Proceeds of Sale and Accounting for Same " 254 " 154. — Manner and Effect of Executing fhe Decree 255 " 155. — Allowance on Bid to Creditor Purchasing 258 " 156, — Conveyance of Decedent's Interest under Contract 359 " 157. — Conveyance of part of Decedent's Interest under Con- tract 260 " 158. — Who may not Purchase 261 " 159. — Form : Deed by Executor or Administrator 262 " 160. — Purchaser's Title not affected by Certain Irregularities. 263 " 161. — When Conveyance not to a£fect Purchaser or Mort- gagee from Heir or Devisee 365 " 162. — Application of Proceeeds 266 " 163. — Accounting for Proceeds 269 " 164. — Same Subject: Parties to Accounting 373 " 165. — Same Subject : Commissions 273 TABLE OF CONTENTS. xi CHAPTER XI. IREELEVANT PROVISIONS. FAGK Section 166. — Restitution for Assets subsequently discovered.. 275 " 167. — Conveyance of Real Estate by Executor or Admin- istrator to holder of Contract of Sale made by Decedent 276 Appendix 279-315 General Index 317 TABLE OF CASES CITED. A. PAGE Ackley v. Dygert, 33 Barb. 176 97, 161 Adams, People ex rel. v. Westbrook, 61 How. Pr. 138 183 Allen V. Allen, 3 Dem. 524 189 Allen, Grosvenor v., 9 Paige 74 260 Ametrano v. Downs, 170 N. Y. 388 34 Amsdell, Turner v., 3 Dem. 19 183 Arnold, Laird v., 42 Hun. 136, 3 St. Rep. 376 192 Arnoux, Livingston v., 56 N. Y. 507 32 Arrowsmith v. Arrowsmlth, 8 Hun 606 85 Asiel, Elliott v. 120 App. Div. 829, 105 Supp. 655 258 Atkins V. Kinnan, 20 Wend. 241 97 Atwood, Matter of, 10 Misc. 480, 32 Supp. 115, 65 St. Rep. 171.. 106 B. Baker v. Baker, 18 App. Div. 189, 45 Supp. 870 15 Baker v. Kingsland, 10 Paige 366 183 Baker, Matter of, 62 Supp. 859, 48 App. Div. 443 173 Baker, Steinhardt v., 25 App. Div. 197, 49 Supp. 357 123 Baldwin v. Rice, 183 N. Y. 55 70 Ball V. Miller 17 How. Pr. 300 197 Ballard, Tyler v., 31 Misc. 540, 65 Supp. 557, 7 A. C. 465 49 Barber, Beecher v., 6 Dem. 129 50 Barber v. Harris, 15 Wend. 615 26 Barber, Hetzel v., 69 N. Y. 1 25 Barclay, Overton v., 89 Hun 611, 35 Supp. 326, 69 St. Rep. 716 . . 123 Barnes, Matter of, 7 App. Div. 13, 40 Supp. 494 192 Barney v. Pike, 94 App. Div. 199, 87 Supp. 1038 28 Barnhart, Knolls v., 71 N. Y. 474 86, 223^ Barrett, Whiting v.. 7 Lans. 106 , 4a Barto V. Tompkins Co. Nat. Bank, 15 Hun 11 24 Bassett, Hatch v., 52 N. Y. 359 14 Beach, Bostwick v., 103 N. Y. 414 25& xiii xiv" TABLE OF CASES CITED. PAGE! Beach's Estate, Matter of, 1 Misc. 27, 22 Supp. 1079 191 Becker, Matter of, 28 Hun 207 162 Beecher v. Barber, 6 Dem. 129 50 Beer, Parker v. 173 N. Y. 332 218 Belden v. Belden, 118 App. Div. 296, 103 Supp. 346 250 Bernes v. Weisser, 2 Brad. 212 186 Bernstein's Estate, Matter of, 58 Misc. 115, 110 Supp. 473 38 Bertles v. Nunan, 92 N. Y. 152 26 Bettman, Matter of, 65 App. Div. 229, 72 Supp. 728 210 Betz, Boerum v., 1 Dem. 471 87, 111, 135 Biggs V. City of Geneva, 110 App. Div. 25, 90 Supp. 858 136 Blngliam, Matter of, 127 N. Y. 296 ....60, 61, 83, 84, 159, 176, 208 Bingham, Matter of, 32 St. Rep. 782, 10 Supp. 325 83 Black, Matter of, 1 Con. 477 189 Blood, Smith v. 106 App. Div. 317, 94 Supp. 667 50 Bloodgood V. Bruen, 8 N. Y. 362 199 Bloom V. Burdick, 1 Hill 130 85, 97, 161 Bloomer, Owens v., 14 Hun 296 188, 189, 191, 192 Bodine v. Moore, 18 N. Y. 347 31, 33 Boerum v. Betz, 1 Dem. 471 87, 111, 135 Bogardus v. Clark, 4 Paige 623 154 Bogart V. Hertell, 4 Hill 492 15 Boies, O'Donoghue v., 159 N. Y. 87 261 Bolton, Matter of, 146 N. Y. 257 15, 219 Bonnett, Hoyt v., 50 N. Y. 538 74 Boomhower, Youmans v., 3 Thomp. & Cook 21 48 Bostwick V. Beach, 103 N. Y. 414 258 Boughton V. Flint, 74 N. Y. 476 182 Bowden, Prentiss v. 145 N Y. 342 34, 44 Bowler v. Ennis, 46 App. Div. 309, 61 Supp. 686 133 Bowne, Matter of, 6 Dem. 51 166 Boyer v. East, 161 N. Y. 580 262 Bradley, Matter of, 25 Misc. 261, 54 Supp. 555 . . . ^ 271 Bradley. Matter of Will of, 70 Hun 104, 23 Supp. 1127, 53 St. Rep. 540 88, 112, 147 Brainerd v. De Graef, 29 Misc. 560, 61 Supp. 953 201 Braker, Matter of, 48 App. Div. 443, 62 Supp. 859 173 Bram, Zorntlein v. 100 N. Y. 12 26 Bridge v. Swain, 3 Red. 487 207 Britton, Reynolds v., 56 Misc. 67, 106 Supp. 937 38 Broome, Ferguson v., 1 Brad. 10 183, 185 Brown, Champion v., 6 Johns. Ch. 398 260 Brown, Lawrence v., 5 N. Y. 394 86, 223 Brown, Miner v., 133 N. Y. 308 , 26 Brown, Terwilliger v., 44 N. Y. 237 261 1 TABLE OF CASES CITED. xv PAGE Bruen, Bloodgood v., 8 N. Y. 362 199 Bryant v. Thompson, 59 Hun 545, 14 Supp. 28, 37 St. Rep. 431 .. 166 Buchan v. Sumner, 2 Barb. Ch. 165 27, 34 Buchanan, Smith v., 5 Dem. 169 274 Buckley v. Buckley, 11 Barb. 43 27 Buckley v. Doig, 188 N. Y. 238 28 Bucklln V. Chapin, 1 Lans. 443 199 Budlong, Matter of Will of, 100 N. Y. 203 169 Buffum V. Porster, 77 Hun 27, 28 Supp. 285, 59 St. Rep. 833 48 Burdick, Bloom v., 1 Hill 130 85, 97, 161 Burgess, People v., 153 N. Y. 561 136 Burnett v. Noble, 5 Red. 69 192, 199 Burnham v. Burnham, 46 App. Div. 513, 62 Supp. 120 61, 185 Butler V. Emmett, 8 Paige 12 73 Butler V. Johnson, 111 N. Y. 204, aff'g 41 Hun 206, 4 St. Rep. 151 173, 199, 20? Byington, Wood v., 2 Barb. Ch. 287 197 C. Calkins, Darrow v., 154 N. Y. 503 27 Callaghan, Matter of, 69 Hun 161, 23 Supp. 378, 52 St. Rep. 537 38, 58 Callahan, Hurd v., 9 Abb. N. C. 374 197 Camp, Matter of, 81 Hun 387, 30 Supp. 884, 63 St. Rep. 160 149 Campbell Matter of, 66 App. Div. 478, 73 Supp. 290 155, 182, 188 Campbell v. Evans, 45 N. Y. 356 85 Campbell, Leahy v., 70 App. Div. 127, 75 Supp. 72 „ . 202 Campbell v. Purdy, 5 Red. 434 191 Carhart, Matter of, 2 Dem. 627 136 Carpenter, Stilwell v., 59 N. Y. 414 & 62 N. Y. 639 187 Carpenter, Yates Co. Nat. Bank v., 119 N. Y. 550 48, 50 Carr, Peters v., 2 Dem. 22 ■ 143, 158 Champion v. Brown, 6 Johns. Ch. 398 260 Chandler v. Northrop, 24 Barb. 129 161 Chapin, Bucklin v., 1 Lans. 443 199 Chapman, Fonda v., 23 Hun 119 266 Chautauque Co. Bank v. Risley, 19 N. Y. 369 32 Chester v. Dickerson, 54 N. Y. 1 28 Chilson, Reed v., 142 N. Y. 152 159 Church, Dumond v., 4 App. Div. 194, 38 Supp. 557, 74 St. Rep. 176 29 Church V. Olendorf, 49 Hun 439, 3 Supp. 557, 19 St. Rep. 700 . . 63 Churchill, Despard v., 53 N. Y. 192 71 City of Geneva, Biggs v., 100 App. Div. 25, 90 Supp. 858 136 xvi TABLE OF CASES CITED. PAGE City ot Rochester, Matter of,. 110 N. Y. 159 33, 5a Clark, Bogardus v., 4 Paige 623 154 Clark, Harrison v., 20 Hun 404, affr'd 87 N. Y. 572 115 Clark, Matter of, 5 Dem. 377, 8 St. Rep. 745 186 Clark, Washington Life Ins. Co. v., 79 App. Div. 160, 79 Supp. 610 •• • 37 Clift V. Moses, 116 N. Y. 144 16, 52 Coe, Selover v., 63 N. Y. 438 56, 200' Collins' Estate, 4 Law Bui. 80 97 Collins, Reynolds v., 3 Hill 36 198 Collins V. Russell, 184 N. Y. 74 85 Ooogan V. Ockershausen, 23 Jones & Spencer 286 53 ■ Cook V. Woodard, 5 Dem. 97, 13 St. Rep. 161 193 Cook, Woodruff v., 2 Edw: Ch. 259 197 Cope, Washbon v., 144 N. Y. 287 143, 159- Corbett, Johnson v., 11 Paige 265 ' 260 Corbett, Mlatter of, 99 Hun 182, 35 Supp. 945, 70 St. Rep. 661 . . 20t Corley v. McBlmegl, 149 N. Y. 228 211 Cornes v. Wilkin, 79 N. Y. 129 74 Cornwell v. Deck, 2 Red. 87 191 Cortwright, Matter of, 3 Dem. 13 116, 117 Corwin, Matter of, 10 Misc. 196, 31 Supp. 426 7? Corwin V. Merritt, 3 Barb. 341 161 Cotter V. Quinlan, 2 Dem. 29 198 Couch V. Delaplaine, 2 N. Y. 397 268, 27& Coup, Smith v., 6 Dem. 45 16 Covell V. Weston, 20 Johns. 414 4 Cox V. McBurney, 4 Super. Ct. (2 Sand.) 561 33 Crandall, Davis v., 101 N. Y. 311 117, 143 Crittenden v. Fairchild, 41 N. Y. 289 15 Cromwell v. Phipps, 6 Dem. 60 211 Crooks, Davidson v., 45 App. Div. 616, 61 Supp. 362 29 Crouter v. Crouter, 133 N. Y. 55 117, 143 Curtis, Underwood v., 127 N. Y. 523 14 D. Darrow v. Calkins, 154 N. Y. 503 27 Davids, Matter of, 5 Dem. 14 105, 179 Davidson v. Crooks, 45 App. Div. 616, 61 Supp. 362 29 Davis V. Crandall, 101 N. Y. 311 117, 143 Davis, Matter of, 43 App. Div. 331, 60 Supp. 315 260 Dayton, Story v., 22 Hun 450 163 Deck, Cornwell v., 2 Red. 87 191 Decker, Knickerbocker v., 4 Dem. 128 220 233 TABLE OF CASES CITED. xvii PAGE DePorest v. Farley, 62 N. Y. 628 265 Degener, Ludden v., 14 App. Div. 397, 43 Supp. 908 133 DeGraef, Bralnerd v., 29 Misc. 560, 61 Supp. 953 201 Delaplaine, Couch v., 2 N. Y. 397 268, 275 Dennis v. Jones, 1 Dem. 80 97, 162 Dennis, UnderhlU v., 9 Paige 202 164 Denton, Matter of, 86 App. Div. 359, 83 Supp. 778 135 Denyse, Dugan v., 13 App. Div. 214, 43 Supp. 308 261 DePuy V. Stevens, 37 App. Div. 289, 55 Supp. 810 25 Despard v. Churchill, 53 N. Y. 192 71 Dickerson, Chester v., 54 N. Y. 1 28 Dickey, Morrell v., 1 Johns. Ch. 153 160, 166 Dickinson, Graham v., 3 Barh. Ch. 169 268, 275 Dill V. Wisner, 88 N. Y. 153 16, 52 Dixon V. Dixon, 89 App. Div. 603, 85 Supp. 609 30 Doane v. Mercantile Trust Co., 160 N. Y. 494 14 Dodge V. Stevens, 105 N. Y. 585 24 Doheny v. Worden, 75 App. Div. 47, 77 Supp. 959 134 Doig, Buckley v., 188 N. Y. 238 28 Dolan, Matter of, 88 N. Y. 309 79, 220, 265 Downs, Ametrano v., 170 N. Y. 388 34 Drake v. Paige, 127 N. Y. 562 15 Dugan V. Denyse, 13 App. Div. 214, 43 Supp. 308 261 Dumond v. Church, 4 App. Div. 194, 38 Supp. 557, 74 St. Rep. 176. 29 Dunning v. Ocean Nat. Bank of N. Y., 61 N. Y. 497 33 Duryea v. Mackey, 151 N. Y. 204 63, 69 Dusenbury, Matter of, 34 Misc. 666, 70 Supp. 725 42 Dygert, Ackley v., 33 Barb. 176 97, 161 E. Early v. Korn, 89 Supp. 392 38 East, Boyer v., 161 N. Y. 580 , 262 East Riv. Sav. Inst., Roderigas v., (2d case) 76 N. Y. 316 106 Eichman, Matter of, 33 Misc. 322, 68 Supp. 636 202 E. L. A. Society v. Hughes, 125 N. Y. 106 171 Elevated R. R. Co., Kernochan v., 128 N. Y. 559 33-34 Eleventh Ward Bank v. Powers, 43 App. Div. 178, 59 Supp. 314. 129 Elliott V. Asiel, 120 App. Div. 829, 105 Supp. 655 258 Ellis, Matter of, 4 Supp. 180, 22 St. Rep. 77 103 Emans V. Hickman, 12 Hun 425 192 Emmett, Butler v., 8 Paige 12 73 Engelbrecht, Matter of, 15 App. Div. 541, 44 Supp. 551 250 English, Slociim v., 62 N. Y. 494 56 Ennis, Bowler v., 46 App. Div. 309, 61 Supp. 686 133 Erie R. R., Rood v., 18 Barb. 80 46 xviii TABLE OF CASES CITED. PAGE Erlacher, Matter of, 3 Red. 8 190, 191 Estate, Matter of Beach's, 1 Misc. 27, 22 Supp. 1079 191 Estate; Matter of Bernstein's, 58 Misc. 115, 110 Supp. 473 38 Estate of Collins, 4 Law Bui. 80 97 Estate, Faulkner's, 10 Supp. 325, 32 St. Rep. 782 83 Estate of Penn, 8 Civ. Pro. Rep. 206, 3 Dem. 341. . .112, 163, 165, 166, 265 Estate, Hildebrand's, 1 Misc. 245, 23 Supp. 148 190 Estate, Howard's 3 Misc. 170, 23 Supp. 836 192 Estate, John's, 18 Supp. 172, 21 Civ. Pro. Rep. 326 85 Estate, Kelley's, 1 Abb. N. C. 102 97 Estate, Kendricks, 15 Abb. N. C. 189, 3 Dem. 301 206. Estate, Merchant's, 6 Supp. 875, 25 St. Rep. 268 80, 86, 171, 207 Estate, Morton's 23 Supp. 1104, 70 Hun 61 186 Estate of Robbins, 7 Misc. 264, 27 Supp. 1009, 58 St. Rep. 526 198 Estate, Rockwell's, 41 Supp. 431, 17 Misc. 670 79 Estate, Wadsworth's, 6 Supp. 932, 24 St. Rep. 416 168 Estate, Williams', 1 Misc. 35, 22 Supp. 906 82 Evans, Campbell v. 45 N. Y. 356 85 F. Pahey, Jenkins v., 73 N. Y. 355 24 Fairchild, Crittenden v., 41 N. Y. 289 15 Fairchild v. Fairchild, 64 N. Y. 471 , 27 Farley, DePorest v., 62 N. Y. 628 265 Farmers' Loan & Trust Co. v. McKenna, 3 Dem. 219 165 Farrington v. King, 1 Brad. 182 172 Faulkner's Estate, Matter of, 10 Supp. 325, 32 St. Rep. 782 83 Felts v. Martin, 20 App. Div. 60, 46 Supp. 741 33, 35 37 Fenn, Estate of, 8 Civ. Pro. Rep. 206, 3 Dem. 341.. 112, 163, 165, 166, 265 Fenn, Price v., 3 Dem. 341, 8 Civ. Pro. Rep. 206, 112, 163, 165, 166, 265 Ferguson.v. Broome, 1 Brad. 10 183, 185 Ferrigan, Matter of, 42 App. Div. 1, 58 Supp. 920 209 Ferrin v. Myrick, 41 N. Y. 315 igg, 189 Fey, Jooss v., 129 N. Y. 17 26 Field, Matter of, 131 N. Y. 184 ., 130, 133 Fink V. Wallach, 47 Misc. 247, 95 Supp. 872 .' 133 Fisher, Hiles v. 144 N. Y. 306 26 Fitch V. Witbeek, 2 Barb. Ch. 161 69 Flint, Boughton v., 74 N. Y. 476 182 Flynn v. l^ynch, 27 Supp. 926, 23 Civ. Pro. Rep. 369 33. TABLE OF CASES CITED. xix PAGE Foley, Matter of, 39 App. Div. 248, 57 Supp. 131 197 Fonda v. Chapman, 23 Hun 119 266 Poote, Richmond v., 3 Lans. 244 46, 79 Forbes v. Halsey, 26 N. Y. 53 207, 261 Ford V. Livingston, 140 N. Y. 162 29, 34 Forester, Buffum v., 77 Hun 27, 28 Supp. 285, 59 St. Rep. 833 . . 48 Fowler v. Hebbard, 40 App. Div. 108, 57 Supp. 531 202 Fox V. Lipe, 24 Wend. 164 245 Fox, Matter of, 52 N. Y. 530 16 Frazer, Matter of, 92 N. Y. 239 182 Freemans Nat. Bank, Richmond v., 86 App. Div. 152, 83 Supp. 632 85, 97, 155 Freeman, Sharpe v., 45 N. Y. 802 185 Fritz V. "Worden, 20 App. Div. 241, 46 Supp. 1040 48 G. Gantert, Matter of, 136 N. Y. 106 16, 52, 218 Garvey, McCue v., 14 Hun 562 189 Genet v. Wlllock, 93 App. Div. 588, 87 Supp. 938 202 Geneva, City of. Biggs v., 100 App. Div. 25, 90 Supp. 858 136 Gennert, Matter of, 96 App. Div. 8, 89 Supp. 37 71 Georgi, Matter of, 35 Misc. 685, 72 Supp. 431 84, 88, 111, 150 Georgi, Matter of, 44 App. Div. 180, 60 Supp. 772, aff'd 162 N. Y. 660 Ill German Bank, Matter of, 39 Hun 181 80, 82, 83, 97 Gibbons v. Shepard, 2 Dem. 247 273 Gibbons, Holly v. 176 N. Y. 520 16, 218 Gilchrist v. Rea, 9 Paige 66 58 Gillies, Williams v., 75 N. Y. 197 28 Golden, Hughes v., 44 Misc. 128, 89 Supp. 765 57 Goodwin v. Nelin, 2 Abb. Ct. of App. Dec. 258, 35 Hov/. Pr. 402.. . 47 Gordon, Raynor v. 23 Hun 264 86, 200 Graham v. Dickinson, 3 Barb. Ch. 169 268, 275 Graham, Matter of, 39 Misc. 226, 79 Supp. 573, 12 A. C. 157 143-' Granger, Sanford v., 12 Barb. 392 197 Greenblatt v. Herman, 144 N. Y. 13 85 Greenwood v. Marvin, 111 N. Y. 423 34 Gregory, Matter of, 13 Misc. 363, 35 Supp. 105, 69 St. Rep. 479. . 142 Grenell, Heath v., 61 Barb. 190 , 198 Gridley v. Gridley, 24 N. Y. 130 52 Griffith, Ritten v., 16 Hun 454 130 Grosvenor v. Allen, 9 Paige 74 260 XX TABLE OF CASES CITED. H. PAGE Halsey, Forbes v., 26 N. T. 53 207, 261 Hamilton, Matter of, 76 Hun 200, 27 Supp. 813, 57 St. Rep. 810. . 155 Hamlin v. Smith, 72 App. Div. 601, 76 Supp. 258 198 Hannon, Matter of, 46 Misc. 229, 93 Supp. 207 112 Happy V. Mosher, 48 N. Y. 313 85 Harlow, Matter of, 73 Hun 433, 26 Supp. 469. 56 St. Rep. 33 ... . 130 Harris, Barber v., 15 Wend. 615 26 Harrison v. Clark, 20 Hun 404, aff'd 87 N. Y. 572 115 Harrison, Powell v., 88 App. Div. 228, 85 Supp. 452 37 Harvey v. McDonnell, 113 N. Y. 526 45, 65 Hatch V. Bassett, 52 N. Y. 359 14 Hatch, Matter of, 182 N. Y. 320 73, 77, 193, 194, 196. 217 Havens v. Sherman, 42 Barb. 636 85, 161 Hawley v. James, 5 Paige 318 86, 222 Hawley, Mauran v., 2 Dem. 396 106 Haxtun, Matter of, 102 N. Y. 157 19, 73, 81, 183, 202 Heath v. Grenell, 61 Barb. 190 198 Hebbard, Fowler v., 40 App. Div. 108, 57 Supp. 531 202 Heermans v. Robertson, 64 N. Y. 332 14, 268 Hendrickson v. Ladd, 2 Dem. 402, 5 Civ. Pro. Rep. 50 69 Henry v. Henry, 4 Dem. 253, 3 How. Pr. N. S. 386 155 Henry, Matter of, 2 How. Pr. N. S. 250 163 Herbert v. Stevenson, 3 Dem. 236 151 Herkimer v. Rice, 27 N. Y. 163 34 Hermann, Greenblatt v., 144 N. Y. 13 85 Herdtfelder, Lichtenberg v., 103 N. Y. 302 44, 64-65 Hertell, Bogert v., 4 Hill 492 15 Hetzel V. Barber, 69 N. Y. 1 25 Hewins, VanAlen v., 5 Hun 44 150 Hewitt V. Hewitt, 3 Brad. 265 220, 233 Hickman, Emmans v., 12 Hun 425 192 Higbie v. Westlake, 14 N. Y. 281 223 Hildebrand's Estate, Matter of, 1 Misc. 245, 23 Supp. 148 190 jHiles V. Fisher, 144 N. Y. 306 26 Hoag V. Lament, 16 Abb. N. S. 91 158 Hoey V. Kinney, 10 Abb. Pr. 400 35, 39 Hogan V. Kavanaugh, 138 N. Y. 417 14, 42, 43, 56, 268 Hogae V. Hogle, 49 Hun 313, 2 Supp. 172, 17 St. Rep. 580 117, 162 Holden, Matter of. 126 N. Y. 589 169 Holladay, Jackson v., 3 Red. 379 245 Holly V. Gibbons, 176 N. Y. 520 16, 218 Hood V. Hood, 85 N. Y. 561 118, 139 Hopkins V. VanValkenburgh, 16 Hun 3 183 Hopper V. Hopper, 125 N. Y. 400 , 70 TABLE OF CASES CITED, xxi PAGE Hopper, Matter of, 5 Paige 489 164 Hotchklss, Matter of, 17 Misc. 670, 41 Supp. 431 79 Horton v. McCoy, 47 N. Y. 21 28, 33 Howard's Estate, Matter of, 3 Misc. 170, 23 Supp. 836 192 Howard, Matter of, 11 Misc. 224, 32 Supp. 1098 171, 207 Howard, White v. 46 N. Y. 144 15 Howe, Maples v., 3 Barb. Ch. 611 86, 223, 256 Hoyt V. Bonnett, 50 N. Y. 538 74 Hughes, E. L. A. Society v., 125 N. Y. 106 171 Hughes V. Golden, 44 Misc. 128, 89 Supp. 765 57 Hughes, Matter of, 95 N. Y. 55 71 Hultslander v. Thompson, 5 Hun 348 202 Hurd V. Callahan, 9 Abb. N. C. 374 197 Hurd, McNulty v., 72 N. Y. 518 185, 187 Hurlburt, Matter of, 43 Hun 311, 4 St. Rep. 354 158 Hutchinson, Moorhouse v., 2 Dem. 429 251 I. Ibert, Matter of, 48 App. Div. 510, 62 Supp. 1051 57, 84, 176 Igglesden, Matter of, 3 Red. 375 83 Ingersoll v. Mangam, 84 N. Y. 622 117 Jackson v. Holladay, 3 Red. 379 245 Jackson v. McConnell, 19 Wend. 175 26 Jackson v. Robinson, 4 Wend. 436 58, 69 Jackson, Smith v., 2 Edw. Gh. 28 34 Jackson, Stagg v., 1 N. Y. 206 15 Jacobson, Parkinson v., 18 Hun 353 266 James, Hawley v., 5 Paige 318 86, 222 Jenkins v. Fahey, 73 N. Y. 355 24 Jenkins, Mead v., 27 Hun 570, 29 Hun 253, aff'd 95 N. Y. 31 58 Jenkins v. Young, 35 Hun 569 265 Jenkins v. Young, 43 Hun 194, 5 St. Rep. 476 162 John's Estate, Matter of, 18 Supp. 172, 21 Civ. Pro. Rep. 326 85 Johnson, Butler v., Ill N. Y. 204, aff'g 41 Hun 206, 4 St. Rep. 151. 173 199, 206 Johnson v. Corbett, 11 Paige 265 260 Jones, Dennis v., 1 Dem. 80 97, 162 Jones V. LeBaron, 3 Dem. 37 33, 182 Jooss V. Fey, 129 N. Y. 17 26 JoufCret V. Loppin, 20 App. Div. 455, 46 Supp. 810 42, 43 xxii TABLE OF CASES CITED. K. PAGE Kammerrer v. Ziegler, 1 Dem. 177 Ill, 183 Kavanaugh, Hogan v., 138 N. Y. 417 14, 42, 43, 56, 268 Kelley's Estate, 1 Abb. N. C. 102 97 Kendrick's Estate, 15 Abb. N. C. 189, 3 Dem. 301 206 Kendriek, Matter of, 107 N. Y. 104 198, 200 Kennedy v. Lamb, 182 N. Y. 228 128 Kent V. Kent, 62 N. Y. 560 185, 199 Kernochan v. N. Y. B. R. R. Co., 128 N. Y. 559 33-34 Keyes, Spaulding v., 1 Silv. Sup. Ct. Rep. 203 48 Keyes, Wood v. 8 Paige 365 15 Killan, Matter of, 172 N. Y. 547 87, 103 King, Farrington v., 1 Brad. 182 172 Kingsland, Baker v., 10 Paige 266 183 Kingsland v. Murray, 133 N. Y. 170 56, 208 Kinnan, Atkins v., 20 Wend. 241 97 Kinney, Hoey v., 10 Abb. Pr. 400 35, 39 Kinney, Williams v., 43 Hun 1, 6 St. Rep. 560 86, 222, 260 Knapp, Wood v., 100 N. Y. 109 ." 134 Knickerbocker v. Decker, 4 Dem. 128 220, 233 Knolls V. Barnhart, 71 N. Y. 474 86, 223 Koch's Will, Matter of, 12 Supp. 94, 19 Civ. Pro. Rep. 165 ....... 134 Koons V. Wilkin, 2 App. Div. 13, 37 Supp. 640 202 Korn, Early v. 89 Supp. 392 38 Kowing V. Moran, 5 Dean. 56 , 173 X>add, Hendrickson v., 2 Dem. 402, 5 Civ. Pro. Rep. 50 69 Ladd, Matter of, 5 Civ. Pro. Rep. 50, 2 Dem. 402 69 Laird v. Arnold, 42 Hun 136, 3 St. Rep. 376 192 Lamb, Kennedy v., 182 N. Y. 228 128 Lamont, Hoag v., 16 Abb. N. S. 91 158 Lamphere v. Lamphere, 54 App. Div. 17, 66 Supp. 270 202 Latimer, Olmstead v., 9 App. Div. 163, 41 Supp. 44 200 Lawrence v. Brown, 5 N. Y. 394 86, 223 Lawrence v. Miller, 2 N. Y. 245 86, 223 Lawrence, Norton v., 1 Red. 473 155 Leahy v. Campbell, 70 App. Div. 127, 75 Supp. 72 202 LeBaroh, Jones v., 3 Dem. 37 33, 182 Leinkauf, Matter of, 4 Dem. 1 165 Lewis V. Smith, 9 N. Y. 502 47 Lichtenberg v. Herdtfelder, 103 N. Y. 302 44, 64-65 Lichtenstein, Matter of, 16 Misc. 667, 39 Supp. 174 170, 217 TABLE OF CASES CITED. xxiii PAGE liiddle, Matter of, 35 Misc. 173, 71 Supp. 474 50 Llpe, Pox v., 24 Wend. 164 245 Livingston v. Arnoux, 56 N. "Y. 507 32 Livingston, Ford v., 140 N. Y. 162 29, 34 Livingston v. Newkirk, 3 Johns. Ch. 312 73, 268 Long V. Long, 142 N. Y. 545 14, 42, 56, 268 Long V. Olmsted, 3 Dem. 581 78, 225 Loppin, Jouferet v., 20 App. Div. 455, 46 Supp. 810 42, 43 Luce, Matter of, 17 Wkly. Dig. 35, 29 Hun 145 162, 265 Luckey, Matter of, 4 Red. 95 192 Luddon v. Degener, 14 App. Div. 397, 43 Supp. 908 133 Ludlow, Matter of, 5 Red. 391 165 Lyman, Parsons v., 20 N. Y. 103 71 Lynch, Flynn v., 27 Supp. 926, 23 Civ. Pro. Rep. 369 '.'. . . 33 Mc. McAvoy, Matter of, 112 App. Div. 377, 98 Supp. 437 189 McBurney, Cox v., 4 Super. Ct. (2 Sand.) 561 33 McConnell, Jackson v., 19 Wend. 175 26 McCoy, Horton v., 47 N. Y. 21 28, 33 McCue V. Garvey, 14 Hun 562 189 McCue v. O'Hara, 5 Red. 336 169 McCullough V. McCready, 52 Misc. 542, 102 Supp. 633 189 McDonnell, Harvey v., 113 N. Y. 526 45, 65 McElmeel, Corley v., 149 N. Y. 228 311 McFarland, Schneider v., 2 N. Y. 459 84, 161 McGee, Matter of, 5 App. Div. 527, 38 Supp. 1062 83-84 McKenna, Farmers' Loan & Trust Co. v., 3 Dem. 219 165 McLaren v. McMartin, 36 N. Y. 88 199 McLoskey v. Reid, 4 Brad. 334 160, 166 McMartin, McLaren v., 36 N. Y. 88 199 McMurray v. McMurray, 66 N. Y. 175 162 McNabb v. Pond, 4 Brad. 1 47 McNulty V. Kurd, 72 N. Y. 518 185, 187 M. Macaulay, Matter of, 27 Hun 577, aff'd 94 N. Y. 574 158, 159 Macaulay, Matter of, 94 N. Y. 574 134 Mackey, Duryea v., 151 N. Y. 204 63, 69 Mahoney, Matter of, 34 Hun 501 110, 163, 265 Malin v. Malin, 1 Wend. 625 46 Mangam, Ingersoll v., 84 N. Y. 622 117 Jilanhattan Co., Osgood v., 3 Cowen 612 183 xxiv TABLE OF CASES CITED. PAGE Maples V. Howe, 3 Barb. Ch. 611 86, 223, 256 Market Nat. Bank v. Pacific Nat. Bank, 89 N. Y. 397 . .130, 134, 135 Martin, Felts v. 20 App. Div. 60, 46 Supp. 741 33, 35, 37 Marvin, Greenwood v.. Ill N. Y. 423 34 Matter of Atwood, 10 Misc. 480, 32 Supp. 115, 65 St. Rep. 171.. 106 Matter of Baker, 62 Supp. 859, 48 App. Div. 443 173 Matter of Barnes, 7 App. Div. 13, 40 Supp. 494, affid 154 N. Y. 737 192 Matter of Beach's Estate, 1 Misc. 27, 22 Supp. 1079 191 Matter of Becker, 28 Hun 207 162 Matter of Bernstein's Estate, 58 Misc. 115, 110 Supp. 473 38 Matter of Bettman, 65 App. Div. 229, 72 Supp. 728 210 Matter of Bingham, 32 St. Rep. 782, 10 Supp. 325 83 Matter of Bingham, 127 N. Y. 296 60, 61, 83, 84, 159, 176, 208 Matter of Black, 1 Con. 477 189 Matter of Bolton 146 N. Y. 257 15, 219 Matter of Bowne, 6 Dem. 51 166 Matter of Bradley, 25 Misc. 261, 54 Supp. 555 271 Matter of Will of Bradley, 70 Hun 104, 23 Supp. 1127, 53 St. Rep. 540 88, 112,147 Matter of Braker, 48 App. Div. 443, 62 Supp. 859 173 Matter of Callaghan, 69 Hun 161, 23 Supp. 378, 52 St. Rep. 537 38, 5S Matter of Camp, 81 Hun 387, 30 Supp. 884, 63 St. Rep. 160 149 Matter of Campbell, 66 App. Div. 478, 73 Supp. 290 155, 182, 188 Matter of Carhart, 2 Dem. 627 13& Matter of City of Rochester, 110 N. Y. 159 33, 53 Matter of Clark, 5 Dem. 377, 8 St. I^ep. 745 186 Matter of Corbett, 90 Hun 182, 35 Supp. 945, 70 St. Rep. 661 207 Matter of Cortwright, 3 Dem. 13 116, 117 Matter of Corwin, 10 Misc. 196, 31 Supp. 426 72 Matter of Davids, 5 Dem. 14 105, 179 Matter of Davis, 43 App. Div. 331, 60 Supp. 315 260 Matter of Denton, 86 App. Div. 359, 83 Supp. 778 135 Matter of Dolan, 88 N. Y. 309 79, 220, 265 Matter of Dusenbury, 34 Misc. 666, 70 Supp. 725 42 Matter of Bichman, 33 Misc. 322, 68 Supp. 636 202 Matter of Ellis, 4 Supp. 180, 22 St. Rep. 77 103 Matter of Engelbrecht, 15 App. Div. 541, 44 Supp. 551 250^ Matter of Brlacher, 3 Red. 8 190, 191 Matter of Faulkner's Estate, 10 Supp. 325, 32 St. Rep. 782 83 Matter of Ferrigan, 42 App. Div. 1, 58 Supp. 920 209 Matter of Field, 131 N. Y. 184 130, 133 Matter of Foley, 39 App. Div. 248, 57 Supp. 131 197 Matter of Fox, 52 N. Y. 530 IR TABLE OF CASES CITED. xxv PAGE Matter of Frazer, 92 N. Y. 239 182 Matter of Gantert, 136 N. Y. 106 16, 52, 218 Matter of Gennert, 96 App. Dlv. 8, 89 Supp. 37 71 Matter of Georgi, 35 Misc. 685, 72 Supp. 431 84, 88, 111, 150 Matter of Georgi, 44 App. Div. 180, 60 Supp. 772, aff'd 162 N. Y. 660 Ill Matter of German Bank, 39 Hun 181 80, 82, 83, 97 Matter of Graliam, 39 Misc. 226, 79 Supp. 573, 12 A. C. 157 143 Matter of Gregory, 13 Misc. 363, 35 Supp. 105, 69 St. Rep. 479.. 142 Matter of Hamilton, 76 Hun 200, 27 Supp. 813, 57 St. Rep. 810.. 155 Matter of Hannon, 46 Misc. 229, 93 Supp. 207 112 Matter of Harlow, 73 Hun 433, 26 Supp. 469, 56 St. Rep. 33 130 Matter of Hatch, 182 N. Y. 320 73, 77, 193, 194, 196, 217 Matter of Haxtun, 102 N. Y. 157 19, 73, 81, 183, 202 Matter of Henry, 2 How. Pr. N. S. 250 163 Matter of Hildebrand's Estate, 1 Misc. 245, 23 Supp. 148 190 Matter of Holden, 126 N. Y. 589 : 169 Matter of Hopper, 5 Paige 489 164 Matter of Hotchkiss, 17 Misc. 670, S. C. 41 Supp. 431 79 Matter of Howard, 11 Misc. 224, 32 Supp. 1098 171, 207 Matter of Howard's Estate, 3 Misc. 170, 23 Supp. 836 192 Matter of Hughes, 95 N. Y. 55 71 Matter of Hurlburt, 43 Hun 311, 4 St. Rep. 354 158 Matter of Ibert, 48 App. Div. 510, 62 Supp. 1051 57, 84, 176 Matter of Igglesden, 3 Red. 375 83 Matter of John's Estate, 18 Supp. 172, 21 Civ. Pro. Rep. 326 85 Matter of Kendrick, 107 N. Y. 104 198, 200 Matter of Killan, 172 N. Y. 547 87, 103 Matter of Koch's Will, 12 Supp. 94, 19 Civ. Pro. Rep. 165 134 Matter of Ladd, 5 Civ. Pro. Rep. 50, 2 Dem. 402 69 Matter of Leinkauf, 4 Dem. 1 165 Matter of Lichtenstein, 16 Misc. 667, 39 Supp. 174 170, 217 Matter of Liddle, 35 Misc. 173, 71 Supp. 474 50 Matter of Luce, 17 Wkly. Dig. 35, 29 Hun 145 162, 265 Matter of Luckey, 4 Red. 95 192 Matter of Ludlow, 5 Red. 391 165 Matter of McAvoy, 112 App. Div. 377, 98 Supp. 437 189 Matter of McGee, 5 App. Div. 527, 38 Supp. 1062 83-84 Matter of Macaulay, 27 Hun 577, affi'd 94 N. Y. 574 158, 159 Matter of Macaulay, 94 N. Y. 574 134 Matter of Mahoney, 34 Hun 501 110, 163, 265 Matter of Meagley, 39 App. Div. 83, 56 Supp. 503 208 Matter of Merchant's Estate, 6 Supp. 875, 25 St. Rep. 268 80, 81, 171, 207 Matter of Miller, 70 Hun 61, 23 Supp. 1104 186 SXvi TABLE OF CASES CITED. PAGE Matter of Miller, 2 App. Dlv. 615, 37 Supp. 447, 72 St. Rep. 718.. 175 Matter of Monell, 19 Supp. 361, 46 St. Rep. 693 165, 166 Matter of Mount, 3 Red. 9 n 192 Matter of Murphy, 79 App. Div. 541, 81 Supp. 102 210 Matter of Neally, 26 How. Pr. 402 160, 166 Matter of O'Brien, 39 App. Div. 321, 56 Supp. 925 53, 73 Matter of Ogden, 41 Misc. 158, 83 Supp. 977 189 Matter of O'Keeffe, 80 App. Div. 513, 81 Supp. 118 169 Matter of O'Neill, 49 Misc. 285, 99 Supp. 237 82, 87 Matter of Page, 107 N. Y. 266 146 Matter of Pearsall, 4 Supp. 365, 21 St. Rep. 305 210 Matter of Peaslee, 73 Hun 113, 25 Supp. 940, 56 St. Rep. 134 155 Matter of Peck, 3 Red. 345 197 Matter of Pfohl, 20 Misc. 627, 46 Supp. 1086 183 Matter of Phalen, 51 Hun 208, 4 Supp. 408, 21 St. Rep. 34 88, 147 Matter of Plopper, 15 Misc. 202, 37 Supp. 33 . .' 73, 98, 207 Matter of Porter, 1 Misc. 489, 22 Supp. 1063, 54 St. Rep. 302, 115. 136, 143 Matter of Post, 30 Misc. 551, 64 Supp. 369 142 Matter of Pullen, 52 Misc. 75, 102 Supp. 435 190 Matter of Quatlander, 29 Misc, 566, 61 Supp. 1064 73, 193 Matter of Raab, 47 App. Div. 33, 62 Supp. 332 202 Matter of Randall, 152 N. Y. 508 187 Matter of Richmond, 168 N. Y. 385 52, 53 Matter of Robbins's Estate, 7 Misc. 264, 27 Supp. 1009, 58 St. Rep. 526 198 Matter of Robinson, 160 N. Y. 448 & 692 , 169 Matter of Rochester City, 110 N. Y. 159 33, 53 Matter of Rogers, 153 N. Y. 316 , 63 Matter of Rooney, 3 Red. 15 , 190 Matter of Rubens, 117 App. Div. 523, 102 Supp. 795 177 Matter of Ruppaner, 7 App. Div. 11, 39 Supp. 763 169 Matter of Sargent, 42 App. Div. 301, 59 Supp. 105 271 Matter of Schlesinger, 36 App. Div. 77, 55 Supp. 514 149 Matter of Seabra, 38 Hun 218 165 Matter of Sherwood, 31 Supp. 409, 63 St. Rep. 856, 83 Hun 200. . 186 Matter of Shipman, 82 Hun 108, 31 Supp. 571, 64 St. Rep. 161 . . 192 Matter of Slater, 17 Misc. 474, 41 Supp. 534 84, 97 Matter of Slingerland, 36 Hun 575 69 Matter of Smith, 75 App. Div. 339, 78 Supp. 130, 11 A. C. 427 . . 192 Matter of Sprague, 40 App. Div. 615, 57 Supp. 1128 182 Matter of Stadtmuller, 110 App. Div. 76, 96 Supp. 1101 189 Matter of Stafford, 105 App. Div. 46, 94 Supp. 194 ., 48 Matter of Stewart, 25 App. Div. 17, 48 Supjr 999 169 Matter of Stilwell, 139 N. Y. 337 ..VT^^-rrr^ SI TABLE OF CASES CITED. xxvii PAGE Matter of St. John, 104 App. Div. 460, 93 Supp. 836 154 Matter of Stowell, 15 Misc. 533, 37 Supp. 1127 197 Matter of Summers, 37 Misc. 575, 75 Supp. 1050 193 Matter of Thompson, 41 Misc. 223, 83 Supp. 983, aff'd 87 App. Div. 609 155 Matter of Topping, 2 Con. 187, 9 Supp. 447, 29 St. Rep. 211. .57, 207 Matter of Townsend, 83 Hun 200, 31 Supp. 409, 63 St. Rep. 856 . . 186 Matter of VanVleck, 32 Misc. 419, 66 Supp. 727 57, 112 Matter of VanVoorhees, 55 Misc. 185, 106 Supp. 354 198 Matter of VanWagonen, 69 Hun 365, 23 Supp. 636, 52 St. Rep. 699 164, 166 Matter of Wachter, 16 Misc. 137, 38 Supp. 941 189 Matter of Wadsworth's Estate, 6 Supp. 932, 24 St. Rep. 416 168 Matter of Walker, 43 Misc. 475, 89 Supp. 459 209 Matter of Warrin, 56 App. Div. 414, 67 Supp. 763 182 Matter of Washburn, 12 Misc. 242, 34 Supp. 44, 67 St. Rep. 895 115, 136 Matter of Weaver, 53 Misc. 244, 104 Supp. 475 189 Matter of Wheeler, 48 Misc. 323, 96 Supp. 762 57, 84 Matter of Williams' Estate, 1 Misc. 35, 22 Supp. 906 82 Matter of Will of Bradley, 70 Hun 104, 23 Supp. 1127, 53 St. Rep. 540 88, 112, 147 Matter of Will of Budlong, 100 N. Y. 203 169 Matter of Winans, 5 Dem. 138 50 Matter of Wood, 3 Red. 9 n 192 Matter of Woodard, 13 St. Rep. 161, 5 Dem. 97 193 Matter of Woodward, 69 App. Div. 286, 74 Supp. 755 210 Matter of Yetter, 44 App. Div. 404, 61 Supp. 175, aff'd 162 N. Y. , 615 210 Matthews v. Studley, 17 App. Div. 303, 45 Supp. 201, aff'd 161 N. Y. 633 15 Mauran v. Hawley, 2 Dem. 396 106 Mead V. Jenkins, 27 Hun 570, 29 Hun 253 58 Mead v. Miller, 3 Dem. 577 115 Mead v. Sherwood, 4 Red. 352 175 Meagley, Matter of, 39 App. Div. 83, 56 Supp. 503 208 Mercantile Trust Co., Doane v., 160 N. Y. 494 14 Merchant's Estate, 6 Supp. 875, 25 St. Rep. 268 80, 81, 171, 207 Merchant v. Merchant, 6 Supp. 875, 25 St. Rep. 268 80, 81, 171, 207 Merrltt, Corwin v., 3 Barb. 341 161 Merritt's Will, 5 Dem. 544 136 Mesick v. New, 7 N. Y. 163 52 Messerschmitt, Seitz v., 117 App. Div. 401, 102 Supp. 732, aff'd 188 N. Y. 587 87 Miller, Ball v., 17 How. Pr. 300 197 xxviii TABLE OF CASES CITED, ' PAGE Miller, Lawrence v., 2 N. Y. 245 86, 223 Miller, Matter of, 70 Hun 61, 23 Supp. 1104 186 Miller, Matter of, 2 App. Div. 615, 37 Supp. 447, 72 St. Rep. 718 175 Miller, Mead v., 3 Dem. 577 115 Miller v. Morton, 89 Hun 574, 35 Supp. 294, 69 St. Rep. 648 .... 192 Miner v. Brown, 133 N. Y. 308 '. . . . 26 Mitchell, Partridge v., 3 Bdw. Ch. 180 206 Monell, Matter of, 19 Supp. 361, 46 St. Rep. 693 165, 166 Mooers v. White, 6 Johns. Ch. 360 58, 76, 198 Moore, Bodine v., 18 N. Y. 347 31, 33 Moran, Kowing v., 5 Dem. 56 173 Moorhouse v. Hutchinson, 2 Dem. 429 , 251 Morehouse, Wood v., 45 N. Y. 368 34 Morrell v. Dickey, 1 Johns. Ch. 153 160, 166 Morette, Schutz v., 146 N. Y. 137 198, 199, 206 Morton's Estate, 23 Supp. 1104, 70 Hun 61 186 Morton, Miller v., 89 Hun 574, 35 Supp. 294, 69 St. Rep. 648 192 Moses, Clift v., 116 N. Y. 144 16, 52 Moses V. Murgatroyd, 1 Johns. Ch. 119 33 Mosher, Happy v., 48 N. Y. 313 85 Mount, Matter of, 3 Red. 9 n 192 Murgatroyd, Moses v., 1 Johns. Ch. 119 33 Murphy, Matter of, 79 App. Div. 541, 81 Supp. 102 210 Murray, Kingsland v., 133 N. Y. 170 56, 208 Myrick, Ferrin v., 41 N. Y. 315 188, 189 N. Neally, Matter of, 26 How. Pr. 402 160, 166 Nearing, Rockwell v., 35 N. Y. 302 85 Nelin, Goodwin v., 2 Abb. Ct. of App. Dec. 258, 35 How. Pr. 402. 47 New, Mesick v., 7 N. Y. 163 52 Newkirk, Livingston v., 3 Johns. Ch. 312 73, 268 Noble, Burnett v., 5 Red. 69 192, 199 Northrop, Chandler v., 24 Barb. 129 161 Norton v. Lawrence, 1 Red. 473 , 155 Norton, Raven v., 2 Dem. 110 172 Nunan, Bertles v., 92 N. Y. 152 26 N. Y. B. R. R. Co., Kernochan v., 128 N. Y. 559 33-34 N. Y. & Erie R. R. Co.. Rood v., 18 Barb. 80 46 O. O'Brien, Matter of, 39 App. Div. 321, 56 Supp. 925 53, 73 O'Bxien v. Reformed Church, 10 App. Div. 605, 42 Supp. 356 262 O'Donoghue v. Boies, 159 N. Y. 87 261 TABLE OF CASES CITED. xxix PAGE O'Hara, McCue v., 5 Red. 336 169 O'Keefe, Matter of, 80 App. Div. 513, 81 Supp. 118 169 O'Neill, Matter of, 49 Misc. 285, 99 Supp. 237 82, 87 Ocean Nat. Bank of N. Y., Dunning v., 61 N. Y. 497 33 Ockershausen, Coogan v., 23 Jones & Spencer, 286 53 Ogden, Matter of, 41 Misc. 158, 83 Supp. 977 189 Ogden, Potter v., 136 N. Y. 384 117, 143, 161, 162 Olendorf, Church v., 49 Hun 439, 3 Supp. 557, 19 St. Rep. 700. . 63 Olmstead v. Latimer, 9 App. Dlv. 163, 41 Supp. 44 200 Olmsted, Long v., 3 Dem. 581 78, 225 Olyphant v. Phyfe, 48 App. Div. 1, 62 Supp. 688, atf'd 166 N. Y. 630 60 Osgood V. The Manhattan Co., 3 Cowen 612 183 Overton v. Barclay, 89 Hun 611, 35 Supp. 326, 69 St. Rep. 716 . . 123 Owens V. Bloomer, 14 Hun 296 188, 189, 191, 192 Pacific Nat. Bank, Market Nat. Bank v., 89 N. Y. 397.. 130, 134, 135 Paff, Warren v., 4 Brad. 260 206 Paige, Drake v., 127 N. Y. 562 15 Page, Matter of, 107 N. Y. 266 146 Palmer v. Palmer, 3 App. Div. 213, 38 Supp. 195 42, 57 Parker v. Beer, 137 N. Y. 332 218 Parker, Wetmore v., 52 N. Y. 450 136 Parkinson v. Jacobson, 18 Hun 353 266 Parsons v. Lyman, 20 N. Y. 103 71 Partridge v. Mitchell, 3 Bdw. Ch. 180 206 Patterson v. Patterson, 59 N. Y. 574 * 188 Pearsall, Matter of, 4 Supp. 365, 21 St. Rep. 305 210 Peaslee, Matter of, 73 Hun 113, 25 Supp. 940, 56 St. Rep. 134 155 Peck, Matter of, 3 Red. 345 197 Pelletreau v. Smith, 30 Barb. 494 234 People V. Burgess, 153 N. Y. 561 136 People ex rel. Adams v. Westbrook, 61 How. Pr. 138 183 Peters v. Carr, 2 Dem. 22 143, 158 Pfohl, Matter of, 20 Misc. 627, 46 Supp. 1086 183 Phalen, Matter of, 51 Hun 208, 4 Supp. 408, 21 St. Rep. 34 . . 88, 147 Phelps V. Phelps, 143 N. Y. 197 86, 223 Phipps, Cromwell v., 6 Dem. 60 211 Phyfe, Olyphant v., 48 App. Div. 1, 62 Supp. 688, afC'd 166 N. Y. 630 60 Phyfe V. Riley, 15 Wend. 248 •. 33 Pike, Barney v., 94 App. Div. 199, 87 Supp. 1038 28 Pinckney v. Smith, 26 Hun 524 117, 162 XXX TABLE OF CASES CITED. PAGE. Piatt V. Piatt, 105 N. Y. 488 57 Plopper, Matter of, 15 Misc. 202, 37 Supp. 33 73, 98, 207 Poillon, White v., 25 Hun 69 37, 65 Pond, McNabb v., 4 Brad. 1 47 Porter, Matter of, 1 Misc.' 489, 22 Supp. 1063, 54 St. Rep. 302 115, 136, 143 Post, Matter of, 30 Misc. 551, 64 Supp. 369 142 Potter V. Ogden, 136 N. Y. 384 117, 143, 161, 162 Powell V. Harrison, 88 App. Dlv. 228, 85 Supp. 452 37 Powers, Eleventh Ward Bank v., 43 App. Div. 178, 59 Supp. 314. 129 Prentiss v. Bowden, 145 N. Y. 342 34, 44 Price V. Fenn, 3 Dem. 341, 8 Civ. Pro. Rep. 206. .112, 163, 165, 166, 265 Pullen, Matter of, 52 Misc. 75, 102 Supp. 435 190 Purdy Campbell v., 5 Red. 434 191 Q. Quatlander, Matter of, 29 Misc. 566, 61 Supp. 1064 73, 193 Quinlan, Cotter v., 2 Dem. 29 198 Quinn, Smillie v., 90 N. Y. 492 48 Quinn, Tickel v., 1 Dem. 425 191-192 R. Raab, Matter of, 47 App. Div. 33, 62 Supp. 332 202 Randall, Matter of, 152 N. Y. 508 187 Raven v. Norton, 2 Dem. 110 ., 172 Raynor v. Gordon, 23 Hun 264 86, 200 Rea, Gilchrist v., 9 Paige 66 58 Read v. Williams, 125 N. Y. 560 15 Reed v. Chilson, 142 N. Y. 152 159 Reformed Church, O'Brien v., 10 App. Div. 605, 42 Supp. 356 262 Reid, McLoskey v., 4 Bread. 334 160, 166 Reynolds v. Britton, 56 Misc. 67, 106 Supp. 937 38 Reynolds v. Collins, 3 Hill 36 198 Rice, Baldwin v., 183 N. Y. 55 70 Rice, Herkimer v., 27 N. Y. 163 34 Richmond v. Foote, 3 Lans. 244 46, 79 Richmond v. Freemans Nat. Bank, 86 App. Div. 152, 83 Supp. 632 85, 97, 155 Richmond, Matter of, 168 N. Y. 385 52, 53 Riley, Phyfe v., 15 Wend. 248 33 Risley, Chatauque Bank v., 19 N. Y. 369 32 Ritten v. Griffith, 16 Hun 454 130 Robbins, Matter of Estate of, 7 Misc. 264, 27 Supp. 1009, 58 St. Rep. 526 19g TABLE OF CASES CITED. , xxxi PAGE Robertson, Heermans v., 64 N. Y. 332 14, 268 Robinson, Jackson v., 4 Wend. 436 58, 69 Robinson, Matter of, 160 N. Y. 448 & 692 169 Rocliester City, Matter of, 110 N. Y. 159 33, 53 Rockwell's Estate, 41 Supp. 431, 17 Misc. 670 .' 79 Rock-well V. Nearing, 35 N. Y. 302 85 Roderigas v. East Riv. Sav. Institution (2d case) 76 N. Y. 316. . 106 Rogers, Matter of, 153 N. Y. 316 , 63 Rogers v. Rogers, 2 Paige 458 171 Rooney, Matter of, 3 Red. 15 190 Rood V. N. Y. & Erie R. R. Co., 18 Barb. 80 46 Rubens, Matter of, 117 App. Div. 523, 102 Supp. 795 177 Ruppaner, Matter of, 7 App. Div. 11, 39 Supp. 763 169 Russell, Collins v., 184 N. Y. 74 85 S. Sahler v. Signer, 44 Barb. 606 46 Sanford v. Granger, 12 Barb. 392 197 Sargent, Matter of, 42 App. Div. 301, 59 Supp. 105 271 Scbarmann v. Schoell, 38 App. Div. 528, 56 Supp. 498 122 Schlesinger, Matter of, 36 App. Div. 77, 55 Supp. 514 149 Schneider v. McParland, 2 N. Y. 459 84, 161 Schoell, Scharmann v., 38 App. Div. 528, 56 Supp. 498 122 Scbutz V. Morette, 146 N. Y. 137 198, 199, 206 Seabra, Matter of, 38 Hun 218 165 Second Nat. Bank, Smith v., 169 N. Y. 467 70 Seitz V. Messerschmitt, 117 App. Div. 401, 102 Supp. 732, aff'd 188 N. Y. 587 87 Selover v. Coe, 63 N. Y. 438 56, 200 Sharpe v. Freeman, 45 N. Y. 802 185 Sheldon v. Wright, 7 Barb. 39, aff'd 5 N. Y. 497 83 Shepard, Gibbons v., 2 Dem. 247 273 Sherman, Havens v., 42 Barb. 636 85, 161 Sherwood, Matter of, 31 Supp. 409, 63 St. Rep. 856, 83 Hun 200. . 186 Sherwood, Mead v., 4 Red. 352 175 Shipman, Matter of, 82 Hun 108, 31 Supp. 571, 64 St. Rep. 161.. 192 Shreck, Stelz v., 128 N. Y. 263 26. Sibley v. Waffle, 16 N. Y. 180 79 Signer, Sahler v., 44 Barb. 606 46 Slater, Matter of, 17 Misc. 474, 41 Supp. 534 84. 97 Slingerland, Matter of, 36 Hun 575 69- Slocum V. English, 62 N. Y. 494 56, Smlllie V. Quinn, 90 N. Y. 492 48 Smith V. Blood, 106 App. Div. 317, 94 Supp. 667 50, xxxii TABLE OF CASES CITED. PAGE Smith V. Buchanan, 5 Dem. 169 274 Smith V. Coup, 6 Dem. 45 16 Smith, Hamlin v.. 72 App. Dlv. 601, 76 Supp. 258 198 Smith V. Jackspn, 2 Bdw. Ch. 28 34 Smith, Lewis v., 9 N. Y. 502 47 Smith, Matter of, 75 App. Dlv. 339, 78 Supp. 130, 11 A. C. 427 192 Smith, Pelletreau v., 30 Barb. 494 234 Smith, Pinckney v., 26 Hun 524 117, 162 Smith V. Second Nat. Bank, 169 N. Y. 467 70 Smith V. Wells, 69 N. Y. 600 133 Smith V. WyckofE, 11 Paige 49 52, 53 Spaulding v. Keyes, 1 Silv. Sup. Ct. Rep. 203 48 Sprague, Matter of, 40 App. Div. 615, 57 Supp. 1128 182 Stadtmuller, Matter of, 110 App. Div. 76, 96 Supp. 1101 189 Stafford, Matter of, 105 App. Div. 46, 94 Supp. 194 48 Stagg v. Jackson, 1 N. Y. 206 15 Steinhardt v. Baker, 25 App. Div. 197, 49 Supp. 357 123 Stelz V. Shreck, 128 N. Y. 263 26 Stevens, Dodge v., 105 N. Y. 585 24 Stevens, DePuy v., 37 App. Div. 289, 55 Supp. 810 25 Stevenson, Herbert v., 3 Dem. 236 151 Stewart, Matter of, 23 App. Div. 17, 48 Supp. 999 169 Stilwell V. Carpenter, 59 N. Y. 414. & 62 N. Y. 639 187 Stilweli, Matter of, 139 N. Y. 337 37 Stilwell V. Swarthout, 81 N. Y. 109 63 St. John, Matter of, 104 App. Div. 460, 93 Supp. 836 154 Story V. Dayton, 22 Hun 450 163 Stowell, Matter of, 15 Misc. 533, 37 Supp. 1127 197 Studley, Matthews v., 17 App. Div. 303, 45 Supp. 201, aff'd 161 N. Y. 633 15 Stuyvesant v. Weil, 167 N. Y. 421 102 Suggett, Weller v., 3 Red. 249 160, 166 Summers, Matter of, 37 Misc. 575, 75 Supp. 1050 193 Sumner, Buchan v., 2 Barb. Ch. 165 27, 34 Swain, Bridge v., 3 Red. 487 207 Swarthout, Stilwell v., 81 N. Y. 109 63 Swinton, Wallace v., 64 N. Y. 188 34 Syme, Taylor v., 162 N. Y. 513 70 T. Taylor v. Syme, 162 N. Y. 513 70 Taylor v. Taylor, 3 Brad. 54 260 Terwilliger v. Brown, 44 N. Y. 237 261 Thompson, Bryant v., 59 Hun 545, 14 Supp. 28, 37 St. Rep. 431 . . 166 TABLE OF CASES CITED. xxxiii PAGE Thompson, Hultslauder v., 5 Hun 348 202 Thompson, Matter of, 41 Misc. 223, 83 Supp. 983, aff'd 87 App. Div. 609 155 Tickel V. Quinn, 1 Dem. 425 191-192 Tompkins Co. Nat. Bank, Barto v., 15 Hun 11 24 Topping, Matter of, 2 Con. 187, 9 Supp. 447, 29 St. Rep. 211 ..57, 207 Townsend. Matter of, 83 Hun 200, 31 Supp. 409, 63 St. Rep. 856 . . 186 Traphagen v. Traphagen 40 Barb. 537 46 Turner v. Amsdell, 3 Dem. 19 183 Tyler v. Ballard, 31 Misc. 540, 65 Supp. 557, 7 A. C. 465 49 U. Underbill v. Dennis, 9 Paige 202 164 Underwood v. Curtis, 127 N. Y. 523 . , 14 V. VanAlen v. Hewins, 5 Hun 44 150 VanAlstyne, Warner v., 3 Paige 513 86. 822 Vandenburg, Wood v., 6 Paige 277 188, 189 Vanderpoel v. VanValkenburgh, 6 N. Y. 190 154 VanValkenburgh, Hopkins v., 16 Hun 3 183 VanValkenburgh, Vanderpoel v., 6 N. Y. 190 154 VanVleck, Matter of, 32 Misc. 419, 66 Supp. 727 57, 112 VanVoorhees, Matter of, 55 Misc. 185, 106 Supp. 354 198 VanWagonen, Matter of, 69 Hun 365, 23 Supp. 636, 52 St. Rep. 699 164, 166 Visscher v. Wesley, 3 Dem. 301, 15 Abb. N. C. 189, aif'd 107 N. Y. 104 198, 206 W. Wachter, Matter of, 16 Misc. 137, 38 Supp. 941 189 Wadsworth's Estate, Matter of, 6 Supp. 932, 24 St. Rep. 416 168 Waffle, Sibley v. 16 N, Y. 180 79 Walker, Matter of, 43 Misc. 475, 89 Supp. 459 209 Wallace v. Swinton, 64 N. Y. 188 34 Wallach, Fink v., 47 Misc. 247, 95 Supp. 872 133 Warner v. VanAlstyne, 3 Paige 513 86, 222 Warren v. Pafl, 4 Brad. 260 206 Warrin, Matter of, 56 App. Div. 414, 67 Supp. 763 182 Washbone v. Cope, 144 N. Y. 287 143, 159 Washburn, Matter of, 12 Misc. 242, 34 Supp. 44, 67 St. Rep. 895 115, 136 XXXiv TABLE OF CASES CITEO: page; Washington Life Ina. Co. v. Clark, 79 App. Div. 160, 79 Supp. 610. 37 Weaver, Matter of, 53 Misc. 244, 104 Supp. 475 189' Weil, Stuyvesant-v., 167 N. Y. 421 102. Weisser, Bernes v., 2 Brad. 212 186 Weller v. Suggett, 3 Red. 249 160, 166. Wells, Smith v., 69 N. Y. 600 133 Wesley, Visscher v., 3 Dem. 301, 15 Abb. N. C. 189, afe'd 107 N. Y. 104 198, 206 Westbrook, People ex rell. Adams v., 61 How. Pr. 138 183 Westlake, Higbie v., 14 N. Y. 281 223 Weston, Covell v., 20 Johns. 414 4 Wetmore y. Parker, 52 N. Y. 450 136 Wheeler, Matter of, 48 Misc. 323, 96 Supp. 762 57, 84 White V. Howard, 46 N. Y. 144 15 White, Mooers v., 6 Johns. Ch. 360 58, 76, 198 White, Wilson v., 109 N. Y. 59 85, 265 White V. Poillon, 25 Hun 69 37, 65 Whiting V. Barrett, 7 Lans. 106 48 Wilkin, Cornes v., 79 N. Y. 129 74 Wilkin, Koons v., 2 App. Div. 13, 37 Supp. 640 202 Win of Bradley, Matter of, 70 Hun 104, 23 Supp. 1127, 53 St. Rep. 540 88, 112,147 Will of Budlong, Matter of, 100 N. Y. 203 169 Will of Koch, Matter of, 12 Supp. 94, 19 Civ. Pro. Rep. 165 134 Will of Merritt, 5 Dem. 544 136 Willock, Genet v., 93 App. Div. 588, 87 Supp. 938 202 Williams' Estate, Matter of, 1 Misc. 35, 22 Supp. 906 82 Williams v. Gillies, 75 N. Y. 197 28' Williams v. Kinney, 43 Hun 1, 6 St. Rep. 560 86, 222, 260' Williams, Read v., 125 N. Y. 560 15 Wilson v. White, 109 N. Y. 59 85, 265- Winans, Matter of, 5 Dem. 138 50 Wisner, Dill v., 88 N. Y. 153 16, 52, Witbeck, Pitch v., 2 Barb. Ch. 161 69 Wood v. Byington, 2 Barb. Ch. 387 197 Wood V. Keyes, 8 Paige 365 15 Wood v. Knapp, 100 N. Y. 109 134 Wood, Matter of, 3 Red. 9 n 192 Wood v. Morehouse, 45 N. Y. 368 34 Wood V. Vandenburgh, 6 Paige 277 .', 188, 189 Woodard, Cook v., 5 Dem. 97, 13 St. Rep. 161 193. Woodard, Matter of, 13 St. Rep. 161, 5 Dem. 97 193 Woodruff v. Cook, 2 Bdw. Ch. 259 197 Woodward, Matter of, 69 App. Div. 286, 74 Supp. 755 210' Worden, Doheny v., 75 App. Div. 47, 77 Supp. 959 134 REVISED STATUTES CITED. XXXV PAGE Worden, Fritz v., 20 App. Div. 241, 46 Supp. 1040 45 Wright, Sheldon v., 7 Barb. 39, aff'd 5 N. Y. 497 83 WyckofC, Smith v., 11 Paige 49 52, 53 Wyman v. Wyman, 26 N. Y. 253 34 Y. Yates Co. Nat. Bank v. Carpenter, 119 N. Y. 550 48, 50 Yetter, Matter of, 44 App. Div. 404, 61 Supp. 175, aff'd 162 N. Y. 615 210 Youmans v. Boomhower, 3 Thomp. & Cook 21 48 Young, Jenkins v., 35 Hun 569 265 Young, Jenkins v., 43 Hun 194, 5 St. Rep. 476 162 Z Zlegler, Kammerrer v., 1 Dem. 177 Ill, 183' Zorntlein v. Bram, 100 N. Y. 12 26; REVISED LAWS OF 1813 CITED. 1 R. L. pp. 450-454 '. 3 1 R. L. p. 454 § 31 161 REVISED STATUTES CITED. 1 R. S. 754 § "27 24 2 R. S. 100 § 1 58, 206 § 3 161 100-113 §§ 1-75 5 101 § 10' , 198 102 § 14 „ 51 103 § 20 16, 51 105 § 28 256 108 § 48 58 109 § 55 249 110 § 58 . .^ 257 111 §§ 66-67 46 §§ 67-69 260 112 §§ 71-72 : 222 374 §§ 63-64 30 XXXvi SESSION LAWS CITED. GENERAL LAWS CITED. . PAGE Chap. 1, The Statutory Construction Law, § 27 136 Chap. 46, the Real Property Law, § 20 22 § 21 22 § 23 23 § 24 23 § 56 25 § 76 15 § 77 15 § 137 16 § 143 16 § 145 257 § 146 258 § 173 38 § 174 38 § 224 46 § 232 43, 45, 64 § 234 46 § 280 23, 260 SESSION LAWS CITED. 1786 Ch. 27 1,2, 12 1801 Ch. 77 3 1810 Ch. 36 3, 231 1819 Ch. 166 .• 4 1822 Ch. 252 4 1825 Ch. 323 " 4 1830 Ch. 320 § 22 8 1S35 Ch. 264 257 1837 Ch. 460 § 42 46 § 73 9, 58 1843 Ch. 172 9, 185 1850 Ch. 82 11, 167, 264 Ch. 150 ., - 9 Ch. 162 9, 254 1863 Ch. 362 10, 161 Ch. 400 10 1867 Ch. 658 •. 10 1868 Ch. 314 §§ 1 & 2 44 SESSION LAWS CITED. xxxvii PAGE 1869 Ch. 260 11, 264 Ch. 845 10, 58, 266 1870 Ch. 170 10 1871 Ch. 834 10 1872 Ch. 92 11, 167, 264 1873 Ch. 211 10, 58, 60, 266 1874 Ch. 267 10, 188 1878 Ch. 129 11, 264 1879 Ch. 389 9 1880 Ch. 178 11, 21, 51, 54, 59, 68, 96, 110, 256, 259, 261, 266 273, 275 Ch.231 11, 259 Ch. 245 11, 259 1882 Ch. 399 202 1883 Ch. 65 256 1885 Ch. 213 68 1887 Ch. 147 -. 180 Ch. 423 45, 60 1889 Ch. 487 .' '. 44 1892 Ch. 677 136 1893 Ch. 299 183 1894 Ch. 735 12, 21, 68, 72, 97, 110, 180, 193, 276 Ch. 740 44, 45 1896 Ch. 277 42 Ch. 547 § 20 22 § 21 22 § 23 23 § 24 23 § 56 25 § 76 15 § 77 15 § 137 16 I 143 16 § 145 257 § 146 258 § 173 38 § 174 38 § 224 46 § 232 43, 45, 64 § 234 46 § 280 23, 260 Ch. 570 142 Ch. 897 205 .1897 Ch. 726 42 1898 Ch. 78 42 XXXviii COURT OF CIVIL PROCEDURE CITED. PAGE 1900 Ch. 120 72, 76, 77, 193 Ch. 510 79 Ch. 572 130 1901 Ch. 293 191 1904 Ch. 386 202 Ch. 750 11, 13, 36, 51, 73, 81, 149, 179, 182, 184, 185, 186, 193, 209, 218, 220, 223, 226, 229, 231, 232, 234, 255, 260, 264, 273 1905 Ch. 430 220 Ch. 662 42 1908 Ch. 183 223 Ch. 272 87, 97, 101 Ch. 502 278 SECTIONS OP THE CODE OF CIVIL PROCEDURE CITED. "Where section is quoted, in full or partly, reference is heavy-faced. Code C. P. § 17 163, 169 § 363 300 §391 304 S 395 198, 205 § 396 305 f5 403 63, 305 § 403 204 §404 , 305 § 406 305 g 408 ' 305 §409 305 §413 305 §414 63,203 § 415 300 §434 143,158 §435 138 § 436 116, 118 §438 116,117,119 §439 118, 134, 125 §431 131 § 433 131 § 434 137, 138 §436 131, 122,133 CODE OF CIVIL PROCEDURE CITED. xxxix: PAGE Codec. P. §437 131, 122,133 § 438 isr § 489 137 § 440 137, 130 §444 138 §538 177 § 536 79 § 731 103, 176 §723 ■ 103 § 730. . 176 §743 333 §754..... 228 § 763 186 §765 150 §766 149 § 787 134 § 788 136 § 799 , 158 § 803 158 § 810 346 § 813 346 §813 346 §816 346 § 833 178 § 842 79 § 844 79 §870 98 § 913 98. §971 311 § 973 311 § 999 312 § 1003 212, 213 §1210 186 § 1879 34, 44, 49, 51, 187 § 1380 34, 49, 51, 187 § 1381 34 §1390 47 § 1393 47, 48, 51 § 1396 47 § 1897 47 § 1402 47 § 1438 29 § 1440 29, 81 §1446 ; 31 § 1447 33; §1448 31. Xl CODE OF CIVIL PROCEDURE CITED. PAGE CodeC.P. §1466 31 §1471 29 §1473 30,31 §1538 39-42,66 §1567 221 §1568 221,323 § 1569 221-222 §1571 221 § 1633 37 § 1672 61, 63 § 1674 61 §1679 261 § 1823 .74, 200-201, 203 § 1828 -. 148, 248 § 1837 1, 76, 208 §1843 57 §1844 57 §1860 1,76,209 § 2345 28 §2359 29 § 2364 28 §2404 37 § 2407 37 §2408 37 §2472 319 §2473 118,139,146,178,342 §2474 175 §2476 71 §3477 71 § 3481 «8, 146, 147, 176 § 3509 .106, 111, 163 § 2514 17, 21, 72, 73, 75, 76, 146, 188, 193, 195, 206, 250, 373 §2515 Ill §3517 57 § 2518 77, 97-98, 100, 101-102, 103, 106, 108 §3519 •■•• 103,111 § 2520 114-115, 116, 121, 132, 133, 134. 135, 136, 251 § 3531 121, 122, 251 § 3533 126-127, 138, 131 § 2523 87, 111, 127, 128, 131, 132 § 2524 80, 128-129^ 130, 133, 135, 138 § 2525 135, 138 §2526 116, 118, 119, 121, 134, 135 §3537 115, 116, 117, 119, 160, 161, 164 §3528 142,148, 157-158 CODE OF CIVIL PROCEDURE CITED. xli PAGE Codec. P. 13530 160, 161, 163, 163, 164 § 3531 113, 163, 164 §3533 137 §3533 177 §3534 79,177 § 3535 129, 131, 133 §3537 223-224,370 §3538 98, 103, 158, 176, 334 § 3545 310, 313 § 3546 309, 313 §3547 : 210 §2548 310, 212,313 §3549 212 §3555 255 §3557 169,335 § 3558 334 §3559 169,171,324 §3560 234 § 3561 169, 225 § 3563 171, 335, 243, 343, 348, 373 §3564 335,273 § 2566 225 § 2573 168 §2605.. 253,253 § 3613 68 §3616 87 § 3642 349 § 3643 253 §3660 353 §2663 87 §2675 70 § 3685 350, 251 §3686 351 § 3687 250, 253 §3691 352 § 3693 250, 252-253 § 3695 70 §3697 70 § 3700 71 §3701 71 § 3703 , 68, 76 § 3711 100 §3713 22,33,47 §3715 100 § 3718 74, 89, 110, 201, 203 S 3718a 202-203 Xlii CODE OF CIVIL PROCEDURE CITED. PAOB Code C. P. § 2719 17, 18, 21, 74, 75, 185, 194, 267-268 §2726 248,270,271,273 § 2727 272, 273 §2728 273 § 3729 17, 18, 188, 191, 194, 230, 267 §2730 226 §2731 198 §2745 74 § 2749. . . .16, 20-21, 24, 29, 35, 42, 46, 47, 48, 51, 52, 54, 62, 64, 72, 78, 83, 178, 189, 191, 194, 195, 196, 217. 281 § 2750. . . 38, 56, 58, 63, 67-68, 69, 72, 75, 76, 78, 79, 83, 177, 178, 281-282 § 2751 45, 56, 58, 59, 60, 61, 62, 63, 64, 94, 185, 139, 282-283 § 2752 17, 60, 79-80, 81, 82, 83, 84, 86, 96, 97, 99, 105, 108, 109, 110, 170, 172, 175, 188, 206, 207, 286. 237, 283-284 § 3753 80, 83, 84, 87, 96, 97, 98, 100, 101, 103, 106, 108, 175, 287, 285 § 2754 18, 84, 99, 101, 105, 106, 109-1 10, 155, 285 § 2755 18, 19, 75, 85, 110, 145, 154, 155, 171, 178, 170, 181, 188, 184, 187, 188, 197, 198, 100, 201, 209, 329, 345, 285-286 §2756 18,77, 170,177, 185, 195, 214, 215-216, 217, 343, 288 §2757 18, 18, 53, 61, 69, 77, 78, 92, 96, 170, 172, 173, 178, 185, 195, 209, 218, 219, 220, 227-228, 231, 232, 233, 234, 236, 241, 343, 355, 262, 368, 289 § 3758 13, 336, 335, 244-245, 251, 258, 262, 292 § 2759 14, 69, 285, 248, 249, 350, 353, 353, 354, 293 § 3760 149, 254, 295 §3761 13, 17, 18, 75, 77, 194, 195, 218, 226, 330, 243, 243, 254-255, 356, 262, 266, 269-370, 271, 373, 296 §3763 11,263-264,296 § 8764 11, 195, 258-259, 207-298 § 2765 173, 195, 226-227, 298 § 3771 256, 298-299 §3774 248, 261, 299 § 3777 57, 65, 265-266, 300-301 § 3782 259, 360, 302 § 3783 322, 260-261, 302-303 I 3785 166-167, 303 § 3798 35-36, 37, 65, 338, 310 §3799 35, 36,228, 229,310-311 § 3800 80, 86, 93, 171, 220-221, 223, 323, 267, 311-312 FORMER CODE SECTIONS CITED. xliii PAGE Code C. P. § 2801 368, 275, 312 § 2801-a 276-278, 313-315 §3256 171 § 3320 226, 246 §3343 83,251 §3347 134, 149, 150, 173,246 FOBMEB SECTIONS OF THE CODE CITED. Former § 2536 130 §2752 18,81,93,110,284 § 2755 18, 19, 81, 179-180, 286-287 §2756 61,184,287 §2757 184,186,287 § 2758 18, 81, 228, 229, 287-288 § 2759 51, 52, 54, 72, 106, 208, 216, 218, 288-289 § 2760 219, 220, 228, 230, 290 § 2761 228, 231, 290 §2762 230,228, 232, 291,296 § 2763 238, 233, 291 § 3764 238, 233-234, 359, 291-292 §2765 228, 234, 253, 292 § 3766 .345, 292-293, 398 § 3767 14, 348, 349, 293-294, 298 § 2768 294, 298 § 2769 294-295, 398 § 2770 149. 254, 295, 398 §2772 256,299 § 3773 299 § 3775 357, 300 §2776 14, 300 § 2778 333, 301 § 3779 359, 301 § 2780 301-302 § 2781 259, 302 § 2784 264, 297, 308 § 2786 14, 269, 370, 303-304 § 2787 14, 304 i 2788 14, 304 § 2789 304-305 § 2790 305 §3791 305 xliv RULES CITED. PAGE Former § 3792 305-806 § 3793 81, 193, 235, 268, 269-306-308 § 2794 332, 308 § 2795 223, 308-309 g3796 309 § 3797 309-310 §2800 , , 312 §2801 313 RULES CITED. General Rules of Practice, rule 18 137, 138 rule 49 163 rule 50 169 rule 68-70 233 rule 70 333, 369 Rules of Surrogate's Court of N. Y. County, rule 3 , 116 CHAPTER I. DEVELOPMENT OF THE PROCEDURE. Section 1. — Real Property of Decedent not Liable for Debts at Common Law. " 2. — First Statutes authorizing Disposition of Decedent's Real Property for Payment of Debts. " 3. — Procedure under the Revised Statutes. " 4. — Modifications Prior to the Code. " 5. — Procedure under the Code imtil September 1, 1904. " 6. — The New Procedure. Section i. — Real Property of Decedent not Liable for Debts at Common Law. One of the consequences of the feudal principles, which prohibited any alienation of the feud or fief by the vassal, was to exempt the real estate of a debtor from seizure under a judgment against him ; and, at one time, he was liable to be imprisoned for debt while yet his real property could not be taken. So it happened that, at common law, lands descended or devised could not be seized for the simple eon- tract debts of the ancestor or testator, nor even for his bonds, covenants or other specialties unless the heirs were expressly bound therein. But by an early statute (1786 eh. 27) this unjust rule was abrogated in New York, and the heirs and de- visees of a decedent were made answerable for his debts to the value of the lands descended or devised ; and this legisla- tion, vsdth various modifications, has been continued to the present time and is now embodied in the Code of Civil Pro- cedure. {See §§ 1837-1860.) 1 2 DEVELOPMENT OF THE PROCEDURE. [Ch. I, § » Section 2. — First Statutes authorizing Disposition of De- cedent's Real Property for Payment of Debts. But a more convenient mode of reaching the lands of a deceased debtor was also furnished by other provisions of the same law (1786 ch. 27) whereby the Court of Probates was empowered to authorize the personal representatives of a decedent to dispose of his real estate for the payment of his debts. It was made the duty of an executor or administrator, when he " shall discover or suspect that the personal estate " of his decedent was inadequate for the payment of his debts,, to " make a just and true account of the said personal estate and debts " and deliver it to the judge of the Court of Pro- bates " and request his aid in the premises." Thereupon the judge was required to make an order directing all persons interested to appear before him at a specified time and show cause why so much of the decedent's real estate " should not be sold as will be sufficient to pay his or her debts ; " and this order was published for four weeks successiyely in two or more newspapers. On the return day the judge was required to " hear and examine the allegations and proofs of such executors or administrators and of all other persons inter- ested in such estate as shall think proper to make or offer any ; " and if, upon due examination, he should find that the personal estate of the decedent was "not sufficient to pay his debts " he was required to order " the whole, if necessary, or if not, so much of the real estate of such testator or intes- tate then remaining unsold, to be sold as will pay" such debts. When a sale had been made the conveyance was exe- cuted by the executors or administrators applying for the order " and such other person or persons as the said judge* may think proper to appoint ; " and it was required to set forth the order at large and was made " good, valid and effectual against the heirs and devisees of such testator or intestate and all claiming by, from or under them or any of them." But no such sale could be ordered until the executors Ch. I, § 2] DEVELOPMENT OF THE PROCEDURE. 3 or administrators had " applied the personal estate or such part thereof as may have come to their hands toward pay- ment of the debts of such testator or intestate." It was also provided that if only a part of the real estate should be dis- posed of the avails " shall be received by the executors or administrators applying for such order and shall be con- sidered as assets in their hands for the payment of debts " ; but that where all of it was sold the avails must be brought into court for distribution. i Afterwards (1801 ch. 77) these powers were also con- ferred upon the surrogates of the different counties, and provision was made for a preliminary inventory of all the decedent's personal property, and for guardians of infant devisees or heirs " for the sole purpose of appearing for and taking care of the interests of such infants in the proceed- ing"; and also for appeals from the decrees and orders o£ the surrogate. A later amendment (1810 ch. 36) authorized a mortgage: or lease of a decedent's real estate " in which any infant or infants shall be interested," provided " that no such lease shall be for a longer time than until the youngest person in- terested in such real estate shall become twenty-one years of age." These several statutes were re-enacted in the Revised Laws of 1813 without further change excepting that the convey- ance was thereby required to be " executed by the executors and administrators applying for such order, and such other discreet person or persons as the said judge or surrogate may think proper to appoint." (1 E. L. 450-454.) But it seems that there were careless practitioners, even in those early days, so that, after the enactment of the Re- vised Laws, sales were made by order of certain, surrogates although " through inattention or ignorance no discreet person or persons " had been appointed to join in the con- veyances of the real estate so sold ; and for remedy thereof a statute was enacted in 1819 authorizing a proceeding be- 4 DEVELOPMENT OF THE PROCEDURE. [Ch. I, § 3 fore the chancellor for the' correction of such defects. This act also required the executors or administrators, before the execution of a deed upon any future sale, '' to make a return of the proceedings had on the order for such sale " to the sur- rogate for examination, and if it should " appear that the said sale had been legally made and all the proceedings fairly conducted " the surrogate was required to " issue a further order, confirming such sale, and directing conveyances to be made for the same, to be executed by the executors or admin- istrators " ; and these conveyances vyere required to set forth such orders at large and were made valid and effectual against the heirs and devisees and all persons claiming under them. (1819 ch. 166.) But even under this statute deeds were executed from which, through " inattention or ignor- ance," the orders for the sale of the real estate were omitted notwithstanding this supervision of the surrogate; and sub- sequently the provisions of this remedial statute were also made applicable to such irregularities. (1825 ch. 323.) In 1822 it was made the duty of each surrogate " to record in a book, to be provided for that purpose, all orders and de- crees that shall be made in any proceeding " before him for the sale of real estate, and to file all papers relating to such proceedings which should be deposited in his office. (1822 ch. 252.) Under these statutes it was held — and the rule has con- tinued until the present day — that the heirs take the land of their ancestor subject to the right of the administrator to ap- ply to the surrogate for the sale of it to pay his debts; and when the power given by the statute for that purpose has been executed, the title of the heirs is gone and they have nothing by descent. {Covell v. Weston, 20 John. 414.) Section 3. — Procedure under the Revised Statutes. Thus the statute law stood until 1829 when a comprehen- sive and rather complicated system — partly a revision of this earlier procedure but largely new — was established by the Ch. I, § 3] DEVELOPMENT OF THE PROCEDURE. 5 Kevised Statutes (2 E. S. 100-113 §§ 1-75) whereof the fol- lowing is an outline : At any time within three years after the granting of their letters, and after they had made and filed an inventory and had rendered an account of their proceedings, executors or administrators might apply to the surrogate for authority to mortgage, lease or sell so much of their decedent's real estate as should be necessary to pay his debts. This application was required to be made by a verified petition setting forth the amount of personal property which had come to the hands of the representatives, and the application thereof; the outstanding debts of the decedent; a description of all the real estate of which he had died seized together with th^ value of the respective lots, and the name of each occupant, and also the names and ages of the devisees and heirs of the decedent. Thereupon, " and before any other proceeding," if it should appear that any of the devisees or heirs were in- fants, the surrogate was required to appoint a guardian for them in the proceeding. If it should then appear that all the personal estate of the decedent, applicable to the payment of his debts, had been so applied and that there remained debts unpaid, the surrogate was required to make an order directing all persons interested " to show cause why authority should not be given to the executors or administrators apply- ing therefor, to mortgage, lease or sell so much of the real estate of the testator or intestate as shall be necessary to pay such debts." Provision was made for the publication and service of such order ; and upon the return day the surrogate was required to " proceed to hear and examine the allegations and proofs, of the executors or administrators applying for such authority, and of all persons interested in the estate, who shall think proper to oppose the application." The executors or adminis- trators might be examined on oath and witnesses produced and examined by either party ; and any heirs or devisees, and any persons claiming under them, were permitted to show 6 DEVELOPMENT OF THE PROCEDURE. [Ch. I, § 3 that the whole of the personal estate had not been duly ap- plied to the payment of the debts ; to contest the validity of any debt which might be represented as existing against the decedent, and to set up the Statute of Limitations in bar thereto, and " the admission of any such claims so harred, by any executor or administrator," was not " deemed to revive the same, so as in any way to affect the real estate of the de- ceased." Moreover the surrogate was authorized, in his dis- cretion, to order any question of faqt to be tried before a jury at a circuit court to be held in the county; and new trials thereof might be granted by the Supreme Court as in actions pending therein. Upon this preliminary hearing it was proper to prove claims against the decedent's estate; and the surrogate was required to enter such, as he should adjudge valid, in the book of his proceedings fnlly and at large, and to file the vouchers therefor, including all demands " which shall have been re- covered against the executors or administrators, by the judg- ment of a court of law, upon a trial on the merits." The surrogate was forbidden to make any order for the dis- position of the real property " until upon due examination he shall be satisfied " that the e^cutors or administrators making the application had fully complied with the provisions of the statute ; that the debts, for the satisfaction of which the, application was made, were justly due and owing, and that they were " not secured by judgment or mortgage upon, or expressly charged on, the real estate of the decedent ; " or, if secured by a mortgage or charge " on a portion of such es- tate, then that the remedies of the creditor, by virtue of such mortgage or charge, have been exhausted ; " that the personal estate was insufficient for the payment of such debts ; and that the whole of such personal estate, which could have been applied to the payment of the debts of the deceased, had been duly applied for that purpose. If satisfied in these particulars the surrogate was then re- quired to ascertain whether sufficient moneys might not be ■<3h. I, § 3] DEVELOPMENT OF THE PROCEDURE. 7 raised by a mortgage or lease, and, if so, it was made his duty to direct such a disposition of the property; but no lease could be made " for a longer time, than until the youngest person, interested' in the real estate leased, shall become twenty-one years of age." If, however, it should appear to the surrogate that the requisite moneys could not be so raised advantageously to the estate, he was required " from time to time," to order a sale of so much of the real estate " as shall be sufficient to pay the debts, which the surrogate shall have entered in his books, as valid and subsisting." But before making an order for the disposition of any real estate the executor or administrator was required to give a bond, and in case of his failure so to do the surrogate appointed a disin- terested freeholder to give the requisite security and make the mortgage, lease or sale. Each step in the proceeding was carefully provided for. The surrogate was authorized to direct the order in which several tracts, lots, or pieces should be sold ; but if it appeared that any part of such real estate had been devised, and not charged in such devise with the payment of debts, he was required to order that the part de- scended to heirs, be sold before that so devised ; and if it 'ap- peared that any lands devised or descended had been sold by the heirs or devisees, then the lands remaining in their hands unsold must be ordered to be first sold, and in no case could " land devised, expressly charged with the payment of ■debts, be sold under any order of a surrogate." After the sale a report thereof was made to the surrogate who was required to " examine the proceedings " and, in his discretion, was authorized to vacate the sale and order a new one, or to confirm the sale and direct a conveyance to be executed. Such a conveyance was required to " contain and set forth at large the original order authorizing a sale, and the order confirming the same and directing the conveyance " ; and it was deemed " to convey all the estate, right and in- terest in the premises, of the testator or intestate, at the time of his death, free and discharged from all claim for dower, 8 DEVELOPMENT OF THE PROCEDURE. [Ch. I, § 4 of the widow of such testator or intestate." However, every sileh sale and conveyance was " subject to all charges by judg- ment, mortgage or otherwise, upon the lands so sold, existing at the time of the death of the testator or intestate." Provision was also made whereby the interest of a dece- dent under a contract for the purchase of lands might be sold " in the same cases and in the same manner " as if he had died seized of such lands. The avails of each sale were paid to the surrogate; and the application thereof was made by him. He was required to publish a notice of the distribution, and, at the time ap- pointed therefor, " to proceed to ascertain the valid and sub- sisting debts " and to " hear the allegations and proofs of the claimants of such debts, and of the executors, adminis- trators, heirs, devisees or any other person interested in the estate of the deeeased, or in the application of the proceeds ; " but any debt which had been established upon the application for the sale could not be again controverted except upon the discovery of new evidence. Thereupon the avails of such sale were distributed by the surrogate after satisfying any dower right. Moreover creditors of the decedent were also authorized to cause the proceeding to be instituted within the same per- iod limited to executors and administrators ; but, however in- stituted, all debts and demands of creditors were established in the proceeding itself, and distribution of the avails of the real estate disposed of was made by the surrogate. Section 4. — Modifications Prior to the Code. For a half century this system of procedure under the Re- vised Statutes was continued with comparatively few modi- fications; but some changes were made, from time to time, which it may be of interest to note in this preliminary re- view. First, the provision requiring an accounting by execu- tors or administrators, before they might institute the pro- ceeding, was eliminated. (1830 ch. 320 § 22.) Then the Ch. I, § 4] DEVELOPMENT OF THE PROCEDURE. 9 three years' limitation was removed as to creditors and they were permitted to make application at any time after the granting of letters if so be it should appear from the ac- counting of an executor or administrator that there were not sufficient assets to pay the decedent's debts. (1837 ch. 460.) By the same statute the surrogate was authorized to order a disposition of the real property of a decedent, even though all the personal property had not been applied to the payment of his debts, upon having satisfactory evidence of due diligence on the part of the executors or administrators in converting the personal estate into money and so applying it ; the proceeding was also extended to a decedent's interest in land acquired by assignment of a contract for its purchase ; and provision was made that notwithstanding a judgment against executors or administrators, on a debt of the decedent, such debt must " be established in the .same manner as if no such judgment had been rendered." (1837 ch. 460.) After- wards, however, the latter provision was qualified so that,, where such judgment had been " obtained upon a trial or hearing upon the merits/' it was made " prim,a facie evidence of such debt before the surrogate." (1843 eh. 172.) The Revised Statutes had made no provision for the execu- tion of a decree, directing a disposition of a decedent's real property, in case of the death, removal or disqualification of a sole executor or administrator ; and this omission was sup- plied by an amendment expressly authorizing the execution of such a decree by the successor in the administration, or by a disinterested freeholder. (1850 ch. 162.) The same year provision was also made for the investment, by order of the Surrogate's Court, of surplus moneys of an infant arising from the sale of a decedent's real property. (1850 ch. 150; am'd 1879 ch. 389.) In 1863 it was provided that " minors shall be served with the order to show cause, and special guardians appointed for them, in the same manner as citation** are required to be served and special guardians appointed on the proof of wills instead of in the manner '^ 10 DEVELOPMENT OF THE PEOCEDUEE. [Ch. I, § 4 prescribed by the Eevised Statutes; and authority was also given the surrogate to " order a sale of a portion and a mortgage or lease of another portion " of a decedent's real estate (1863 ch. 362) ; and that year also the provision was first introduced empowering the surrogate, upon distribut- ing the proceeds and after satisfying any dower right, from the residue to first " pay any sum which may have been foimd due to the executors or administrators upon the settle- ment of their accounts after applying thereon, the proceeds of the personal estate of the testator or intestate." (1863 ch. 400.) Subsequently funeral expenses were made preferred debts to be satisfied out of the avails of the real estate dis- posed of before any general distribution thereof to creditors. (1874 ch. 267.) In 1867 this special proceeding was extended to surplus moneys arising upon the foreclosure of a mortgage on the real property of a decedent at the time of his death; and such surplus moneys were required to be paid to the surro- gate for disposition by him. (1867 ch. 658; am'd 1870 ch. 170 & 1871 ch. 834.) Because of the amendment allowing creditors to cause the proceeding to be instituted at any time after the granting of letters, titles to real property of a decedent acquired from his heirs or devisees necessarily remained, for an indefinite period, uncertain and liable to be defeated; and, for the purpose of protecting them, a statute was enacted prohibit- ing the disposition of any real property for the payment of a decedent's debts " the title to which shall have passed out of any heir or devisee of the deceased, by conveyance or other- wise, to a purchaser in good faith and for value," unless let- ters shall have been applied for within four years after dece- dent's death, and also unless " application for such sale shall be made to the surrogate within three years after the grant- ing " thereof. (1869 ch. 845 ; am'd 1873 ch. 211.) Under this system established by the Eevised Statutes, wherein almost every step in the procedure was specifically Ch. I, § 5] DEVELOPMENT OF THE PROCEDURE. H regulated, it was found that omissions and irregularities in the practice were constantly occurring, whereby sales were often subjected to successful attack, so that titles derived through these proceedings justly came to be regarded with suspicion. To remedy this, a general curative statute was enacted validating past sales and providing that certain ir- regularities and omissions should not impair those made thereafter. (1850 ch. 82 ; am'd 1869 ch. 260 ; 1872 ch. 92 ; 1878 ch. 129.) In a modified form, the provisions of this law are retained in present section 2763 of the Code. In 1880, by an amendment to a section of the Revised Statutes, the surrogate was authorized to allow a creditor, purchasing real property upon a sale in this proceeding, to have the amount of his claim applied upon the purchase price, with certain qualifications limiting such credit to the amount which he would be entitled to receive upon the general dis- tribution of the proceeds. (1880 ch. 231.) This provision was repealed (1880 ch. 245), upon the adoption of chapter 18 of the Code of Civil Procedure, and was only operative until September 1, 1880, when it disappeared. It has now been substantially re-enacted in present section 2764 of the Code, as part of the new procedure. (1904 ch. 750 ; see sec. 155 post.) Section 5. — Procedure under the Code until September i, 1904. In 1880 the statute law regulating this special proceeding was codified into fifty-two sections of the Code of Civil Procedure contained in title 5 of chapter 18 thereof. (1880 ch. 178.) The general system, however, was continued prac- tically unchanged ; and, while some obscurities were removed, others were introduced. But in its essential features, the procedure has been the same for seventy-five years — from the adoption of the Eevised Statutes in 1829 until Septem- ber 1, 1904. There had been some amendments to the Code provisions but none of them were radical excepting, perhaps, 12 DEVELOPMENT OF THE PROCEDURE. [Ch. 1, § 6 the one whereby a judgment creditor was authorized to in- stitute the proceeding and judgments were included among the debts of a decedent to be satisfied thereby. (1894 eh. 735.) This venerable system really provided for two dis- tinct proceedings — one, wherein the decedent's real property was converted into money for the payment of his debts, and the other whereby those debts were established in the Surro- gate's Court and the proceeds of the real property distributed by the court itself ; but it has now been practically abrogated. Section 6. — The New Procedure. The present system retains but few features of its imme- diate predecessor and is rather a development of the orig- inal procedure inaugurated by the Act of 1786. The practice has been greatly simplified and is reasonably free from statu- tory regulations covering minute details. The special proceeding now authorized leads to a decree which merely empowers the executor or administrator to dis- pose of the real property, for the payment of his decedent's debts and funeral expenses, in like manner as though he were acting under a similar testamentary power; and he makes distribution of the proceeds and accounts therefor in the general administration of the estate as though he were acting under such a power. Of the fifty-two former Code sections, twelve are un- changed — ^though several of these should have been modified — while eleven have been amended and twenty-nine were ab- solutely repealed. Because of the radical changes thus ef- fected it will be found that a majority of the reported deci- sions, made in the development of the earlier procedure dur- ing the last seventy-five years, have become entirely obsolete ; and, indeed, it is unsafe to rely upon any of them, as being now authoritative, until careful examination has shown that the precise point involved is unaffected by the new revision.. OHAPTEE II. THE NEW PROCEDURE. Section 7.— Outline Sketch. " 8. — Same Subject: Power of Disposition under Will. " 9. — Same Subject: Power of Disposition under Decree. " 10. — Same Subject: Jurisdictional Fact. " 11. — Same Subject: ConcemingProof of claims and Establishment of Debts. Section 7. — Outline Sketch. The special proceeding, now provided for by title 5 of chapter 18 of the Code, as amended (1904 ch. 750), is insti- tuted to obtain, and is terminated by, a decree of the Surro- gate's Court " empowering the executor or administrator to mortgage, lease or sell the whole or such part of the real prop- erty or interest of the decedent in real property as the surro- gate shall deem necessary for the payment " of his debts and funeral expenses. (§ 2757.) The executor or administrator is required to execute the decree in the same manner " as if he were acting under a lilce power contained in a will of said decedent duly executed and proved " (§ 2761) ; but he must first give security for the faithful performance of the duties thus imposed upon him and for an accounting " for all the moneys received by him whenever he is required so to do by a court of competent jurisdiction." (§ 2758.) If there are several executors or administrators, and some of them fail to give the requisite security, the surrogate may direct those who do give it to execute the decree, while such a failure by all the executors or administrators is made ground for the revocation of their letters and a grant of " administration to such person entitled as will execute such decree " (§ 13 14 THE NEW PROCEDURE. [Ch. II, § 8 2759) ; but there is no longer any provision, as in former section 2767, for the appointment of a freeholder to execute the decree in case all the executors or administrators fail to give the requisite security. Moreover there is novp no pro- vision, as in former section 2776, for any confirmation of the sale, or, as in former section 2786, for the payment into court of the proceeds, or as in former sections 2787 and 2788, for distribution thereof by the surrogate or the establishment of claims before him. The nev7 procedure, therefore, seems to have been designed to merely confer upon the executor or administrator a power to dispose of his decedent's real property, for the payment of his debts and funeral expenses, vchich is closely assimilated to an imperative testamentary power of sale; and the only vsray, vyhereby the personal representative can now approp- riate any of his decedent's real property for such purposes, is either (1) by executing a valid povsrer of disposition there- for, if conferred by the will; or, if there be no such testa- mentary power, (2) by executing a similar power of dis- position, conferred by a decree in this special proceeding. Section 8. — Same Subject : Power of Disposition under Will. Unless otherwise provided by his will, the debts and fun- eral expenses of a decedent are primarily payable out of his personal assets (Heermans v. Robertson, 64 N. Y. 332 ; Hogan v. Kavanavgh, 138 N. Y. 417) ; and, excepting as empowered by the statutory provisions now under considera- tion, the Surrogate's Court has no jurisdiction to authorize his real property to be appropriated for that purpose. (Long V. Long, 142 IST. Y. 545.) A testator, however, by apt direc- tions in his will may effectually change his real estate into personalty" so that it becomes assets, and, as such, is available for the payment of his debts and funeral expenses. (Hatch V. Bassett, 52 IST. Y. 359 ; Underwood v. Curtis, 127 IST. Y. 523 ; Doane v. Mercantile Trust Co., 160- N. Y. 494.) This- Ch. II, § 8] THE NEW PROCEDURE. 15. is usually accomplished by giving to his executors an " out and out " power to sell his real property and convert it into personalty for all -purposes, irrespective of contingencies and vpithout any discretion as to whether there shall be a sale or not (Siagg v. Jachson, 1 N. Y. 206; White v. Howard, 46 K Y. 144, 162 ; Matthews v. Studley, 11 App. Div. 303, 45 Supp. 201, aff'd 161 K Y. 633 ; Baker v. Baker, 18 App. Div. 189, 45 Supp. 870) ; and thereupon it becomes a part of the primary fund for the payment of his debts. A sim- ilar result may be accomplished even where executors are only given a discretionary power to sell real property when- ever they may deem it for the best interests of the estate; for, although in such case an equitable conversion may not be effected by the will itself, yet, if the executors do sell the real property under the discretionary power, they may pay the debts and funeral expenses of the testator from the avails and will be credited accordingly, even though the power of sale be not expressly given for the payment of debts. {Matter of Bolton, 146 IST. Y. 257.) Moreover, without effecting any " out and out " conversion of his real property, a testator may merely direct his execu- tors to sell it for the payment of his debts and funeral ex- penses; but in such case, subject to the execution of the power, the heirs or devisees are seized of it from his death until it has been duly sold under the power. (Crittenden v. Fairchild, 41 K Y. 289; Drake v.. Paige, 127 K Y. 562.) A power of this sort, by the law of equitable conversion, ceases when the object of its exercise has been attained or no longer exists. (Wood v. Keyes, 8 Paige 365; Bogert v. Hertell, 4 Hill 492; Bead v. Williams, 125 N. Y. 560.) And a similar power may be created under those provisions of the Eeal Property Law (1896 ch. 547, §§ 76 & 77) which auth- orize an express trust " to sell real property for the benefit of creditors " and provide that a devise of real property to an executor for the purpose of sale, when he is not also em- powered to receive the rents and profits, shall not vest any 16 THE NEW PROCEDURE. [Ch. II, § 9 estate in him, but that " the trust shall be valid as a power j and the real property shall descend to the heirs or pass to the devisees of the testator subject to the execution of the power." Wherever, by the exercise of such a power, a decedent's real property has been lawfully apropriated to the full pay- ment of his debts and funeral expenses there will be no oc- casion for any sale of it in this special proceeding; -and if the power of sale be expressly or by implication imperative, or if it arises out of a devise to an executor, its exercise is made enforceable by the Keal Property Law. (1896 ch. 547, §§ 137 & 143 ; Matter of Oantert, 136 IST. Y. 106 ; Holly V. Gibbons, 176 K Y. 520.) A testator may also devise his real property expressly charged with the payment of his debts or funeral expenses, and thereby they become a lien upon the realty enforceable in equity by a sale thereof without intervention of the exe- cutors {Clift v. Moses, 116 N. Y. 144, 154; Matter of Gan- tert,'l36 N. Y. 106, 112; Smith v. Coup, 6 Dem. 45) ; but a power in the executors to sell such real property will not be implied from the mere fact that it has been so charged. (Matter of Fox, 52 K Y. 530.) It is for the creditor to take whatever steps may be necessary to enforce such a lien (Dill V. Wisner, 88 N. Y. 153) ; and, since the Revised Statutes were enacted, real property, so charged with the payment of debts, has never been the subject of disposition for that purpose in proceedings before the surrogate. (§ 2749; see also 2 E. S. 103, § 20.) Section 9. — Same Subject : Power of Disposition under Decree. When the executor or administrator has duly filed the requisite bond, and without any further order from the surro- gate, he " must proceed to execute the decree in the same manner, and the execution thereof shall have the same effect, as if he were acting as executor of the decedent under a like power contained in a will of said decedent duly exe- Ch. II, § lOJ THE NEW PROCEDURE. 17 cuted and proved ; " and all persons interested in the execu- tion of it " have the same remedies for the enforcement of the decree and the application of the proceeds that they would have if the executor or administrator were acting under such a power." (§ 2Y61.) However the avails of real property, disposed of under the power thus conferred, are neither dis- tributed nor accounted for in the special proceeding itself; ;but the executor or administrator is required to make ap- plication thereof " in the same manner as if he had acted under a power of sale contained in a will " and he is ac- countable therefor and for his acts under the decree, and is •entitled to commissions on the settlement of his accounts, '*' as if he had acted under such a power." (§ 2761.) Thus, where the executor or administrator has filed the requisite bond, his subsequent action pursuant to the decree or in the execution of the power conferred by it, becomes merely a part of his general administration of the estate and is governed by the general rules applicable thereto. " The reasonable funeral expenses of the decedent " are " preferred to all debts and claiics against the deceased" (§ 2729 sub. 3) ; and, after full satisfaction thereof, the provisions of section 2719 regulate the payment of debts out of the re- maining proceeds of the real property disposed of. Section lo. — Same Subject : Jurisdictional Fact. As already noted, the personal property — or, strictly speak- ing, the " assets " as defined by subdivision 2 of section 2514 — of a decedent is the primary fund for the payment of his debts and funeral expenses ; and the jurisdictional fact, upon which this special proceeding is based, is the insufficiency of such personal property for their payment. The petition whereby it is instituted must set forth, among other things, " the amount of the unpaid debts and funeral expenses of the decedent and that tli'e personal estate is inadequate for the payment thereof" (§ 2752); and the citation thereon is not issued by the surrogate unless " it appears to him that 2 18 THE NEW PROCEDURE. [Ch. II, § 11 the debts, judgment liens and funeral expenses, or either,, cannot be paid without resorting to the real property or in- terest in real property." (§ 2754.) On the hearing " an heir or devisee, or a person claiming under an heir or devisee," of the real property " may contest the necessity of applying the property to the payment of debts, judgment liens or funeral expenses." (§ 2755.) To obtain a decree it is only necessary to establish " to the satisfaction of the surrogate that the proceedings have been in conformity " to the stat- ute and " that the personal estate of the decedent is insuffi- cient for the paynient of Ms debts and funeral expenses " ■(§ 2756) ; and thereupon the surrogate is required to " make a decree empowering the executor or administrator to mort- gage, lease or sell the whole or such part of Ihe real property or interest of the decedent in real property as the surrogate shall deem necessary for the payment thereof." (§ 2757.) Section ii.— Same Subject : Concerning Proof of Claims and Establishment of Debts. Under the present procedure the petition does not set fortk the " unpaid debts of the decedent, and the name of each creditor or person claiming to be a creditor ; " etc. as required by sub-division 1 of former section 2752 ; nor is there any provision for the proof or establishment of claims, debts or judgment liens upon the hearing, as provided by former section 2755 ; nor is it necessary that the decree shall estab- lish or determine the amount or validity of any claims, debts or judgment liens as provided by former section 2758. On the contrary, the decree simply lodges in the executor or ad- ministrator a power to dispose of the real estate for payment of the decedent's debts and funeral expenses (§ 2757) ; and,, since he is required to apply the proceeds as though he were acting under a similar power of sale contained in a will (§ 2761), ihe distribution thereof to creditors is governed by the^ general provisions of sections 2719 and 2729 (subdivision 3) regulating the payment of debts and funeral expenses by Ch. II, § 11] THE NEW PROCEDURE. 19 an executor or administrator in the ordinary administration of the personal estate. But inadequacy of the personal estate is necessarily shown by proof of valid and subsisting unpaid debts and funeral expenses ; and so " an heir or devisee, or a person claiming under an heir or devisee, of the property in question " is ex- pressly authorized to contest " the validity of a debt, due or unpaid, represented as existing against the decedent, or the reasonableness of the funeral expenses " and he " may inter- pose any defense to the whole or any part thereof." (§ 2755.) If, therefore, an issue of this sort be made and tried it requires an adjudication, and the surrogate must determine the validity of such of the debts and funeral expenses as may be thus litigated; but, as it seems, such a determination is only incidental to the main question whether " the personal estate is inadequate for the payment " of the unpaid debts and funeral expenses. It goes without saying, however, that any such contested debt or claim, which the surrogate finds to be invalid, cannot thereafter share in the proceeds of the real property even though it may have already been allowed by the executor or administrator. But whether a creditor whose claim has been disallowed by the executor or adminis- trator may nevertheless appear and prove it before the sur- rogate in this special proceeding is yet to be determined by the courts. He was permitted to do so under former section 2755 which expressly authorized him to present and prove his debt, and " thus make himself a party to the special pro- ceeding." (See Matter of Haxtun, 102 i>r. Y. 157) ; but under the present section 2755, " a creditor of the decedent, including one whose claim is not yet due, or a person having a claim for unpaid funeral expenses," is only authorized to "appear and thus make himself a party to the special pro- ceeding " If, however, a claim has been rejected by the ex- ecutor or administrator, and an action brought thereon has resulted in an adverse judgment, the matter is res adjudicata; and the alleged creditor may not again present or try to prove the same demand in any- proceeding against the estate. CHAPTEE III. PROPERTY SUBJECT TO DISPOSAL. Section 12. — ^What Real Property may be Disposed of for Payment of Debts and Funeral Expenses. 13. — Same Subject: Estates in Common and in Joint Tenancy and by the Entirety. 14. — Same Subject: Real Property of a Partnership. 15. — Same Subject: Avails of Real Property of Infant or Incompetent. 16. — Same Subject: Interest in Sheriff's Certificate on Execution Sale. 17. — Same Subject: Judgment Debtor's Estate after Execu- tion Sale and before Sheriff's Deed. 18. — Same Subject: Real Property Converted into Money before Sale in Surrogate's Court. 19. — Same Subject: Surplus Moneys arising on Foreclosure. 20. — Same Subject: Proceeds of Partition Sale. 21. — Same Subject: Real Property conveyed in Fraud o* Creditors. ' 22. — Same Subject: Contracts for Purchase of Real Property. 23. — ^Real Property exempt from Sale under Execution, Excepted. 24. — ^Real Property bought with Pension Money, Excepted. 25. — Real Property Devised expressly charged with the Payment of Debts, Excepted. 26. — Real Property impliedly charged with the Payment of Debts, not Excepted. 27. — Real Property Subject to Valid Power of Sale JEor Pay- ment of Debts or Funeral Expenses, not Excepted. Section 12. — What Real Property may be Disposed of for Payment of Debts and Funeral Expenses. " Real property, of which a decedent died seized, and the interest of a decedent in real property, held by him under a contract for the purchase thereof, made either with him, or 20 Ch. Ill, § 12] PROPERTY SUBJECT TO DISPOSAL. 21 with a person from whom he derived his interest, may be disposed of, for the payment of his debts and funeral ex- penses, or for the payment of judgment liens existing there- on at his death, as prescribed in this title; except where it is devised, expressly charged with the payment of debts or funeraLexpenses, or is exempted from levy and sale by virtue of an execution, as prescribed in title second of chapter thir- teen of this act. The expression " funeral expenses," as used in this title, includes a reasonable charge for a suitable headstone." (§ 2749.) This section is in the same form as when originally enacted (1880 ch. 178) excepting that the italicized words were added by a general amendment (1894 ch. 735) whereby lands, subject to judgments against a decedent, were made disposable for the payment of his debts and such judgments. This was a material innovation, as, from the adoption of the- Revised Statutes, the law had always been otherwise. Under the present procedure these italicized words are- superfluous. The debts of a decedent necessarily include judgments against him (§ 2514 sub. 3 ; and see § 2719) ; and it is not supposable that liens upon the real estate of a deced- ent, by virtue of judgments against his predecessors in the title, are within the purview of this section or of these pro- ceedings. " The expression, ' real property,' includes every estate, interest, and right, legal or equitable, in lands, tenements, or hereditaments, except those which are determined or extin- guished by the death of a person seized or possessed thereof, or in any manner entitled thereto, and except those which are declared by law to be assets. ..." (§ 2514 sub. 13.) ; and " The word ' assets,' signifies personal property applicable to the payment of the debts of a decedent." (§ 2514 sub. 2.) Certain interests in, or arising out of, real estate are per- sonal property and as such are applicable to the payment of 22 PROPERTY SUBJECT TO DISPOSAL. [Ch. HI, § 13 decedent's debts by virtue of section 2712, wherein it is provided, among other things, that " The following shall be deemed assets and go to the exe- cutors or administrators, to be applied and distributed as part of the personal property of the testator or intestate, and be included in the inventory: 1. Leases for years ; lands held by the deceased from year to year; and estates held by him for the life of another person. 2. The interest remaining in him, at the time of his death, in a term of years after the expiration of any estate for years therein, granted by him or any other person. 3. The interest in lands devised to an executor for a term of years for the payment of debts. 4. Things annexed to the freehold, or to any building for the purpose of trade or manufacture, and not fixed into the wall of a house so as to be essential to its support. 5. The crops growing on the land of the deceased at the time of his death. 6. Every kind of produce raised annually by labor and cultivation, except growing grass and fruit ungathered. 7. Rent reserved to the deceased which had accrued at the time of his death." . . . (§2712.) Moreover, it will be noted that, aside from land held under a contract for its purchase, it is only " real property, of which a decedent died seized " that is subject to disposition in this special proceeding. In this connection reference is made to four sections of the Real Property Law (1896 ch. 547) as follows: " § 20. Enumeration of estates. — Estates in real property are divided into estates of inheritance, estates for life, es- tates for years, estates at will, and by sufferance." " § 21. Estates in fee simple and fee simple absolute. — An estate of inheritance continues to be termed. a fee simple, or fee, and, when not defeasible or conditional, a fee simple absolute, or an absolute fee." -Ch. Ill, § 13] PROPERTY SUBJECT TO DISPOSAL, 23 " § 23. Freeholds; chattels real; chattel interests. — Es- tates of inheritance and for life, shall continue to be termed estates of freehold; estates for years are chattels real; and estates at will or by sufferance, continue to be chattel inter- ests, but not liable as such to sale on execution." " § 24. When estate for life of third person is freehold, when chattel real. — An estate for the life of a third person, whether limited to heirs or otherwise, shall be deemed a freehold only during the life of the grantee or devisee ; after . his death it shall be deemed a chattel real." Heading together these sections and the above cited provi- sions of section 2712 of the Code it will be perceived that (aside from lands held under contract for their purchase) it is only a freehold estate of inheritance of which the decedent has " died seized " that is subject to disposition in this spe- cial proceeding. If the decedent was seized of an estate for his own life it has died with him; and if he held an estate for the life of a third person it has become a " chattel real " upon his death and is thereafter deemed " assets " in the settlement of his estate. His estates for years are also " chat- tels real " and " assets ; " while his " estates at will or by sufferance," although chattel interests, are of such an elusive nature as to be neither " liable as such to sale on execution " nor, as it seems, to be available in any manner, either as real property or as assets," for the payment of his debts. In this connection reference is also made to the introduc- tory section of Article IX of the Real Property Law (1896 ch. 547 § 280), regulating the descent of real property, as follows : " § 280. Definitions and use of terms; effect of article. — The term ' real property ' as used in this article, includes every estate, interest and right, legal and equitable in lands, tenements and hereditaments except such as are determined or extinguished by the death of an intestate seized or pos- sessed thereof, or in any manner entitled thereto; leases for years, estates for the life of another person; and real prop- 24 PROPERTY SUBJECT TO DISPOSAL. [Ch. Ill, § 12 erty held in trust, not devised by the beneficiary. ' Inheri- tance ' means real property as herein defined, descended ac- cording to the provisions of this article ; " . . . The ill-advised use of the semi-colon after " thereto " ob- viously makes " leases for years, estates for the life of another person; and real property held in trust, not devised by the beneficiary " to be real property descendible to the heirs as provided by that article; but the section should not be so construed as it is but a codification of the following provi- sions of the Revised Statutes, viz. : " The term ' real estate,' as used in this Chapter, shall be' construed to include every estate, interest and right, legal and equitable, in lands, tenements and heraditaments, except such as are determined or extinguished by the death of an. intestate, seized or possessed thereof, or in any manner en- titled thereto, and except leases for years, and estates for the life of another person ; and the term ' inheritance,' as used ia this Chapter, shall be understood to mean real estate, as herein defined,~descended according to the provisions of this Chapter." (1 R. S. 754 § 27.) It is apparent therefore, from the various statutory pro- visions hereinbefore quoted, that whatever is descendible to the heirs at law of an intestate as real property is subject to disposition in this special proceeding; and there seems to- be little doubt that even a reversion or remainder depending upon a contingency or a determinable fee is real property of which the owner is seized (Jenkins v. FaJiey, 73 N. Y. 355 ; Dodge v. Stevens, 105 N". Y. 585) so as to be within the meaning of section 2749. And, under the Recording Act,, a conveyance of land, sold in this proceeding for the payment of decedent's debts, and recorded before a prior deed of the same premises made by the decedent in his lifetime, will vest a good title in the subsequent purchaser even though the decedent had not " died seized " of the property. (Barto y~ Ch. Ill, § 13] PROPERTY SUBJECT TO DISPOSAL. 25 Tompkins Co. Nat. Bank, 15 Hun 11 ; see Hetzel v. Barber^ 69 K Y. 1.) Section 13. — Same Subject : Estates in Common and in Joint Tenancy and by the Entirety. It is provided in section 56 of the Keal Property Law (1896 ch. 647) that " Every estate granted or devised to two or more persons in their own right, shall he a tenancy in common, unless ex- pressly declared to be in joint tenancy ; " . . . There is a radical distinction between these two estates. If the decedent was one of several persons who were seized of a freehold estate of inheritance as tenants in common, he — and each of the others as well — is considered to have been separately seized of his individual share, as though he had derived title under a separate conveyance, and his undivided share goes to his heirs or devisees and is subject to deposi- tion for the payment of his debts in this special proceeding; but it is otherwise if he held in joint tenancy inasmuch as joint tenants hold by a joint title and are said to be seized per my et per tout, and each one has the entire possession of every part and of the whole. Survivorship is the distin- guishing feature of joint tenancy which can only be created by one and the same deed or will, but never by descent ; and upon the death of orie joint tenant his share belongs to the survivors and is not subject to disposition for the payment of his debts. However such an estate must be " expressly de- clared," in the deed or devise creating it and will never be in- ferred, as it is not favored either in law or equity. (DePuy V. Stevens, 37 App. Div. 289, 294, 55 Supp. 810, 814.) Moreover it is converted into a tenancy in ^common whenever one joint tenant conveys his interest. But where the conveyance or devise is to a husband and wife it vests both — as one — with the entire estate ; and they 26 PROPERTY SUBJECT TO DISPOSAL. [Ch. Ill, § 13 are called tenants by the entirety. This is not strictly a joint tenancy in several persons (^Barber v. Harris, 15 Wend. 615 ; Jackson v. McConnell, 19 Wend. 175) but springs out of the common law theory that the husband and wife are one so that the conveyance or devise is not to several persons but to one only and that one the survivor who has the whole estate on the death of the other. Neither can transfer the title without the other and neither has any separate estate; but each, with the other, is seized of the whole. (Berths v. Nunan, 92 K Y. 152; Zorntlein v. Bram, 100 N. Y. 12, Stelz V. ShrecJc, 128 IST. Y. 263.) While a mortgage or con- veyance by the husband may be effectual to cover his right to the use of an undivided half of the estate during their joint lives, and to the fee in case he survives his wife, yet it does not affect her right of survivorship. (Hiles v. Fisher, 144 N. Y. 306.) It may be here observed that, by apt words in the grant or devise, either a tenancy in common or a joint tenancy may be created in husband and wife (Jooss v. Fey, 129 ISr. Y. 17; Miner v. Broiim, 133 K Y. 308) ; but where the grant or devise to the husband and wife is without quali- fication as to the character of their holding, an estate by the entirety is created. ■As a tenancy by the entirety is founded upon the marital relation, and springs out of the legal fiction that husband and wife are one, it exists only with the continuance of that re- lation ; and when the unity is broken by an annulment of the marriage, or a divorce, the tenancy is severed and each then becomes a tenant in common with the other. (^Stelz v. Shreck, 128 N. Y. 263.) If, therefore, while breathing out his last breath the dece- dent was seized of a freehold estate, either as a joint tenant or a-s a tenant by the entirety, his interest vanishes at his death; and the entire estate is in the survivor from its be- ginning. There is nothing, therefore, at the decedent's death subject to deposition for the payment of his debts in this special proceeding or otherwise. Ch. Ill, § 14] PROPERTY SUBJECT TO DISPOSAL. 27 Section 14. — Same Subject : Real Property of a Partner- ship. As we have already seen when land is conveyed to sev- eral persons they become tenants in common and when one of them dies his share goes to his heirs or devisees subject to the payment of his debts. But if the tenants in common are also partners, and the land was acquired with partnership funds for partnership purposes, it is deemed to be personal property in so far as may be neces- sary to satisfy partnership debts and adjust equities between the several partners (Buchan v. Sumner, 2 Barb. Ch. 165, 198) ; and the rule is the same even where the title has been taken in the najne of only one member of the firm. (Fair- child V. Fairchild, 64 N. Y. 471.) Nevertheless, in the ab- sence of any express or implied agreement to the contrary be- tween the partners, such real property retains its character as realty, with all the incidents of that kind of property, not only between the partners themselves, but also between sur- viving partners and the real and personal representatives of a deceased partner, except that each share is impressed with a trust implied by law in favor of the other partners — and to that extent is treated as personalty — that, so far as may be required, it shall be first applied to the payment of partner- ship debts, and the adjustment of the equities between the partners, on winding up the partnership affairs; and so, on the death of one partner where the title is in all of them, the share standing in his name goes to his heirs or devisees sub- ject only to these equities springing out of the partnership. (Buckley v. Buckley, 11 Barb. 43, 76.) And the fulfillment of this implied trust does not seem to require the character of the property to be changed until the occasion arises for a conversion and then only to the extent necessary. (Darrow V. Calkins, 154 N. T. 503.) It is obvious, therefore, that, subject to such prior partnership equities and in the absence of any express or implied agreement to the contrary, the share of thfe partnership real property, of which a partner has 28 PEOPERTY SUBJECT TO DISPOSAL. [Ch. Ill, § 15 died seized, may be disposed of for the payment of his debts in this special proceeding. In case such share shall have been first converted into money pursuant to the judgment of a court of competent jurisdiction in an action brought to wind up the partnership affairs, or to enforce the implied trust thus impressed upon it, the net avails thereof, remaining after satisfaction of the partnership obligations and equities, still retain the character of realty, and, as such, may be reached by the creditors of the decedent in this special proceeding, aided by the court -wherein the conversion occurred. However partnership real property does not always retain its character as realty, even after satisfaction of partnership obligations and equities, for it often happens that, by ex- press or implied agreement of the partners, it is subjected to an out and out conversion into personalty for all purposes; and in such cases whatever is not needed for partnership pur- poses goes to the executors or administrators of a deceased partner as personal property, and not to his heirs or devisees as real estate. {Barney v. Pike, 94 App. Div. 199, 87 Supp. 1038.) It is well settled that a partnership for dealing in real estate may be created by parol {Chester v. Dickerson, 54 N. Y. 1; Williams v. Qillies, 75 N. Y. 197) ; and the ques- tion whether, for the purposes of distribution, the interest of a deceased partner in partnership real estate shall be treated , as realty or personalty, is incidental to the partnership re- lation and its solution must be determined by the agree- ment of the partners, either express or implied from their acts. {Buckley v. Boig, 188 IST. Y. 238.) Section 15. — Same Subject : Avails of Real Property of Infant or Incompetent. Where, during the life of an infant or incompetent person his real property has been sold under the statute (§§ 2345- 2364), or in an action of partition {Horton v. McCoy, 47 N. Y. 21), the avails are nevertheless deemed to be realty until the infant arrives at full age or the incompetency is re- Ch. Ill, § 16] PROPERTY SUBJECT TO DISPOSAL. 29 moved as the case may be (Ford v. Livingston, 140 N. Y. 162) ; but if such infant or incompetent shall die, leaving insufficient personal property to discharge his debts and funeral expenses, then, so much of such avails as are neces- sary may be appropriated for that purpose through this spe- cial proceeding aided by the court by whose order the sale was made. Where such real estate is sold under the statute the matter is regulated by the Code (§ 2359), which also provides that " The proceeds are to be paid upon order of the surrogate's court or court having jurisdiction of the estate of deceased, to an administrator appointed by the surrogate to administer upon decedent's estate, and after paying all funeral expenses and expenses of administration and any indebtedness, the remainder, if any there be, shall upon the order of the surro- gate, be paid into the hands of the trustee who held the same, to be distributed as the law directs. . . ." (§2359.) Section z6. — Same Subject : Interest in Sheriff's Certifi- cate on Execution Sale. Where real property is sold upon an execution the pur- chaser receives a sheriff's certificate of the sale (§ 1438), but the title of the judgment debtor is not divested until the expiration of the redemption period and the execution of the sheriff's deed ( § 1440) which " conveys to the grantee therein the right, title and interest which was sold by the sheriff " (§ 1471) ; and thereupon " the grantee in the deed is deemed to have been vested with the legal estate from the tiipe of the sale." (§ 1440; see Dumond v. Church, 4 App. Div. 194, 38 Supp. 557, 74 St. Kep. 176.) Thus the certi- ficate is not a conveyance but is merely one step in a proceed- ing to divest the judgment debtor of his title to the premises sold {Davidson v. Crooks, 45 App. Div. 616, 61 Supp. 362), and if the holder thereof dies within the redemption period such premises can scarcely be " real property of which a decedent died seized," within the meaning of section 2749 ; 30 PROPERTY SUBJECT TO DISPOSAL. [Ch. Ill, § 16 for if a redemption be effected the avails will be assets in the hands of his executors or administrators, and, as such, applicable to the payment of his debts. But after the redemption period has expired the holder of the certificate has such an absolute right to the sheriff's deed that his interest in the premises seems to be of the nature. of realty; and so it is provided by section 1473 that " Where a person entitled to a deed, dies before the de- livery of the deed, the sheriff must execute and deliver the deed to his executor or administrator. The property so con- veyed must be held, in trust for the use of the heirs or de- visees of the decedent, subject to the dower of his widow, if there is one ; but it may be sold, in a proper case, for the pay- ment of his debts, in the same manner as land, whereof he died seized." (§ 1473.) This section is but a re-enactment from the Revised Stat- utes (2 E. S. 374 §§ 63 & 64) where the provision was more definite in that it specified that real estate so con- veyed to executors or administrators of a decedent " may be sold for the payment of his debts, by the order of any sur- rogate or court of equity in the same manner as lands whereof said deceased person died seized." The requirements of this section are imperative; and " where a person, entitled to a deed, dies before the delivery " thereof, it can only be made to his executor or administrator. (Dixon V. Dixon, 89 App. Div. 603, 85 Supp. 609.) It will be noted, however, that this section expressly provides only for the case where a person has died "entitled to a deed ; " but the holder of a sheriff's certificate cannot become "en- titled to a deed " until the redemption period has termin- ated. The question, therefore, is here suggested as to the respective rights of heirs and next of kin where the holder of a certificate has died during the redemption period and be- fore he has become " entitled to a deed." The statute does not provide for such a case in terms ; but it would seem that Ch. Ill, § 17] PROPERTY SUBJECT TO DISPOSAL. 31 the executors or administrators, like an assignee of the certifi- cate, should be entitled to the deed, irrespective of section 1473, and also that the real property covered by the certificate must be treated as personalty after the sheriff's deed thereof to the representatives, inasmuch as the certificate was personal property when its owner died. Likewise if a junior judgment creditor dies during the period of redemption, and his executors or administrators shall redeem as provided by section 1466 and thereafter the sheriff's deed is made to them, it would also seem that the premises thus conveyed must still be treated as personal property for the purposes of administration and distribution. Section 17.— Same Subject: Judgment Debtor's Estate after Execution Sale and before Sheriff's Deed. As we have already seen " the right and title of the judg- ment debtor ... to real property sold by virtue of an execu- tion is not divested by the sale " until the expiration of the redemption period and the execution of the sheriff's deed, (§ 1440.) The judgment debtor may redeem at any time within one year after the sale (§ 1446) ; and upon a redemp- tion by him " the sale of the property redeemed, and the certificates of the sale, as far as they relate thereto, become null and void." (§ 1448.) The certificate is only a specific lien entitling the holder to the amount of his bid and ten per cent, interest, and, upon payment thereof, it becomes ex- tinct and the sheriff's sale becomes as though it had never taken place. Indeed the very judgment, on which the sale was had, becomes again a lien, if it has not been fully satis- fied by the bid, and the land may be again sold by virtue of another execution issued thereon. (Bodine v. Moore, 18 N. Y. 347.) So if the judgment debtor shall die within the year after a sheriff's sale of his real property he has, nevertheless,, died seized thereof and it is subject to disposition for the payment of his debts; and a purchaser upon a sale, duly 32 PROPERTY SUBJECT TO DISPOSAL. [Ch. Ill, § 17 authorized in this special proceeding, acquires an absolute title to the property, subject to the specific lien of the sheriff's certificate, and may redeem within one year after the sheriff's sale. (§ 1447.) But if the special proceeding cannot be conducted to a sale before the redemption period has expired, can the executor or administrator redeem, in the interest of unsecured credi- tors of the decedent, so as to save the real property for dis- position for the payment of their debts ? This question may become of importance in any case where real property has been sold upon execution for less than its real value and the judgment debtor has died within twelve months thereafter. It will be observed that no provision for redemption, by an executor or administrator, is expressly made in the statute (§ 1447) which only authorizes a redemption " either by the judgment debtor, whose right and title were sold, or by his heir, devisee, or grantee, who has acquired, by inheritance, devise, deed, sale, by virtue of a mortgage or of an execution, or by any other means, an absolute title to the property pro- posed to be redeemed." But it has been authoritatively held that the judgment debtor's right of redemption is a persorwl one and continues in him even after he has parted with Ma entire interest in the land. (Chautauque Co. Bank v. Risley, 19 K y. 369, 373; Livingston v. Amoux, 56 K Y. 507.) If, therefore, after the judgment debtor has conveyed the real estate he nevertheless retains a personal right of re- demption, which co-exists with the like right in his grantee, it would seem that when he has died seized of the real estate such personal right will pass to his personal represent- atives even while a similar right is vested in his heir or devisee by virtue of the statute. The heir or devisee will not generously redeem for the mere purpose of preserving the real property, at his own expense, for his decedent's general creditors, and, unless a right of redemption is in the executor or administrator, a case may easily arise where valuable real property will be lost to them. Oh. Ill, § 18] PROPERTY SUBJECT TO DISPOSAL. 33 However the matter of right may be ultimately decided hy the courts, it may be observed that if the executor or ad- ministrator actually does redeem he will thereby preserve the real property for disposition in this special proceeding; for it seems to be settled that where the purchaser at a sheriff'? sale actually receives the amount of his bid and the ten per <;ent., during the twelve months after the sheriff's sale, it is a redemption therefrom although made by a person not ■entitled to redeem. (Bodine v. Moore, 18 N. Y. 347, 351 ; Phyfe v. Biley, 15 Wend. 248.) No doubt the amount paid, upon a redemption thus made to secure the real property of his decedent, for disposition in this special proceeding, would be allowed to the executor or administrator out of the pro- ceeds of a sale authorized by the decree therein before pay- ment on claims of any creditors of the decedent. (See Jones V. LeBaron, 3 Dem. 37, 42.) Section i8. — Same Subject : Real Property Converted into Money before Sale in Surrogate's Court. Before " real property of which a decedent died seized " ■can be sold in this special proceeding it may have already lieen actually transformed into money, by some judicial pro- •ceeding or otherwise, so that the money itself has been sub- istituted for the land but is still deemed realty belonging to the heirs or devisees, and, as such, subject to the payment of the decedent's debts and funeral expenses. Common instances of this equitable conversion are as follows : surplus money re- maining after foreclosure of a mortgage or other lien on the property (Moses v. Murgatroyd, 1 John. Ch. 119 ; Cox v. Mc- Burney, 4 Super. Ct. 561 ; Felts v. Martin, 20 App. Div. 60, 46 Supp. 741 ; Dunning v. Ocean Nat. Bank of N. Y., 61 "N. Y. 497) ; money derived from a partition sale (Horton v. McCoy, 47 K Y. 21 ; Flynn v. Lynch, 27 .Supp. 926, 23 Civ. Pro. Rep. 369) or awarded in condemnation proceedings {^Matter of City of Rochester, 110 'S. Y. 159 ; Kerrwchan v. 3 34 PROPERTY SUBJECT TO DISPOSAL. [Ch. Ill, § 18: N. Y. E. R. B. Co., 128 N. Y. 559 ; Ford v. Livingston, 140 W. Y. 162; Ametrano v. Downs, 170 N. Y. 388, 392) j. money collected upon an insurance policy taken out by the- decedent, even though running to the insured, " his executors or administrators" (Wyman v. Wyman, 26 N. Y. 253), or taken out, after his death, by his executors or administrators (Herkimer v. Bice, 27 N. Y. 163) ; surplus money, remain- ing after satisfaction and adjustment of partnership debts- and equities, where a deceased partner's share of partnership real property has been sold in an action to close up the partnership affairs (Buchan v. Sumner, 2 Barb. Ch. 165, 200 ; Smith v. Jackson, 2 Edw. Ch. 28 ; Greenwood v. Mar- vin, 111 N. Y. 423) ; and money derived from the sale of real property belonging to an infant or incompetent person. {See sec. 15 ante.) Another instance of such equitable con- version is surplus money arising out of the sale of a deced- ent's real property upon an execution issued during his life- time, where the sale occurs after his deafth. Except as pro- vided by sections 1380 and 1381, an execution against a de- cedent's property cannot be issued after his death (§ 1379) ; and if so issued it is absolutely void as well as all proceed- ings taken thereunder. (Wallace v. Swinton, 64 N. Y. 188; Prentiss v. Bowden, 145 N. Y. 342.) But where an execu- tion has been already issued and partially executed, while the judgment debtor was living, his subsequent death does, not affect the process or prevent its complete consummation by a sale of the real property ( Wood v. Morehouse, 45 N. Y. 368) ; qnd, in such event, the surplus money arising from the sale necessarily continues to be realty — the. avails of real property of which the decedent died seized — and, as such, applicable to the payment of his debts. All such moneys, being but representative of real prop- erty of which the decedent died seized, are available as realty for the payment of his debts and funeral expenses; but, ex- cept perhaps in the case of surplus money arising upon mort- gage foreclosure, the statute law is dejficient in that it does. Ch. Ill, § 19] PROPERTY SUBJECT TO DISPOSAL. 35 not provide an appropriate method of securing such moneys for the satisfaction of the decedent's debts. As a general rule, however, where such moneys are the result of judicial proceedings an application therefor, based upon a decree of the Surrogate's Court for the sale of the decedent's real property in this special proceeding, must be made to the court wherein such proceedings were taken. (lioey v. Kin- ney, 10 Abb. Pr. 400.) Section 19. — Same Subject : Surplus Moneys arising on Foreclosure. Where a decedent has died seized of real property which is liable to disposition for the payment of his debts and funeral expenses, as authorized by section 2749, and such real property is subsequently sold " to satisfy a mortgage or other lien thereupon, which accrued during the decedent's lifetime," the surplus money arising from such sale continu^:s to be real property applicable to the payment of his debts, in case of & deficiency in his personal estate {Felts v. Martin, 20 App. Div. 60, 46 Supp. 741), and may be appropriated for that purpose under sections 2798 and 2799, which pro- vide for the payment of such surplus into the Surrogate's Court from which letters testamentary or of administration were issued " within four years before the sale," and are as follows : " 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 proceeding specified in the last section, to satisfy a mortgage or other lien thereupon, which accrued during the decedent's lifetime; and letters testamentary or letters of administration, upon the decedent's estate were, within four years before the sale, issued from a surrogate's court of the state having jurisdiction to grant them ; the sur- plus money must be paid into the surrogate's court from which the letters issued, pursuant to the provisions of section twenty-five hundred and thirty-seven of this code, and the receipt of the county treasurers shall be a suflBcient discharge 36 PROPERTY SUBJECT TO DISPOSAL. [Ch. Ill, § 19 to the person paying such money. If the sale was made pur- suant to the directions contained in a judgment or order the surplus remaining after payment of all the liens upon the property, chargeable upon the proceeds, which existed at the time of the decedent's death, must be so paid. If the sale was made in any other manner, the surplus exceeding the lien to satisfy which the property was sold, and the costs and expenses must, within thirty days after the receipt of the ^oney from which it accrues, be so paid over by the person receiving that money." (§ 2798.) " Where money is paid into a surrogate's court, as pre- scribed in the last section, and a petition for the disposition of property, as prescribed in this title, is pending before him; or is presented at any time before the distribution of tho money; the decree may provide that the money he paid to the executor or administrator to be applied by him as if it was the proceeds of the decedent's real property, sold pursu- ant to the decree. If such a petition is not pending or pre- sented, or if a decree for the disposition of the decedent'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. Service of the citation may be made upon all the persons designated therein, by publishing the same in two newspapers designated as prescribed in article first of title second of this chapter, at least once in' each of the four successive weeks immedi- ately preceding the return day thereof, except that personal service must be made upon the husband, wife, heirs and de- visees of the decedent, and also upon every other person claiming under them, or either of them who resides in this state. Upon the return of the citation, the rights and prior- ities of the persons interested must be established, and a de- cree for distribution must be made." (§ 2799.) Section 2798 was not changed by the recent amendments (1904 ch. 750) but in section 2799 the words "the decree may provide that the money be paid to the executor or ad- ministrator to be applied by him," as above italicized, were substituted for the words " must be distributed " in the sec- Ch, III, § 19] PROPERTY SUBJECT TO DISPOSAL. 37 tion as originally enacted, and the words " as if it was the proceeds of real property sold," with which the section con- cluded, were stricken out. These sections seem to modify section 1633 providing, in ordinary cases of foreclosure by action, for the disposition of surplus money and are a substitute for sections 2404-2407 regulating the disposition of such surplus arising upon a fore- closure by advertisement (see § 2408) ; and where the fore- closure is by action the judgment itself should provide for the payment of the surplus money into the Surrogate's Court, from which letters were issued, and not into the Supreme Court. (Powell v. Harrison, 88 App. Div. 228, 85 Supp. 452.) But if, perchance, the judgment should erroneously direct such payment into the Supreme Court a transfer of the surplus therefrom to the Surrogate's Court can only be accomplished by an order of the Supreme Court, modifying » its judgment in this respect, and made upon notice to all parties to the action. (Washington Life Ins. Co. v. Clarh,- 79 App. Div. 160, 79 Supp. 610.) And where such surplus money was paid into the Supreme Court, as provided by sec- tion 1633, and erroneously distributed under its order with- out notice to a general creditor of the decedent, it has been held that such general creditor may maintain an action for the restoration thereof to the county treasurer — there to re- main until disposed of according to law. (Felts v. Martin, 20 App. Div. 60, 46 Supp. 741.) It has been held that section 2798 is constitutional (Mutter ofStilwell, 139 IST. Y. 337) ; and also that the four years' limitation, within which letters must have been issued to bring a case within the statute, run from the day of the sale and not from the commencement of the action or special proceeding. (White v. Poillon, 25 Hun. 69.) And where real property of a decedent is sold upon a mortgage fore- closure more than three years after the issuance of letters upon his estate, the property is not liable to be disposed of for the payment of his debts and the surplus moneys are not 38 PROPERTY SUBJECT TO DISPOSAL. [Ch. Ill, § 20 required to be paid into the Surrogate's Court but should be distributed in the usual manner. (Beynolds v. Britton, 56 Misc. 67, 106 Supp. 937 ; and see Early v. Korn, 89 Supp. 392.) But it is not necessary that a petition for the distri- bution of such surplus money be made within three years after letters were first duly granted within the state as pre- scribed by section 2750. {Matter of Callaghan, 69 Hun. 161, 23 Supp. 378; Matter of Bernstein's Estate, 58 Misc. 115, 110 Supp. 473.) It is expressly provided in the Real Property Law that, when a wife has not joined with her husband in a purchase- money mortgage, " she is entitled to her dower as against every other person " except the mortgagee ; and also that, upon a foreclosure of such mortgage " after the death of the husband," in case " any surplus remains, after payment of the money due on the mortgage and the costs and charges of the sale, the widow is nevertheless entitled to the interest or income of one-third part of the surplus for her life, as her dower." (1896 ch. 547 §§ 173 & 174.) Section 20. — Same Subject : Proceeds of Partition Sale. Where " real property, of which a decedent died seized "' has been sold in an action of partition " free from the lien of every debt of decedent," the proceeds nevertheless continue to be realty ; and, if the action was brought within three years from the issuance of letters of administration or letters testa- mentary upon the estate of the decedent, the final judgment must " direct that the proceeds of the sale remaining after the payment of the costs, referee's fees, expenses of sale, taxes, assessments, water rates, and liens established before the death of the decedent, including any sum allowed to a widow in satisfaction of her right of dower, therein directed to be paid, be forthwith paid into court by the referee making such sale by depositing the same with the county treasurer of the county, in which the trial of the action is placed, to the credit of the parties entitled thereto, to await the further Ch. Ill, § 20] PROPERTY SUBJECT TO DISPOSAL. 39 order in the premises." (§ 1538.) The provisions of sec- tion 1538 obviously contemplate that such proceeds may, in a proper case, be disposed of in paying the decedent's debts and funeral expenses, and that, in some way, they may be gotten out of the court wherein the action of partition was brought and into the Surrogate's Court; but, as yet, the legislature has not chosen to indicate precisely how this result is to be attained. However it is quite certain that this special proceeding must be instituted and prosecuted to a final decree and that thereafter an application may be made to the court having custody of the money. (See Hoey v. Kinney, 10 Abb. Pr. 400.) The following are the relevant provisions of section 1538, viz: "... Whenever an action for the partition of real prop- erty shall be brought before the expiration of three years from the time when letters of administration or letters testa- mentary, as the case may be, shall have been issued upon the estate of the decedent from whom the plaintiff's title is de- rived, the executors or administrators, as the case may be, if any, of the estate of said decedent, shall be made parties de- fendant. In case no executor or administrator of such deced- ent shall have been appointed at the time said action is begun, that fact shall be alleged in the complaint. " The executors or administrators, if any, as the case may be, of a deceased person, who, if living, should be a party to such action, shall be made parties defendant therein, and in case no executor or administrator of such deceased person shall have been appointed, that fact shall be alleged in the complaint. " Where the interlocutory judgment directs a sale of the premises sought to be partitioned, or of some part thereof, the judgment may, in the discretion of the court, direct that the premises so sold pursuant to such interlocutory judgment shall be free from the lien of every debt of such decedent or decedents, except debts which were a lien upon the premises before the death of such decedent or decedents. " When the action is brought before three years have elapsed from the granting of such letters of administrate ;;n or letters testamentary, as the case may be, upon the estatf jf the 40 PROPErty SUBJECT TO DISPOSAL. [Ch. Ill, § 2* decedent from whcm the plaintiff derived his title, and the in- terlocutory judgment directs, as above provided, that the premises shall be sold, free from the lien of debts, the final judgment shall direct that the proceeds of the sale remaining after the payment of the costs, referee's fees, expenses of sale, taxes, a'jsessments, water rates, and liens established before the d'.ath of the decedent, including any sum allowed to a widow in satisfaction of her right of dower, therein di- rected to be paid, be forthwith paid into court by the referee making such sale by depositing the same with the county treasurer of the county, in which the trial of the' action is placed, to the credit of the parties entitled thereto, to await the further order in the premises. " Where the action is brought before three years have "^lapsed from the granting of letters of administration or let- ters testamentary, as the case may be, upon the estate of a de- ceased person, who, if living, should be a party to the action,, and the interlocutory judgment directs, as above provided, that the premises shall be sold, free, from the lien of debts, the final judgment shall direct that the share of the proceeds of such sale, which would have been his, if living, be paid into court by such referee, by depositing the same with such county treasurer, to await the further order in the premises. " Upon the certificate of the surrogate of the county of" which the decedent was, at the time of his death, a resident, showing that three years have elapsed since the issuing of let- ters testamentary or letters of administration, as the case may be, upon the estate of said decedent, and that no proceedings for the mortgage, lease or sale of the real property of said de- cedent for the payment of his debts or funeral expenses, or both, is pending, and upon the certificate of the county clerk of the county where the real property sold under the interlo- cutory judgment is located, showing that no notice provided for in section twenty-seven hundred and fifty-one of the code of civil procedure has been filed in his office, the court, wherein the final judgment was made shall, upon the appli- cation of any party to said action, make an order directing the county treasurer to pay to said party from said deposit, the amount to which he is entitled under the said final judg- ment, with the accumulation thereon, if any, less the fees of said county treasurer. " Any party to such action may, at any time after final Ch. Ill, § 20] PROPERTY SUBJECT TO DISPOSAL. 4,1 judgment, upon notice to the executors or administrators of the decedent from whom the party applying derived his share or interest, apply to the court in which said action is pending for leave to withdraw the deposit or share of the deposit, adjudged in the final judgment to belong to him ; and, upon said application, the court may, in its discretion, make an order directing the county treasurer to pay over to said party the deposit, or share of the deposit, adjudged in the final judgment to belong to him, but said order shall not be made until said party so applying shall have furnished a bond to the people of the state of New York in the penalty of twice the amount of the deposit sought to be withdrawn, with two or more good and sufficient sureties, approved by the judge or justice of the court making such order, and filed with such approval, in the office of the clerk of the county in which such action is pending, to the effect that the said party so with- drawing said deposit will pay any and all claims, not exceed- ing the amount of said deposit, when thereunto required by order of the court or by order of the surrogate or of the sur- rogate's court in a proceeding to mortgage, lease or sell the- real property of such decedent. " But. where final judgment shall be rendered in any action for partition after three years have elapsed from the grant- ing of letters of administration or letters testamentary, as the ease may be, upon the estate of the decedent from whom the plaintiff derived title, and the premises shall have been sold,^ free from the lien of debts, as above provided, then, upon pro- ducing to the court the certificate of the surrogate of the county of which the decedent was at the time of his death a resident, showing that three years have elapsed since the issuing of letters of administration or letters testamentary, as the case may be, upon the estate of said decedent and that no proceeding for the mortgage, lease or sale of the real property of the decedent for the payment of his debts or funeral expenses or both is pending and upon the certificate of the clerk of the county where the real property sold under the interlocutory judgment is located showing that no notice provided for in section twenty-seven hundred and fifty-one of the code of civil procedure has been filed in his office the court rendering the final judgment shall direct the payment of the different shares to the several parties entitled thereto j. except that the share of a deceased person, who, if living,. 42 PROPERTY SUBJECT TO DISPOSAL. [Ch. Ill, § 30 should be a party to the action shall be paid into court as above provided, unless three years have also elapsed since the granting of letters of administration or letters testamentary, as the case may be, upon the estate of said last mentioned deceased person, and like certificates of the surrogate and county clerk are produced to the court." (§ 1538.) These provisions, in substantially their present form, were first enacted by chapter 277 of the laws of 1896, and the subsequent amendments (1897 ch. 726; 1898 ch. 78 & 1905 ch. 662) have not modified the requirement, where the real property partitioned or a portion thereof is subject to disposition for the payment of decedent's debts, that the final judgment must direct the net proceeds of the sale or the share thereof which would have been the decedent's, if living, to " he forthwith paid into court by the referee making such sale by depositing the same with the county treasurer of the county, in which the trial of the action is placed, to the credit of the parties entitled thereto, to await the further order in the premises" ; but it will be observed that the statute nowhere indicates how such proceeds may thereafter be appropriated to the payment of the decedent's debts. There is a surrogate's dictum in Matter of Dusenbury (34 Misc. 666, 70 Supp. 725) to the effect that such distribution to the creditors of the decedent, must be made by the Supreme Court itself; but this proposition seems to be untenable. Such proceeds continue to be " real property, of which a de- cedent died seized " and " may be disposed of for the pay- ment of his debts and funeral expenses" (§ 2749) in the Surrogate's Court. It is well settled that the collection of a decedent's debts out of his real property is no part of the jurisdiction of a court of equity ; for " that right was con- ferred by statute, and it must be asserted and proved in the manner that the statute prescribes." (Hogan v. Kavanaugh, 138 K Y. 417, 422 ; Long v. Long, 142 N. Y. 545, 555 ; Palmer v. Palmer, 3 App. Div. 213, 38 Supp. 195 ; Jouffret V. Loppin, 20 App. Div. 455, 46 Supp. 810.) Ch. Ill, g 21] PROPERTY SUBJECT TO DISPOSAL. 43 This special proceeding in the Surrogate's Court should be progressed to a decree empowering the executor or adminis- trator to dispose of the decedent's real property for the pay- ment of his debts, and, thereupon, such executor or adminis- trator, upon notice to the other parties to the action of parti- tion, should apply to the Supreme Court for an order direct- ing the county treasurer to pay over such proceeds to him to be used in the payment of decedent's debts, and, thereafter, to be accounted for in the Surrogate's Court ; for " it is suffi- cient to say that a court of equity is not the tribunal appointed by law to administer upon the estates of deceased persons." (Hogan v. Kavanaugh, 138 IST. Y. 417, 422.) The pro- cedure this suggested seems to accord with the views of the Appellate Division in Jouffret v. Loppin, (20 App. Div. 455, 46 Supp. 810.) Section 21. — Same Subject : Real Property conveyed in Fraud of Creditors. It is provided by section 232 of the Real Property Law (1896 ch. 547) as follows: " § 232. Disaffirmance of fraudulent act by executor and others. — An executor, administrator, receiver, assignee or other trustee, may, for the benefit of creditors, or of others interested in real property held in trust, disaffirm, treat as void and resist any act done or transfer or agreement made in fraud of the rights of any creditor, including himself, in- terested in such estate or property ; and a person who fraudu- lently receives, takes, or in any manner interferes with the real property of a deceased person, or an insolvent corpora- tion, association, partnership, or individual, is liable to such executor, administrator, receiver or other trustee for the same, or the value thereof, and for all damages caused by such act to the trust estate. A creditor of a deceased insol- vent debtor, having a claim or demand exceeding one hundred dollars against such deceased, may, for the benefit of creditors or others interested in the real property of such deceased, disaffirm, treat as void, and resist any act done or conveyance, 44 PEOPERTY SUBJECT TO DISPOSAL. [Ch. Ill, g 21 transfer or agreement made bj such deceased in fraud of the rights of any creditor, including himself, and may maintain an action to set aside such act, conveyance, transfer or agres- ment, without having first obtained a judgment on such claim or demand ; but the same, if disputed, may be established on the trial. The judgment in such action may provide for the sale of the premises or property involved, when a convey- ance or transfer thereof is set aside, and that the proceeds thereof be brought into court or paid into the proper sur- rogate's court to be administered according to law." This sectiojQ is a codification of sections 1 and 2 of chapter 314 of the laws of 1858, as amended by chapter 487 of the laws of 1889 and chapter 740 of the laws of 1894. To sustain an action by a judgment creditor, brought in his own behalf only to set aside a conveyance on the ground that it was made in fraud of creditors, plaintiff must show that he has exhausted his remedy at law by the issue and return of an execution unsatisfied ; but an execution issued after the debtor has died, without notice to his representatives or per- mission of the surrogate, is absolutely void (§ 1379) and will not meet the requirements. (Prentiss v. Bowden, 145 N. Y. 342.) And where a fraudulent conveyance of real property has been made by a debtor who has since died, an action by a creditor in his own hehalf only to set it aside is not maintain- able if based upon a judgment rendered against the decedent's executors or administrators in their representative capacity; for such a judgment is not a lien upon the real property of which the decedent died seized, and such property cannot be sold under an execution issued thereon. (Lichtenherg v. Herdtf elder, 103 K Y. 302.) But where executors or administrators, upon application of a creditor of their decedent, neglect to exercise the power, conferred upon them by this statute, to disaffirm a fraudulent transfer made by their decedent, and where the estate proves insufficient to pay the decedent's debts, the creditor may bring an action in behalf of himself and all other creditors to reclaim the property. In such an action he should make Oh. Ill, § 21] PROPERTY SUBJECT TO DISPOSAL. 4.5 the personal representatives parties defendant; and it is not essential that the plaintiff should be a judgment creditor of the decedent inasmuch as he simply stands as trustee in place of the personal representative. {Harvey v. McDonnell, 113 K Y. 526.) Section 2751 contains the following provision: "... Whenever an executor, administrator or creditor of a deceased person shall have commenced, or shall hereafter ■commence, an action in any court of competent juris- diction of this State for the purpose of setting aside any fraudulent conveyance of, or incumbrance upon, any real €state of such deceased person, and such action shall have been decided in favor of such executor, administrator or cred- itor, such executor, administrator or creditor, may, at any time within three years after the final determination of such action, have and maintain an action of (or) proceeding against the proper parties, in any court of competent juris- diction of this State, for a sale of such real estate, and for a distribution of the proceeds of such real estate among the creditors of such deceased person and other persons entitled to the same as may be directed by the judgment in such action." (§ 2751.) This provision was added to the section by chapter 423 of the laws of 1887 ; but it seems to have been rendered entirely useless by the last sentence of section 232 of the Real Prop- erty Law, which was first enacted seven years after the amendment to section 2751 {see 1894 ch. 740) and is as follows : " The judgment in such action may provide for the sale of the premises or property involved, when a conveyance or transfer thereof is set aside, and that the proceeds thereof be- brought into court or paid into the proper surrogate's court, to be administered according to law." The statute does not indicate the practice after such pro- ceeds have been paid into the Surrogate's Court, but it would 46 PROPERTY SUBJECT TO DISPOSAL. [Ch. Ill, § 32 seem that this special proceeding, for the disposition of the decedent's real property for the payment of his debts, should nevertheless he instituted and prosecuted to a final decree in like manner as if the decedent had died seized of the real property covered by the fraudulent conveyance. Section 22, — Same Subject : Contracts for Purchase of Real Property. It was provided by the Kevised Statues (2 K. S. Ill §§ 66 & 67) that an interest in land under a contract for its ■pur- chase might be sold for the payment of a decedent's debts, and this provision was afterwards extended to such a contract which the decedent had acquired by assignment. (1837 ch. 460 § 42.) These provisions were consolidated in section 2749. ■ Although the title may remain in the vendor he is consid- ered in equity as being a trustee for the "purchaser ; but the estate is real property of the purchaser and descends to his heirs or may be devised by him. (Malin v. Malin, 1 Wend. 625, 658; Rood v. N. Y. & Erie E. R. Co., 18 Barb. 80.) Even where a person has entered into possession of land un- der a parol agreement for the purchase and conveyance thereof, if he has performed the agreement on his part by paying the stipulated price, he will be regarded as the owner of the land (Traphagen v. Traphagen, 40 Barb. 537; Sahler V. Signer, 44 Barb. 606 ; Real Property Law §§ 224 & 234) ; and so it has been held that the land of a deceased purchaser, held under a parol contract and taken out of the statute of frauds by his part performance, is subject to sale for the pay- ment of his debts. (Richmond v. Foote, 3 Lans. 244.) But the estate of the purchaser under a contract may be cut off, if he shall fail to pay the consideration ; and so where such a purchaser died leaving his heir in possession, and the vendor rescinded the contract for non-payment and then con- veyed the premises to the heir after having recovered them in an action of ejectment against him, it was held that the heir Ch. hi, g§ 23, 24J PROPERTY SUBJECT TO DISPOSAL. 47 had acquired a complete title so that the land could not be reached in a proceeding for its sale to pay the decedent's debts. (Goodwin v. Nelin, 2 Abb. Ct. of App. Dec. 258;, 35 How. Pr. 402.) Contracts for the sale of lands and moneys unpaid thereon are " assets," to be applied and distributed as part of the personal property of a deceased vendor (Lewis v. Smith, 9 N. Y. 502), and must be included as such in the inventory. (§ 2712 sub. 9.) Section 23.— Real Property exempt from Sale under Exe- cution, Excepted. If any real property, of which the decedent died seized^ " is exempted from levy and sale by virtue of an execution,, as prescribed in title second of chapter thirteen " of the Code it cannot be reached in this special proceeding. (§ 2749.) The express exemptions from such levy and sale are as fol- lows: (1) Land, not exceeding one-fourth of an acre, set apart as a family or private burying-ground, when designated as prescribed by law to secure exemption (§§ 1395 & 1396) ; and (2) a lot of land, with one or more buildings thereon, not exceeding in value $1,000 and designated in the manner prescribed by law as an exempt homestead. (§§1397-1402.) - " A seat or pew, occupied by the judgment debtor, or the family, in a place of public worship " is also exempt ; but such an interest is specified in the statute as personal prop- erty. (§ 1390.) However it has been held, with reference to a particular pew, that it was not assets in the hands of the administrator. (McNabb v. Pond, 4 Brad. 1.) Section 24. — Real Property bought with Pension Money, Excepted. It is also provided in section 1393 that "... a land warrant, pension or other reward heretofore or hereafter granted by the United States, or by a state, for military or naval services; . . . are also exempt from levy 48 PROPERTY SUBJECT TO DISPOSAL. [Ch. Ill, § 24 and sale, by virtue of an execution, and from seizure for non- payment of taxes, or in any other legal proceeding ; . . . " (§ 1393.) It is now well settled that real property necessary or con- venient for the support of a pensioner and his family, bought with the proceeds of his pension, is, under section 1393, ex- empt from levy and sale by virtue of an execution against the pensioner (Yates Co. Nat. Bank v. Carpenter, 119 N". Y. 550 ; Buffum v. Forster, 17 Hun 27, 28 Supp. 285, 59 St. Eep. 833) ; and it has even been held where such real prop- erty had been paid for by a pensioner out of his pension moneys, but was conveyed to his wife, that it is exempt from levy and sale by virtue of an execution on a judgment against her. (Matter of Stafford, 105 App. Div. 46, 94 Supp. 194.) Being thus exempt it seems to be expressly excepted by sec- tion 2749 from any disposition for the payment of the pen- sioner's debts, after his death. Why should it be otherwise ? Why should this benevolent exception be curtailed by judi- cial construction to enable creditors of the pensioner, who had no claim upon such property in his lifetime, to snatch it from his devisees or heirs and apply it to the satisfaction of those very debts from which the exemption shielded it while he was yet alive ? The pensioner may sell such real property or give it away; and the purchaser or donee will take and hold it, precisely as the pensioner had held it, free from all claims of the pensioner's creditors. (Whiting v. Barrett, 7 Lans. 106; Youmans v. Boomhower, 3 Thomp. & Cook 21; Spaulding v. Keyes, 1 Silv. Sup. Ct. Eep. 203; Smillie v. Quinn, 90 IST. Y. 492, 498 ; Fritz v. Worden, 20 App. Div. 241, 243, 46 Supp. 1040.) If the pensioner may make a voluntary conveyance of such exempt real property and his creditors cannot afterwards reach it in the hands of his grantee, why may not he also devise it with like effect ? And, if he may so devise it, why does it not also pass, free from his debts, to his heirs in case of intestacy ? Ch. Ill, § 24] PROPERTY SUBJECT TO DISPOSAL. 49 Moreover where real property is exempt from levy and sale by virtue of an execution issued on a judgment against the pensioner in his lifetime, the same exemption seems to be necessarily continued after his death by those provisions of the Code (§§ 1379 & 1380), regulating the issuing of an execution " against the property of a judgment debtor who has died since the entry of the judgment," which authorize, in the manner thereby prescribed, the judgment to be " en- forced by execution against any property upon which it is a lien, witTv like effect as if the judgment debtor was still living." As the judgment was not enforceable by execution against such property while the judgment debtor was living, how can it be so enforced after his death ? In Tyler v. Ballard (31 Misc. 540, 65 Supp. 557, 7 A. C. 465,) the Supreme Court at special term denied an applica- tion for an order, granting leave to issue execution upon a judgment against a soldier's widow, upon the ground that the real property sought to be sold under such execution had been acquired with pension money due her husband, and was therefore absolutely exempt from levy and sale on an execu- tion against her even after her death intestate. In a well considered and unanswerable opinion the learned judge said : " But the applicant contends that the exemption is simply ' from levy and sale by virtue of an execution,' and that the statute is satisfied by holding that the lien of the judgment attached to the real property of the pensioner, Celestia A. Ballard, and that the right to enforce such judgment by levy and sale was suspended during her lifetime only, and that upon her death, the real property having passed into the own- ership of person's not entitled to protection as pensioners, the judgment might be enforced by a sale under an execution. If such be the proper construction of this statute, the law- makers signally failed in effectuating the purpose plainly in- tended. The effect of such construction would be practically to deprive the pensioner purchasing a home for himself and family of the benefit of his pension to the extent of the claims of creditors seeing fit to put their demands into judgment. 4 60 PROPERTY SUBJECT TO DISPOSAL. [Ch. Ill, § 24 While the judgment creditor might not be able to enforce the collection of his judgment for a period, the pensioner would, not be able to transfer his real property except subject to the lien of the judgments, and the judgment creditors, rather than the pensioner, would obtain the benefit of the pension moneys. This result it was the plain design of the statute- to avoid. The exemption from levy and sale was an absolute- exemption of the pension moneys from any lien or claims of creditors, and it was the plain intention of the statute that property necessary for the support and maintenance of the pensioner, purchased with pension money, should be as ex- empt from the claims and liens of creditors as the money itself. (Yates County National Bank v. Carpenter, 11& IsT. Y. 550.) " However there are some contrariwise dicta. In Matter of Liddle, (35 Misc. 173, 71 Supp. 474) it was held by the surrogate of Washington county that real property purchased by a pensioner, with his pension moneys, may, after his death, be sold for the payment of his debts ; but the argument of the surrogate misses the heart of the question and is altogether unconvincing. In Smith v. Blood (106 App. Div. 317, 94 Supp. 667) the same doctrine is asserted by a learned judge writing for the court; but he seems to have been somewhat doubtful as to the soundness of his own conclusion, and a de- termination of this question was not necessary to the decision which would not have been otherwise " even if said section 1393 is construed to include an exemption extending beyond the death of the pensioner." In Matter of Winans (5 Dem. 138) and Beecher v. Barber (6 Dem. 129) it was held that pension moneys of a decedent are assets in the hands of his executors or administrators and available for the payment of his debts; but this doctrine can hardly be said to have been established by these surrogate decisions which were based, upon propositions afterwards overthrown by the Carpenter- case. (119 K Y. 550.) Perhaps the question is yet to be settled by an authoritative determination; but, in view of the express provisions ol Ch. Ill, § 25] PROPERTY SUBJECT TO DISPOSAL. 51 the statute (§§ 2749, 1393, 1379 & 1380) and the benevo- lent spirit and purpose of the legislation whereby pensions — bounties to soldiers and sailors, and their families, but not to their creditors — are granted and exempted from seizure for the pensioners' debts, it is reasonably certain that real prop- erty of a pensioner, bought with his pension moneys and so exempt from seizure therefor while he is yet alive, may not be appropriated for the payment of his debts after his death. Section 25.— Real Property Devised expressly charged with the Payment of Debts, Excepted. Real property of a decedent may not be disposed of in this special proceeding for the payment of his debts and funeral expenses " where it is devised, expressly charged with the payment of debts or funeral expenses." (§ 2749.) This exception has been in the section from the beginning. (1880 ch. 178.) It was derived from the Revised Statutes (2 R. S.. 103 § 20) which also provided that the surrogate shall make no order for the disposition of real property of a decedent, for the payment of his debts, until he shall be satisfied, among other things, that the debts are not " expressly charged on the real estate of the deceased ; or if such debts be secured by a charge, on a portion of such estate, then that the remedies of the creditor by virtue of such charge, have been exhausted." (2 R. S. 102 § 14.) This provision was also re-enacted in former section 2759 of the Code (1880 ch. 178), which was further extended by requiring the surrogate, before making the decree, to be satisfied •■ i. 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 payment thereof; or, if so devised or subject, that it is not practicable to enforce the charge, or to execute the power, and that the creditor has effectually relinquished the same." Under the Code, therefore, prior to the recent revision of title 5 of chapter 18 (1904 ch. 750), the real property of a 52 PROPERTY SUBJECT TO DISPOSAL. [Ch. Ill, § 35 decedent could not be disposed of in this special proceeding either where " devised, expressly charged with the payment of debts or funeral expenses " or " subject to a valid power of sale for the payment thereof " unless it should appear " that it is not practicable to enforce the charge, or to execute the power and that the creditor has effectually relinquished the same." (Former § 2759.) But herein a radical change has been effected by the present procedure which, without other qualification or re- striction, subjects all the real property of a decedent to dispo- sition for the payment of his debts and funeral expenses ex- cepting only " where it is devised, expressly charged with the payment of debts or funeral expenses, or is exempted from levy and sale by virtue of an execution." (§ 2749.) The provision, however, excepting real property " where it is devised, expressly charged with the payment of debts or funeral expenses" means all the debts and funeral expenses and not merely a part of them. A testator may effectually provide for the payment of his debts and funeral expenses in this manner, but the devise must charge the real property with the payment of all of them, else it is not within the exception; for a testator cannot, by devising real property charged with the payment of particular debts, deprive his general creditors of their right to have it sold and the avails distributed among them after the personal estate has been exhausted. (Matter of Richmond, 168 IST. Y. 385.) 1 1 ,Where real property " is devised, expressly charged with the payment of debts or funeral expenses " a lien is thereby created in favor of the creditors which they can enforce in a court of equity (Smith v. Wyclcoff, 11 Paige 49 ; Mesick v. New, 7 K Y. 163, 167 ; Dill v. Wisner, 88 N. Y. 153 ; Clift V. Moses, 116 N. Y. 144, 154; Matter of Gantert, 136 N". Y. 106, 112) ; and if the devise be upon condition that the de- visee pay such debts, or is accompanied with a direction to that effect, an acceptance thereof creates also a personal lia- bility directly enforceable by the creditors. (Gridley v. Ch. Ill, § 36J PROPERTY SUBJECT TO DISPOSAL. 53 Gridley, 24 N. Y. 130 ; Matter of Richmond, 168 N. Y. 385, 389.) Section 26. — Real Property impliedly charged with the Payment of Debts, not Excepted. Moreover, it will be noted that no real property is thus ex- cepted unless " it is devised, expressly charged with the pay- ment of debts or funeral expenses " ; and such a charge will not be presumed merely from the use of formal words or commonly employed phrases, but it must be either expressly directed by the testator or necessarily inferred from his whole will taken together. (Matter of City of Rochester, 110 K Y. 159; Matter of O'Brien, 39 App. Div. 321, 56 Supp. 925.) Indeed, it has been held that this provision' does not extend to any charge which is merely implied from the general provisions of the will. (Coogan v. Ockershausen, 23 Jones & Spencer, 286.) By operation of law the entire estate of a decedent, both real and personal, is charged with the payment of his debts and funeral expenses; and the mere fact that a testator has also charged his real property with such payment adds noth- ing to the security of his creditors and should not deprive them of their remedy by this special proceeding. Very likely an occasional case may arise where a devise of real property " expressly charged with the payment of debts or funeral expenses " will be good cause for such a marshalling of assets in favor of another devisee, or of an heir, as to furnish an appropriate subject of equity jurisdiction (see Smith v. Wyckoff, 11 Paige 49) ; but no good reason is apparent why this exception has been retained in the present procedure, and it should not be extended to any implied charge. Indeed, if this exception had been omitted, and, in section 2757 or else- where, the surrogate had been directed to require all lands " devised, expressly charged with the payment of debts and funeral expenses " to be first appropriated for such purpose, in exoneration pro tanto of the remaining lands, the interests 54 PROPERTY SUBJECT TO DISPOSAL. [Ch. Ill, § 37 of creditors, and of heirs and devisees as well, would have been better served. Under the present statute, undesirable results may be obtained and circuity of action be compelled. As an illustration: Suppose a testator, having no personal property whatsoever, has devised one parcel of land to A, expressly charged with the payment of all his debts and funeral expenses, and also has devised his remaining lands to B. Clearly the land devised to A is the primary fund for the payment of the decedent's debts; and his creditors may proceed against it by an action in the Supreme Court. And clearly, also, the creditors are not confined to this remedy but may proceed in the Surrogate's Court to procure a sale of the decedent's real property for the payment of his debts, whereupon, by force of section 2749, the very land devised to A, expressly charged with the payment of the debts — and so the primary fund for such payment — , is excepted; and the surrogate can only empower a disposition of the lands devised to B, which equitably should not be resorted to until after the land devised to A shall have been first exhausted. But, because of this provision in section 2749, B is helpless in the Surrogate's Court and must resort to a court of equity for relief. Section 27. — Real Property subject to Valid Power of Sale for Payment of Debts or Funeral Expenses, not Excepted. Under former section 2759 a decree directing the disposi- tion of real property could only be made where, after due examination, it had been established to the satisfaction of the surrogate, among other things, that such property " is not subject to a valid power of sale for the payment " of debts or funeral expenses, or, if so subject, that it is not prac- ticable " to execute the power, and that the creditor has effectually relinquished the same." This provision was not in the Revised Statutes but was introduced when the Code was first adopted. (1880 ch. 178 § 2759.) However it has "Ch. Ill, § 37] PROPERTY SUBJECT TO DISPOSAL. 55 been omitted from the new procedure, and the mere fact that the decedent's real property may be subject to such a power of sale will not now defeat the proceeding. An executor, having such a power of sale, need not apply to the Surrogate's Court to secure by its decree the very power already conferred upon him by his testator's will; but, if he should decline to execute the testamentary power, a creditor may find it advantageous to institute this special proceeding rather than to enforce an execution of the power. However this may be the statute no longer excepts, from the operation of this title, any lands because subject to a valid power of sale for the payment of debts or funeral ex- penses. CHAPTEK IV. LIMITATION AS TO TIME, Section 28. — When Proceeding may be Instituted, 29. — Same Subject: Prior to the Code. " 30. — Extension of Time in Certain Cases. " 31. — Notice of Pendency of Action. " 32. — Form: Creditor's Notice of Pendency of Action. 33. — Disability of Creditor or Vacancy in Administration^ " 34. — Extension of Time by Creditor's Action. " 35. — Further Limitation in Certain Cases. Section 28. — When Proceeding may be Instituted. This special proceeding may be instituted " at any time within three years after letters " testamentary or of adminis- tration " were first duly granted within the state " (§ 2750), but not afterwards except as this period may be extended under section 2751. This is not merely a time limitation^ affecting the enforcement of a creditor's claim, which might be waived if not pleaded (see Selover v. Coe, 63 N. Y. 438) ; but it is essentially a jurisdictional restriction upon the pow- ers of the Surrogate's Court which has no authority to enter- tain this proceeding after the period limited by the statute. (Slocum V. English, 62 N. Y. 494.) As the right to appro- priate the real property of a decedent, for the payment of his debts, did not exist at common law but is conferred by statute, it can only be asserted when and as prescribed by the statute. (Kingsland v. Murray , 133 N. Y. 170; Hogan v. Kavan- augh, 138 N. Y. 417; Long v. Long, 142 N. Y. 545.) During these three years — and such further time as may be added under section 2751 — the creditors of a decedent have a kind of statutory lien upon his real property so that 56 Ch. IV, § 28] LIMITATION AS TO TIME. 57 it cannot be aliened by his heirs or devisees to the prejudice of their claims (Plait v. Piatt, 105 N. Y. 488, 497) provided the petition, upon which letters testamentary or of administra- tion were granted, was presented within four years after his death. (§ 2777.) But upon the expiratioii of this period such real property is relieved from this particular lien unless a special proceeding has already been instituted for its dispo- sition in payment of the decedent's debts (Palmer v. Palmer, 3 App. Div. 213, 38 Supp. 195 ; Hughes v. Golden, 44 Misc. 128, 89 Supp. 765) ; but afterwards the liability of the heirs and devisees for the debts of the decedent, as prescribed in section 1843, may be enforced by action against them. (§ 1844.) The three years period commences at the first grant of principal letters testamentary or of administration within the state and remains unaffected by any issuance of successive letters thereafter ; but it never begins with a grant of tempo- rary or ancillary administration. Although the petition must be presented to the Surrogate's Court within the specified three years, the citation may be issued, or made returnable, afterwards (Matter of Topping, 2 Con. 187, 9 Supp. 447, 29 St. Rep. 211), and it has been held that the special proceeding does not lapse although the citation be not issued until four years thereafter (Matter of YanVlech, 32 Misc. 419, 66 Supp. 727) ; but under the requirements of section 2517, as it seems, the citation must be served within sixty days after it has been issued. And it has also been held, where the proceeding had been com- menced in due season, that the surrogate has power to permit the petitioner to amend his petition so as to set forth a mort- gage executed by the heirs of the decedent, and to issue a sup- plemental citation bringing in the mortgagee as a party, although the lapse of time would have prevented the institu- tion of a new proceeding. (Matter of Ihert, 48 App. Div. 510, 62 Supp. 1051 ; see Matter of Wheeler, 48 Misc. 323, 96 Supp. 762.) 58 LIMITATION AS TO TIME. [Ch. IV, § 29 Section 29. — Same Subject : Prior to the Code. Before the Kevised Statutes no period was prescribed within which the application to sell a decedent's real estate must be made; and so it was held that the surrogate might decline to entertain such an application if not made within a reasonable time. (Mooers v. White, 6 John. Ch. 360; Gilchrist v. Bea, 9 Paige 66.) But unreasonable delay, though good ground for rejecting the application, did not vitiate a sale if ordered. (Jackson v. Bohinson, 4 Wend. 436.) By the Eevised Statutes the period within which executors or administrators might institute the proceeding was limited to " any time within three years, after the granting of their letters " (2 R. S. 100 § 1), and the same limitation was ap- plied to creditors also (2 K. S. 108 § 48) ; but by subsequent statutes (1837 ch. 460 § 72; 1869 ch. 845; 1873 ch. 211), with varying restrictions upon the right, a creditor was au- thorized to apply, at any time after granting of letters, for an order requiring the executors or administrators to show cause why they should not be required to dispose of the real prop- erty of the decedent for the payment of his debts; and the representative was not permitted to assign " for cause why he should not be ordered to sell real estate, that the time within which he is allowed to sell the same has expired." Thus it happened that, under the legislation prior to the Code, the time within which this special proceeding might be instituted on the petition of a creditor was sometimes much longer than the three year period. (See Mead v. Jenkins, 27 Hun 570, 29 Hun 253, aff'd 95 N. Y. 31 ; Matter of Calhghan, 69 Hun 161, 23 Supp. 378, 52 St. Eep. 537.) But section 2750 applies the three years' limitation to creditors as well as to executors and administrators; and there seems to be no provision for any extension of this time except in the cases and manner specified in section 2751. ■Ch. IV, § 30] LIMITATION AS TO TIME. 59 Section 30. — Extension of Time in Certain Cases. " The time, during which an action is pending in a court of record, between a creditor and an executor or adminis- trator of the estate, is not a part of the time limited in the last section (§2750), for presenting a petition, founded upon a debt, which was in controversy in the action ; if the cred- itor has, before the expiration of the time so limited, filed in the clerk's oflBce of the county were the real property is situated, a notice of the pendency of the action ; specifying the names of the parties, the object of the action, and, if the creditor's debt is made the foundation of a counter-claim, the nature of the counter-claim, containing a description of the property in that county to be affected thereby; and stating that it will be held as security for any judgment obtained in the action. " A notice so filed must be recorded and indexed, and may be cancelled, as prescribed, with respect to the notice of pend- ency of an action, in article ninth of title first of chapter four- teenth of this act. It may also be cancelled in like manner, or a specified portion of the property affected thereby, may be discharged from the lien thereof, by the order of the court in which the action is pending, made upon the application of a person having an interest in the real property, upon notice to the creditor, and upon such terms as justice requires. " Whenever an executor, administrator, or creditor of a de- ceased person shall have commenced, or shall hereafter com- mence, an action in any court of competent jurisdiction of this State, for the purpose of setting aside any fraudulent conveyance- of, or incumbrance upon, any real estate of such deceased person, and such action shall have been decided iii favor of such executor, administrator or creditor, such exec- utor, administrator or creditor, may, at any time within three years after the final determination of such action, have and maintain an action of (or) proceeding against the proper parties, in any court of competent jurisdiction of this State, for a sale of such real estate, and for a distribution of the pro- ceeds of such real estate among the creditors of such deceased person, and other persons entitled to the same, as may be directed by the judgment in such action." (§ 2751.) This section is in the same form as when first enacted (1880 ch. 178) excepting that the last sentence was after- 60 LIMITATION AS TO TIME. [Ch. IV, § 31 wards added hy an amendment. (1887 ch. 423.) The orig- inal section was a codification of chapter 211 of the laws of 1873. Where, under this section, there has been an extension of time in favor of a creditor, beyond the three years period of limitation, a subsequent petition for the disposition of the decedent's real property must " be founded upon a debt, which was in controversy in the action ; " but it is not neces- sary that this fact be alleged in the petition if it be established by proof in the special proceeding. (Matter of Bingham, 127 N. Y. 296.) However, as a matter of ordinary good practice, the petition should set forth all the facts essential to the jurisdiction of the court and thus show that the special proceeding is seasonably instituted. Section 31. — Notice of Pendency of Action. There is no provision for any notice of lis pendens in this special proceeding itself ; but where the demand of a creditor, who claims to be entitled thereby to institute the proceeding, is in controversy in an action " pending in a court of record " between him and an executor or administrator of the de- cedent's estate, such a notice may be filed in that action, and thereupon the time, during which the action is pending, is no part of the three years within which the proceeding may be instituted by such creditor upon that particular demand. (§ 2751; Olyphant v. Phyfe, 48 App. Div. 1, 62 Supp. 688, aff'd 166 N. Y. 630.) The function of this notice is not merely to continue a lien upon particular property but it is rather to preserve the creditor's right to institute the special proceeding after the prescribed period of three years. As the subject matter of the proceeding is " all the decedent's real property, and inter- est in real property, within the state, which may be disposed of as prescribed in this title " (§ 2752), it is obvious that all such real property, and not a portion only, should be in- Ch. IV, § 31 J LIMITATION AS TO TIME. 61 eluded in the notice precisely as it should be set forth in a petition whereby the proceeding is instituted. (Matter of Bingham^ 127 N. Y. 296.) While the surrogate has power, and it is his duty, to " direct the order of the sale of parcels . . . for the purpose of preserving all the rights and equities of the parties " (§ 2757) the just exercise of this power might be rendered impossible by any omission of decedent's lands from the petition ; and the petition of a creditor, whose time has been extended pursuant to section 2751, must neces- sarily be limited to the lands specified in the notice of lis pendens. A notice so filed must be recorded and indexed as pre- scribed by section 1672 ; and it may be cancelled as authorized by sections 2751 and 1674. But it seems that this provision, allowing any extension of a creditor's time to petition, is a useless bit of driftwood from the former system and should have been stricken out. The debts of the decedent are not directly established in the special proceeding itself, and it is only where the right to institute the proceeding is challenged that the claim of a creditor may be contested, as incidental to such alleged right. Every such issue is really between the creditors and the heirs or devisees, or those claiming under them, and it cannot be at all affected by any judgment which the creditor may ob- tain in his action against the executors or administrators (Burnham v. Burnham, 46 App. Div. 513, 62 Supp. 120, aff'd 165 E". Y. 659), although, if the creditor be defeated in his action, he cannot again litigate the same demand in any proceeding against the estate; for the judgment against him will be res adjudicata. The provision of former section 2756 making a judgment, against executors or administrat- ors upon a debt due from the decedent, even presumptive evidence of the debt upon a hearing before the surrogate in this proceeding has been entirely eliminated. ((See sec. 115 post.) 62 LIMITATION AS TO TIME. [Ch. IV, § 33 Section 32 Form : Creditor's Notice of Pendency of Action. {Title of Action.) Notice is hereby given, pursuant to section ^51 of the Code of Civil Procedure, that the above entitled action is now pend- ing in the Supreme Court of the state of New York (or, other court of record) and has been (*) brought by , against as executors of the last will and testament of {or, as administrators of the goods, chattels and credits of) deceased, late of the. . . . of in county, New York, to re- cover judgment upon the following demand, held by him against said decedent, to wit: {Briefly specify the claim; as for in- stance,) upon a promissory note made by said decedent June 1, 1900, whereby, for value, he promised to pay said plaintifE $1,000 six months from said date, with interest. {If the creditor's demand is made the foundation of a coun- ter-claim continue after (*) : brought by as executors of the last will and testament of {or as administrators of the goods, chattels and credits of) deceased, late of the of in county N. Y. against wherein, said defendant , by his answer, has interposed a counter-claim by which he seeks to recover judgment against said plaintiffs upon the following demand, held by him against said decedent, to wit: etc.) The following is a description of the real property owned by said decedent at the time of his death, to be aileeted thereby, and it will be held as security for any judg- ment obtained in this action, to wit: {Set forth a general description of all the decedent's real property, and interest in real property, within the state, which may be disposed of for the payment of his debts as prescribed by section 2749.) Dated at , N. Y. the day of ,19 Attorney for Office & P. 0. Address No Street N. Y. Ch. IV, § 33] LIMITATION AS TO TIME. 6S This notice should be filed in the clerk's office" of each county wherein any of the real property, described therein, is situated ; and it must also be recorded and indexed as pre- scribed by section 1672. Section 33. — Disability of Creditor or Vacancy in Admin- istration. MTiere a creditor, entitled to institute this special proceed- ing, dies, before presenting the requisite petition, it seems that the period of three years, within which the proceeding may be commenced, is not thereby extended. It is true that the general provisions of chapter 4 of the Code of Civil Pro- cedure, regulating the limitations applicable to civil actions, apply also to special proceedings (§ 414; Matter of Rogers, 153 N. Y. 316; Church v. Olendorf, 49 Hun 439, 3 Supp. 557, 19 St. Rep. 700) so that ordinarily the period limited for the commencement of such a proceeding is extended, as prescribed in section 402, for one year after the death of a person entitled to institute it. But the three years' limitation, mentioned in section 2750, ailects the jurisdiction of the Surrogate's Court which has no authority whatsoever to empower any disposition of a deced- ent's real property for the payment of his debts, except as provided in title 5 of chapter 18 (Stilwell v. Swarthout, 8.1 K Y. 109, Duryea v. Maclcey, 151 N. Y. 204) ; and those provisions only authorize a special proceeding for that pur- pose where the petition therefor is presented within the period expressly prescribed by sections 2750 and 2751, Whatever remedy is thereby given to the creditor, only exist* cotemporaneously with the sort of general lien upon the de- cedent's real estate thus created; and it seems that neither this lien, nor the jurisdiction of the Surrogate's Court to en- force it, survives the specified three years excepting as such period may be extended under section 2751. In like manner if a sole executor or administrator should die, and his successor be not appointed until after the expira- 64 LIMITATION AS TO TIME. [Ch, IV, § 34 tion of the three years limited for the presentation of the petition, there seems to be no provision excepting the time of such vacancy in the administration from the period within ■which the petition must be presented. It is suggested, how- ever, that the special proceeding might be instituted upon the petition of a creditor presented during such a vacancy in the administration, and successfully retained by the Surrogate's Court, if thereafter an administrator be duly appointed before further steps are taken in the matter. Section 34. — Extension of Time by Creditor's Action. Where an owner of real property has made conveyance thereof in fraud of his creditors and afterwards dies, such property, while the conveyance stands, is not subject to dis- position for the payment of his debts and funeral expenses through this special proceeding; for it is not " real property, of which a decedent died seized " {see § 2749), and the Sur- rogate's Court has no jurisdiction to inquire into the validity of the conveyance. If, however, the deed shall afterwards be . set aside at the suit of his executors, administrators or credit- ors, such property then becomes subject to disposition for the payment of his debts, as though he had really died seized thereof; and thereupon such executor, administrator or credi- tor, " may, at any time within three years after the final de- termination of such action, have and maintain an action or proceeding against the proper parties, in any court of compet- ent jurisdiction of this state, for a sale of such real estate, and for a distribution of the proceeds " thereof " among the creditors of such deceased person and other persons entitled to the same as may be directed by the judgment in such action." (§ 2751.) A right of action to set aside such a fraudulent conveyance is expressly given to an executor or administrator of a de- ceased debtor, and also to a creditor having a claim or de- mand exceeding one hundred dollars against the decedent, by section 232 of the Real Property Law (see also lAchtertr •Ch. IV, § 35] LIMITATION AS TO TIME. 65 herg v. Hertf elder. 103 N. Y. 302 ; Harvey v. McDonnell, 113 N. Y. 526) which also expressly provides, among other things, that " The judgment in such action may provide for the sale of the premises or property involved, when a conveyance or transfer thereof is set aside, and that the proceeds thereof be brought into court or paid into the proper Surrogate's Court to be administered according to law." The statute nowhere applies the three years' limitation tq such an action which, in this respect, is governed by the gen- eral rules applicable to other equitable actions. Section 35. — Further Limitation in Certain Cases. " Unless letters testamentary or letters of administration, upon the estate of the decedent, were granted by a Surrogate's Court having jurisdiction to grant them, upon a petition therefor, presented within four years after his death," real property is not subject to disposition in this special proceed- ing where it has been conveyed or mortgaged, by an heir or de- visee of the decedent, to a purchaser in good faith and for value. (§ 2777.) And where a decedent's real property, which is subject to disposition for the payment of his debts, has actually been sold in an action or special proceeding to satisfy a mortgage or other lien thereon, which accrued during the decedent's lifetime, the surplus money arising from such sale cannot be reached in this proceeding, and need not be paid into the Sur- rogate's Court, unless, within four years before the sale, let- ters testamentary or letters of administration, upon such de- cedent's estate, were " issued from a Surrogate's Court of the State having jurisdiction to grant them." (§ 2798 ; White v. Poillon, 25 Hun 69.) Likewise, where the real property of a decedent has been sold in tn action of partition, the avails will be paid over to those entitled, as heirs or devisees, if 5 66 LIMITATION AS TO TIME. [Ch. IV, § 35 " three years have elapsed from the granting of letters of ad- ministration or testamentary, as the case may be," upon his estate, and this special proceeding to dispose of such real property, for the payment of his debts, is not then pending^ (§ 1538.) CHAPTEE V. THE PETITIONER AND THE PETITION. Section 36.— Proceeding by Whom Instituted. 37. — Same Subject: By Executor or Administrator. " 38. — Same Subject: Not by Ancillary Executor or Ad- ministrator. 39. — Same Subject: By Creditors. " 40. — Same Subject: Not by Creditor whose Claim is not Due. " 41. — Same Subject: Creditor's Claim must be against De- cedent. " 42. — Petition: Where Presented. " 43.— Of the Petition. " 44. — Petition must be verified. " 45. — Contents of Petition. " 46. — Same Subject: No Ascertainment of Debts. " 47. — Same Subject: Inadequacy of Personal Estate. 48.--Same Subject: The Real Property. " 49. — Same Subject: Parties Respondent. " 50. — Death of Party Respondent. " 51. — Form: Petition by Executor or Administrator. " 52. — 'Form; Petition by Creditor. " 53. — Where Facts are Unknown. " 54. — Form: Subpoena upon Inquiry. " 55. — Form: Order requiring an Account or Statement from Executor or Administrator. " 56. — Unknown Parties constituting a Class.. Section 36.— Proceeding by Whom Instituted. " At any time witbin three years after letters were first duly granted within the State, upon the estate of a decedent, an executor or administrator, whether sole or joined in the letters with another, other than a temporary administrator, or a person holding a judgment lien upon decedent's real property at the time of his death, or any other creditor of the 67 68 THE PETITIONER AND THE PETITION. [Ch. V, § 36 decedent, other than a creditor by a mortgage, which is a lien upon the decedent's real property, may present to the Sur- rogate's Court, from which letters were issued, a written pe- tition, duly verified, praying for a decree directing the dis- position of the decedent's real property, or interest in real property, specified in the last section, or so much thereof as is necessary for the payment of his debts or funeral expenses, or, if so decreed as hereinafter provided, for the payment of any judgment liens existing upon such land, or some portion thereof, at decedent's death, by the mortgage, lease or sale at public or private sale thereof; and that the parties named in the petition and all other necessary parties, as prescribed in the subsequent sections of this title, may be cited to show cause why such a decree should not be made." (§ 2750.) Excepting the words above italicized, this section is in the same form as when originally enacted. (1880 ch. 178.) The words " by the mortgage, lease or sale at public or private sale thereof . . . parties named in the petition and all other" were inserted by chapter 213 of the laws of 1885; and the other italicized words relating to judgment liens were added by chapter 735 of the laws of 1894. But the section should have been revised to conform to the new procedure, as the words " if so decreed as hereinafter provided " are now altogether meaningless. The special proceeding therefore may be prosecuted either (1) By an executor or administrator including an adminis- trator with the will annexed (see § 2613), whether sole or joined in the letters with another, except a temporary ad- ministrator; or (2) By any creditor of the decedent, in- cluding " a person holding a judgment lien upon decedent's real property at the time of his death " other than " a cred- itor by a mortgage which is a lien upon the decedent's real property." And, by express limitation contained in section 2702, an ancillary executor or administrator is also precluded from instituting the proceeding or from being thereby empowered to dispose of a decedent's real property for the payment of his Ch. V, § 37] THE PETITIONER AND THE PETITION. 69 debts. (See Hendrickson v. Ladd, 2 Dem. 402; s. c, as Matter of Ladd, 5 Civ. Pro. Rep. 50.) Section 37. — Same Subject : By Executor or Adminis- trator. " An executor or administrator, whether sole or joined in the letters with another/' may institute the proceeding (§ 2750; see Jackson v. Bohinson, 4 Wend. 436) unless he be a temporary administrator or an ancillary executor or ad- ministrator. The words "an executor or administrator," with- out any qualification, would ordinarily be governed by the familiar rule that the singular is construed to embrace the plural where good sense requires, and so mean that all the executors or administrators should unite in the petition., (Matter of Slingerland, 36 Hun 575.) Indeed, it had formerly been held, where there were several executors or ad- ministrators, that they must act conjointly in a special pro- ceeding of this kind (see Fitch v. Witbeck, 2 Barb. Ch. 161) ; and the present statute was intended to expressly en- able one, any, or all of them to initiate the proceeding. How- ever, even if only one of several executors or administrators makes the petition, it would seem that the decree should nevertheless empower all of them to dispose of the property (§§ 2757-2759) precisely as where the special proceeding is instituted by a creditor. But this authority is only conferred upon those to whom principal letters have been issued, and persons having only temporary or ancillary administration are expressly ex- cluded. (See Duryea v. Mackey, 151 N. Y. 204.) How- ever, where a temporary administrator is appointed because of delay in granting letters upon a will of real property, the surrogate, under other provisions of the Code, may authorize him " 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 may be " necessary for the YO THE PETITIONER AND THE PETITION. [Ch. V, § 38 execution of the will, or the preser-vation or benefit of the real property." (§ 2675.) Section 38. — Same Subject : Not by Ancillary Executor or Administrator. None of these provisions, regulating the disposition of a decedent's real property for the payment of his debts, apply to an ancillary executor or administrator, and he can neither institute the special proceeding nor be empowered therein to dispose of such real property for that purpose. (§ 2702.) It seems, however, that it might be well were it otherwise and that the Surrogate's Court should be authorized to em- power an ancillary executor or administrator to dispose of his decedent's real property within the state for the payment of debts to resident creditors. A foreign executor or adminis- trator is not recognized in our courts and cannot sue therein (Taylor v. Syme, 162 N. Y. 513) ; but after being quali- fied by ancillary letters he has an official status here so that he may then sue or be sued in such representative capacity (Hopper v. Hopper, 125 N. Y. 400), and he thereby becomes fully enabled to administer the personal property of the non- resident decedent within the state for whicb purpose he ha-s the same rights and powers, and is made subject to the same duties and liabilities, as a principal executor or adminis- trator except as limited by section 2702. (See Smith v. Second Nat. Banh, 1G9 K Y. 467.) It is true that such let- ters are merely auxiliary to principal letters, already awarded in some other state or country, and can only be granted upon the application or with the authority of the for- eign executor or administrator, or, of the person " entitled to the possession, in the foreign country, of the personal es- tate of such decedent " (§§ 2695-2697 ; Baldwin v. Rice, 183 N. Y. 55) ; but, while the purpose of the letters is to enable the foreign executor or administrator to collect the personal property of the non-resident decederft within this, state and transmit it to the state or country " where the principal letters Ch. V, § 38] THE PETITIONER AND THE PETITION. 71 were granted to be disposed of pursuant to the laws thereof " (§ 2700), yet the ancillary executor or administrator may be directed to pay out such property on the " debts of the de- cedent due to creditors residing within the state " or even " to distribute the same among legatees or next of kin." (§ 2701; Matter of Hughes, 95 K Y. 55.) Whether our courts will decree a distribution of assets collected here un- der such ancillary letters, or will remit their disposition to the courts of the decedent's domicile, is not a question of jurisdiction but merely of judicial discretion under the cir- cumstances of each particular case (Parsons v. Lyman, 20 N. Y. 103 ; Despard v. Churchill, 53 IST. Y. 192) ; and this judicial discretion is invariably exercised in favor of do- mestic creditors. Indeed one of the chief objects of the Code provisions concerning these ancillary letters " is to preserve and protect the claims of creditors residing in this state." {Matter of Gennert, 96 App. Div. 8, 89 Supp. 37.) But if such personal property is insufficient to satisfy the debts owing to resident creditors, and the non-resident de- cedent has died seized of real property within the state which may be disposed of for that purpose, many advantages and no apparent harm would result were the Surrogate's Court authorized — at least, upon the petition of a creditor — to empower the ancillary executor or administrator to dispose of such real property for the payment of those debts. The Surrogate's Court already has jurisdiction to grant princi- pal letters testamentary or of administration upon the estate of a non-resident decedent where real property subject to dis- position for the payment of his debts is situated within its county (§§ 2476, 2477) ; and in case the assets of such a de- cedent, collected under ancillary letters, have been insuffi- cient to discharge his debts, owing to resident creditors, it seems a needless procedure — and anomalous, as well — to re- quire principal administration merely to enable those cred- itors to reach such real property, while the personal estate is administered by the ancillary executor or administrator. 72 THE PETITIONER AND THE PETITION. [Ch. V, § 3» Section 39. — Same Subject : By Creditors. The petition may also be presented by any creditor of the decedent " other than a creditor by a mortgage which is a lien upon the decedent's real property." (§ 2750.) Formerly a judgment creditor was not permitted to institute the pro- ceeding, but this rule has been changed by a general amend- ment. (1894 ch. 735.) Moreover under former section 2759 the surrogate was not authorized to decree the payment of debts unless it should be established to his satisfaction that " they are not secured by a 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 ; " but this provision is omitted (from the present procedure which imposes no limitation whatsoever upon the rigM of a creditor to petition because the debt owing him may have been expressly charged upon any or all the real estate of the decedent; Indeed the only creditor who cannot institute the proceeding is he whose debt is secured by a mortgage; and, even in this case, if the decedent was personally liable for the mortgage debt at thfr time of his death and any deficiency shall remain after the foreclosure and sale of the mortgaged premises, such defici- ency debt qualifies the creditor to then present the petition. It was formerly held that one who has a claim for funeral expenses is not a creditor of the decedent authorized to institute the proceeding (Matter of Corwin, 10 Misc. 196,, 31 Supp. 426) ; but by an amendment (1900 eh. 120) this rule has been changed. It is now provided by subdivision 3 of section 2514 that the word " creditor " includes " any per- son having a claim for funeral expenses," and, by section 2749, that " the expression ' funeral expenses ' as used in this, title, includes a reasonable charge for a suitable headstone.' Where an executor or administrator pays, with his individ- ual moneys, debts or funeral expenses which the personal Ch. V, § 39] THE PETITIONER AND THE PETITION. 73 estate of the decedent is insufficient to pay, without taking assignments of the claims so paid bj him, he becomes subro- gated to the rights of those creditors whose demands he has paid and may institute this proceeding to have the decedent's real property disposed of for the payment of such debts {Matter of O'Brien, 39 App. Div. 321, 56 Supp. 925 ; see also Livingston v. Newkirk, 3 John. Ch. 312) ; and the same rule has been applied where a widow, prior to her appoint- ment as administratrix, had paid a debt of the decedent out of her own property. (Matter of Flapper, 15 Misc. 202, 37 Supp. 33.) On the other hand, where a creditor has assigned all interest in his claim against the decedent, he is no longer authorized to present the petition ; but the assignee of the debt, who has thus become the real creditor, must institute the proceeding in his own name. {Butler v. Emmett, 8 Paige 12.) Although the word " creditor " also includes " any person having a claim for expense of administration " (§ 2514 sub. 3) yet such a claim is neither a debt of the decedent nor a claim for funeral expenses; and no disposition of the deced- ent's real property will be empowered for the mere purpose of paying administration expenses. {Matter of Quatlander, 29 Misc. 566, 61 Supp. 1064; see Matter of Hatch, 182 K Y. 320; and sec. 118 post.) Prior to the recent amendments (1904 ch. 750) it was held that this proceeding might be instituted by a creditor, even though his claim had already been presented to and re- jected by the executor or administrator, and that the sur- rogate had jurisdiction in the proceeding to determine the validity of such claim {Matter of Haxtun, 102 IST. Y. 157) ; and no reason is apparent why this rule will not be followed under the present procedure. Where the petitioner alleges that he is a creditor of the decedent this allegation may be de- nied and an issue made thereby for trial before the surrogate ; but such an issue is neither determined nor affected by the 74 THE PETITIONER AND THE PETITION. [Ch. V, § 40 mere fact that the executor or administrator has already allowed or rejected his claim. Section 40. — Same Subject : Not by Creditor whose Claim is not Due. It seems that a creditor whose demand is not yet due laaj not institute this special proceeding. It is true that the various Code provisions, regulating the administration and settlement of decedent's estate, discrimi- nate against neither debts not yet due nor contingent de- mands ; and all such claims must be paid or provided for in like manner as debts actually due. Thus it is declared by section 2719, regulating the payment of decedent's debts, that " a debt due and payable shall not be entitled to a pref- erence over debts not due " which " may be paid according to the class to which they belong, after deducting a rebate of legal interest on the sum paid for the unexpired term of credit without interest." So upon a judicial settlement of a repre- sentative's accounts the decree must direct that a sum be re- tained in the hands of the accounting party sufEcient to sat- isfy " an admitted debt " not yet due where " the creditor will not accept payment with a rebate of interest." (§ 2745.) Moreover it is well settled that debts not yet due, and con- tingent claims as well, may properly be presented to the ex- ecutor or administrator pursuant to a duly published notice (see § 2718) "requiring persons having claims against the deceased to exhibit the same, with the vouchers therefor " (Comes V. Wilkin, 79 IST. Y. 129), and that all such claims must be provided for in the administration and settlement of the estate. (Hoyt v. Bennett, 50 E". Y. 538.) Nevertheless, if such a claim be disputed or rejected the creditor's cause of action is not thereby accelerated, but the time when he may bring suit thereon is within " six months after a part thereof becomes due." (S 1822.) The statute seems nowhere to give the creditor a right to in- stitute any proceeding for the enforcement of his demand Ch. V, § 40J THE PETITIONER AND THE PETITION. 75 until it becomes due; but it authorizes the executors or ad- ministrators to settle the decedent's estate, and, for that pur- pose, if necessary, to appropriate all his property both real and personal to the satisfaction of all his debts — including those not yet due. By statutory definition " the word ' debts ' includes everv claim and demand, upon which a judgment for a sum of money, or directing the payment of money, could be re- covered in an action; and the word ' creditor ' includes every person having such a claim or demand." . . . (§ 2514 sub. 3.) And a claim upon which a judgment may not be re- covered in an action, because it has not yet matured, is usually designated as a debt or a claim " not yet due." It seems, therefore, that the creditor authorized by section 2750 to institute this special proceeding is one whose claim is due. But, upon the return of a citation, issued upon the petition of another, a creditor of the decedent including one whose claim is not yet due may appear and make himself a party to the special proceeding (§ 2755) ; and each such claim must be considered in determining whether " the per- sonal estate of the decedent is insufficient for the payment of his debts and funeral expenses." After the real property has been in fact converted into money, under a power of sale conferred by the decree, the proceeds are to be applied by the executor or administrator " in the same manner as if he had acted under such a power of sale contained in a will " (§ 2761), that is to say: under a power of sale for the pay- ment of debts; and the executor or administrator in paying such debts is controlled by the provisions of section 2719- It may be that an occasional case will arise where a creditor, whose demand does not become due until more than three years after letters have been issued, may be precluded from instituting this proceeding at all ; but, in such case, his rem- edy will be against the heirs and devisees under those Code provisions making them answerable for the debts of the de- /JQ THE PETITIONER AND THE PETITION. [Ch. V, § 41 cedent to the value of the lands descended or devised. (§§ 1837-1860.) The dictum of Chancellor Kent in Mooers v. White (6 John. Ch. 360, 380) that " The cireumstaneo of the debt not being due, forms, then, no obstacle to the application to the surrogate, when the executor has not personal assets sufficient to meet it " is, undoubtedly, a correct statement of the present law; but it had no reference to an application made hy a creditor. Section 41. — Same Subject : Creditor's Claim must be against Decedent. It is provided in section 2?50 that the petition may be pre- sented, among other persons, by " a person holding a judg- ment lien upon decedent's real property at the time of his death, or any other creditor of the decedent, other than a cred- itor by a mortgage, which is a lien upon the decedent's real property;" and this phraseology clearly indicates that the creditor, whether " holding a judgment lien ... or any other creditor of the decedent," must be one whose claim ex- isted against the decedent at the time of his death, and not one who may have become a creditor of the decedent's estate by reason of subsequent transactions. It is true that by an amendment (1900 ch. 120) to section 2514 an enlarged meaning has been given to the word " creditor," — the pertin- ent provisions of that section being now as follows : " In construing the provisions of this chapter, the follow- ing rules must be observed, except where a contrary intent is expressly declared in the provision to be construed, or plainly apparent from the context thereof^ " 3. The word ' debts ' includes eve'ry claim and demand, upon which a judgment for a sum of money, or directing the payment of money, could be recovered in an action ; and the word ' creditor ' includes every person having such a claim or demand, any person having a claim for expense of admin- istration, or any person having a claim for funeral expenses." Ch. V, § 42] THE PETITIONER AND THE PETITION. Y7 Prior to this amendment, which merely added the words above italicized, it had been the settled rule that a person hav- ing a claim against the decedent's estate could not institute this special proceeding unless the claim was also a debt of the decedent himself ; and it was also well settled that, where real property had been actually sold for the payment of a deced- ent's debts and funeral expenses, no part of the proceeds could be otherwise appropriated — not even to reimburse the executors or administrators for costs or expenses incurred by them in the administration of the personal estate. {Mat- ter of Hatch, 182 IST. Y. 320.) The amendment of 1900, extending the meaning of the word " creditor " to include " any person having a claim for expenses of administration," does not make such person a creditor of the decedent; and there is nothing in the new pro- cedure which indicates any change in the former rule. As we have already seen, the jurisdictional fact in this special proceeding is that " the personal estate of the decedent is insufficient for the payment of his debts and funeral ex- penses" — not debts and funeral expenses and expenses of administration; and when that fact has been shown to the satisfaction of the surrogate (§ 2756) he must make a decree accordingly. (§ 2757.) Indeed, under the new procedure, the executor or administrator is required to dispose of the proceeds of real property sold by him " in the same manner as if he had acted under such a power of sale contained in a will " (§ 2761) ; and a testamentary provision authorizing an executor to sell real property for the payment of testat- or's " debts and funeral expenses " would scarcely justify him in diverting the avails thereof to defray charges or ex- penses incurred after his testator's death and during the process of administration. (See sees. 118 & 119 post.) Section 42. — Petition : Where Presented. This special proceeding may not be commenced until prin- cipal letters testamentary or of administration have been Y8 THE PETITIONER AND THE PETITION. [Ch. V, § 43 granted upon the estate of the decedent; and thereupon the Surrogate's Court, hy^ which such letters are awarded, has exclusive jurisdiction thereof. The requisite petition, by which the proceeding is instituted, must be presented " to the Surrogate's Court from which letters were issued " (§ 2750) ; and, if within the state,, it is immaterial in what county the real property may be or whether it is located in several coun- ties. {Long V. Olmsted, 3 Dem. 581.) The jurisdiction of the Surrogate's Court is neither determined nor even affected by the situs of the property. Section 43. — Of the Petition. As hereinbefore noted (sec. 36 ante), this special proceed- ing is instituted by the presentation of " a written petition, duly verified, praying for a decree directing the disposition of the decedent's real property, or interest in real property," specified in section 2749, " or so much thereof as is necessary for the payment of his debts and funeral expenses, or, if so decreed 'as hereinafter provided, for the payment of any judgment liens existing upon such land, or some portion thereof, at decedent's death, by the mortgage, lease or sale at public or private sale thereof ; and that the parties named in the petition and all other necessary parties, as prescribed in the subsequent sections of this title, may be cited to show cause why such a decree should not be made." (§ 2750.) This is the former provision unchanged. However, it does not exactly conform to the present procedure which leads to. a decree which merely empowers the executor or adminis- trator to dispose of the decedent's real property (§ 2757), and does not direct any disposition thereof as under the former system. But it does not seem to be essential that the prayer of the petitioner shall conform precisely to the words of the statute; and an objection that the petition only asks for a sale, instead of authority to " mortgage, lease or sell," is sufficiently answered if the fact appears from the petition that a mortgage or lease would fail to accomplish the purpose Ch. V, §§ 44, 45] THE PETITIONER AND THE PETITION. 79 intended. {Matter of Dqlan, 88 N. Y. 309, 322 ; and see Sibley v. Waffle, 16 K Y. 180, 186.) Section 44. — Petition must be Verified. The proceeding can only be instituted by " a written peti- tion, duly verified." (§ 2750.) As the statute does not name an officer, before whom the affidavit of verification must be made, it is sufficient if sworn to before any one authorized to administer an oath. (Richmond v. Foote, 3 Lans. 244, 254.) Such officers, in addition to the clerk of the Surro- gate's Court (1900 ch. 510), are enumerated in section 842 of the Code. If the affidavit of verification be made without the state the authority of the officer, before whom it is taken, must be certified as required by section 844; and this has been held to be a jurisdictional matter so that such authority cannot be supplied by amending the verification. {Matter of Hotchhiss, 17 Misc. 670; s. c, as Bockwell's Estate, 41 Supp. 431.) The affidavit of verification must be to the effect, that the petition " is true to the knowledge of depon- ent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he be- lieves it to be true." (§§ 2534 & 526.) Section 45. — Contents of Petition. " The petitipn must set forth the following matters, as nearly- as the petitioner can, upon diligent inquiry, ascertain them : 1. The amount of the unpaid debts and funeral expenses of the decedent and that the personal estate is inadequate for the payment thereof. 2. A general description of all the decedent's real prop- erty, and interest in real property, within the State, which may be disposed of as prescribed in this title ; a statement of the value of each distinct parcel; whether it is improved or not ; whether it is occupied or not ; and, if occupied, the name of each occupant ; whether it is incumbered by a mortgage lien or liens together with a statement of the amount due or 80 THE PETITIONER AND THE PETITION. [Ch. V, § 45 claimed to be due thereon. Where the petition describes an interest in real property, specified in section 2749 of this act, the value of the interest must be stated, and also the value of, and the other pai'ticulars, specified in this section, relat- ing to the real property to which the interest attaches. 3. The names of the husband or wife, and of all the heirs and devisees of the decedent, and also (of) every other person claiming under them, or either of them, stating who, if any, are infants ; the age of each infant, and the name of his gen- eral guardian, if any ; and also, if the petition is presented by a creditor or judgment lienor, the name of each executor or administrator. 4. If the petition is presented by an executor or adminis- trator, the amount of personal property which has come to his hands, and those of his co-executors and co-administrat- ors, if any; the application thereof, and the amount which may yet be realized therefrom." (§ 2752.) Moreover " if upon diligent inquiry " any of these matters ^' cannot be ascertained by the petitioner " that fact should also be set forth in the petition as it " must be shown to the surrogate's satisfaction." (§ 2753.) If there be " an existing right of dower in the real estate " it is advisable, though not required by the statute, that the petition also set forth " whether a more advantageous sale can be made of such real estate by including the sale of such right of dower" as this is a matter which the court must consider and determine in case a sale be authorized (§ 2800) ; and where " the estate amounts to less thp.n two thousand dollars " that fact should also be alleged, so that any required publication of the citation may be limited to one newspaper. (§ 2524.) Although it is imperative that the petition set forth the required matters, they may be alleged upon informa- tion and belief; and the petitioner is not required to state the source of his information. (Matter of Merchant, 6 Supp. 875, 25 St. Rep. 268; see Matter of German. Bank, 39 Hun, 181.) ■Ch. V, § 46] THE PETITIONER AND THE PETITION. 81 Section 46. — Same Subject : No Ascertainment of Debts. The only change made in section 2752, by the recent amendments (1904 ch. 750), is in subdivision 1 whereby formerly the petitioner was required to set forth " 1. The unpaid debts of the decedent, and the name of each creditor or person claiming to be a creditor; and the name of each person holding, or claiming to hold, a lien by judgment docketed against decedent before his decease; and also the several dates of docket of all or any of such judgment liens, and whether such judgment lien or liens affect the 'Whole or part of the decedent's real property; and the amount of the unpaid funeral expenses of the decedent, if any, and the name of any person to whom any sum is due by reason thereof." Under the former system, which had continued practically the same in this particular since the adoption of the Revised Statutes, the proceeding was essentially one against the de- cedent's heirs or devisees, wherein particular debts luere es- tablished for the payment of which the real property was appropriated; and the surrogate had ample authority to adjudicate the validity of all claims against the decedent which were not liens upon the real property, even though they had already been rejected by the executor or adminis- trator. (Matter of Haxtun, 102 N. Y. 157; Merchant's Estate, 6 Supp. 875, 25 St. Eep. 268.) So the petition was required to set forth the unpaid debts and funeral expenses, with more or less of detail, and the name of each creditor or person claiming to be such. Upon the hearing, creditors not named in the citation were allowed to present and prove their claims, and thus make themselves parties to the special pro- ceeding {former § 2755) ; and the decree determined each debt established before the surrogate. {Former § 2758.) Finally the avails of the real property were disposed of in ihe proceeding itself ; and any surplus, after satisfying the established debts, was restored to the heirs or devisees or to those claiming under them. {Former § 2793.) 6 82 THE PETITIONER AND THE PETITION. [Ch. V, §§ 47, 48 But under the new procedure the validity of debts is not necessarily adjudicated by the decree (Matter of O'Neill, 49 Misc. 285, 99 Supp. 237), and proof of outstanding claims seems to be material only in showing that " the personal es- tate is inadequate for the payment thereof " or in establish- ing the right of a petitioning creditor when challenged. Section 47. — Same Subject : Inadequacy of Personal Estate. The petition must show " tbat the personal estate is inade- qtiate for the payment " of the debts and funeral expenses of the decedent. To this end it must set forth, " as nearly as the petitioner can, upon diligent inquiry, ascertain them," the amount of such unpaid debts and funeral expenses, and also, " if the petition is presented by an executor or adrmnis- trator, the amount of personal property which has come to his hands, and those of his co-executors or co-administrators, if any; and the application thereof, and the amount which may yet be realized therefrom" (§ 2752) ; and if the peti- tion is presented by a creditor or judgment lienor " the sur- rogate may, by order, require the executor or administrator to render such an account or other statement, as he deems necessary for the purpose of the inquiry." (§ 2753.) Undoubtedly a substantial compliance with these require- ments will suffice {Matter of German Bank, 39 Hun 181; Matter of Williams' Estate, 1 Misc. 35, 22 Supp. 906) ; but^ in any event, the petition need not state the names of the creditors, or the amounts due them severally, nor need it set forth any details concerning the personal property except as above noted, and no preliminary inventory or accounting is now required. Section 48 — Same Subject : The Real Property. The jurisdiction of the Surrogate's Court is not affected by the situs of the real property ; and it is immaterial where it may be within the state or whether it be located in several Ch. V, § 48] THE PETITIONER AND THE PETITION. 83 counties. (See sec. 42 ante.) The petition must be pre- sented " to the Surrogate's Court, from which letters were issued " (§ 2750) ; and it must set forth " a general descrip- tion of all the decedent's real property, and interest in real property, within the state " which may be disposed of, as provided by section 2749, for the payment of his debts. (§ 2752; Matter of Igglesden, 3 Red. 375. The petition is not fatally defective, however, because of an omission to describe a parcel which was unknown to the petitioner and the existence whereof he could not have ascertained by dili- gent inquiry (Matter of Faulkner's Estate, 10 Supp. 325, s. c, as Matter of Bingham, 32 St. Rep. 782, aff'd 127 N. Y. 296; Matter' of German Bank, 39 Hun 181) ; and such an omission may be supplied by amendment if necessary. (Sheldon v. Wright, 7 Barb. 39, 48, aff'd 5 N. Y. 497.) Nevertheless, the statute contemplates that all the real prop- erty of the decedent, subject to disposition for the payment of his debts, shall be charged in this proceeding; and where there are several parcels, wherein several persons have separ- ate interests, the omission of some of them will not be allowed to throw a disproportionate burden of the indebtedness upon those included. (Matter of Bingham, 127 K Y. 296.) The petition must also state the "value of each distinct parcel," and whether it is improved or occupied, and, if oc- cupied, the name of each occupant ; and also " whether it is incumbered by a mortgage lien or liens together with a state- ment of the amount due or claimed to be due thereon." (§ 2752.) As defined by statute (§ 3343 sub. 16), " a ' distinct par- cel ' of real property is a part of the property, which is or may be set off by boundary lines, as distinguished from an undivided share or interest therein " ; but it has been never- theless held that the petition is sufficient where it only states the aggregate value of several lots lying together even though it does not specify the value of each lot separately. (Matter 84 THE PETITIONER AND THE PETITION. [Ch. V, § 49 of McGee, 5 App. Div. 527, 38 Supp. 1062; Matter of Georgi, 35 Misc. 685, 72 Supp. 431.) Section 49. — Same Subject : Parties Respondent. As this special proceeding is instituted by or in behalf of creditors of the decedent to appropriate his real property for the payment of bis debts, it is hostile to his heirs and devisees and to those claiming under them ; and the Surrogate's Court must therefore acquire jurisdiction of their persons as well as of the subject-matter. (Schneider v. McFarland, 2 N. Y. 459.) To this end the statute requires the petition to set forth " the names of the husband or wife, and of all the heirs and devisees of the decedent, and also (of) every other person claiming under them, or either of them." If any such per- sons are infants the petition must also state " the age of each infant and the name of his general guardian, if any " ; and if the petition is presented by a creditor it must also state " the name of each executor or administrator." (§ 2752, sub. 3; Matter of Slater, 17 Misc. 474, 41 Supp. 534.) But an omission to name such a person is not necessarily fatal, and the defect may be cured by amendment (Matter of Wheeler, 48 Misc. 323, 96 Supp. 762) even though the Statute of Limitations would prevent the institution of a new proceeding (Matter of Ihert, 48 App. Div. 510, 62 Supp. 1051) ; and such an omission may also be supplied by a supplemental citation issued upon a further petition or affi- davit presented after the return day of the original citation. (Matter of Bingham, 127 N. Y. 296.) Moreover if the peti- tioner shall fail to name any person who is a necessary party, and that fact appears upon the preliminary inquiry made by the surrogate as directed by section 2753, it is expressly pro- vided that " the citation must also be directed to him." (§ 2754.) But the proposition is fundamental that a person cannot be deprived of his property without due process of law ; and this includes an opportunity to be heard afforded by some Ch. V, § 49] THE PETITIONER AND THE PETITION. 85 notice, actual or constructive. (Rockwell v. Nearing, 35 N. Y. 302; Campbell v. Evans, 45 N. Y. 356; Happy v. Masher, 48 N. Y. 313.) It is therefore of grave importance that each person, v?ho has acquired any interest or right in the real property upon or after the decedent's death, be named or described in the petition ; for if such a person be not duly cited, his interest will not be affected by any disposition of the real property made pursuant to the decree. (Bloom v. Burdick, 1 Hill 180 ; Wilson v. White, 109 N. Y. 59 ; Mat- ter of John's Estate, 18 Supp. 172.) But a person, who acquires an interest in the real property after the citation has been issued, need not be made a party as he will be bound by the decree. (Richmond v. Freemans Nat. Bank, 86 App. Div. 152, 83 Supp. 632.) He may, however, intervene and make himself a party. (§ 2755.) If the petition be made by an executor or administrator, who is also the general guardian of an infant heir or devisee, the infant must never- theless be made a party respondent and a special guardian be appointed for him in the proceeding ; for such a petitioner is not acting in behalf of his ward but in hostility to him. (Havens v. Sherman, 42 Barb. 636.) Where the petition states that certain persons named therein are heirs of the de- cedent, a fair construction of the language is that they are all the heirs; and an express averment to that effect is un- necessary. (Greenblatt v. Hermann, 144 N. Y. 13.) If the decedent be a married woman, who has died seized of real property not effectually devised by her, the surviving husband may have an estate by the curtesy therein — if the wife had actual seizin of the lands during coverture based upon an entry thereof (see Collins v. Russell, 184 'N. Y. 74) ; but such estate of the husband is subject to disposition for the payment of his deceased wife's debts. (Arrowsmith v. Arrowsmith, 8 Hun 606.) If, however, the decedent has devised the property to another, her husband, as such, has no interest therein and is an unnecessary party although re- quired to be named in the petition. 86 THE PETITIONER AND THE PETITION. [Ch. V, § 49 A surviving wife must also te named in the petition; but if the widow's dower has been already assigned to her, she is an unnecessary party as thereafter her estate cannot be af- fected by any disposition of the real property for the payment of her deceased husband's debts (Lawrence v. Miller, 2 N. Y. 245; Lawrence v. Brown, 5 N. Y. 394), although that por- tion assigned to the widow may be sold subject to her life estate therein as tenant in !dower. (Maples v. Howe, 3 Barb. Ch. 611.) If, however, the widow has only " an existing right of dower " she is a necessary party, as all the real prop- erty, including such right, may be sold. (§ 2800.) And where the subject matter of the proceeding is land, held by the decedent under a contract for its purchase whereby he had a legal right to actual seizin, his widow has an equitable right of dower therein (Warner v. VanAlstyne, 3 Paige Ch. 513; Hawley v. James, 5 Paige Ch. 318, 453; Williams v. Kin- ney, 43 Hun 1, 6 St. Eep. 560, aff'd 118 K Y. 679 ; Knolls v. Barnhart, 71 K Y. 474, 479 ; Phelps v. Phelps, 143 K Y. 197, 202) and so is a necessary party. Judgment creditors of heirs or devisees of the decedent, whose judgments are liens upon the real property to be dis- posed of, are " persons claiming under them " and should be made parties as required by section 2752 ; and such a credi- tor has an interest which will enable him to appear and de- fend even though his judgment debtor makes default. (Bay- nor v. Gordon, 23 Hun 264.) ! Although the statute does not expressly require it, yet, where the petition is made by one of several executors or administrators, it should also specify the names of all the representatives in like manner as where the petition is pre- sented by a creditor; for the decree should empower all the executors or administrators, and not merely the one petition- ing, to make the requisite disposition of the real property. In a special proceeding for the probate of a will, or to pro- cure letters of administration in case of intestacy, if the sur- rogate is unable to ascertain to his satisfaction whether the Ch. V, § 50] THE PETITIONER AND THE PETITION. 87 decedent left any heirs at law the citation must be directed, among other persons, to the attorney general (§§ 2616, 2663) so that thereby the interests of the state, in case of an escheat, may be protected, but no provision seems to have been made in this special proceeding to cite either the attor- ney general, or any other official in behalf of the state, where the decedent has died intestate without lawful heirs ; and, in such event, it is difficult to perceive precisely how the pro- ceeding can be progressed to an effectual sale. (See Seitz v. Messerschmitt, llY App. Div. 401, 102 Supp. 732, aff'd 188 N. Y. 587.) Where the petitioner cannot, upon diligent inquiry, ascer- tain the names of persons who should be made parties that fact must be shown to the satisfaction of the surrogate who "must thereupon inquire into the matter" (§ 2753); and provision is made whereby such unknown persons may be cited by a general description (§§ 2518, 2523) so that the court will acquire jurisdiction over them precisely as though they had been named in the petition and citation. (Matter of Killan, 172 N. Y. 547, 556.) But, before the rights of persons, whether known or unknown, can be thus cut off, the petitioner must institute diligent inquiries to discover who and where they are, and should submit to the court the facts showing such inquiry ; and mere negative statements thereof are insufficient. {Matter of O'Neill, 49 Misc. 285, 99 Supp. 237.) And by a recent amendment (1908 ch. 272) to sec- tion 2518 the surrogate must be satisfied " of the reasonable good faith and diligence of the petitioner." Section 50. — Death of Party Respondent. If a party, to whom the citation is directed, shall die be- tween the issuance thereof and the decree, and his interest survives, those who thereafter represent it must be brought in by a supplemental citation. Service of the original cita- tion upon his personal representatives, devisees or heirs con- fers no jurisdiction over them. (Boerum v. Betts, 1 Dam. 88 THE PETITIONER AND THE PETITION. [Ch. V. § 51 471; Matter of Georgi, 35 Misc. 685, 72 Supp. 431.) The only parties to a special proceeding in the Surrogate's Court are those persons who are named or described in the original citation or in a supplemental one, or who have been per- mitted to intervene. But if the party who has died be the decedent's husband or wife and has no interest excepting as such, or if he was the devisee of a life estate meyely, his representatives need not be brought in as parties inasmuch as his interest has died with him. The surrogate has full authority (§ 2481 sub. 2) to issue a supplemental citation and thereby bring in, as a party to this special proceeding at any time before the decree, any person who is necessary to a complete adjudication of the matters involved and who may have been omitted from the original citation, or who may have subsequently become a necessary party. (^Matter of Phalen, 51 Hun 208, 4 Supp. 408, 21 St. Eep. 34; Matter of Will of Bradley, 70 Hun 104, 23 Supp. 1127, 53 St. Rep. 540; see sec. 87 post.) Section 51.— Form: Petition by Executor or Adminis- trator. (Title of Proceeding.) TO THE surrogate's COURT of County : The petition of residing at in the City of , County of and State of New York respectfully shows: First. — That your petitioner is the sole executor (or, one of the executors) of the last will and testament of , deceased, (or, the sole administrator — or one of the adminis- trators — of all and singular the goods, chattels and credits, which were of , deceased). (In case of a will) Second. — That, as your petitioner is informed and verily be- lieves, said died on or about the day of 190—, in the City of K Y., being a resi- Ch. V, § 51] THE PETITIONER AND THE PETITION. 8&^ dent of said County of at the time of his death, and leaving a last will and testament wherein he named your petitioner {or, and ) to be the sole executor {or, to be executors) thereof; and that thereafter, and on the day of 190 — , in proceedings had for that purpose in the Surrogate's Court of said county, said will was duly admitted to probate by the decree of said court, duly made and entered on that day, and, after he {or, they) had first duly qualified, letters testamentary thereon were issued to your petitioner {or, to your petitioner and to said .- ) by the surrogate of said county, whereupon he {or, each of said executors) entered upon the duties of his office; and that such letters still remain in full force and effect. (Or, in case of intestacy) Second. — That, as your petitioner is informed and verily be- lieves, said died intestate on or about the day of , 190—, in the City of N. Y., being a resident of said County of at the time of his death ; and that thereafter, and on the day of , 190 — , by a decree of the Surrogate's Court of said county, duly made and entered on that day, your petitioner {or, and one ) was {or, were) appointed such admin- istrator {or, administrators) ; and that (each) having taken his oath of office, and duly qualified as such administrator, letters of administration were thereupon issued to your petitioner {or, and to said ) by the surrogate of said county, where- upon he {or, each of said administrators) entered upon the duties of his office ; and that such letters still remain in full force and effect. Third. — That, thereafter, pursuant to section 2718 of the Code of Civil Procedure, your petitioner {or, and said his co-executor, or co-administrator) inserted a notice (once in each week for six months) in a newspaper printed in said county, as directed by said surrogate, requiring all persons having claims against said decedent to exhibit the same, with the vouch- ers therefor, to him {or, to them) at a place specified in said notice and at or before a day 'therein named, to-wit : on or be- 90 THE PETITIONER AND THE PETITION. [Ch. V, § 51 fore the day of 190 — , which was at least six months from the day of the first publication of the notice; and that the full time for the presentation of such claims, pursuant to said notice, has already elapsed. {Or, but said notice is still in course of publication and the time for the presentation of such claims, pursuant thereto, has not yet elapsed.) Fourth. — That, as nearly as your petitioner can, upon dili- gent inquiry, ascertain these matters, the amount of the un- paid debts of said decedent 'is $ and the amount of his unpaid funeral expenses is $ making a total of $ ; and his personal estate is inadequate for the payment thereof. Fifth. — That, as nearly as your petitioner can, upon diligent inquiry, ascertain these matters, the following ia a general description of all the decedent's real property, and interest in real property, within the state, which may be disposed of, for the payment of his debts and funeral expenses, as prescribed by title 5 of chapter 18 of the Code of Civil Procedure, to- gether with a statement of the value of each distinct parcel; whether it is improved or not; whether it is occupied or not; and, if occupied, the name of each occupant; and whether it is encumbered by a mortgage lien or liens together with a statement of the amounts due or claimed to be due thereon, viz; (1) All that tract or parcel of land situate, etc. (Give description.) These premises are a distinct parcel of improved property, of the present value of $ , and constitute a farm now occupied by (State nature of occu- pancy, e. g., who was in possession thereof as a tenant of deced- ent at the time of his death. Or, to whom the heirs at law of de- cedent have conveyed said real property. Or, to whom said prop- erty has been conveyed by the devisee thereof under the will of said decedent.) This parcel is encumbered by a mort- gage lien on which the amount of $ is due or claimed to be due — said lien being by virtue of a purchase money mort- gage made by the decedent on the day of 190 — , to one as security for the payment of $ and interest (State terms -of payment) and re- corded in the Clerk's office of County, etc. Ch. V, § 51] THE PETITIONER AND THE PETITION. 91 (2) Also all that other tract or parcel of land situate, etc. (Give description.) These premises are also a distinct parcel of improved property of the present value of $ , and constitute a house and lot now occupied by who is the widow of decedent. This parcel is not encumbered by any mortgage lien. (Or, if so encumbered, give particulars with statement of amount due or claimed to be due thereon.) (3) An interest in real property held by decedent under a contract for the purchase thereof made the day of 190 — , by and between one and decedent (or, and one who afterwards duly assigned the same to decedent) which real property is all that tract or parcel of land situate, etc. (Give description.) These premises are a distinct parcel of improved (or, unimproved) property of the present value of $ , and constitute a farm (or, timber lot) now occupied by who is a son of decedent. This parcel is not encumbered by any mortgage lien. (Or, if so encumbered, give particulars with statement of amount due or claimed to be due thereon.) There remains secured by and unpaid upon said contract the principal sum of $ , together with interest thereon from the day of 190 — , payable as follows: (Insert terms. Or, all of which is now due and payable) ; and the value of decedent's interest in said contract is at least the sum of$ Sixth. — That as your petitioner is informed and verily believes, none of said real property (or interest in real property) is de- vised, expressly charged with the payment of debts, or funeral expenses, or is exempted from levy and sale by virtue of an execution, as prescribed in title 2 of chapter 13 of the Code of Civil Procedure. Seventh. — That, as nearly as your petitioner can, upon dili- gent inquiry, ascertain these matters, the following are the names of the wife (or, husband) and of all the heirs and de- visees of said decedent, and also of every other person claiming under them, or either of them, together with a statement of such as are infants and of the age of each infant and of the name of his general guardian, if any, viz : , the widow, resid- ing at N. Y. ; , a son residing at 92 THE PETITIONER AND THE PETITION. [Ch. V, § 51 N. Y.; (State names with places of residence of all heirs and devisees;) who resides at and who claims under the heirs at law (or, devisees) of decedent by reason of a conveyance from them to him of the parcel of land hereinbefore first described. (State names, with places of resi- dence of all persons claiming under heirs or devisees.) Each one of said persons is of full age. (Or add: except , who is an infant of the age of years, and who has no general guardian. Or, whose general guardian is residing at N. Y.) Eighth. — That the amount of personal property which has come to the hands of your petitioner, as such executor (or, ad- ministrator) is $ from which he has already realized $ in cash; and that, as he is informed and verily be- lieves, the further sum of $ may yet be realized therefrom. That he has made application of said personal property as follows: he has paid $ on account of the funeral expenses of said decedent; (State other payments, if any) ; he has deposited $ to his credit as such executor (or, administrator) in the Trust Company; and the remainder of said personal property is still in the custody of your petitioner as such executor (or, administrator) not yet disposed of. (Moreover, as your petitioner is informed and verily believes, certain other personal property of decedent, the amount whereof does not exceed $ , has also come into the hands of his said co-executor (or, co-administrator) and remains undisposed of. (State according to the fact.) Wherefore totje petitioner prays for a decree directing the disposition of the decedent's real property, or interest in real property, or bo much thereof as is necessary, for the pay- ment of his debts and funeral expenses, or, if so decreed, for the payment of any judgment liens existing upon such land, or some portion thereof, at decedent's death, by the mortgage, lease or sale at public or private sale thereof; and, to that end, that your petitioner may be empowered to mortgage, lease or sell the whole, or such part of said real property or interest of the decedent in real property, as the surrogate shall deem necessary for the payment thereof, pursuant to section S^S? of Ch. V, g 53] THE PETITIONER AND THE PETITION. 93 the Code of Civil Procedure ; and that the parties named in this petition and all other necessary parties, as prescribed by the statute in such case made and provided, may be cited to show cause why such a decree should not be made. And your petitioner will ever pray, etc. (Signature) (Add verification) It is no longer necessary (as required by former section 2752) to join, as parties, creditors or judgment lienors of the decedent; but judgment creditors of his heirs or devisees, whose judgments are liens upon the real property, are " per- sons claiming under them " and should be named in the peti- tion. Moreover, it is not necessary to make any inventory before instituting the proceeding ; but, if an inventory has iu fact been already made, it is good practice to set forth the result. And where there is an existing right of dower it is advis- able for the petitioner to set forth the facts from which the court may " consider and determine whether a more ad- vantageous sale can be made of such real estate by including the sale of such right of dower." (See % 2800.) Section 52. — Form : Petition by Creditor. (Title of Proceeding.) TO THE surrogate's COURT of County : The petition of residing at in the City of , County of and State of New York respectfully shows : First. — That, as your petitioner is informed and verily be- lieves, on or about the day of , 190 — , in the City of , N. Y., one , being at the time a resi- dent of the County of , died * leaving a last will and testament wherein he named to be the executor thereof, and that thereafter, and on -the day of .... , 190 — , in proceedings had for that purpose in the 94 THE PETITIONER AND THE PETITION. [Ch. V, § 52 Surrogate's Court of said county, said will was admitted to probate by the decree of said court, duly made and entered on that day, (Or in case of intestacy proceed from * : intestate, and that thereafter and on the day of , 190 — , by the decree of the Surrogate's Court of said county, duly made and entered on that day, one was appointed administrator of all and singular the goods, chattels and credits which were of said , deceased), and that having taken his oath of office and duly qualified as such executor (or administrator) letters testamentary (or of administration) were thereupon duly issued to said , by the surrogate of said county, whereupon he entered upon the duties of his office; and that such letters still remain in full force and effect. Second. — That, at the time of his death, said decedent was indebted to your petitioner in the sum of $ and inter- est from the day of , 190 — , by reason of, (Briefly state facts constituting claim, e. g.) a promis- sory note made for value by said decedent on or about the day of , 190 — , payable to the order of your petitioner days after its date. This note is wholly unpaid and the amount thereof, with interest, is Justly due to your petitioner ; and there are no offsets against the same or counter-claims thereto and said indebtedness is neither secured by any mortgage upon, nor expressly charged on, any real property. Third. — (When time is extended under section 2751.) That, before the expiration of three years from the time when said letters were issued, an action was commenced and, until the present time, has been (or, until the day of , 190 — , was) pending in the Supreme Court (or other court of record) between your petitioner and said as such executor (or, administrator) wherein your petitioner sought (by his answer setting up a counter-claim) to recover upon the demand hereinbefore mentioned, and that, before the expiration of said three years, your petitioner, pursuant to section 3751 of the Code of Civil Procedure, duly filed in the oflBce(s) of the Clerk of the County of , (and of the Clerk of the County of ) , a notice of the pendency of said action Ch. V, § 52] THE PETITIONER AND THE PETITION. 95 specifying the names of the parties, the object of the action {If the creditor's delt is made the foundation of a counter- claim, and the nature of the counter-claim) ; containing a de- scription of the property in said county (or counties) to be affected thereby — said property being the real property herein- after described; and stating that it will be held as security for any judgment obtained in the action. Said notice also con- tained a direction to the (or each) clerk to index the same in the names of Fourth. — That, as your petitioner is informed and verily be- lieves, the said 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 {or, has not) elapsed. {Or, the said executor {or, administrator) has not caused to be pub- lished, as prescribed by law, any notice requiring creditors to present their claims.) Fifth. — That, as nearly as your petitioner can, upon diligent inquiry, ascertain these matters, the amount of the unpaid debts of said decedent is $ , and the amount of his un- paid funeral expenses is $ , making a total of $ ; and his personal estate is inadequate for the payment thereof. (Or, if creditor cannot ascertain these matters) That your petitioner is unable, upon diligent inquiry, to ascertain the amount of the unpaid debts of said decedent; but, upon his information and belief, he alleges that the amount of his unpaid funeral expenses is $ and that such debts and funeral expenses will aggregate at least the sum of $ ; and that the personal estate of said decedent is inadequate for the payment thereof. Sixth. — {Set out real estate as in the fifth subdivision of the next preceding section and add:) That, as your petitioner is informed and verily believes, none of said real property (or, interest in real property) is devised, expressly charged with the payment of debts, or funeral ex- penses, or is exempted from levy and sale by virtue of an execu- eution as prescribed in title 2 of chapter 13 of the Code of Civil Procedure. 96 THE PETITIONER AND THE PETITION. [Ch. V, § 53 Seventh. — (Set forth names of hvsband or wife and of all ■of the heirs and devisees of the decedent, and also of every other person claiming under any of them., stating who are in- fants; the age of each infant, etc., as in subdivision seventh of the next preceding section.) Wherefore your petitioner peats for a decree directing the disposition of the decedent's real property, or interest in real property, or so much thereof as is necessary, for the pay- ment of his debts and funeral expenses, or, if so decreed, for the payment of any judgment liens existing upon such land, or some portion thereof, at decedent's death, by the mortgage, lease or sale at public or private sale thereof; and, to that end, that said as such executor {or, adminis- trator) may be empowered to mortgage, lease or sell the whole, or such part of said real property or interest of the decedent in real property, as the surrogate shall deem necessary for the pay- ment thereof, pursuant to section 2757 of the Code of Civil Pro- cedure; and that the parties named in this petition and all other necessary parties, as prescribed by the statute in such case made and provided, may be cited to show cause why such a decree should not be made. And your petitioner will ever pray, etc. (Signature) (Add verification) Section 53. — Where some Facts are Unknown. " If, upon diligent inquiry, any of the matters required to be set forth, as prescribed in the last section (§ 2752), can- not be ascertained by the petitioner, that fact must be shown to the surrogate's satisfaction, and the surrogate must, there- upon, inquire into the matter, as prescribed in article first of title second of this chapter. If the petition is presented by a creditor or judgment-lienor, the surrogate may, by order, require the executor or administrator to render such an ac- count or other statement as he deems necessary for the pur- pose of the inquiry." (§ 2753.) This section is now as when originally enacted (1880 ch. 178) excepting that the italicized words "or judgment- Ch. V, § 53] THE PETITIONER AND THE PETITION. 9^ lienor " were added by the general amendment (1894 ch. 735) wherebj lands, subject to judgments against a deced- ent, -were made disposable for the payment of his debts in- cluding such judgments. Under the present procedure these words are superfluous ; for a judgment-lienor, who is not also a creditor of the decedent, may not institute the proceeding. {See sec. 41 ante.) The allegations required to be contained in the petition are of a jurisdictional nature {Atlcins v. Kinnan, 20 Wend. 241 ; Bloom V. Burdich, 1 Hill 130; Ackley v. Dygert, 33 Barb. 176 ; Matter of German Bank, 39 Hun 181 ; Dennis v. Jones, 1 Dem. 80 ; Kelley's Estate, 1 Abbt. N. C. 102 ; Estate of Collins, 4 Law Bui. 80 ; Matter of Slater, 17 Misc. 474, 41 Supp. 534) ; and the matters specified in section 2752, must be set forth therein " as nearly as the petitioner can, upon diligent inquiry, ascertain them." Although not expressly required by the statute, yet, as it seems, " if upon diligent inquiry " any of those matters " cannot be ascertained by the petitioner " that fact should also be distinctly alleged in the petition (see sec. 45 ante) as " that fact must be shown to the surrogate's satisfaction " to the end that he may also " in- quire into the matter." This judicial inquiry is clearly in aid of the petition, and is to be made by the surrogate " as prescribed in article first of title second" of chapter eighteen. (§ 2753.) As stated in Richmond v. Freeman's Nat. Bank (86 App. Div. 152, 156, 83 Supp. 632, 634), "this 'inquiry' conforms to that authorized by section 2518 of the Code "; for thp only por- tion of the article referred to, which prescribes any sort of inquiry, is the following part of section 2518, as amended (1908 ch. 272), viz: "... Where persons to be cited constitute a class, the pe- titioner must set forth, in an afiidavit, the name of each of them, unless the name, or part of the name, of one or more of them cannot, after diligent inquiry, be ascertained by him; in which case, that fact must be set forth and he may also 98 THE PETITIONER AND THE PETITION. [Ch. V, § 53 allege that ttere may be others whose existence is unknown to him ; and the surrogate must, thereupon, inquire into the matter. For the purpose of the inquiry, he may, in his dis- cretion, issue a subpoena, requiring any person to attend be- fore him to testify respecting the matter. . . ." (§ 2518.) Apparently, therefore, this clumsy reference to " article first of title second " merely authorizes the surrogate, in his discretion, " for the purpose of the inquiry " to " issue a sub- poena, requiring any person to attend before him to testify respecting the matter." It may be, however, if any person whose testimony should be needed upon such an inquiry is without the state or is so sick or infirm as to be unable to attend before the surrogate pursuant to such a subpoena, that his deposition may be taken under the provisions of sections 870-913, made applicable to the Surrogate's Court by section 2538. At any rate the petitioner may thus have the process of the court in aid of his inquiry as to any matter required to be set forth in the petition which otherwise he is unable to ascertain; as for instance, where a land contract or an unre- corded deed, by which the decedent's title or interest in real property may be revealed, has been lost or is concealed; or where the owner of a mortgage will not voluntarily disclose the amount due or claimed to be due thereon; or where the. name, age, or residence of an heir or devisee has not been al- ready ascertained. If the petition is presented by .a creditor, the executor or administrator may also be required by an order of the sur- rogate " to render such an account or other statement, as he deems necessary for the purpose of the inquiry " (§ 2753) ; but no other accounting by the representative, nor any judi- cial settlement of his accounts, is required before the proceed- ing is instituted. {Matter of Plopper, 15 Misc. 202, 37 Supp. 33.) This inquiry by the surrogate, whether aided by a sub- poena or an order, is expressly confined to those matters re- quired to be set forth in the petition, which, upon diligent Ch. V, § 54] THE PETITIONER AND THE PETITION. 99 inquiry, cannot be ascertained by the petitioner; and it is not authorized with respect to any matter which has been dis- tinctly alleged. Where the inquiry discloses any matter re- quired to be stated in the petition, which had been omitted therefrom because the petitioner was unable to ascertain it, sound practice requires that it be thereupon set forth in an amended or supplemental petition; but, in any event, " 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." (§ 2754.) Section 54. — Form : Subpoena upon Inquiry. ' THE PEOPLE OF THE STATE OF NEW YOEK To Greeting: WHEREAS , the executor of the last will and testament {or, the administrator of all and singular the goods, chattels and credits which were) of , deceased, has presented to the Surrogate's Court of County, from which his letters were issued, a written petition, duly verified, praying for a decree directing the disposition of said decedent's real property, or interest in real property, or so much thereof as is necessary for the payment of his debts and funeral ex- penses, and thereby, among other things, it appears that upon diligent inquiry the following matters required to be set forth therein, as prescribed in section 8753 of the Code of Civil Pro- cedure, cannot be ascertained by the said petitioner, to-wit: (State such matters e. g., the amount due or claimed to be due upon a certain mortgage now owned by one upon real property of which said decedent died seized.) Now therefore, WE COMMAND Tou, that, all business and excuses being laid aside, you and each of you appear and attend before the (undersigned) surrogate of the County of at the sur- rogate's office in the City of K. Y. on the day of at o'clock in the noon to testify and give evidence respecting said matters. {If produc- 100 THE PETITIONER AND THE PETITION. [Ch. V, § 55 tion of a hook or paper is desired, add: and you are hereby re- quired to bring with you, and then and there produce — describe iook or paper.) And for a failure to attend you will be deemed guilty of contempt of court, and liable to pay all damages sustained in consequence by the party aggrieved, and forfeit fifty dollars in addition thereto. WITNESS Hon , Surrogate of our County of at the City of N. Y. on the day of , 190—. Surrogate {Or Clerk of Surrogate's Court.) Resort to a subpoena is authorized by section 2518 in aid of the preliminary inquiry required by section 2753. Section 55. — Form : Order requiring an Account or State- ment from Executor or Administrator. {Title of Proceeding.) The duly verified petition of , claiming to be a creditor of the above named , deceased, having been filed on the day of , 190 — , praying for a decree directing the disposition of said decedent's real property or interest in real property, or so much thereof as is necessary, for the payment of his debts and funeral expenses; and it ap- pearing therefrom, among other things, that is the executor of the last will and testament {or, the administrator of all and singular the goods, chattels and credits which were) of said , deceased, and that said petitioner is unable, upon diligent inquiry, to ascertain the amount of the unpaid debts and funeral expenses of the said decedent, or whether the^ personal estate is inadequate for the payment thereof, and it further appearing that said executor {or, administrator) has not filed an inventory as required by sections 3711 — 2715 of the Code of Civil Procedure and that he has not yet filed any account of his proceedings. Now therefore, (on motion of J attorney for said petitioner) Ch. V, § 56] THE PETITIONER AND THE PETITION. 101 I HEREBY ORDER AND DIRECT the Said , aS such executor {or, administrator) to render an account (or, statement) showing the amount of the personal property of said decedent, and the amount thereof which has already come into his hands, together with the application thereof and the amount which may yet be realized therefrom, and also showing the amount of all unpaid debts and funeral expenses of the de- cedent, and, for that purpose, to attend before me at our sur- rogate's office in the City of , N. Y. on the day of at o'clock. Dated at , N. Y. on the day of , 19... Surrogate. Section 56. — Of Unknown Parties constituting a Class. As we have already seen, the inquiry which the surrogate is required to make, under section 2753, is in aid of the pe- tition and for the purpose of discovering matters required to be set forth therein which the petitioner, upon diligent in- quiry, has been unable to ascertain; and if such inquiry dis- closes any heir or devisee, or person claiming under him, not named in the petition, the citation must also be directed to him. (§ 2754.) But this inquiry, although to be made as prescribed in section 2518, does not seem to be a substitute for the one required by it since its provisions are general. As recently amended (1908 ch. 272) section 2518 is as fol- lows: " 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 con- stituting a class, may be cited for any purpose, all those per- sons are necessary parties to the special proceeding. Where persons to be cited constitute a class, the petitioner must set forth, in an affidavit, the name of each of them, unless the name, or part of the name, of one or more of them cannot, after diligent inquiry, be ascertained by him ; in which case, 102 THE PETITIONER AND THE PETITION. [Ch. V, § 56 that fact must be set forth and he may also allege that there may be others whose existence is unknown to him; and the surrogate must, thereupon, inquire into the matter. For the purpose of the inquiry, he may, in his discretion, issue a sub- poena, requiring any person to attend before him to testify respecting the matter. If he is satisfied of the reasonable diligence and good faith of the petitioner the citation may be directed to the persons, whose names are unascertained, and also to' all other persons belonging to such classes by a general description, showing their connection with the de- cedent, or interest in the property or matter in question ; or other sufBcient identification. A citation, thus directed, has the same force. and effect, as if it was directed to the per- sons intended, by their names; and where the persons so in- tended are duly cited, in any manner prescribed by law, the decree binds them, as if they were named in the citation. A petition, duly verified, is deemed an affidavit, within the meaning of this section." (§ 2518.) But the section is silent aa to the character or extent of this inquiry by the surrogate; and no provision is made to preserve his determination thereupon otherwise than by the citation itself thereafter issued and directed to a person or persons " by a general description, showing their connection with the decedent, or interest in the property or matter in question ; or other sufficient identification." However, " the names of all the persons to be cited, as far as they can be ascertained, must be contained in the citation ; " and " where the name, or part of the name, of either of them cannot be ascertained, that fad must he stated in the citation." (§ 2519.) But a failure to state in a ci- tation the proper name of a party may be cured by amend- ment, even after service thereof upon such person. (§§ 2538 ; 721-723; Stuyvesant v. Weil, 167 K Y. 421.) It has been held in a proceeding for the probate of a will, where the citation was directed to " heirs and next of kin of the de- ceased, whose names and places of residence are unknown," that this is a sufficient designation of the unknown children Ch. V, § 56] THE PETITIONER AND THE PETITION. 103 of a deceased brother of the testator, and that, if the citation be served in the prescribed manner, such persons will be con- cluded by the decree precisely as though their names had been known and the citation had been directed to them specially. (Matter of Ellis, 4 Supp. 180, 22 St. Rep. 77 ; see Matter of Killan, 172 K Y. 547, 556.) Undoubtedly, upon appropriate allegations in the petition, both the inquiry required under section 2753 and that gen- erally provided for by section 2518 may be conducted at the same time and in the same manner; but they do not seem to be identical. CHAPTEE VI. THE CITATION AND ITS SERVICE. Section 57. — Of the Preliminary Determination. 58. — The Order for a Citation. 59. — Form: Order for Citation. 60.— Of the Citation. " 61.— Form: Citation. 62. — Service of the Citation. " 63. — Personal Service of Citation upon Adult within the State. " 64. — Personal Service upon Infant within the State. " 65. — Personal Service upon Judicially declared Lunatic etc. " 66. — Form: Order requiring Additional Service in Case of Infant. " 67. — Form: Order requiring Additional Service in Case of Incompetent. " 68. — Personal Service upon a Corporation. " 69. — Substitute for Personal Service upon a Resident. " 70. — Form: AfBdavit to Procure Order for Substituted Service. " 71. — Form: Order for Substituted Service. " 72. — Personal Service upon Lunatic: When Dispensed With. '^ 73. — Form: Affidavit to Procure Order dispensing with Service upon Lunatic. " 74. — Form: Order Dispensing With Service upon Lunatic. " 75. — Service by Publication. " 76. — Same Subject: Application for Order. " 77. — Order for Service by Publication: When and How Made. " 78.— Form: Order for Service out of State, or by Publica- tion. 79. — Order: How executed. 80. — Time when Citation must be Served. " 81. — Service of Citation: By whom made. 82. — Proof of Service. " 83. — Form: Proof of Service. 84. — Waiver of Citation. 85. — Form: Waiver of Citation. 104 Ch. VI, § 57] THE CITATION AND ITS SERVICE. 105 Section 57. — Of the Preliminary Determination. It is provided in section 2Y54 that " where the surrogate is satisfied that all the facts specified " in section 2752, " have been ascertained, as far as they can be upon diligent inquiry, and it appears to him that the debts, judgment liens and funeral expenses, or either, cannot be paid, without resorting to the real property, or interest in real property, he must issue a citation according to the prayer of the petition." Un- doubtedly the surrogate may be thus " satisfied " by the peti- tion itself, where all the requisite facts have been ascertained and set forth therein ; but this provision seems to assume that he must actually make some examination into the matter before issuing the citation. In Matter of Davids (5 Dem. 14) the surrogate declined to issue a citation upon the petition of executors because, upon consulting the will, it appeared to him that the debts of decedent could be paid " without resorting to the real property, or interest in real property " in this special pro- ceeding, inasmuch as the will itself gave to the executors a power of sale, although not an imperative one. The learned surrogate aptly said: " It would seem to be unjust, unreasonable and improper for the court to permit such a proceeding, as it could benefit no one, and would be burthening the estate with expenses to the injury of those interested. Why should it confer a power, with which the executors have already been clothed by the will ? If they were to sell under that power, they could bring the proceeds into court, under the provisions of the Code, and they would be distributed as if they were derived from such a sale as the petitioners here seek. These consider- ations warrant the interpretation of § 2754 to be that, e con- verso, if it appear to the surrogate that the debts and funeral expenses can be paid without resorting to the provisions of that title, he shall not issue a citation, according to the prayer of the petitioner." Under the former procedure a decree directing the dispo- sition of real property for the payment of decedent's debta 106 THE CITATION AND ITS SERVICE. [Ch. VI, § 58 or funeral expenses was not permitted where such property was " subject to a valid power of sale for {he payment thereof " unless it should appear to be impracticable " to execute the power " {former § 2759) ; but the statute no longer contains this restriction. It would seem, however, where the will contains a valid power of sale, by the execu- tion of which the real property can be converted into money with which to pay the debts and funeral expenses, that the surrogate will ordinarily be justified should he decline to issue a citation in this proceeding, and, instead thereof, re- quire the executors to execute the testamentary power. Section 58.— The Order for a Citation. There is no rule or law requiring any preliminary order directing an issuance of the citation although the surrogate- must be satisfied as to certain matters before he may " issue a citation according to the prayer of the petition." (§ 2754.) Undoubtedly the very issuing of a citation hy the surrogate presupposes that these requirements have been met and is itself prima facie evidence thereof. Nevertheless it is sound practice in this special proceeding to enter an order reciting whatever preliminary inquiries may have been made under sections 2518 and 2753, and also reciting generally the facts that have been developed thereby and by the allegations of the petition, and directing the issuance of the requisite ci- tation. This is especially advisable as this particular cita- tion is not a mandate, to which the petitioner " is entitled as of course," and so is not one which the clerk of the court may issue, or may even sign or seal unless " issued from the court." (§ 2509 sub. 2.) If the citation be actually issued hy the surrogate such an order is unnecessary; but, if the citation issues pursuant to such an- order, it is deemed to have been " issued from the court," and it suffices if signed by the clerk of the court only. {8ee 2d Boderigas case, 76 K Y. 316; Mauran v. Hawley, 2 Dem. 396; Matter of Atwood, 10 Misc. 480, 484, 32 Supp. 115, 118.) €h. VI, § 59] THE CITATION AND ITS SERVICE. 107 Section 59.— Form : Order for Citation. (^Title of Proceeding.) an executor of the last will and testament of deceased, (or an administrator with the will annexed etc., or an administrator of the goods, chattels and credits which were of deceased) having presented to our Surrogate's Court, from which his letters were issued, a written petition duly ver- ified by him , 190 — , praying for a decree empowering him to mortgage, lease or sell the real property of which said decedent died seized (or the interest of said decedent in real property held by him under a contract, for the purchase thereof, made with him by one , or made by with one and by the latter assigned to said decedent) for the payment of his debts and funeral expenses, and that the parties therein named, and all other necessary parties may be cited to show cause why such a decree shall not be made. And it appearing to my satisfaction that the personal estate of said decedent does not exceed $ in value, and is inadequate for the payment of his unpaid debts and funeral expenses, which amount to at least $ , and that they cannot be paid without resorting to the real property, or interest in real property, of said decedent; and also that he died seized of cer- tain real property in the city of N. Y. now occupied by one ; and that he left him surviving, his wife and also and as the devisees of his real estate, named as such in his said last will and test- ament, they being also his sole heirs at law ; and that is or claims to be the grantee of said as such devisee ; (Or, and as his sole heirs at law, he having died intestate as to said real property. Or that said decedent left neither wife, nor devisee, nor ancestor nor descendant him surviving; and it further appearing that, upon diligent inquiry, neither the names of his heirs at law, if any such heirs there be, nor of any person claiming under them or either of them, if any such person there be, nor, whether any of them are infants, nor if there be such in- fants, the names of their special guardians, if any, can be a-scertained by the petitioner excepting, — State any ascertained 108 THE CITATION AND ITS SERVICE. [Ch. VI, § 5» facts with reference to the decedent's history, or throwing light upon his probable heirs at law; and, that iact having been shown to my satisfaction, I have inquired into the mat- ter as prescribed by sections 2753 and 2518 of the Code of Civil Procedure, and have caused witnesses to testify before me respecting the same) ; and it also appearing that said exec- utor (or administrator) has caused to be published, as pre- scribed by law, a notice requiring creditors to present their claims, and that the time for the presentation thereof, pursuant to such notice has (or has not) yet elapsed; and Being now satisfied that all the facts, specified in section 2752 of the Code of Civil Procedure, have been ascertained, as far as they can be upon diligent inquiry; and it appearing to me that the debts, judgment liens and funeral expenses of said decedent cannot be paid, without resorting to his real property, or interest in real property; {Add in proper case, e. g. : and that X. Y. of the City of aiid State of is an heir of said decedent although not named in the petition) ; and also being satisfied of the reasonable dili- gence and good faith of the petitioner, and upon reading and filing said petition and testimony and on motion of , Esq. attorney for said petitioner, I DO HEREBY ORDER that a citation issue, according to the prayer of said petition, directed to said , the occupant of the real estate described in said petition, and to , the widow of said decedent, and to and his heirs at law and devisees, as named in said petition, (and to said X. Y. another heir of said decedent, but not named in the petition ; Or and to , a person claim- ing as the grantee of said . . . ; who is a devisee of the property described in said petition, or of some part thereof; Or and to the unknown heirs at law of said decedent, and to each person claiming under them, or any of them, whose names are unascertained) ; and to all other persons who are creditors of said decedent, requiring them, and each of them, to appear before the surrogate, in our Surrogate's Court in and for the County of. , at his office in the City of N. Y., at a time to be stated therein, then and there to show cause why a decree should not be made directing a disposition Ch. VI, § 60] THE CITATION AND ITS SERVICE, 109 of decedent's real property, or so much thereof as is necessary, for the payment of his debts and funeral expenses, or, if so de- creed, for the payment of any judgment liens existing upon such land, or some portion thereof, at decedent's death, by the mortgage, lease or sale at public or private sale thereof, and for that purpose, empowering said as executor of the last will and testament of said deceased (or as administrator of all and singular the goods, chattels and credits which were of said deceased) to mortgage, lease or sell the whole or such part of said real property, or interest of said decedent in real property, as the surrogate shall deem necessary for the payment thereof; (and I DO FURTHER ORDER that Said citation may be directed to those heirs of the decedent, and to each person claiming under them, or any of them, whose names are unascertained and also to all other persons who are heirs of the decedent, by a general description, showing their connection with the dece- dent, or interest in the property or matter in question, or other sufficient identification.) Dated at , N- Y., ,19 Surrogate. Section 60. — Of the Citation. " Where the surrogate is satisfied that all the facts, speci- fied in the last section but .one (§ 2752), have been ascer- tained, as far as they can be upon diligent inquiry, and it appears to him that the debts, judgment liens, and funeral expenses, or either, cannot be paid v^iihout resorting to the real property, or interest in real property, he must issue a citation according to the prayer of the petition. If, upon the inquiry, it appears to the surrogate, that any heir or de- visee, or person claiming an interest in the property un- der 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 UO THE CITATION AND ITS SERVICE. [Ch. VI, § 60 »ther creditors of the decedent, as well as the creditors named." (§ 2754.) This section remains as when originally enacted (1880 ch. 178) excepting that the italicized words " judgment liens " were added by the general amendment (1894 ch. 735) where- by lands, subject to judgments against a decedent, were made disposable for the payment of his debts including such judgments. Under former section 2752 the petition was required to set forth the name of each creditor of the decedent, and of each claimant, by reason of unpaid funeral expenses, so far as ascertained by the petitioner upon diligent inquiry ; and all such persons were necessary parties to the proceeding. If the executor or administrator had caused to be published, as prescribed by law, a notice requiring creditors to present their claims, and the time for the presentation thereof pur- suant to the notieehad elapsed, the presumption was that all such creditors or claimants were ascertainable by the executor or administrator; and, in default of such a notice, this sec- tion consistently required the citation to be " directed gen- erally to all other creditors of the decedent, as well as the creditors named." But, under the present procedure, creditors are neither named in the petition (§ 2752) nor — unless petitioners — are they made original parties to the proceeding, although, upon the hearing " a creditor of the decedent, including one whose claim is not yet due, or a person having a claim for unpaid funeral expenses, although not named in the citation, may ap- pear and thus make himself a parti/ to the special proceed- ing." (§ 2755.) However, so long as this needless provi- sion remains in the statute, its requirements may not be disregarded (Matter of Mahoney, 34 Hun 501) ; and, unless the time for presentation of claims has fully elapsed pursuant to a duly published notice as authorized by section 2718, the citation should be directed, not only to the husband or wife, Ch. VI, § 60] THE CITATION AND ITS SERVICE. HI heirs, devisees, persons claiming under such heirs or devisees, and occupants, but also generally to all other persons who are creditors of the decedent. Moreover, it must also be served upon such unnamed creditors by publication, as pro- vided by section 2523 (Matter of Georgi, 44 App. Div. 180, 60 Supp. 772, aff'd 162 N. Y. 660; Kammerrer v. Ziegler, 1 Dem. 177), even though each party to the special proceed- ing is within the state and may be personally served. As the citation in this special proceeding is not a mandate to which the petitioner " is entitled as of course " it must be issued by the surrogate or " from the court ; " but it may be signed by the clerk of the court if its issuance has been directed by an order of the surrogate, as it then becomes a "mandate issued from the court." (§ 2509 sub. 2.) It must be made returnable before the surrogate from whose court it was issued (§ 2515), upon a day certain designated therein, not more than four months after the date thereof; and it 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 therein; and where the name, or part of the name, of either of them, cannot be ascertained, that fact must be stated in the citation, (§ 2519.) After the citation has been issued if the name of an additional party be inserted therein by anyone, other than the surrogate or the clerk who issued it, the service thereof upon such a person does not bring him into court. {Boerum v. Betts, 1 Dem. 471.) Moreover* service of the citation on a person, neither named nor designated therein,, does not bring him into court or confer any jurisdiction over him; and so it is held, where, before service thereof upon him, a party named in the citation has died, that service thereof on his personal representatives confers no jurisdic- tion. {Matter of Georgi, 35 Misc. 685, 72 Supp. 431.) The only parties, to any special proceeding in the Surrogate's Court, are those persons who are named or described in th& 112 THE CITATION AND ITS SERVICE. [Ch. VI, § 61 original citation, or in a supplemental one, or who may have been permitted to intervene. Although not required, it is good practice to insert in a citation directed to infants a clause advising them that, in the event of their not appearing by a general guardian or of their failure to appear and ask for the appointment of a special guardian, the surrogate will appoint a special guar- dian for them upon the return day of the citation. In this manner the infants will have the same notice of the purpose of the surrogate to make the appointment, as, by section 2531, they are required to have of the intention of some party to the proceeding to apply therefor. {Price v. Fenn, 3 Dem. 341.) It has been held that this special proceeding, having been once instituted by the filing of a petition, does not lapse even though the citation be not issued until more than four years thereafter. {Matter of YanYlech, 32 Misc. 419, 66 Supp. 727; see also Matter of Bradley, 70 Hun 104, 23 Supp. 1127, 53 St. Eep. 540 ; Matter of Eannon, 46 Misc. 229, 93 Supp. 207.) Section 6i. — Form: Citation. THE PEOPLE OF THE STATE OF NEW YOEK To , occupant of the real property hereinafter mentioned ; to , the widow of , late of the City of , County of and State of , deceased, and to ,. . and , his heirs at law and devisees ; and to X. Y. another heir of said decedent, but not named in the petition; and to , a person claim- ing as the grantee of said , who is a devisee of said property or some part thereof; and to those heirs of the dece- dent, (and to each person claiming under them, or any of them), whose names are unascertained and whose places of residence are unknown, but who are the heirs of , a deceased son of said decedent, they being persons whose names cannot be ascertained, {Oive general description, 'showing their connection with the decedent, or interest in the property or Ch. VI, § 61] THE CITATION AND ITS SERVICE. JIS matter in question, or other sufficient identification) and to all other persons who are creditors of said , de- ceased, Greeting: TOTT AND EACH OP YOU are hereby cited to be and appear be- fore the surrogate, in our Surrogate's Court in and for the County of , at his ofBce in the City of , N. Y. on , 190—, at 10 o'clock in the fore- noon of that day, then and there to show cause why a decree be not made directing the disposition of said decedent's real prop- erty or interest in real property, or so much thereof as may be necessary for the payment of his debts and funeral expenses, or, if so decreed, for the payment of any judgment liens exist- ing upon such land, or some portion thereof, at decedent's death, by the mortgage, lease or sale at public or private sale thereof, and, for that purpose, empowering as executor of the last will and testament of said , deceased (or the administrator with the will annexed, etc. or the administrator of the goods, chattels and credits which were of deceased) to mortgage, lease or sell the whole or such part of said real property, or interest of said decedent in real prop- erty, as the surrogate shall deem necessary for the payment thereof. And each of you who may be under the age of 31 years, is hereby required to appear then and there by your general guar- dian, if you have one, or, if you have none, to appear and apply for the appointment of a guardian; and, in case of your neglect or failure so to do, you are hereby notified that a special guardian will thereupon be appointed by the surrogate to rep- resent you in this proceeding. In Testimony Whereof, we have caused the official seal of our said Surrogate's Court of County, to be here- unto affixed. WITNESS Hon , Surrogate of the County of , at the Surrogate's Of- (L.S.) fice iu the City of , this the day of , 190—. Surrogate. (Or Clerk of Surrogate's Court.) 114 THE CITATION AND ITS SERVICE. [Ch. VI, g§ 62, 63 As the citation in this special proceeding is not a man- date which issues of course, it cannot be issued by a clerk of the Surrogate's Court otherwise than pursuant to an order of that court. It is safer, and the better practice, to have the citation actually subscribed by the surrogate, rather than by the clerk; for, in such event, no question can be raised concerning its validity. Section 62. — Service of the Citation. The citation is served and proof thereof made, precisely as in any other special proceeding in the Surrogate's Court ;■ and, therefore, a discussion of these matters is hardly within the natural scope of this work but is more appropriate to a treatise upon general practice. However as real property is the subject-matter of this particular proceeding, in the pro- gress whereof all statutory requirements must be strictly ob- served to effectually divest the title of heirs or devisees in appropriating their lands to the payment of a decedent's debts, it is deemed advisable, as well as convenient, to set forth herein the Code provisions regulating these matters and refer to some of the decisions construing them. Section 63. — Personal Service of Citation upon Adult within the State. " Except where special provision is otherwise 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 ad- joining 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 incompetent, assents in writing to a service; Ch. VI, § 63] THE CITATION AND ITS SERVICE. 115 ■within a' shorter time. Any person, although a party to the special proceeding, may serve a citation." (§ 2520.) It is also provided in section 2527 that "... where the surrogate has, in his opinion, reasonable grounds to believe, that a person, cited or to be cited, is an habitual drunkard, or for any cause mentally incapable ade- quately to protect his rights, although not judicially declared to be incompetent to manage his affairs, the surrogate may in his discretion, v?ith or without an application therefor, and in the interest of that person, make an order requiring that a copy of the citation be delivered, in behalf of that per- son, to a person designated in the order ; and that service of the citation shall not be deemed complete until such deliv- ery. ..." (§ 2527.) It has been held that personal service of a citation upon a non-resident is void even if made within this state {Matter of Porter, 1 Misc. 489, 22 Supp. 1063, 54 St. Eep. 302); but there is nothing in the language of the statute to warrant this decision which has been disapproved by a later author- ity. {Matter of, Washburn, 12 Misc. 242, 34 Supp. 44, 67 St. Eep. 895.) Where a citation was served August 5th upon a resident of the county — he being at the time absent in England — by leaving a copy at his residence, with the person to whom its care had been entrusted, the citation being returnable September 22nd following, and the decree was not entered until two months after the return day, it was held that the service had been made, as required by section 2520, under such circumstances, that the surrogate had good reason to be- lieve that the copy came to his knowledge in time for him to attend; at the return day. {Mead v. Miller, 3 Dem. 577 ; see also Harrison v. Clark, 20 Hun 404, aff'd 87 N. Y. 572.) Section 2527 authorizes an additional service of a citation; but the regular and ordinary service thereof upon the party 116 THE CITATION AND ITS SERVICE. [Ch. VI, § 64 himself is not thereby dispensed with. (Matter of Cort- wright, 3 Dem. 13.) The citation is a mandate issued by the surrogate, or out of the Surrogate's Court, upon a petition therefor duly pre- sented or filed ; but there is no statutory provision requiring a copy of such petition to be served with the citation. Ho^y- ever, under rule 3 of the Surrogate's Court of New York county, a citation issued out of that court, in this particular special proceeding, iii not deemed to have been duly served unless a copy of the petition, upon which it was issued, has been served with it. Section 64. — Personal Service upon Infant within the State, If a party be an infant, of the age of fourteen years or up- wards, service of the citation upon him within the state must be made in precisely the same manner as upon an adult. (§ 2520.) In addition to such service " the surrogate may in his discretion, with or without an application therefor, and in the interest " of the infant, " make an order requiring that a copy of the citation be delivered, in behalf of " the infant, " to a person designated in the order ; and that serv- ice of the citation shall not be deemed complete until such delivery." (§ 2527.) i ,. If the infant party be under the age of fourteen years serv- ice of the citation upon him, within the state, must be made in the manner prescribed by sections 426 and 428 for per- sonal service of a summons upon such an infant (§ 2526), that is to say : by delivering a copy of the citation within the state " to the infant in person, and also to his father, mother or guardian ; or, if there is none within the state, to the per- son having the care and control of him, or with whom ho resides, or in whose service he is employed " (§ 426) ; and where the surrogate has reasonable ground to believe that the interest of the person, other than the infant, to whom a copy of the citation has been delivered, is adverse to that Ch. VI, § 64] THE CITATION AND ITS SERVICE. 117 of the infant, or that for any reason he is not a fit person to protect the latter's rights, the surrogate may in his dis- cretion, without an application therefor and in the infant's interest, make an order requiring a copy of the citation to be also delivered, in behalf of the infant, to a person designated in the order, and that service of the citation " shall not be deemed complete until it is so delivered." (§§ 2527 & 428.) Where the infant is under fourteen years of age it is abso- lutely essential that the citation be personally served upon the infant himself and that a copy thereof be also delivered to the father, mother, guardian or other person specified. Serv- ice upon the infant alone will not suffice (IngersoU v. Man- gam, 84 ]Sr. Y. 622 ; Pinckney v. Smith, 26 Hun 524) ; and where the citation was not personally served upon an infant, who was under fourteen years of age, but a copy thereof was delivered to his mother, the service was held to be defective and not curable by an appointment of a special guardian for the infant. {Hogle v. Hogle, 49 Hun 313, 17 St. Eep. 580.) Indeed, unless an infant party has been duly served with a citation in the prescribed manner, the Surrogate's Ck)urt obtains no jurisdiction over him — not even to appoint a special guardian for him ; and the appearance of a special guardian, appointed under such circumstances, will not give the court any jurisdiction over the infant. (Davis v. Cran- dall, 101 ]Sr. Y. 311; Crouter v. Crouter, 133 N. Y. 55; Potter V. Ogden, 136 K Y. 384.) The provisions of section 2527 authorize an additional service of the citation, by the delivery of a copy thereof to a designated person in behalf of the infant; but the regular and ordinary service thereof upon the infant himself is not thereby dispensed with. (Matter of Cortwright, 3 Dem. 13.) Each statutory requirement as to the service of the cita- tion upon an infant, should be strictly complied with; for a defect in this respect can neither be waived nor cured by any appearance or stipulation or otherwise. Moreover, any recital in a degree to the effect that an infant party has been 118 THE CITATION AND ITS SERVICE. [Ch. VI, § 65 duly cited is only presumptive evidence (§ 2473) ; and this presumption may be rebutted by other evidence. {Hood v. Hood, 85 K Y. 561.) One of the many curiosities of the Code of Civil Proced- ure is that it permits due service of a citation upon an in- fant fourteen years of age to be made without delivery thereof to the infant himself, while it requires an actual de- livery to the infant if he be under fourteen years of age. Section 65. — ^Personal Service upon Judicially declared Lunatic etc. Personal service of the citation upon a person judicially declared to be incompetent to manage his affairs by reason of lunacy, idiocy or habitual drunkenness, must be made by delivering a copy thereof, within the state, to the incompet- ent person and also to his committee. (§§ 2526 & 426.) Where, however, a party has been judicially declared to be incompetent to manage his affairs in consequence of lunacy, and it appears satisfactorily to the Surrogate's Court by affidavit, that delivering a copy of the citation to him per- sonally will tend to aggravate his disorder, or to lessen the probability of his recovery, the court may make an order dispensing with such delivery; and in that case a delivery of a copy of the citation to a committee duly appointed for him is sufficient personal service upon such party. (§§ 2526 & 429.) Where the surrogate has reasonable ground to believe that the interest of the committee, to whom a copy of the cita- tion has been delivered, is adverse to that of the incompetent person, or that for any reason he is not a fit person to pro- tect the rights of such incompetent person, the surrogate may in his discretion, with or without an application therefor, and in the interest of such incompetent person, make an order requiring a copy of the citation to be also delivere'd in be- half of such incompetent to a person designated in the order, and that service of the citation shall not be deemed complete Ch. VI, § 66] THE CITATION AND ITS SERVICE. 119 until so delivered; '' and as a part thereof, or by a separate order, made in like manner at any stage of the proceedings, the surrogate 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." (§§ 2527, 2526 & 428.) Section 66. — Form: Order requiring Additional Service in case of Infant. {Title of Proceeding.) It appearing to my satisfaction that , one of the persons to be cited in the above entitled proceeding, is an infant of the age of fourteen years and upwards. Now, therefore, in the interest of said infant, I DO HEREBY ORDER that a copy of the citation herein be tlelivered, in behalf of said infant party, to , residing in the city of , N. Y., and that service of said citation upon said infant party, shall not be deemed com- plete until such delivery. Dated at , N. Y., ,190 Surrogate. {Title of Proceeding.) It appearing to my satisfaction that , one of the persons to be pited in the above entitled proceeding, is an infant under the age of fourteen years and that in the service of the citation upon him a copy thereof was delivered to his father, pursuant to the statute in such ease made and provided, and, I having reasonable ground to be- lieve that the interest of said is adverse to that of said infant party, Now, therefore, in the interest of said infant, I DO HEREBY ORDER that a copy of the citation herein be de- livered, in behalf of said infant party, to residing in the city of , N. Y., and that service of said cita- 120 THE CITATION AND ITS SERVICE. [CH. VI. § 67 tion, upon said infant party, shall not be deemed complete until such delivery. Dated at , N. Y., , 190 Surrogate. As the order rests entirely in the discretion of the sur- rogate, who may make it upon his own motion, either form will suffice even where granted upon an application therefor. Section 67. — Form : Order requiring Additional Service in Case of Incompetent. (Title of Proceeding.) Having, in my opinion, reasonable grounds to believe that , one of the persons to be cited in the above entitled proceeding, is an habitual drunkard (or mentally in- capable adequately to protect his rights because of ) although not jiidicially declared to be incompetent to manage his affairs. Now, therefore, in the interest of said person, I DO HEREBY ORDER that a copy of the citation herein be de- livered, in behalf of said incapable party, to residing in the city of . . , N. Y., and that service of said citation, upon said incapable party, shall not be deemed complete until such delivery. Surrogate. (Title of Proceeding.) It appearing to my satisfaction that ^ one of the persons to be cited in the above entitled proceeding, is a person judicially declared to be incompetent to manage his: affairs by reason of lunacy (or idiocy or habitual drunkenness) and that in the service of the citation upon him a copy thereof was delivered to his committee, pursuant to the. Ch. VI, §§ 68, 69] THE CITATION AND ITS SERVICE. 121 statute in such ease made and provided, and I having reason- able grounds to believe that the interest of said is adverse to that of said incompetent party. Now, therefore, in the interest of said incompetent, I DO HEREBY ORDER that a copy of the citation herein be de- livered, in behalf of said incompetent party, to residing in the city of N. Y., and that service of said citation, upon said incompetent party, shall not be deemed complete until such delivery. Dated at , N. Y., , 190, . . . Surrogate. As the order rests entirely in the discretion of the sur- rogate, virho may make it upon his own motion, either form vrill suffice even v^here granted upon an application therefor. Section 68.— Personal Service upon a Corporation. Service of the citation within the state upon either a do- mestic or foreign corporation must be made in the manner prescribed by sections 431 and 432 for the personal service of a summons upon such a corporation. (§ 2526.) Section 69. — Substitute for Personal Service upon a Resi- dent. " 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 (§ 2520) ; and that the person to be served cannot be found, or, if found, that he evades service, so that it cannot be made ; the surro- gate may make an order, directing that service thereof be made, as prescribed in section 436 of this act; and the pro- visions of that section and of section 437 of this act, relat- ing to the service of a summons, apply to the service of a citation, pursuant to an order made as prescribed in this section." (§ 2521.) 122 THE CITATION AND ITS SERVICE. [Ch. VI, § 69 The sections referred to are as follows : " § 436. Service of summons, how made. — The order must direct that the service of the summons be made, by leaving a ■copy thereof, and of the order, at the residence of the defend- ant, with a person of proper age, if upon reasonable appli- cation, admittance can be obtained, and such 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 residence, and by depositing another copy thereof, properly enclosed in a post-paid wrap- per, addressed to him, at his place of residence, in the post- office at the place where he resides ; or upon proof being made by affidavits that no such residence can be found, service of the summons may be made in such manner as the court may direct." " § 437. Papers to be filed; proof of service. — 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 ; otherwise the order becomes inoperative. On filing an affidavit, showing service according to the order, the sum- mons is deemed served, and the same proceedings may be taken thereupon, as if it had been served by publication, pursuant to an order for that purpose, made as prescribed in the next section." Section 2521 confers upon the surrogate the same author- ity possessed by a judge of the Supreme Court; and, upon the service of the citation as provided therein, the court ac- quires jurisdiction of the person and may proceed with like efFect as though the citation had been personally served. (Scharmann v. Schoell, 38 App. Div. 528, 56 Supp. 498.) It will be observed that under section 2521, with its ref- erence to section 2520, substituted service of the citation may be made upon an infant of the age of fourteen years or upwards, as well as upon an adult; but no provision seems to be made for such substituted service upon infants under fourteen years of age. Apparently such infants are excluded by the terms of the section, for it only authorizes the substi- Ch. VI, § 70] THE CITATION AND ITS SERVICE. 123 tuted service after proper and diligent effort has been made to serve the citation upon a resident of the state, in the manner prescribed in section 2520, v^hich only applies to adult persons and infants of the age of fourteen years or xipwards. It has been held that, under sections 436 and 437, sub- stituted service of process may be made upon an infant who is being concealed by its mother. (Steinhardt v. Baker, 25 App. Div. 197, 49 Supp. 357.) It is only necessary to de- posit a copy of the citation and order for substituted serv- ice in the post office, in case a copy thereof cannot be left with a person of suitable age at the residence of the party to be cited. (Overton v. Barclay, 89 Hun 611, 35 Supp. 326, 69 St. Rep. 716.) Section 70.— Form: Affidavit to Proctire Order for Sub- stituted Service. {Title of Proceeding.) County of ss. of the city of in said county, being duly sworn, says that, on the day of , 19. . . ., the citation in the above entitled special proceeding, of which a copy is hereto annexed, was delivered to him for service upon who resides at No. street in said city of N. Y., and is one of the persons to whom said citation is directed; that deponent is well acquainted with said and has made proper and diligent effort to serve said citation upon him, but that he cannot be found by deponent {or that he evades such serv- ice so that it cannot be' made) ; that deponent, for the pur- pose and with the intention of serving such citation upon said , has made the following efforts and inquiries to find him and'to effect such service, viz : {State facts showing efforts to find and make service on him.) (Jurat) ^ (Signature) 124 THE CITATION AND ITS SERVICE. [Ch. VI, g§ 71, 72 Section 7i.^Form : Order for Substituted Service. (Title of Proceeding.) It appearing by the affidavit of verified the day of , 19 — , that the citation here- tofore issued in the above entitled proceeding, of which a copy is thereto annexed, has been delivered to him for service upon who resides at No Street in the city of , N. Y., and is one of the persons to whom said citation is directed, and that proper and diligent effort to serve said citation upon said has been made, but that he cannot be found (or that he evades such service so that it can- not be made). Now, therefore, IT IS HEEEBY ORDERED that scrvice of Said citation upon said be made by leaving a copy thereof and of this order at the residence of said No street, in the city bf , N. Y., 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 admit- tance cannot be so obtained, nor such a person found, by affixing the same to thf outer or other door of said 's residence, and by depositing another copy thereof, properly in- closed in a postpaid wrapper, addressed to him at his said place of residence, in the post-office at said city of , N. Y. Dated at , N. Y., the day of , 19 Surrogate. Section 72. — Personal Service upon Lunatic : When Dis- pensed With. It is provided in section 2526 that service of a citation must be made upon a person judicially declared to be incom- petent to manage his affairs by reason of lunacy, " in the manner prescribed for personal service of a summons upon such a person, ... in article first of title first of chapter fifth " of the Code of Civil Pr(Jeedure. This article, thus referred to, includes section 429, which is as follows: Ch. VI, § 73] THE CITATION AND ITS SERVICE. 125 " § 429. Id.; when delivery of copy to lunatic dispensed with. — Where the defendant has been judicially declared to be incompetent to manage his affairs, in consequence of lun- acy, and it appears satisfactorily to the court, by affidavit, that the delivery of a copy of the summons to him, in person, will tend to aggravate his disorder, or to lessen the proba- bility of his recovery, the court may make an order, dispens- ing with such . delivery. In that case a delivery of a copy of the summons, to a committee duly appointed for him, i3 sufficient personal service upon the defendant." Section 73.— Form : Affidavit to Procure Order dispensing with Service upon Lunatic. {Title of Proceeding.) County : ss. , of the city of , in said county, being duly sworn, says that he is a practicing physician resident in the city of in said county, and is well acquainted with , one of the persons to whom the citation in the above entitled proceeding is directed, and now is, and for a long time has been, hi.', family physician ; that said is a lunatic, and, as deponent is informed and verily believes, has been judicially declared to be incompetent to manage his affairs by reason of lunacy, in proceedings wherein one of said city of has been duly appointed to be the committee of the person and estate of said ; and that, in the opinion of deponent, the mental condition of said is such that the delivery of a copy of said citation to him in person, will tend to aggravate his disorder, or to lessen the probability of his recovery. That the following are the reasons for deponent's opinion, viz: (State them.) (Jurat.) (Signature.) Proof should also be made, by affidavit or otherwise, that the party has been judicially declared to be incompetent to manage his affairs by reason of lunacy, unless this fact already appears in the proceeding. 126 THE CITATION AND ITS SERVICE. [Ch. VI, g§ 74, 75 Section 74. — Form : Order dispensing with Service upon Lunatic. At a Surrogate's Court, in and for the County of , held at the office of the surro- gate in the city of , N. Y., the day of 19—. Present, Hon , Surrogate. (Title of Proceeding.) Upon reading and filing the affidavit of , verified , 19 — , (and the affidavit of , verified , 19 — ,) whereby it appears, among other things, that , one of the persons to whom the cita- tion in the above entitled proceeding is directed, is a lunatic and has been judicially declared to be incompetent to manage his affairs, by reason of lunacy, in proceedings wherein one has been duly appointed to be the committee of the person and estate of said ; and that the mental con- dition of said is such that the delivery of a copy of said citation to him, in person, will tend to aggravate his disorder or to lessen the probability of his recovery ; Now, Therefore, on motion of , Esq., at- torney for the petitioner in the above entitled proceeding, IT IS HEREBY ORDERED that the delivery of a copy of said citation to said , in this proceeding, be, and it hereby is, dispensed with. Surrogate; Section 75. — Service by Publication. " The surrogate, from whose court a citation is issued, may make an order, directing the service thereof without the State, or by publication, in either of the following cases : 1. Where it is to be served upon a foreign corporation, or upon a person who is not a resident of the State. 2. Where the person to be served, being a resident of thi? State, has departed therefrom, with intent to defraud his creditors, or to avoid the service of process. Ch. VI, 15 76] THE CITATION AND ITS SERVICE. 137 3. Where the person to be served, whether an adult or an infant, is a resident of the State, but is temporarily absent therefrom. 4. Where the person to be served is a resident of the State or a domestic corporation, and an attempt 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 preceding the application for the order, if the time has not been extended by the attempt to serve the citation." (§ 2522.) It is also provided by section 2523 that " 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 the surrogate is sat- isfied, by afiidavit, that the residence of that party cannot, after diligent inquiry, be ascertained by the petitioner. 2. Upon one or more unknown creditors, next of kin, lega- tees, heirs, devisees, or other persons included in a class, to- whom a citation has been directed, designating them by a general description, as prescribed in this article." (§ 2523.) Section 76.— Same Subject : Application for Order. The procedure for the service of a citation, without the state or by publication, is not quite so strict as is that (§§ 438-440) regulating the similar service of a summons. In the latter case it is usually necessary to show, among other- things, that " the plaintiff has been or will be, unable, with due diligence, to make personal service of the summ'ons "" (§ 439) ; and where the affidavit merely alleges that a defend- ant resides in another state and that " the plaintiff will be- unable with due diligence to make personal service of the summons within the state " upon the defendant, but dis- 128 THE CITATION AND ITS SERVICE. [Ch. VI, § 77 closes no effort to find such defendant or to serve him with a summons in this state, and gives no reason why such effort if made would be useless, it is insufficient to confer juris- diction, and an order for publication of the summons based thereon is void. {Kennedy v. Lawh, 182 IS^. Y. 228.) On the other hand, in regard to a citation, the surrogate is auth- orized by sections 2522 and 2523 to " make an order direct- ing the service thereof without the state, or by publication," in either of several cases specified therein ; and the prerequis- ite to the order is merely that " the party applying therefor must produce proof, by affidavit or otherwise, to the satisfac- tion of the surrogate, that the case is one of those specified in those sections." (§ 2524.) This proof may be contained in the sworn petition, upon which the citation is issued, or in a separate affidavit ; and it suffices if in either manner the facts are clearly set forth which authorize the surrogate to make the order. Section 77. — Order for Service by Publication : When and how made. " Where an order directing the service of a citation with- out the State, or by publication, is made as prescribed in either of the last two sections, the party applying therefor must produce proof, by affidavit or otherwise, to the satisfac- tion 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 described in the order, be made by publication of the citation in two newspapers, designated as prescribed in this article, unless from the peti- tion it appears that the estate amounts to less than two thou- sand dollars, in which case only one newspaper shall be desig- nated, for a specified time, which the surrogate deems rea- sonable, 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 named or de- scribed, in person, and if the person to be served is an infant under the age of fourteen years, also to the person with whom he is sojourning or, if the service is made upon a corporation. €h. VI, § 77] THE CITATION AND ITS SERVICE. 129 to an officer thereof specified in section 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 post-office, a copy of the citation and of the order, con- tained in a securely closed post-paid wrapper, directed to the person to be served, at a place specified in the order, and, if the person to be served is an infant under the age of fourteen years, a further copy, likewise contained in a securely closed post-paid wrapper, directed to the person with whom such infant is sojourning, or a statement that the surrogate, being satisfied, by the affidavit 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-office, ■dispenses with the deposit of any papers therein." (§ 2524.) It is also provided by section 2535 that " Where a provision of this chapter, or an order made pur- suant to such a provision, directs the publication of a cita- tion, notice, or other paper, or the service thereof by publica- tion, the publication must be made in a newspaper published in the county. The surrogate may, also, in his discretion, direct the publication thereof in any other newspaper pub- lished in the same or another county, as he deems proper, for the purpose of giving notice to the persons intended to be served or notified. If no newspaper is published in the county, the citation, notice, or other paper, must be published in the newspaper printed at Albany, in which legal notices ^re required by law to be published." (§ 2535.) The statutory requirements must be strictly observed or the order may be invalid. It has been held that the service is ineffectual where the order fails to specify the post-office in which the papers are to be deposited, or to direct that a copy of the order be mailed, to the party to be served, on or before the day of the first publication of the citation (Eleventh Ward Bank v. Powers, 43 App. Div. 178, 59 Supp. 314), or where the order directs the deposit of a copy of the citation addressed to the person, to be served therewith, -at a place other than the one named in the petition as his 9 130 THE CITATION AND ITS SERVICE. [Ch. VI, § 77 residence. (Matter of Harlow, 73 Hun 433, 26 Supp. 469,. 56 St. Rep. 33.) However, the order need not direct a pub- lication of the citation or a delivery of a copy thereof without the state to the person on whom service thereof is to be made. The election as to the mode of service may be made when the order is granted, and it may direct service by publication alone, or by delivery of a copy of the citation without the state alone ; and where an order directing either mode, with- out reference to the other in the alternative, is followed, a good service will be secured. (Matter of Field, 131 W. Y. 184, overruling Bitten v. Griffith, 16 Hun 454.) Under section 440, the order must require the publication of a summons to be made " not less than once a week for six successive weeks," and the service is not complete until the expiration of at least six full weeks from the day of the first publication. (Market Nat. Bank v. Pacific Nat. Bank, 89 N. Y. 397.) By section 2524, the order must require the publication of a citation to be made " not less than once in each of six successive weeks j " but, although this phraseology differs somewhat from that in section 440, its meaning is the same. It will be observed that section 2524 requires the order to direct the service to " be made by publication of the citation in two newspapers, designated as prescribed in this article, unless from the petition it appears that the estate amounts, to less than two thousand dollars in which case only one newspaper shall be designated." This evidently had refer- ence to former section 2536 which required a citation to be published in the newspaper at Albany, wherein legal notices are required by law to be published; but that section has been repealed (1900 ch. 572), without any corresponding modification of section 2524, and so the publication of a cita- tion must still be made in two newspapers, one of which must be published in the county — if any newspaper be pub- lished therein — and the other may be published in the same or another county as the surrogate deems proper. If no news- Ch. VI, § 78] THE CITATION AND ITS SERVICE. 131 paper is published in the county, the citation must be pub- lished in the newspaper printed at Albany, in which legal notices are required by law to be published. (§ 2535.) Section 78. — Form : Order for Service out of State, or by Publication. (Title of Proceeding.) Upon the petition of , filed in our Surrogate's Court 190 — , and upon the citation issued thereon on that day, and upon reading and filing the affidavit of verified 190 — , whereby it appears, among other things, that this special proceeding has been in- stituted to procure a decree empowering to mort- . gage, lease or sell the real property of said , de- ceased, for the payment of his debts and funeral expenses, and that on , 190 — , there was duly issued out of our Surrogate's Court a citation directed to the persons in- terested therein citing each of them to attend before the sur- rogate in our Surrogate's Court on , 190 — then and there to show cause why such decree should not be made; and whereby it also appears to my satisfaction that among the persons named in said citation, and to whom it is specifically directed, is , and that he is not a resident of the state, but resides without the state at ; (Or, is , who is a resident of the state of New York, and that he has departed therefrom with intent to avoid the service of process, and that the petitioner cannot, with reasonable dili- gence, ascertain a place or places where said would probably receive matter transmitted through the post-office) ; (Or, is , who resides in the state of New York but that he is temporarily absent therefrom and is at present so- journing at ; Or, state the circumstances bring- ing the case within any of the other provisions of sections 2522 or 2523) ; and that the case is one of those specified in section 2522 (or section 2523) of the Code of Civil Procedure; (Or, in appropriate case; and whereby it further appears that said citation is also directed to the heirs of said decedent, (and to each person claiming under them or any of them), whose names are 132 THE CITATION AND ITS SERVICE. [Ch. VI, § 78 unascertained and whose places of residence are unknown, but who are the heirs of , a deceased son of said decedent, they being persons whose names cannot be ascer- tained, and to all other persons who are creditors of said , deceased, and that this case is one of those speci- fied in section 3523 of the Code of Civil Procedure Add in appropriate case: and whereby it further appears that the en- tire estate of the decedent amounts to less than two thousand dollars. Now, therefore, on motion of Esq., attorney for said petitioner, I DIRECT AND IT IS HEREBY ORDERED, that scrvice of the above mentioned citation upon said and also upon the heirs of said decedent and each person claiming under them, or any of them, whose names are unascertained and whose places of residence are unknown, but who are the heirs of .... , a deceased son of said decedent, they being persons whose names cannot be ascertained, (unknown persons constituting a class,) and upon all other persons who are credi- tors of said deceased, be made by publication of the citation in two newspapers (Only one if the estate is less than $3000) to wit, in the and in the , both published in the city of , county of and state of New York (One newspaper may he published outside of county, § 3535) once in each of six successive weeks, that being a time which I deem reason- able; or, at the option of the petitioner, by delivering a copy of the citation without the state, to said in person {If is an infant under the age of IJf years, add: - and also to , the person with whom said is sojourning) ; and I ALSO DIRECT, AND IT IS FURTHER ORDERED, that OU Or be- fore the day of the first publication, the petitioner deposit, in the post-office in the city of , county of and state of New York, a copy of the citation and of this order, contained in a securely closed post-paid wrapper, directed to said at (If is an infant under the age of lU years, add: and that, at the same time, he also deposit in said post-office a further copy of the citation and of this order, likewise con- Ch. VI, § 79] THE CITATION AND ITS SERVICE. 133 tained in a securely closed post-paid wrapper, directed to , the person with whom said is sojourn- ing, at ) (If address of parties cannot he ascertained, add : and, being satisfied by the affidavit upon which this order is granted, that the petitioner cannot, with reasonable diligence, ascer- tain a place or places where said ( Unhnown per- sons constituting a class,) or said other persons who are creditors of said deceased, to be served would probably receive matter transmitted through the post-office, as to them and each of them, i do hereby dispense with the deposit of any papers therein.) Dated at N. Y., the day of , 19— ^ Surrogate. It is not necessary that the order direct service of the citation by publication or by delivery thereof without the state: it may direct either mode alone, without reference to the other; and due service made accordingly will suffice. (Matter of Field, 131 N. Y. 184.) If it appears from the petition that the estate amounts to less than $2,000 only one newspaper shall be designated for the publication. (§ 2524.) Section 79. — Order : How Executed. If the order be in the alternative and directs service of the citation by delivery of a copy thereof without the state or by publication thereof, either mode of service will suffice ; but the order must be strictly followed. (Luddon v. Degener, 14 App. Div. 397, 43 Supp. 908 ; Bowler v. Ennis, 46 App. Div. 309, 61 Supp. 686; Fink v. Wallach, 47 Misc. 247, 95 Supp. 872.) If service by publication be adopted, and the papers are directed and mailed to the person to be served at a place other than the one stated in the order, the service is ineffectual and no jurisdiction can be obtained thereby. (Smith V. Wells, 69 N. Y. 600.) 134 THE CITATION AND ITS SERVICE. [Ch. VI, § 80 The service by publication of a citation, like a similar service of a summon^, is not complete until the expiration of six full weeks from the day of the first publication. (Market Nat. Bank v. Pacific Nat. Bank, 89 IST. T. 397; Matter of Koch's Will, 12 Supp. 94, 19 Civ. Pro. Eep. 165.) Moreover, there must be a publication at least once in each seven days; and if, because of a legal holiday on the day when the publication would ordinarily be made or for some other reason, the publication is made twice in one period of seven days, and not at all in the succeeding period of seven days, the service is invalid, although it is not neces- sary that each publication be made on the same day of the week. (Doheny v. Worden, 75 App. Div. 47, 77 Supp. 959 ; see Wood v. Enapp, 100 N. Y. 109.) Where the order directs the service to be made either per- sonally without the state or by publication, and thereupon the citation is personally served more than thirty days before the return date thereof, it is sufficient; it is not necessary that six weeks intervene except where the service is made by publication. (Matter of Macaulay, 94 W. Y. 574.) The method for computing the time for the publication of a legal notice is prescribed by section 787 — made applicable to proceedings in the Surrogate's Court by section 3347 sub. 6 — as follows: " The period of publication of a legal notice, in an action or special proceeding, brought in a court, either of record or not of record, or before a judge of such court, must be computed, so as to exclude the first day of publication, and Include the day, on which the act or event, of which notice is given, is to happen, or which completes the full period of publication." (§ 787.) Section 8o.— Time when Citation must be Served. Where the citation is personally served within the state upon an adult person or an infant of the age of fourteen years or upwards, as provided in section 2520, it ■Ch. VI, § 80] THE CITATION AND ITS SERVICE. 135 " must be so served, if within the county of the surrogate, or an adjoining 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 incompetent, assents in writing to a service within a shorter time. . . ." It is also provided in section 2525 that " Where service is made by delivering a copy of the cita- tion without the State, pursuant to an order made as pre- scribed 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 citation. . . ." Where the service is by publication it must be for " not less than once in each of six successive weeks " (§ 2524) and is not complete until the expiration of full forty-two days from the time of the first publication {Market Nat. Bank v. Pacific Nat. Bank, 89 N. Y. 397) ; but it is not necessary that the publication be completed eight days, or any other particular time, before the return day. (Matter of Benton, 86 App. Div. 359, 83 Supp. 778.) There seems to be no provision concerning the time when service of the citation must be made, as provided by section 2526, upon an infant under the age of fourteen years, or upon a person judicially declared to be incompetent, or upon a corporation. Very likely the requirements of section 2520, in this particular, should also apply to the service of a cita- tion under section 2526 ; but, by the terms of the section, they are limited to service upon an adult person or an infant of the age of fourteen years and upwards. In Boerum v. Betts (1 Dem. 471) it was held that eight days must intervene between the return day of the citation and the day when service thereof is made, so that a service on July 20th of a citation returnable on July 28th was con- sidered to be insufficient. This decision is disapproved in 136 THE CITATION AND ITS SERVICE. [Ch. VI, § 81 Matter of Carhart, (2 Dem. 627) where it was held that the return day may be counted in estimating the eighth day. However, the latter decision was based upon section V88,. providing for the computation of time " by excluding the first, and including the last day ; " but this section has since been repealed by the Statutory Construction Law which pro- vides that the day to be excluded in making the reckoning ia the day of the specified event from which the days, weeks or months are to be counted. (1892 ch. 677 § 27.) It has, however, been authoritatively determined that the Statutory Construction Law has not materially changed the rule prev- iously laid down in section 788 ; and it follows, that while the return day must be excluded in reckoning the eight days,, the day on which the citation was served may be included. {People V. Burgess, 153 JST. Y. 561, 573; Biggs v. City of Geneva, 100 App. Div. 25, 90 Supp. 858.) In Matter of Porter (1 Misc. 489, 22 Supp. 1063, 54 St. Hep. 302) it was held, by a surrogate of Westchester county, that personal service of a citation made within this state upon a non-resident is void ; and that service upon such a party must be made by publication, or by personal service without the state, at least thirty days before the return day. {See also Merrltt's Will, 5 Dem. 544.) This decision is obviously erroneous ; and it is not surprising that in Mat- ter of Washburn (12 Misc. 242, 34 Supp. 44, 67 St. Kep. 895) it was held, by the succeeding surrogate of the same county, that jurisdiction of the Surrogate's Court is com- pletely established over any person, regardless of his place of residence, where personal service is made upon him in the state and within the time required by section 2520. Section 8i. — Service of Citation : By whom made. It is provided in section 2520 that " any person, although a party to the special proceeding, may serve a citation." Under the former practice, also, service of the citation by a -party was permitted. {Wetmore v. Parker, 52 N. Y. 450.), Ch. VI, § 82] THE CITATION AND ITS SEEVICE. 137 There seems to be no provision as to the age of a person who may serve the citation. By rule 18, of the General Rules of Practice, service of a summons may not be made by anyone who is less than eighteen years of age ; and it is undoubtedly good practice to apply this requirement to the service of a citation. Section 82. — Proof of Service. " Proof of service of a citation, or a subpoena, issued from a Surrogate's Court, must be 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." (§ 2532.) The provisions regulating proof of service of a summons are contained in section 434, which is as follows : — " § 434. Proof of service of summons, etc. ; how made. — Proof of service, as prescribed in this article, 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 service may be proved by a written admission, signed by him, and either acknowledged by him, and certified in like manner as a deed to be recorded in the county, or accompanied with the affidavit of a person, other than the plaintiff, show- ing that the signature is genuine. " A certificate, admission, or affidavit of service of a sum- mons must state the time and place of service. A written ad- mission of the service of a summons, or of a paper accom- panying the same, imports, 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." 138 THE CITATION AND ITS SERVICE. [Ch. VI, g 82 It is provided in section 425 that " the s^ummons may be served by any person, other than a party to the action, ex- cept where it is otherwise specially prescribed by law," and, in like manner, under section 434, the genuineness of a sig- nature to an admission of service of a summons may not be proven by the affidavit of a plaintiff; but, as any party to a special proceeding in the Surrogate's Court may serve a cita- tion, there seems to be no reason why the genuineness of a signature to an admission of the service thereof may not be proved by the affidavit of any party to the proceeding inas- much as no statute expressly prohibits it. The requirements of rule 18 of the General Kules of Prac- tice must also be observed ; and, therefore, " Where personal service of the citation shall be made by any other person than the sheriff, it shall be necessary for such person to state in his affidavit of service his age, or that he is more than 21 years of age; when, and at what particu- lar place, and in what manner he served the same, and that he knew the person served to be the person mentioned and described in the citation as respondent therein, and -also to state in his affidavit that hfe left with respondent such copy, as well as delivered it to him." (Rule 18.) Where service of the citation is made by publication, or by delivering a copy thereof without the state, pursuant to an order made as prescribed in section 2524, it is provided in section 2525 that " proof of publication, deposit, or delivery may be made as prescribed in section 44.4 of this act," which is as follows: " § 444. Proof of service. — Proof of the publication of the summons and notice must be made by the affidavit of the printer or publisher, or his foreman or principal clerk. Proof of deposit in the post-office, or of delivery, of a paper required to be deposited or delivered by the provisions of this article, must be made by the affidavit of the person, who de- posited or delivered it." Ch. VI, § 83] THE CITATION AND ITS SERVICE. 139 Where, in ease of an infant or incompetent person, the sur- rogate has made an order directing a delivery of the citation to a person designated in the order, in addition to service thereof upon such infant or incompetent person, the service in not complete until this has been done ; and the proof of serv- ice must show a delivery of a copy of the citation, as required by the order. Moreover " the fact that the parties were duly cited is presumptively proved by a recital to that effect in the decree '' (§ 2473) ; but this may be rebutted by other evidence. (Hood v. Hood, 85 N. Y. 561, 578.) Section 83. — Form : Proof of Service. County, ss. of in said county of , being duly sworn, says that he is more than 18 years of age, and that on 19 ... . at in the of N. Y., he personally served the an- nexed citation on , one of the persons named therein and to whom it is directed, by delivering to and leaving with him in person a true copy thereof. (Where party served is an infant, under H years, add: and by also delivering a copy thereof to and leaving the same with who is the father, or mother, or guardian, or person etc — see § 426 — of said an infant under the age of 14 years, personally at in said N. Y. Or where party served is an .adjudged incompetent add: and by also delivering a copy thereof to, and leaving the same with , who is the duly appointed committee of the person and estate of said , an adjudged incompetent person, personally at in said ), (Jurat.) (Signature.) (Where service is admitted.) I, , one of the persons named in the within (or annexed) citation and to whom it is directed, do hereby 140 THE CITATION AND ITS SERVICE. [Ch. VI, § 83 admit due and personal service thereof on me in the city of N. Y. on this day of , 19 . . . . (Signature) (The signature mmt be acknowledged and certified, as a deed to he recorded, or may he proven by affidavit, as follows:) County, ss. of the city of , in said county of , being duly sworn, says that he is of full age and personally knows , whose name is subscribed to the above admission of service upon him of the within cita- tion, and * that deponent was present and saw said subscribe his said name thereto. (Or proceed after* that he has frequently seen said write and is well acquainted with his handwriting and with his signature; and that, to the best of deponent's knowledge and belief, the name aforesaid, purporting to be the signature of said , was actually made by said , and is in his proper handwriting. (Jurat.) (Signature.) (Where citation is published.) County, ss. of the city of , in said county, being duly sworn, says that he is the printer (or publisher, or foreman, or principal clerk of the printer or publisher) of the , a newspaper puWished in said of and State of New York ; that the annexed citation (of which a copy as published is hereto at- tached) has been published in said newspaper once in each of six successive weeks; and that the first publication thereof was made on day of , 19 ... . and the last publication thereof on the day of , 190.... (Jurat.) (Signature.) Ch. VI, § 83] THE CITATION AND ITS SERVICE. 141 {Title of Proceeding.) County, ss. of the city of in the county of N. Y., being duly sworn, says that he is (a clerk in the office of ) the attorney for , who is the petitioner in the above entitled special proceeding, and that on the day of , 19 ... . he de- posited in the post-office in the of , county of and State of New York, a copy of the annexed citation issued herein and of the order directing the publication thereof which was duly made by the surrogate of county on the day of 19 .... , (a copy of which order is hereto annexed) contained in a securely closed postpaid wrapper, directed to at in the state of (7/ is an infant, under the age of 14 years, add: and that, at the same time, he did also deposit in said post-office a further copy of said citation and order, likewise contained ia a securely closed postpaid wrapper, directed to , the person with whom said is sojourning, at in the state of (Jurat) (Signature) (Where service is without the state.) {Title of Proceeding.) State of ) County of j of , in the county of and state of , being duly sworn, says that he is over 18 years of age and that on the day of , 19. . . . (Must be at least SO days before the re- turn day of citation) he delivered a copy of the annexed cita- tion to , one of the persons therein named and to whom it is directed, at in the city of and state of , in person, and left the same with him. 142 THE CITATION AND ITS SERVICE. [Ch. VI, § 84 {If is an infant under the age of 14 years, add: and also to , the person with whom said , an infant under the age of 14 years, was at the time sojourn- ing/ at ) {Jurat) {Signature) If the affidavit or acknowledgment, constituting the proof of service, be executed in a county, other than that of the surrogate before whom the proceeding is pending, it must be certified in the same manner required to entitle a deed to be recorded. Section 84. — Waiver of Citation. Prior to 1896 there was no statutory authorization for any waiver of either the issuance or service of a citation; and it had been held that such service could not be waived,, but that, to confer jurisdiction upon a Surrogate's Court, there must be actual service of the citation and proof thereof by affidavit or admission {Matter, of Gregory, 13 Misc. 363, 35 Supp. 105, 69 St. Eep. 479), although it had also been held that such a waiver was really effected by a general ap- pearance in the proceeding. {Matter of Post, 30 Misc. 551, 64 Supp. 369.) Afterwards section 2528 was amended (1896 cb. 570) by incorporating therein the following: " The issue and service of a citation may be waived by a party in any proceeding by an instrument in writing, ac- knowledged or approved as a deed entitled to be recorded, or by personal appearance or by his attorney with written au- thorization executed and acknowledged as a deed and filed in the office of the surrogate." Although this language is broad enough to authorize a waiver by an infant, it is hardly possible that such is its intent or that any act of an infant can confer jurisdiction Ch. VI, § 84] THE CITATION AND ITS SERVICE. lig upon the court under this provision. Moreover, by the pre- ceding portion of the section, only an adult is authorized to appear in person or by attorney so as thereby to effect a. waiver; and it is safe to assume that in case of an infant neither the issuance nor service of the citation can be dis- pensed vcith. Moreover a special guardian for an infant cannot waive " the issue and service of a citation," for he cannot be appointed until after service of the citation upon the infant. (Davis v. Crandall, 101 N. Y. 311; Crouter v. Crouter, 133 N. Y. 56; Potter v. Ogden, 136 N. Y. 384.) Under section 2528 even an attorney may not waive " the issue and service of a citation " in behalf of his client other- wise than " with written authorization executed and ac- knowledged as a deed and filed in the office of the surrogate." However, although an express waiver of " the issue and service of a citation " may only be made by a personal ap- pearance of the party, or by some acknowledged or approved writing of his, yet, where the citation has been issued, a voluntary general appearance of the party to whom it is directed is equivalent to personal service thereof upon him (§§ 2528 & 424) ; and not only will such a general appear- ance in the proceeding cure any deficient service of the citation {Matter of Porter, 1 Misc. 489, 22 Supp. 1063, 54 St. Rep. 302), but it will also remedy any defects in the petition, affecting jurisdiction over the person appearing, which are thereby waive'd. {Peters v. Carr, 2 Dem. 22 ; and see Washbon v. Cope, 144 N. Y. 287.) In Matter of Graham (39 Misc. 226, 79 Supp. 573, 12 A. C. 157) it was held by the surrogate of Westchester county that a waiver of " the issue and service of a citation " exe- cuted prior to the commencement of a special proceeding in the Surrogate's Court confers no jurisdiction over the party so executing it. But this ruling seems to be unduly strict; and it certainly does not accord with the general practice. Moreover, under the doctrine of estoppel, a person who has executed a formal waiver of the issuance as well as of the serv- 144 THE CITATION AND ITS SERVICE. [Ch. VI, § 85 ice of the citation — even though prior to the filing of the petition — will hardly be permitted to assail the proceedings by alleging that the citation had not been served upon him. Section 85. — Form : Waiver of Citation. {Title of Proceeding.) I, , one of the heirs at law {or a devisee, or otherwise state interest) of , late of the of , county of and state of New York, deceased, do hereby waive the issue and service of the citation in the special proceeding now pending in the Surrogate's Court of county, N". Y. which proceeding has been insti- tuted to procure a decree empowering to mort- gage, lease or sell the real property of said deceased, for the payment of his debts and funeral expenses; and I hereby consent that said special proceeding may be continued and conducted to a final decree therein, without further notice to me and with like force and effect as though said citation had been seasonably served upon me in person within this state. Dated at N. T., on the day of , 190... {Signature.) The waiver must be acknowledged and certified as a deed entitled to be recorded, and filed in the office of the surro- gate. CHAPTER Vir. THE RETURN OF THE CITATION. Section 86. — Some Statutory Provisions. 87. — Supplemental Citation. 88. — Form: Petition for Supplemental Citation. 89. — Form: Order for Supplemental Citation. 90. — Death of Petitioner.' ■ 91. — Death of Party named in Citation. 92. — Form : Petition to Substitute Party Respondent. 93.— Form: Order Substituting Party Respondent. 94. — Intervention of Parties. 95. — Form: Petition for Intervention. 96. — Form: Order allowing Intervention. 97. — Appearance of Party. 98. — Special Appearance. 99. — Form : Notice of Appearance by Attorney. 100. — Appearance of Infant or Incompetent Person. 101. — Special Guardian for Infant or Incompetent Person. 102. — Special Guardian: How Appointed. 103. — Form: Consent of Special Guardian. 104. — Form: Order appointing Special Guardian. 105. — Duty and Compensation of Special Guardian. 106. — Return of Citation: Default. 107. — Discontinuance of Proceeding. 108. — Dismissal for Failure to Prosecute. Section 86. — Some Statutory Provisions, " Upon the return of the citation the surrogate must pro- ceed to hear the allegations and proofs of the parties " (§ 2755) ; but there are some preliminary matters of prac- tice, varying according to the peculiarities of each case, which should receive attention before the proceeding is further progressed. 10 145 146 THE RETURN OF THE CITATION. [Oh. VII, § 87 " The expression, ' upon the return of a citation,' where it is used in a provision requiring an act to be done in the surrogate's court, relates to the time and place at which the- citation is returnable, or to which the hearing is adjourned ; includes a supplemental citation, issued to bring in a party who ought to be, but has not been cited; and implies that, before doing the act specified, due proof must be made, that all persons required to be cited have been duly cited." (§ 2514 sub 10.) Under this provision, before the surrogate proceeds " to. hear the allegations and proofs of the parties," it is obvious that proof must be made that " all persons required to be cited have been duly cited." " The fact that the parties were duly cited is presumptively proved by a recital to that effect in the decree" (§ 2473); and so the proper recital should be carefully set forth in the decree, because of its evidential value. Nevertheless the citation itself, together with due proof of its seasonable service upon all persons to whom it is directed, should be filed in the surrogate's office on or before its return day; and thereupon the surrogate must make some disposition of the matter so as to retain jurisdiction. If the parties or any of them appear, and the- cause is not ready for a hearing, the proceeding may be adjourned or continued until some future date; for the ex- pression " upon the return of a citation " includes not only the day mentioned therein but also the time and place " to which the hearing is adjourned." If there be no appearance and the proceeding is not adjourned or continued, or other- wise disposed of by order of the surrogate or a stipulation of the parties, it goes down and nothing further can be done in the matter without due notice. (Matter of Page, 107 N.. Y. 266.) Section 87. —Supplemental Citation. It is provided in section 2481 that a surrogate, in court or out of court as the case requires, has power Ch. VII, § 88] THE RETURN OF THE CITATION. - 147 " Te adjourn, from time to time, a hearing or other pro- ceeding in his court; and where all persons who are neces- sary parties have not been cited or notified, and citation or notice has not been waived by appearance or otherwise, it is his duty, before proceeding further, so to adjourn the same, and to issue a supplemental citation, or require the petitioner to give an additional notice, as may be necessary." (§2481 sub. 2.) Thus the surrogate has statutory authority to issue a sup- plemental citation and thereby bring in, as a party to this special proceeding after it has been instituted and even on or after the return day, any person who is necessary to a complete adjudication of its subject-matter and who may have been omitted from the original citation, or not served therewith before the return day. (Matter of Phalen, 51 Hun 208, 4 Supp. 408, 21 St. Rep. 34.) Such a citation need not be marked " supplemental," for the fact that it was issued after the original citation makes it a supplemental one. {Matter of Will of Bradley, TO Hun 104, 23 Supp. 1127, 63 St. Eep. 540.) Section 88.- -Form : Petition for Supplemental Citation. (Title of Proceeding.) To the Surrogate of County : — The petition of , of the city of , N. Y., respectfully shows: That the above entitled special proceed- ing is now pending in the Surrogate's Court of county and was instituted by your petitioner to procure a de- cree empowering to mortgage, lease or sell the real property of deceased, for the payment of his debts and funeral expenses; that said deceased left neither parents nor descendants him surviving and that his only heirs at law (or devisees) are two' brothers, who are part- ies to this special proceeding, and one , who is the only son of a predeceased sister, and is not a party to this proceeding; that said , is of full age and resides at , N. Y., and was neither mentioned in 148 THK RETURN OF THE CITATION. [Ch. VII, §§ 89, 90 the petition, upon which this special proceeding was instituted, nor named in the citation issued thereon, because your peti- tioner had at the time no knowledge or information concern- ing him or his existence. (Or otherwise state facts as to omit- ted person.) Wherefore your petitioner prays that a supplemental citation may issue herein directed to said , and that this special proceeding may be adjourned until the return day thereof. (Date) (Signature) (Add verification.) Section 89.— Form : Order for Supplemental Citation. (Title of Proceeding.) It appearing to my satisfaction (by the petition of verified etc. : But no petition or affidavit is required) that is one of the heirs (Or otherwise state inter- est) of , deceased, for the disposition of whose real property for the payment of his debts and funeral exr- penses this special proceeding has been instituted, and that said is a necessary party to this proceeding but has not been made such party, Now, therefore, (on motion of Esq., attorney for said petitioner) I DO HEREBY OEDEE that a Supplemental citation issue herein ■directed to said and made returnable on the day of , 19 . . . , to which date this special proceeding is hereby adjourned; and that due and seasonable service of said supplemental citation be made according to law. I Dated at N. Y., this day of , 19.... Surrogate. Section 90. — Death of Petitioner. It is provided by section 1828 that " an executor, admin- istrator, or a person appointed by the surrogate, as pre- scribed in chapter 18 of this act, to dispose of the real prop- Ch. VII, § 90] THE RETURN OF THE CITATION. I49 erty of a decedent, is deemed a trustee, appointed by virtue of a statute, within the meaning of that expression, as used in section 766 of this act." Section 766 provides, among other things, that a special proceeding instituted by a " trus- tee appointed by virtue of a statute " does not abate by his death or removal and may be continued by his successor; but, curiously enough, this section has no application to any proceeding in the Surrogate's Court. (§ 3347 sub. 6; Mat- ter of Camp, 81 Hun 387, 30 Supp. 884, 63 St. Rep. 160 ; Matter of Schlesinger, 36 App. Div. 77, 55 Supp. 514.) However it is provided by section 2760 that " The death, removal or disqualification, before the com- plete execution of a decree, of all the executors or adminis- trators does not suspend or affect the execution thereof; but the successor of the person who has died, been removed, or become disqualified, must proceed to complete all unfinished matters, as his predecessors might have completed the same ; and he must give such security for the due performance of his duties as the surrogate prescribes." (§ 2760.) Prior to the recent revision (1904 ch. 750), this section was contained in former section 2770 providing that " the death, removal, or disqualification, before the complete exe- cution of a decree, of all the executors or administrators, who have been directed to execute it, or of a freeholder ap- pointed for the purpose, does not suspend or affect the execu- tion thereof ; " but these italicized words have been stricken out by the amendment. It would seem that the present section is broad enough to cover the case where a petition- ing executor or administrator has died or been removed at any time after the proceeding has been commenced, and before the decree has been fully executed, although the original section obviously referred to the death of the repre- sentative occurring after a decree had been actually made. But, aside from any statute and in the nature of things, as this particular proceeding is one in rem and is instituted 150 THE EETURN OF THE CITATION. [Ch. VII, § 91 in behalf of all creditors of the decedent, no abatement occurs upon the death of the petitioner. {See VanAlen v. Hewins, 5 Hun 44.) If such petitioner was a sole executor or admin- istrator the proceeding may be continued by his successor, who will be substituted by order of the Surrogate's Court; but if he was one of several, representatives his survivors may prosecute the proceeding to a decree, without any sub- stitution. If the proceeding was instituted by a creditor, who dies before a decree is entered, his representatives may be substituted and the special proceeding continued by them. Section 91. — Death of Party named in Citation. Service of the citation upon a person not named in it, does not affect him or his estate; and so, where a party named in the citation dies before service thereof upon him, a service of it upon his personal representatives does not confer jurisdiction over either them or his estate. (Matter of Georgi, 35 Misc. 685, 72 Supp. 431.) This special pro- ceeding is one in rem and does not abate upon the death of any party respondent but may thereafter be revived and con- tinued against his successors. If, therefore, a party, to whom the original citation was 'directed or who has appeared in the proceeding, dies, before the decree is entered, his suc- cessors in interest — that is : his personal representatives, heirs or devisees, as the case may be — must be brought in by a sup- plemental citation and substituted in his place. However, there seems to be no statutory provision expressly regulating or providing for the substitution of a new party, in case of the death of one named in the citation; and section 765, made applicable by subdivision 6 of section 3347, provides that " This title does not authorize the entry of a judgment against a party, who dies before a verdict, report, or decision is actually rendered against him. In that case, the verdict, report, or decision is absolutely void." Oh. VII, § 92] THE RETURN OF THE CITATION. 151 Under this section it has been held in a contested account- ing where the accounting party died, after the case had been -submitted to the surrogate but before a decision had been filed, that no decree thereon can be entered. (Herbert v. Stevenson, 3 Dem. 236.) Section 92. — Form : Petition to Substitute Party Re- spondent. •(Title of Proceeding.) TO THE surrogate's COURT of Couuty : The petition of of the city of N. Y. respectfully shows: That your petitioner is the sole administrator of the goods chattels and credits of late of said city of , 'deceased, who died intestate; and that the above entitled spe- cial proceeding is now pending in the Surrogate's Court of County and was instituted by your petitioner to procure a decree empowering him to mortgage, lease or sell the real property of said decedent for the payment of his debts and funeral expenses ; that one of N. Y., was an heir of said decedent and a necessary party to this proceeding, and was named as such in the citation which was •duly 'served upon him before the return day thereof. (That said duly appeared in this proceeding and interposed an answer to the petition, whereby it was insti- tuted; and that the trial of the issues raised thereby was in progress, and still pending undetermined, before this court on the day of , 19 — , when said died.) That on the day of , 19 — , said died (State whether testate or intestate and name representative and heir at law or devisee e. g.) intestate leaving him surviving his widow and his only son and sole heir at law; and that subsequently let- ters of administration of the goods, chattels and credits of said , deceased, were duly issued by the surrogate of county to who thereupon qualified and entered upon his duties as such administrator, and is now act- ing as such; and 162 THE RETURN OF THE CITATION. [Ch. VII, § 93 That this special pioceeding is still undetermined and can- not be continued without the substitution of said .... (ividowy and (heir) and as such administrator, in the place and stead of said de- ceased, as parties hereto. (Or otherwise state facts showing reason for substitution of successors to deceased party.) Wherefore your petitioner prays that the court revive this special proceeding against said .... (widow) .... and (heir) and as administrator of the goods chattels and credits of said , deceased, and continue said special proceeding to a final decree therein, and, to that end, that an order be made substituting said (persons named) in the place and stead of said deceased, as parties to this special proceeding, and that they, and each one of them, be cited, by a supplemental citation to be issued out of this court herein, to shove cause, at a time and place therein named why the prayer of the petition, upon which this special pro- ceeding was instituted, should not be granted; and that this proceeding be adjourned until the return day thereof. (Date) (Signature) (Add verification.) Section 93. — Form: Order Substituting Party Respon- dent. At a Surrogate's Court, in and for the county of , held at the office of the surrogate in the city of N. Y., the day of , 190....^ Present, Hon , Surrogate. (Title of Proceeding.) On reading and filing the petition of verified , 19 — , whereby it appears, among other things that the above entitled special proceeding is now pending in this Surrogate's Court and was instituted by said petitioner, asi Ch. VII, § 93] THE RETURN OF THE CITATION. 153 sole administrator of the goods, chattels and credits of , deceased, to procure ~% decree empowering him to mortgage, lease or sell the real property of said decedent for the payment of his debts and funeral expenses ; and that since the commence- ment thereof, and on the day of 19 — , one of , N. Y., who was an heir of said decedent and named as such in the citation herein, died (State whether testate or intestate and name representative or heir at law, devisee e. g.) intestate leaving him surviving his widow and his only son and sole heir at law; and that subsequently letters of administration of the goods, chattels and credits of said , deceased, were duly issued by our surrogate to , who thereupon qualified and entered upon his duties as such administrator and is now acting as such ; (and that said had duly ap- peared in this proceeding and interposed an answer to the pe- tition herein and that the trial of the issues raised thereby was in progress, and still pending undetermined, before this court at the time of his death) ; and that this proceeding cannot be continued without the substitution of said .... {widow) .... and {heir) and as such adminis- trator, in the place and stead of said , deceased, as parties hereto, Now, therefore, on motion of Esq., attorney for said petitioner, IT IS HEREBY OKDEBED that this Special proceeding be, and the same hereby is, revived against said .... {widow) and {heir) and , as administrator of the goods chattels and credits of said , deceased, who are hereby made parties to this special proceeding, in the place and stead of said , deceased ; and IT IS FURTHER ORDERED that a Supplemental citation issue herein directed to said {persons named), and made return- able on the day of , 19 — before this court, requiring tliem to show cause why the prayer of the petition, upon which this special proceeding was instituted, should not be granted; and that due and seasonable service of said supplemental citation be made according to lawj and 164 THE RETURN OF THE CITATION. [Ch. VII, § 94 that this special proceeding be, and the same hereby is, ad- journed until the return day of said supplemental citation. Surrogate. Section 94. — Intervention of Parties. As a general rule any person who has, or who in good faith claims to have, an interest in the subject-matter of any special proceeding pending before a Surrogate's Court, but who has not been named in the citation, may appear upon the hearing and make himself a party {Matter of St. John, 104 App. Div. 460, 93 Supp. 836) ; and if he so appears he will be bound by the decree. (Bogardns v. Clark, 4 Paige Oh. 623 ; Vanderpoel v. VanValkenburgh, 6 N. Y. 190, 199.) Express provision for such intervention in this particular proceeding has been made by section 2755 wherein it is pro- vided that "... A creditor of the decedent, including one whose claim is not yet due, or a person having a claim for unpaid funeral expenses, although not named in the citation, may ap- pear and thus make himself a party to the special proceeding. An heir or devisee, or a person claiming under an heir or devisee, of the property in question, although not named in Ihe citation, may contest the necessity of applying the prop- erty to the payment of debts, judgment liens or funeral ex- penses, or the validity of a debt, due or unpaid, represented as existing against the decedent, or the reasonableness of the funeral expenses; may interpose any defense to the whole or any part thereof; and, for that purpose, may make him- self a party to the special proceeding." . . . (§ 2755.) However the absolute right thus conferred is only given to " a creditor " including a person having a claim for un- paid funeral expenses, or " an heir or devisee or a person claiming under an heir or devisee," but not to a person ■merely claiming to he such; and, if the status of one seeking to intervene be challenged, the question may be determined Ch. VII, § 94] THE RETURN OF THE CITATION. 156 by the surrogate with the main issues (Norton v. Lawrence, 1 Red. 473), or as a preliminary matter. (Matter of Peas- lee, 73 Hun 113, 25 Supp. 940, 56 St. Rep. 134; Matter of Hamilton, 76 Hun 200, 27 Supp. 813, 57 St. Rep. 810; Matter of Thompson, 41 Misc. 223, 83 Supp. 983, aff'd 87 App. Div. 609; Flenry v. Henry, 4 Dem. 253, 3 How. Pr. N. S. 386.) Inasmuch as any sale under a decree in this proceeding is absolutely void as against an heir or devisee, who has not been made a party, it is difficult to perceive why he should intervene. Not so, however, with "a person claiming under an heir or devisee," by a title acquired after the cita- tion has been issued ; for such a person will be bound by the eeholder to be appointed to execute degree. Where there are two or more executors or administrators, if either of them fails, within such time as the surrogate 294 APPENDIX. [§ 3759 deems reasonable, to give, or to join witli his co-executors or co-administrators in giving, a bond, as prescribed in the last section, the surrogate may direct those who have given the bond, to proceed to execute the decree. But if a sole executor or administrator, or all the executors or administrators so fail, the surrogate must make an order, appointing a dis- interested freeholder to execute the decree. He may vacate such an appointment, and make a new appointment, from time to time, as the case requires. A person so appointed must give a bond, in all respects like that required from 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. From 2 R. S. 104, §§ 23 and 24. Repealed by ch. 750 of 1904. Former g 2768. Order directing execution of decree. Where an executor or administrator, or a freeholder ap- pointed 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. Nev7. Repealed by ch. 750 of 1904. Former % 2769. Id. ; as to distinct parcels after appeal. Where the only question, upon an appeal taken from a decree directing a sale of real property, or of an interest in real property, or both, relates to the validity or amount of a debt or judgment lien 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, tbe sale of, or with respect to one or more of which will suffice to pay all the other debts and liens so established and directed to be paid, leaving enough real property or Interest in real prop- erty, 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 .§ 2760] APPENDIX. 295 parcels of real property which will suffice to pay the debts and judgment liens ordered paid, not in controversy; and the pro- ceeds of a sale, made pursuant thereto, to be distributed in like manner as if the decree related only to those parcels and those debts or liens; except that any surplus, which may remain for distribution after payment of those debts or liens, 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 does not authorize a sale of any distinct parcel, otherwise than in the order pre- scribed for that purpose, In sections twenty-seven hundred and sixty-four and twenty-seven hundred and sixty-five of this act. New. Am'a by ch. 735 of 1894. Repealed by eh. 750 of 1904. Section 2760. — Execution of decree not affected by death, et cetera. The death, removal or disqualification, before the complete 'execution of a decree, of all the executors or administrators does not suspend or affect the execution thereof ; but the suc- cessor of the person who has died, been removed, or become disqualified, must proceed to complete all unfinished matters, as his predecessors might have completed the same; and he must give such security for the due performance of his duties as the surrogate prescribes. Former section 2770 from ch. 162 of 1850. Am'd by ch, 750 of 1904. Former § 2770. Id. ; not affected by death, etc. 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 ap- pointed for the purpose, does not suspend or affect the execu- tion thereof; but the successor of the person who has died, been removed, or become disqualified, must proceed to com- plete all unfinished matters, as his predecessor might have completed the same; and he must give such security for the due performance of his duties, as the surrogate prescribes. From cU. 162 of 1850 (4 Edtn. 508). Repealed by ch. 750 of 1904. 296 APPENDIX. [§§2761,2768 Section 2761. — Effect of decree ; manner of executing same, applying proceeds of sale and accounting for same. The executor or administrator must proceed to execute the decree in the same manner, and the execution thereof shall have the same effect, as if he were acting as executor of the decedent under a like power contained in a will of said deced- ent duly executed and proved. He shall apply the proceeds of the real property mortgaged, leased or sold in the same manner as if he had acted under such a power of sale con- tained in a will and all persons interested in the execution, of the decree shall have the same remedies for the enforce- ment of the decree and the application of the proceeds that they would have had if the executor or administrator were acting under such a power. The executor or administrator may account for such proceeds and may be compelled tO' account therefor and for his acts under such decree and shall be entitled to commissions upon the settlement of his accounts. as if he had acted under such a power. New. See ch. 750 of 1904. Former § 2762. Id. ; when title is in controversy. (Repealed by cb. 750 of 1004; for section see page 291 ante). Section 2763. — Purchaser's title not affected by certain irregularities. The title of a purchaser in good faith at a sale pursuant to a decree made as prescribed in this title is not, nor is the validity of a mortgage or lease made as prescribed in this title, in any way affected, where a petition was presented and the proper persons were duly cited and a decree authorizing a mortgage, lease or sale was made as prescribed in this title,, by any omission, error, defect or irregularity occurring be- tween the return of the citation and the making of the decree, except so far as the same would affect the title of a pur- chaser at a sale made pursuant to the directions contained in a judgment rendered by the supreme court. Former section 2784 from ch. 82 of 1850, 5§ 1, 2, 3 ; ch. 260 of 1869; ch^ 92 of 1872 ; ch. 129 of 1878. Am'd by ch. 750 of 1904. § 2764] APPENDIX. 297 Former % 2784. Ftirchaser's title not affected by certain irre- gularities, etc. The title of a purchaser in good faith, at a sale pursuant to a decree made as prescribed in this title, is not, nor is the validity of a mortgage or lease made as prescribed in this title, in any way affected by any of the following omissions, errors, defects, 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 directing a mortgage or lease, or a decree for a sale, and an order directing the execution thereof was made, as prescribed in this title; and the decree, and the order, if any, were duly recorded, as prescribed in article first of title first of this chapter: by any omission, error, defect, or irregularity, occurring between the return of the citation, and the making of the decree, or the order direct- ing the execution of the. decree. 2. Where an order, confirming a sale and directing a con- veyance, has been made, upon proof, satisfactory to the sur- rogate, 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. Repealed by ch. 750 of 1904. Section 2764. — Allowance on bid to creditor purchasing. If a creditor of the decedent becomes the purchaser of any of the decedent's real property, the surrogate may, upon his application, direct the amount of his claim to be allowed, in the first instance, upon the purchase price; and such pur- chaser shall only be required to pay the balance at the time of the sale. But, in case the proceeds of the decedent's real property shall be insufficient to satisfy the costs and expenses of administration and the debts and funeral expenses of the decedent, the purchasing creditor shall be allowed and cred- ited, upon the judicial settlement of the accounts of the exe- cutor or administrator, only the amount he may be entitled to receive upon his claim and shall then pay the difference between the amount originally allowed and the amount he is entitled to receive. In case any purchaser has credit on his. 298 APPENDIX. [§ 2765, 2771 Hd, as aforesaid, no deed shall be delivered to him until the judicial settlement of the accounts of the executor or ad- ministrator nor until he shall have paid the entire amount required under the provisions of this section. From 2 E. S. 105, § 30, as am'd by ch. 231 of 1880, but repealed by ch. 245 of 1880 and re-enacted by ch. 750 of 1904. Section: 2765. — Sale to be refused if bond be given. A decree empowering an executor or administrator to mort- gage, lease or sell shall not be granted if any of the persons interested in the estate give bonds to the surrogate in such sum and with such sureties as he directs and approves, with condition to pay all the debts, legacies and expenses of ad- ministration so far as the goods, chattels, rights and credits of the deceased are insufficient therefor, within such time as the surrogate may direct. New. See ch. 750 of 1904. i Former % 2766. Bond to be given by executor or adminis- trator. (Repealed by ch. 750 of 1904; for section see page 292 ante). Former § 2767. If he refuses, freeholder to be appointed to execute decree. (Repealed by ch. 750 of 1904; for section see page 293 ante). Former § 2768. Order directing execution of decree. (Repealed by ch. 750 of 1904 ; for section see page 294 ante). Former § 2769. Id. ; as to distinct parcels after appeal. (Repealed by ch. 750 of 1904; tor section see page 294 ante.) Former § 2770. Id. ; not affected by death, etc. (Repealed by ch. 750 of 1904 ; for section see page 295 ante.) Section 2771. — What credit allowed on sale. The surrogate may, in the order directing the execution of the decree, or in a separate order made before the sale, allow a sale to be made upon a credit, not exceeding three years, for not more than three fourths of the purchase-money, § 3774] APPENDIX. 299 to be secured by the purchaser's bond, and his mortgage on the property sold, except where the sale is that of an interest under a contract ; in "which case, the order may prescribe the security to be given. . From 2 R. S. 105, § 28. Former § 2772. Mode of sale; notice thereof. Bach distinct parcel of real property must be sold in Ihe county, where it, or a part thereof, is situated. Tte pro- visions of sections one thousand three hundred and eighty- four, one thousand three hundred and eighty-five, one thou- sand three hundred and eighty-six, one thousand four hundred and thirty-four, one thousand four hundred and thirty-five and one thousand four hundred and thirty-six of this act apply to a public sale of real property, or of an interest in real prop- erty, as prescribed in this title. In making the application each provision relating to the sheriff is deemed to apply to the person making the sale, pursuant to the decree and the order directing the execution thereof. A private sale of real property, or of an interest in real property, must be made by contract in writing, subject to the approval of the surrogate. From 2 R. S. 104, 110, §§ 25, 26 and 59. Am'd by ch. 213 of 1885. Repealed by ch. 750 of 1904. Former | 2773. Distinct parcels to be sold separately. Where real property to be sold at public sale consists of one or more distinct parcels, the person making the sale must cause each distinct parcel to be separately 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. Am'd by ch. 213 of 1885. Repealed by ch. 750 of 1904. Section 2774. — Who not to purchase. An executor or administrator upon the estate, a freeholder appointed to execute a decree, or a general or special guardian of an infant, who has an interest in any of the real property to be sold, shall not, directly or indirectly, purchase, or be, or, at any time before confirmation, become interested in a purchase at the sale; except that a guardian may, when authorized so to do by the order of the surrogate, purchase, in his name of oifice, for the benefit of his ward. A violation of this section renders the purchase void. From 2 R. S. 104, § 27. 300 APPENDIX. [§ 3777 Former % 2715. Order to vacate sale. Resale. The person making the sale must, with all convenient speed, file with the surrogate, a report of the sale. The surrogate must, upon notice, given in such 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 distinct parcel of real property separately sold, or in case of a private sale of the same, that the sum at which it is agreed to be sold, was less than the value thereof at the time of sale, and that a sum exceeding that bid, or in case of a private sale, exceeding that at which it is agreed to be sold, 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, and whether it shall be at public or private sale, notice of which. In case of a public sale thereof, must be given, and the sale must be con- ducted as in this title prescribed for a public or private sale as may be applicable. From 2 E. S. 105, § 29. Am'd by eh. 213 of 1885. Bepealed by ch. 750 of 1904. Former % 2776. Order to confirm sale. Conveyance there- upon. Where a sale is not vacated, the surrogate must make an order confirming it; and where it is vacated as to a part only of the property sold, he must make an order confirming it as to the residue. An order, confirming a sale, must direct the person making the sale to execute the proper conveyances, upon compliance, on the part of the purchaser or purchasers, with the terms of the sale. The necessary conveyances must be executed by that person accordingly, and must briefly refer to the decree, the order to execute it, and the order of con- firmation. From 2 R. S. 105, §§30 and 31. Repealed by ch. 750 of 1904. Section 2777. — When conveyance not to affect purchaser or mortgagee from heir, etc. A conveyance of real property, made pursuant to this title, does not affect, in any way, the title of a purchaser or mort- gagee, in good faith and for value, from an heir or devisee of the decedent, unless letters testamentary or letters of ad- ministration, upon the estate of the decedent, were granted. § 2777] APPENDIX. 301 by a surrogate's court having jurisdiction to grant them, upon a petition therefor, presented within four years after his death. From ch. 845 of 1869, § 1, as am'd by ch. 211 of 1873. Former § 2778. Effect of conveyance in other cases. Except as prescribed in the last section a conveyance of real property, executed upon a sale thereof, pursuant to this title, vests in the grantee all the estate, right and Interest of the decedent in the real property so conveyed, at the time of his death, free from any claim of his widow for dower, which has not been assigned to her; but subject to all subsisting charges thereon by Judgment, mortgage or otherwise, which existed at the time of his death, unless the said real property is decreed to be sold free and clear from the lien of any judgment or judgments established by the decree and ordered to be paid as far as possible from the proceeds of such sale, as provided for in sections twenty-seven hundred and ninety- one and twenty-seven hundred and ninety-three of this act, in which event such lien or liens shall be transferred by such sale from the land sold to the proceeds thereof. Where dower has been assigned to the widow, the grantee takes the part of the property to which her estate in dower attaches, subject thereto. From 2 R. S. 105, %% 31 and 32. Am'd by ch. 735 of 1894. Repealed by ch. 750 of 1904. Former § 2779. Contract for lands ; how sold. Where any of the property to be sold consists of an interest, under a contract for the purchase of real property, and any payment is yet to be made upon the contract, the sale must be made subject to all payments, thereafter to become due thereupon; and it may, also, if the decree, or the order to execute the decree, so directs, be made subject to all payments, previously due thereupon. If the sale is subject to any pay- ment, the terms of sale must specify the penalty and the number of sureties, required in the bond to be given by the purchaser, as prescribed in the next section, and must state to what payments the sale is subject. From 2 R. S. Ill, §§67 and 68; ch. 460 of 1837, % 42. Repealed by ch. 750 of 1904. Former § 2780. Id. ; purchaser's bond for payment therq upon. Where a sale is made subject to any payments, as speciflo.^ in the last section, the purchaser must, before the sale is con- 302 APPENDIX. [§§ 3783, 3783 firmed, execute to the executor or administrator of the de- cedent, his bond, with sureties, for the benefit and indemnity of the obligee and his successors, and also, the persons entitled to the interest of the decedent in the lands so contracted for, in a penalty at least twice the amount of all the payments, subject to which the sale is made; conditioned that the pur- chaser will punctually make all those payments, and will fully indemnify the obligee and his successors, and each of the persons so entitled, against all demands, charges, costs, and expenses, by reason of any thing contained in the contract, or by reason of any other obligation or liability of the de- cedent, on account of the purchase of the property; and against all other covenants and agreements of the decedent, to and with the vendor of the property, in relation thereto. From 2 R. S. Ill, §§ 67 and 68 ; ch. 460 of 1837, § 42. Repealed by ch. 750 of 1904. Former §2781. Id. ; when interest in part of land may be sold. But where an interest under a contract for the purchase of real property is liable to be sold, as prescribed in this title, the decree, or the order for the execution thereof, may direct a sale of the decedent's interest in a part only of the property, if, in the opinion of the surrogate, such a sale can be made advantageously to the estate of the decedent, and so that the purchase-money of the part sold will satisfy and discharge all the payments, to be made for all the property contracted for, according to the contract. In such a case, the purchaser is not required to execute a bond. From 2 R. S. 112, § 70. Repealed by ch. 750 of 1904. Section 2782.— Id. ; effect of conveyance of decedent's interest. A conveyance of the decedent's interest in all the real property, held by him under a contract for the purchase thereof, operates as an assignment of the contract to the pur- chaser ; and vests in him, his heirs and assigns, all the right, title, and interest of all the persons entitled, at the time of the sale, in and to the decedent's interest in the real property. From 2 R. S. Ill, § 69. Section 2783. — Id. ; effect of conveyance of part. A conveyance of the decedent's interest in a part only of the real property, held under such a contract, transfers to § 3785] APPENDIX. 305 the purchaser all the decedent's right, title and interest in and to the part so sold ; and all rights, which would be ac- quired thereto, by the executor or administrator, or by any person entitled, at the time of the sale, to the interest of the decedent therein, by perfecting the title to the property con- tracted for, pursuant to the contract. Upon fully complying with the contract, the purchaser has the same right to enforce performance thereof, with respect to the part conveyed to him ; and the executor or administrator, or his assignee, has the same right to enforce performance, with respect to the residue, as the decedent would have had, if he was living. Any title acquired by the executor or administrator, or his assignee, with respect to the part not sold, must be held in trust for the use of the persons entitled to the decedent's in- terest ; subject to the dower of the widow, if any. From 2 R. S. 112, §§ 74 and 75. Former § 2784. Purchaser's title not affected by certain irregularities, etc. Repealed by ch. 750 of 1904; tor section see page 297 ante.) Section 2785. — Id. ; presumption where records have been removed. "Where the records of the surrogate's court have been here- tofore, or are hereafter, removed from one place to another, in either the same or another county, and twenty-five years have elapsed after a sale or other disposition of real property, or of ah interest in real property, as prescribed in this title, the due appointment of a guardian for each infant party to the special proceeding must be presumed, and can be disproved only by affirmative record evidence to the contrary. From ch. 82 of 1850, § 3, as am'd by ch. 92 of 1872 and ch. 129 of 1878. Former % 2786. Proceeds to be paid into court ; effect thereof. The proceeds arising from a mortgage, lease or sale, mads 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 twenty-five hundred and thirty-seven of this act. Upon payment being so made the heirs and devisees of the decedent, and their assigns and all 304 APPENDIX. [§ 2785 the decedent's remaining real property, and interest in real property, held under a contract for the purchase thereof, are exonerated from the debts and liens established by the decree and ordered to be paid, or established and ordered to be paid as prescribed in the next section but one, as far as the pro- ceeds so paid over are suflacient, after deducting the costs and expenses allowed by the surrogate, to satisfy those debts or liens. From 2 E. S. 105, Part 2, ch. 6, tit. 4, § 33 and part of § 35 (2 Edm. 110). Am'd by ch. 735 of 1894. Repealed by ch. 750 of 1904. Former § 2787. Notice of distribution of proceeds. Immediately after the payment into court of the proceeds of a mortgage, lease, or sale, as prescribed in the last section, the surrogaite 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 news- paper published in the county of the surrogate. From Id., remainder of § 35, and part of § 40. Repealed by ch. 750 of 1904. Former § 2788. Hearing ; proofs of further debts or liens. At the time and place designated in the notice, or at the time and place to which the hearing is adjourned, the sur- rogate must hear the allegations and proofs of the creditors or lienors, and of the persons interested in the estate, or in the application of the proceeds, respecting any demands 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 es- tablishing debts, or judgment liens and as to payment of judg- ment liens, and preserving the evidence thereof, before making the decree, apply to the proceedings respecting any demand so presented. A debt or judgment lien, which was established by the decree, may be again controverted, upon the hearing pro- vided for in this section, upon the discovery of new evidence impeaching the same, and upon such a notice to the claimant, as the surrogate directs, but not otherwise. From Id., §§41 and 42. Am'd by ch. 735 of 1894. Repealed by ch. 750 of 1904. Former § 2789. When sale of unsold property may be directed. Where the decree was executed with respect to a part only of the real property or interest in real property, specified ^ 2785] APPENDIX. 305 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, and all judgment liens established and decreed to be paid therefrom, together with the demands ■ established as prescribed in the last section, and all other sums payable out of the same, as prescribed in the last section, and all other sums payable out of the same, as prescribed in this title, the surrogate must make an order, as prescribed in section twenty-seven hundred and sixty-eight of this act, directing the execution of the decree, with respect to the re- mainder, or so much thereof as is necessary. The proceedings thereupon and subsequent thereto are the same as upon and subsequent to the first order for the execution of the decree. Am'd by ch. 735 of 1894. Repealed by ch. 750 of 1904. Jbrmer % 2790. Proof of claims to surplus money. 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. From ch. 170 of 1870, §§ 2 and 3 (7 Bdm. 664). Repealed by ch. 750 of 1904. Jbrmer % 2791. Decree for distribution. The surrogate must, by supplementary decree, made and re- corded in like manner as the first decree, determine the rights of the creditors, judgment lienors and other persons interested, to share in the proceeds and direct the distribution thereof accordingly. Where the rights of creditors or judgment lienors are established and their claims decreed to be paid, and there is a surplus, respecting the distribution of which a contest arises, he may make a supplementary decree, providing for the payment of the creditors and judgment lienors only; and re- serving 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 aggrieved thereby, as from the first decree; except that it is not necessary or proper to make any creditor or judgment lienor a party to an appeal from the second supplementary decree. Am'd by ch. 735 of 1894. Repealed by ch. 750 of 1904. Jbrmer § 2792. Id. ; county treasurer to distribute. Each supplementary decree must fix the sums to be paid or invested, as prescribed in the following sections of this title, 20 306 APPENDIX. [§ 3785 as far as they can be then fixed. If any sum cannot be then fixed, it may be fixed by the order of the surrogate subse- quently 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. Repealed b; cb. 750 of 1904. Former % 2793. Distribution ; how made. 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, 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 notfce to her, as the surrogate deems reasonable, she presents an instrument under seal, acknowl- edged 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 present such an instrument, by paying to her such a sum. If it shall appear to the surrogate that the decedent's widow is an infant, lunatic or otherwise incompetent, and that a general guardian or committee has been appointed, upon proof that it will be for the best interest and advantage of the estate of such infant, lunatic or incompetent widow, the sur- rogate must authorize and direct such guardian or committee, in the name of such infant, lunatic or incompetent widow,, having such dower right, to execute an instrument under seal, acknowledged or proved and certified in like manner as a deed to be recorded in the county, whereby such guardian or committee shall consent to accept in lieu of dower a sum to be ascertained by the surrogate as above provided, accord- § 2785] APPENDIX. ZOl ing to the principles applicable to life annuities; and upon presentation of such an instrument to the surrogate, the value of the right of dower so ascertained by him shall be paid to such guardian or committee. Such instrument shall have the same force and effect as a deed or instrument executed and acknowledged by a competent person. 4. Out of the remainder of the money, arising upon a mort- gage, lease or sale, must be paid the costs of the special pro- ceedings awarded to the petitioner in the decree. 5. Out of the remainder of the money must be paid in full or to such extent as the money applicable thereto will pay the same, and according to their respective priorities, all judgment liens established and ordered, paid by the decree, upon either the first or second hearing, and which were not disallowed or held invalid by either of such decrees. But no part of such moneys arising from the disposition of any real property of decedent, or any portion thereof, shall be applied toward the payment of any judgment lien established by the decree, except where such proceeds have arisen from the dis- position of such real property, or a portion thereof, upon which said judgment lien is established hy decree as existing at the decedent's death. 6. Out of the remainder of the money must be paid the sura, if any, which has been found to be due to the executor or administrator, upon a judicial settlement of his account, after applying thereupon the proceeds of the personal property. But this subdivision does not authorize the repayment, to an executor or administrator, of any sum paid by him to a creditor of the decedent, exceeding 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 decedent, and the proceeds of property disposed of as pre- scribed in this title. 7. 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 decree, and were not rejected upon the second hearing. 8. Out of the remainder of the money must be paid, in full, the other debts, which were established 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 prescribed by law for payment of a de- cedent's debts by an executor or administrator out of the personal assets, without giving preference to rent, or to a specialty, or to any demand on account of an action pending 308 APPENDIX. [§ 2785 thereupon; and paying debts not yet due, upon a rebate of legal interest. 9. Out of the remainder of the money must be paid. In like manner, the debts first established by the supplementary de- cree, or so much thereof as the remainder will pay. 10. If any surplus remains, it must be distributed among the heirs and devisees of the decedent, or the persons claim- ing under them, and among those pgrsons who have pre- sented and proved liens upon the interest 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 supplementary decree. But, if the pro- ceeds of any of the property sold have 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 persons entitled thereto, by the terms of the will. Any person having a right of tenancy by the curtesy in such surplus may, if he so elects, receive therefrom a gross sum in satisfaction of such right. From 2 R. S. 106, 107, 112, § 36, as amended by ch. 400 of 1863, - §§ 37, 38, 39, 43, 71 and 73 (2 Bdm. 110, 112, etc.) Am'd by ch. 652 of 1886 ; ch. 640 of 1893 and ch. 735 of 1894. Repealed by ch. 750 of 1904. Former % 2794. Dower in lauds under coutract ; how com- puted. 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 remaining, after deducting from the money arising upon the sale, all sums due from the decedent, at the time of the sale, for the real prop- erty so contracted and sold. From 2 R. S. 112, § 72. Kepealed by ch. 750 of 1904. Form&r § 2795. Fund set apart for dower ; how invested, etc. 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 treasurer, under the direction of the surrogate, in the public securities of the State, or of the United States, or in permanent mortgage securities, bearing interest payable annually, or oftener. The interest, 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. § 2785]- APPENDIX. 309 must sell the public securities, or collect the sums loaned upon mortgage, and distribute the proceeds less the costs and ex- penses, as prescribed in the last section but one, for the dis- tribution of the remainder of the money, after satisfying the claim for dower. From 2 E. S. 106, 108, §§ 37 and 46. See § 2800. Repealed by ch. 750 of 1904. Former % 2796. Id. ; share belonging to infant, etc. 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 investment 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 determination of the temporary interest; and then, for the payment of the principal to the person or per- sons entitled thereto. Or where surplus money is distributable to an infant, the decree may, in the discretion of the sur- rogate, direct that the same be paid to his general guardian upon the latter giving such additional security, if any, as the surrogate directs, or if it is one hundred dollars or less, that it 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 to the use of the infant until its majority. From eh. 150 of 1850, §§1 and 2 (4 Edm. 508). Am'd by ch. 399 of 1882. Bepealed by eh. 750 of 1904. Former § 2797. Effect upon proeeedinga under this title, of an action to foreclose, etc. The commencement or pendency of an action or special pro- ceeding, having for its object the sale, either absolutely or contingently, of property liable to be disposed of as prescribed in this title; or the foreclosure by advertisement, of a mort- gage 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 proceedings taken as prescribed by this title, unless the surrogate so directs. After making a decree direct- ing a mortgage, lease or sale, the surrogate 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 310 APPENDIX. [§§ 3798, 2799 proceeding, or by the proceedings then pending, until the de- termination thereof, 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's court, the decree must provide for the ap- plication of the surplus proceeds belonging to the decedent's estate. If such a sale is made afterwards, the directions con- tained in the decree, relating to the property sold, are deemed to relate to those proceeds. New. Repealed by ch. 750 of 1904. Section 2798. — Surplus money on foreclosure and other sales ; when paid to surrogate. Where real property, or an interest in real property, liable to be disposed of as prescribed in this title is sold, in an action or a special proceeding specified in the last section, to satisfy a mortgage or' other lien thereupon, which accrued during the decedent's lifetime; and letters" testamentary or letters of administration, upon the decedent's estate were, within four years before the sale, issued from a surrogate's court of the State having jurisdiction to grant them ; the sur- plus money must be paid into the surrogate's court from which the letters issued pursuant to the provisions of section twenty-five hundred and thirty-seven of this code, and the receipt of the county treasurers shall be a sufficient discharge to the person paying such money. If the sale was made pur- suant to the directions contained in a judgment or order the surplus remaining after payment of all the liens upon the property, chargeable upon the proceeds, which existed at the time of the decedent's death, must be so paid. If the sale was made in any other manner, the surplus exceeding the ]ien to satisfy which the property was sold, and the costs and expenses must within thirty days after the receipt of the money from which it accrues, be so paid over by the person receiving that money. From ch. 658 of 1867, § 1 (7 Bdm. 142), as amended by ch. 834 of 1871 (9 Edm. 210). Am'd by ch. 686 of 1893. Section 2799. — Id. ; how distributed. Where money is paid into a surrogate's court, as pre- scribed in the last section, and a petition for the disposition § 8800] APPENDIX. 311 of property, as prescribed in this title, is pending before him; or is presented at any time before the distribution of the money; the decree may provide that the money be paid to the executor or administrator to be applied by him as if it was the proceeds of the decedent's real property, sold pursuant to the decree. If such a petition is not pending or presented, or if a decree for the disposition of the decedent's property is not made thereupon, a 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 <;ause, why such a decree should not be made. Service of the citation may be made upon all the persons designated therein, by publishing the same in two newspapers desig- nated as prescribed in article first of title second of this chapter, at least once in each of the four successive weeks immediately preceding the return day thereof, except that personal service must be made upon the husband, wife, heirs and devisees of the decedent, and also upon every other per- son claiming under them, or either of them who resides in this State. Upon the return of the citation, the rights and priorities of the persons interested must be established and a decree for distribution must be made. From ch. 658 of 1867, § 2, as am'd by eh. 170 of 1870. Am'd by ch. 535 of 1881 and by ch, 750 of 1904. Section 2800. — Sale of dower right in decedent's real property. Where the widow of the decedent, or a party to the proceeding, has an existing right of dower in the real estate directed to be sold the court must consider and deter- mine whether a more advantageous sale can be made of such real estate by including the sale of such right of dower ; andj if it shall be determined by the court that a larger sum will be realized on such sale, applicable to the payment of debts and funeral expenses, by including in such sale the right of dower, the interest of the party entitled thereto shall pass thereby ; and the purchaser, his heirs and assigns, shall hold the property free and discharged from any claim by virtue of that right. The regulations and provisions of article two 312 APPENDIX. [g 3801. title one of chapter fourteen of this act, prescribing the rulea^ of practice in relation to the right of dower in actions for the partition of real estate, so far as the same may be appli- cable, shall govern and control the disposition of moneys realized on such sale which shall belong to the owner of said right of dower. Added by ch. 430 of 1905 and in eftect May 16, 1905. Former § 2800. Securities and leases ; surrogate's duty re- specting the same. Except as otherwise specially prescribed in this title, a se- curity taken or an investment made, pursuant to any provision thereof, must be taken or made in the name of the county treasurer, adding his official title, and his successor's in office. Each security so taken, and all the papers connected there- with, 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 prescribed by, law for that purpose, or for the application of the money represented by the security. From 2 R. S. 107, Part 2, ch. 6, 'tit. 4, §§ 44 and 45, and part of § 37 (2 Edm. Ill) ; ch. 150 of 1850, part of § 2 (4 Edm. 508). Repealed by cti. 750 of 1904. Section 2801.— Restitution for assets subsequently dis- covered. 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 expenses as prescribed in this title, and assets, which should have been applied thereto, are after- wards 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 exe- cutor, administrator, legatee or next of kin, the heir, devisee or other person aggrieved may maintain an action to pro- cure reimbursement therefrom. New, Am'd by ch. 735 of 1894 and by ch. 750 of 1904. § 2801a] APPENDIX. 313. Former §2801. Bestltution, for assets subsequently dis- covered. "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 expenses, or judgment liens established and ordered paid, as prescribed in this title, and assets, which should have been applied thereto, are afterward discovered; or, for any other reason, money or other personal property of the decedent, which should have been applied thereto, after- wards comes to the hands of the executor, administrator, legatee or next of kin, the heir, devisee, or other person aggrieved may maintain an action to procure reimbursement therefrom. Section 2801a. — (Added by chapter 502 of 1908.) When a person dies seized of the legal title to lands in this state, and another person claims to hold the beneficial interest in an executory contract made by the decedent for the sale and conveyance of such lands to the ven- - dee therein named, or to his successors in interest, the exe- cution and delivery of a deed of such real estate by the exe- cutor or administrator of the decedent's estate, to the holder of said contract, having the effect of conveying all of the right, title and interest of the decedent at the time of his death in and to said lands, may be authorized and compelled upon the application of such executor or administrator, upon the conditions and in the manner hereinafter provided. Upon receiving written notice of any such claim, sub- scribed by the claimant and requesting that proceedings be instituted under the provisions of this section, and containing particulars as to the date of the contract, the amount of the purchase price, the time or times when installments thereof were or will become due and payable, the sum, if any, ad- mitted to be still due or unpaid thereon, a description of the lands in question and a statement of any other condition applying to the vendee, the executor or administrator may, in his discretion, apply to the surrogate from whose court his letters were issued, for an order authorizing and directing him to execute a deed of such lands to the person entitled thereto upon such terms as the court may prescribe. The executor or administrator may, in his discretion, ac- cept from the claimant a deposit of money to secure the es- tate for any costs and expenses of the application; such inoney to be retained by the executor or administrator to the 314 APPENDIX. [§ 2801a extent of anj costs or expenses thus paid or incurred only in the event that the claimant neglects unreasonably to tender performance of his part of the contract, or to be ready and willing to perform -when requested, pursuant to the order, if any, to be entered on such application. The application shall be by petition, duly verified, which shall set forth the facts hereinabove provided to be contained in said notice, and such other facts in relation to said matter as may have come to the knowledge of the executor or admin- istrator, together with the names of the decedent's heirs, devisees and surviving husband or wife, if any, and of all persons claiming under them or either of them, so far as known, and shall pray for a citation to all such heirs, devisees, wife, widow or persons, requiring them to show cause before said surrogate why an order should not be entered authorizing such conveyance. Upon the return of such citation and after hearing the proofs in support of the petition, or in opposition thereto, the surrogate shall make such order as justice requires. If it is found that the enforcement of said contract at law would be subject to a valid defense, in favor of any party to said proceeding, the petition shall be dismissed. If it is found that such contract is valid and in force and that the vendor had not, in his lifetime, effectually conveyed his interest in said lands in fulfillment thereof, the order shall direct such -conveyance to be made by the executor or administrator, upon receiving the balance of the purchase price, when due, if there be any such unpaid balance, which amount shall be specified in the order, or upon the compliance by the claimant with any other condition imposed on him by the contract. Under such order, if the purchase money on the contract is not due and the claimant elects to pay the whole amount thereof, before maturity, the executor or administrator shall receive the same and shall thereupon execute and deliver the deed hereinabove provided for. A conveyance made in pursuance of such order shall be binding on all of said persons in interest who were duly cited in the proceeding. An order dismissing the petition shall not prejudice the right of the claimant under said con- tract to a civil action for specific performance nor to any other remedy then existing at law or in equity; but the de- livery and acceptance of a deed of conveyance executed in § 3801a] APPENDIX. 315 pursuance of an order granted as prescribed in this section shall be deemed a complete fulfillment of such contract. An order directing a conveyance under the provisions of this section may be enforced, at the instance of the person entitled to such conveyance, by contempt proceedings in the manner provided for the enforcement of a decree under section twenty-five hundred and fifty-five of this act, provided it is shown that such person tendered performance of his part of the contract, or was ready and able to perform when re- quested, within a reasonable time after the order was en- tered. Upon such a proceeding costs and disbursements may be allowed and included in the order, payable from the estate, in the sums specified in section twenty-five hundred and sixty-one of this act. Added by ch. 502 of 1908 and in effect September 1, 1908. GENERAL INDEX. ABATEMENT. page does not occur on death of party 148, 150 ABSCONDING. executor or administrator; service of citation on.... 251, 252 ACCEPTANCE. of devise on condition that devisee pay decedent's debts.. 52 ACCOUNT. or statement by executor or administrator, for purpose of inquiry when creditor petitions 82, 96, 98 upon settlement of, executor or administrator entitled to commissions 226, 255, 269, 270-273 ACCOUNTING. of executor or administrator 255, 270, 271, 272 in one proceeding for both real and personal property . 271, 272 parties to 272, 273 ACKNOWLEDGMENT. waiver of citation must have 142, 143, 144 ACTION. between creditor and executor or administrator may ex- tend time to institute proceeding 59 for restitution where assets discovered after proceeds of real property applied to payment of debts 275 of partition 38-42 to set aside fraudulent conveyance 44, 64 extends time for instituting proceeding, when ,. . 59 ADDITIONAL SERVICE of citation; in case of infant or incompetent person 115 317 318 INDEX. ADJUDICATION. page of contest as to validity of debt • 19, SZ ADJOURNMENT. of hearing 146, 147 ADMINISTRATION. expenses of, not debt of decedent 73, 77, 193, 194, 195, 196 grant of, upon revocation of former letters.. 248, 250, 252, 253 revocation of letters 248, 249, 250, 251, 252 vacancy in 63, 64 ADMINISTRATOR OR EXECUTOR. accountable for acts under decree 17, 269-272 act of, cannot affect running of statute of limitations as against heirs 179, 181, 182, 197-199 cost of bond an expense of 246 death, removal or disqualification of 149, 254 empowered to dispose of real property by decree.. 18, 227, 231 entitled to commissions on accounting ....17, 226, 255, 269, 270, 273 may disaffirm act done in fraud of creditors 43, 44 institute proceeding 68, 69 not purchase 261 show that actual assets are less than amount of inventory 207 petition by, to set forth personal property which has come to his hands, etc 80, 82 selling real estate fraudulently 257 should interpose statute of limitations as defense against debt 206 to execute decree as though empowered by will . . 13, 16, 17, 254, 255, 256 file bond 13, 17, 244, 245 render account or statement if necessary for inquiry 82, 96, 98 apply proceeds as though acting under testamentary power 194, 254, 266 receive notice of proceeding for revocation of his letters, 250 reserve sufficient funds to meet his commissions .... 267 who fails to give bond 248, 249, 250 ADMISSION. of claim by executor or administrator does not affect statute of limitations 181, 182, 197, 199, 200 INDEX. 319 AFFIDAVIT. PAGE as to service upon lunatic 125 form of, to procure order for substitsted service 123 to procure order dispensing with service upon lunatic 125 of service of citation ; 121, 122 publication of citation 128 sureties to bond of executor or administrator 246 service of citation to be proved by 137, 138 ALLEGATIONS. and proofs of parties heard by surrogate ..145, 146, 179, 209 ALLOWANCE. by executor or administrator establishes claim unless objection made 181, 184, 188 ALLOWANCE. on bid to creditor purchasing , 258, 259 to executor or admlnjetrator for services of attorney and counsel 225 special guardian out of general fund or estate 169 AMENDMENT. of citation 102, 176 petition 83, 84, 176 to correct defects and supply omissions 176, 265 ANCILLARY. executor or administrator may not institute proceeding 68, 69, 70 letters of administration 70 purpose of 70, 71 ANSWER. as to sufficiency of petition, etc 174 contents of 177 objection that proceeding was not instituted within time limited may be taken by 205 should be verified 177 APPEAL, costs on appeal 212, 224 from^ order upon motion for new trial 212 special guardian may take 169 ;320 INDEX. APPEARANCE. pa-ge by attorney 158 cures deficient service of citation 143 form: notice of appearance by attorney 159, 160 must be personal in proceeding to punish for contempt.. 158 of creditor though not named in citation 154 infant or incompetent person, how made and effect of 160, 161 party confers jurisdiction over him 143 person Interested, to make himself party 154 special 159 APPLICATION. for appointment of special guardian 162 by infant himself. 162, 165 eight days' notice required when made by person other than infant or committee of incompetent 162, 164, 165 for new trial, made to surrogate after verdict certified . . . 213 order for service of citation by publication 128 directing decree to be executed by those who have given bond; by whom made 249 revocation of letters of sole executor or administrator on failure to give bond 249, 250, 251 ASSETS. certain Interests In real estate deemed assets 21, 22, 23 definition of word 21 discovered after application of real property to payment of debts 275 doubtful not considered 207 Include contracts for sale of lands 47 may be shown to be less than amount of Inventory 207 misappropriation of 208, 209 other than those contained in inventory may be shown by heir or devisee 207 proof of amount available, necessary for a decree 217 ATTORNEY. allowance for services of 225 form: notice of appearance by 159, 160 party may appear by 142, 143, 15S AVAILS OF REALTY. cannot be taken except for debts of decedent and funeral expenses _. 19S INDEX. 321 AVAILS OF RBAUTX— Continued. page not distributed or accounted for in special proceeding itself 17 ■when deemed real property 28, 33, 35, 38, 268 AWARD OF COSTS. may be to any party 224, 225 BOND. by executor or administrator 16, 244, 245 conditions of 245 cost of, included In expenses of executor or administrator. 246 failure to file by executors or administrators ground for revocation of letters 248, 249, 250, 251, 252 form: bond of executor or administrator 246, 247 must be approved by surrogate 246 penalty of 245, 246 how fixed 245 two or more sureties 244, 245, 246 required of successor to executors or administrators whose letters have been revoked 248, 252, 253 to prevent decree; conditioned to pay all debts, legacies, etc., 227 BURYING GROUND. private, exempt from disposition 47 CASH. sale must be for cash unless otherwise ordered 256, 257 CERTIFICATE OP SHERIFF. given purchaser of real property sold on execution 29 CHILDREN. expense of maintaining, after death of father, not his debt. 197 ^CITATION. due personal service of, establishes jurisdiction over person 136 for accounting of executor or administrator 272, 273 -form: citation 112, 113 order dispensing with service upon lunatic 126 for 107, 108, 109 supplemental 148 petition for supplemental 147, 148 proof of service 139, 140, 141, 142 waiver of 144 :21 322 INDEX. CITATION— Continued. page issued by surrogate according to prayer of petition ..105, 109 may be issued when 57 signed by clerk if ordered by court i. .106, 114 order for, not required 106 service of 114, 144 supplemental, to bring in person omitted 88, 147, 176 representatives of person who has died before service upon him 150' surrogate may decline to issue, when will contains valid power of sale 105, 106 to any person having interest in property 99, 109 be issued by surrogate or from the court 106, 111 contain names of persons cited 101, 102, 111 executor or administrator who has failed to give re- quisite bond 251, 252 several persons having equal rights to be appointed administrator 250- unknown persons under general description 87, 102 upon return of, surrogate to hear allegations and proofs of parties 145, 146, 179 before hearing, proof made that all parties have been duly cited 146 waiver of 142, 143 by appearance of attorney with written author- ization 142, 143, 158 instrument in writing 142, 158 personal appearance .142, 143, 158 general appearance will cure deficient service of 143, 185 143, 158 defect in petition as to juris- diction 143: not in case of infant 142, 143, 161 where name of party cannot be ascertained 101, 102, 111 where party dies between Issuance of, and decree 87, 88" with due proof of service, to be filed 146 CLAIMS OF CREDITORS. action on, when to be commenced after rejection 201 against decedent, do not include costs against executor or administrator 197 amount of, when allowed on bid 258, 259 establishment of 179, 180, 181, 182. 184, 185 for funeral expenses, preferred 188, 267 may be contested , 181 INDEX. 323 CLAIMS OF CREDITORS— Conhnwed. page not established in the proceeding 18, 81, 82, 181 proven by judgment obtained against executor or administrator 184, 185 yet due may be paid 74, 75, 77 proof of 81, 82 material only in certain cases 82 rejection of, proceedings on 200, 201 validity of not necessarily adjudicated by decree 82 when determined by surrogate 182, 183 ■when barred by statute of limitations not revived by ad- mission of executor or administrator 197, 198, 199, 200 when challenged, must be proven 181 outlawed may be objected to by creditors whose demands are not barred 200 CLERK OP SURROGATE'S COURT. may not issue citation as of course 106 sign citation issued from the court 106, 111 not to act as special guardian 163 COMMENCEMENT. of three years' period in which proceeding may be insti- tuted is at grant of principal letters 57 COMMISSIONS. estimated, how 274 of executor or administrator, awarded when.. 17, 226, 255, 269, 270, 273 COMMITTEE OF INCOMPETENT PERSON. to appear in proceeding 160 be served with copy of citation 118 when interest adverse to incompetent 161 surrogate may order delivery of citation in behalf of incompetent person to another person 118 CONFIRMATION OF SALE. none under present procedure 257 CONSENT. form : consent of special guardian 167 of person to be appointed special guardian 163 widow to receive gross sum for dower 221 324 INDEX. CONTEST. PA-GE as to necessity of applying real property to payment of debts 18, 154. 179, 181 ireasonableness of funeral expenses. . .19, 154, 179, 180 181, 187 validity of debt of claim 19, 154, 179. 180, 181, 187 CONTINUANCE OF PROCEEDING. when cause not ready for hearing 146 CONTRACT FOR PURCHASE OF LAND. conveyance of, operates as assignment of contract to pur- chaser 259 conveyance of part of decedent's interest in, transfers all right, title and interest in part sold 260 is real property of purchaser 46 widow has equitable right of dower in 222 CONTRACT FOR SALE OF LAND. is personal property of deceased vendor 47 made by decedent; new proceeding for collection of .... 276 CONTROVERSY. as to rejected claim may be referred 201 title of any land sought to be sold 220 CONTROVERTED QUESTION OF FACT. trial by jury 210,211 surrogate 209 CONVEYANCE. by executor or administrator to holder of contract of sale made by decedent -. 276, 277 of decedent's interest under contract 259 part of decedent's Interest under contract 260 real property in fraud of creditors 43, 44, 45 to wife of real property bought with pension money .... 48 when not to affect purchaser or mortgagee from heir or devisee 66 COSTS. against executor or administrator not debt of decedent.. 197 may include expense of executor's or administrator's bond. 246 include legal fees for official search of title 171 of proceeding awarded by surrogate 224, 225 amount of 225 of appeal from order upon motion for new trial . . . .212, 224 INDEX. 325 CREDITOR. PAGE definition of word 76 includes person having claim for expense of administration 193, 194 includes person having claim for funeral ex- penses 188 form : creditor's notice of pendency of action 62 petition by creditor 93, 94, 95, 96 may apply for revocation of letters of executor or ad- ministrator who has failed to give bond 250, 251 may enforce imperative power of sale 218 institute special proceeding 55, 56, 68, 72 not creditor by mortgage 68, 72 with claim not due 74, 75 maintain action to set aside fraudulent convey- ance 43, 44' make himself party to the proceeding. .19, 75, 154, 179 object to demands outlawed 200 not named in petition 82 rights of, not defeated by misappropriation of personal property 209 where action on claim is adverse, he may not present same demand in this proceeding 19 who has presented petition and dies before decree 150 presents petition, to name each executor or adminis- trator 80, 84 CREDIT. on sale may be allowed by surrogate 256 CURTESY. estate by, subject to disposition for wife's debts 85 DEATH. of creditor does not extend time to institute proceeding. . 63 executor or administrator does not affect execution of decree 254 does not extend time.. 63, 64 party named in citation before service upon him.... 150 petitioner 149 respondent 87, 88 DEBTS OF DECEDENT. amount of, set forth in petition 17, 79, 82 do not include costs against executor or administrator. . 197 expenses of administration 73, 195 326 INDEX. DEBTS OF DECEDENT— Continued. page established by allowance of executor or administrator un- less objected to 179, 180, 181, 182, 184 not payable in this proceeding out of property devised especially charged with their payment 16, 51, 52 proven by judgment against executor or administrator 185 due may be presented to executor or administrator... 74 order in which they are to be paid 267, 268 payable from avails of real property 15, 20, 21 out of personal assets 14, 17 validity of — when adjudicated by decree 82 determined by surrogate 182 DECISION. to be filed by surrogate 213, 214 in case of reference 210 DECREE. confers power of sale 255, 256 power to mortgage or lease 255 does not command, but empowers 228 necessarily adjudicate validity of debts 82 effect of decree 254, 255 empowers disposition of real property 13, 18, 78, 209, 228 form: decree empowering disposition Z3B-242 how to be executed 13, 16, 254, 255, 256 not granted if bond be given 227 if person interested assures payment of all debts 173 without proof of jurisdictional facts 217 should describe property to be sold 228 empower all the executors or administrators to dispose of the property 69, 86 limit amount to be raised thereby . . .' 255 provide for order of selling parcels 228 Tecite that parties were duly cited 146 under former procedure — order in which parcels sold 233 to mortgage or lease 230 recite debt and liens 229 sell 231, 232 when title is in controversy 232 where undivided interest or precedent estate created by will 233, 234 ■will not bind heirs or devisees not parties to voluntary accounting 273 INDEX. 327 DEED. PAGE form: deed by executor or administrator 262, 263 DEFAULT. of parties cited 170 DEFECT. in citation, how remedied 102, 176 petition, liow remedied 84, 143, 175, 176 service of citation on infant or Incompetent not waived by appearance 160, 161 DESIGNATION. of persons wliose names cannot be obtained 101, 102 unknown persons to be cited 87, 123 DEVISE. of real property charged with payment of debts 51, 52 DEVISEE. may appear and make himself party 154, 179 contest debts or funeral expenses 19, 154, 179, 181 necessity of applying real property to pay- ment of debts 18, 154, 179, 181 maintain action for restitution, when 275 show other assets than those in inventory 207 to be named in petition 80, 84 who accepts devise upon condition that he pay debts of decedent, liable therefor 52 DISCONTINUANCE OF PROCEEDING order of surrogate therefor 173 not as of course 172 DISMISSAL. of petition, for unreasonable neglect to proceed 173 not after decree made 173 DISPOSITION. of avails of property of infant or incompetent 29 decedent's share of partnership property 27 estate by curtesy 85 property held in common 25 joint tendancy 25 tenancy by entirety 26 328 INDEX. DISPOSITION— Conhwwed. P-*^Gir real property for payment of debts, etc 20, 21, 196- empowered by decree 78, 86, 209, 227, 228- real property in this proceeding not prevented by valid power of saie 218 not authorized for payment of expenses of adminis- tration 194 power of, under decree 16, 17 under will 15, 16 DISTRIBUTION. of proceeds of real property, how made. .17, 18, 52, 266, 267, 268^ surplus moneys, when erroneously paid into Supreme Court 37 DISQUALIFICATION. of executors or administrators, does not prevent execution of decree 149, 254 DOWER. gross sum to be paid in satisfaction of 221, 222 right of in real estate may be sold 171, 221 proceeds paid into court and invested for widow's benefit 222: not sold after assignment to widow 223 widow has right of, in lands held under contract .... 222, 223 ESTATES. enumeration of 22, 23 at will 22, 23 by sufferance 22, 23 for life 22, 23 in fee simple 22 of inheritance 22, 23' EXAMINATION. to be made by surrogate before issuing citation 105- making decree 170,217 EXECUTION. sale of real property, on 29 sheriff's certificate of sale, on, 29 deed 29, 30, 31 EXECUTOR. (See Administrator.) having testamentary power of sale need not institute proceeding 55> INDEX. 329 EXEMPT FEOM DISPOSITION. page real property exempt from levy and sale under execution. 47 bought with pension money 48 devised expressly charged with payment of debts 51, 52, 5a EXPENSES OF ADMINISTRATION. not debts of decedent 73, 77, 195 EXPENSES OP PROCEEDING. allowance for attorney and counsel of executor or ad- ministrator 225 commissions of executor or administrator 226 costs allowed by statute 212, 224, 225 cost of bond of executor or administrator 246 fees for official search of title 171 of referee and witness 225 FORECLOSURE. of mortgage or lien against decedent's real property. 35, 36, 37 judgment on, direction as to surplus 37 for deficiency 72 FORMS. affidavit to procure order dispensing with service upon lunatic 125 affidavit to procure order for substituted service 123 bond of executor or administrator 246-247 citation 112 consent of special guardian 167 creditor's notice of pendency of action 62 decree empowering disposition 235-242 deed by executor or administrator 262-263 notice of appearance by attorney 15* order allowing intervention 157 appointing special guardian 167 directing trial by jury 211 dispensing with service upon lunatic 126 for citation 107 service out of state, or by publication 131 substituted service 124 supplemental citation 148 requiring additional service in case of incompetent. 120 requiring additional service in case of infant .... lift requiring an account or statement from executor or administrator lOO substituting party respondent 152. 330 INDEX. FOTiUS— Continued. page petition by creditor 93 executor or administrator 88 for intervention 156 supplemental citation 147 to substitute party respondent 151 proof of service 139 subpoena upon inquiry 99 waiver of citation 144 FRAUDULENT CONVEYANCE BY DECEDENT. action to set aside 44 may be disaffirmed by executor or administrator 43, 44 judgment setting aside, may provide for sale of property45, 65 when set aside, property subject to disposal 64 FUNERAL EXPENSES. amount of, to be set forth in petition 17, 79, 82 may be contested 19, 154, 179, 180, 181, 187 include, what 188, 189 erection of suitable headstone. .188, 189, 191, 192 payable out of personal property 17 proceeds of real property sold under dis- cretionary power of sale 15 preferred to all debts and claims against decedent 17, 188 real property devised expressly charged with their pay- ment 16, 51, 52, 53 reasonableness of 187 GUARDIAN, GENERAL. has no authority to appear before service of citation 160 may appear for infant 160, 161 purchase for ward if authorized by surrogate 261 must be appointed in this state 166 name of, to be set forth in petition 84 service of citation on 116 to have due notice of application for special guardian... 165 GUARDIAN, SPECIAL. appointed, how 164 on return day of citation 112, 162, 165 for incompetent who does not appear by com- mittee 162, 165 infant who does not appear by general guardian 112, 162, 165^ compensation of 169 must come from ward or ward's estate .... 169 only costs out of general estate 169 INDEX. 331 GUARDIAN, SPECIAL— Confmued. page duty of 168, 169 for infant whose general guardian institutes proceeding.. 85 form : consent of special guardian 167 order appointing special guardian 167, 168 may be appointed for incompetent person at any stage of proceeding .' 119, 164 notice of application for 164, 165 not to purchase property sold in this proceeding 261 except by order of surrogate 261 parent of infant cannot appear for him unless appointed guardian 166 who may not be 163 written consent of, filed 163 HEADSTONE. cost of, part of funeral expenses 72, 188, 189, 191, 192 HEARING. claims against decedent may be contested on 181 of allegations and proofs on return day of citation 179 controverted questions 209 reference in aid of 209 jury trial in aid of 210 HEIR. action by, for restitution, when 275 contract for purchase of land, descends to 46, 47 may appear though not cited 154, 179 be cited though not named in petition 101 contest debts or funeral expenses 19, 154, 179, 181 necessity of appropriating real property 18, 154, 179, 181 show assets other than those inventoried 207 must be named in petition 80, 84 when not cited 154, 179 HUSBAND. estate by curtesy of 85 name of, set forth in petition 84 INCOMPETENT PERSON. citation, how served personally on 118, 164 form : order requiring additional service in case of . . 120-121 may appear by his committee 160 notice of application for appointment of special guardian. 164 special guardian appointed for 119, 162, 164, 165 surrogate may dispense with service of citation on .... 118 332 INDEX. INFANT. PAGE cannot waive issuance or service of citation 142, 143 citation directed to, contents of 112 how served on 116, 117, 119, 122, 128, 129 form: order requiring additional service in case of Infant. 119 may appear by general guardian 160 notice of application for appointment of special guardian. 164 when special guardian to he appointed for ..85, 161, 162, 165 INQUIRY. form : subpoena upon inquiry 99 surrogate to make, before issuing citation . . 84, 96, 97, 101, 102 may issue sabpoena for 98, 102 INTERVENTION. form : order allowing 157 petition for 156 should be by petition 156 who may intervene 154, 155 INVENTORY. not required in this proceeding 47, 123 surrogate may consider, if on file 207 IRREGULARITIES. not to affect purchaser in good faith, when 263, 264, 265 may be cured by amendment 83, 84, 102, 162, 168, 176 JUDGMENT. against decedent establishes debt 185 entered after his death not lien upon realty 186 amount unpaid thereon subject to inquiry 186 against executor or administrator, not proof of decedent's debt ^ 185, 201 for deficiency on foreclosure 73 setting aside fraudulent conveyance may provide for sale of property involved 45, 65 JUDGMENT LIENORS. not necessary parties 93 JURISDICTION OF SURROGATE'S COURT. affected by three years' limitation 63 appearance of adult waives defect in petition relating to juris- diction of the person 158 herein, governed by general provisions relating to jurisdic- tion 175, 176 INDEX. 333 JURISDICTION OF SURROGATE'S COVRT-Continued. page none, to inquire into validity of conveyance by decedent 64 not determined by situs of property 78, 82 over person acquired by due service of citation. . .117, 132, 136, 161, 163 special appearance to raise question of 159 JURY TRIAL. controverted questions of fact 210 form: order directing trial by jury 211 verdict certified to Surrogate's Court 310, 313 conclusive unless new trial granted 211 LETTERS TESTAMENTARY OR OF ADMINISTRATION. granted to person entitled who will execute decree after letters revoked 248, 250, 3.53 may be revoked upon failure to file bond or execute decree. . . . 258, 249, 850, 351, 252 LIMITATION. period of three years, within which proceeding may be insti- tuted 56, 57, 64 affects jurisdiction of Surrogate's Court 63 extension of in certain cases 59, 61 general statute of 198, 300, 303, 306 not affected by act of executor or administrator. 181, 197, 199, 300 stayed by institution of proceeding 199 short statute of, six months 301, 202 three months 203 LUNATIC. committee of, must be appointed in this state 166 form: affidavit to procure order dispensing with service upon lunatic 125 form: order dispensing with service upon lunatic 126 service of citation on 118, 125 special guardian may be appointed for 119 MASSES FOR THE DEAD. no allowance for, as funeral expenses 189 MONUMENT. allowance for as funeral expense 188, 193 MORTGAGE. of real property empowered by decree .13, 18, 237, 228, 355 surplus upon foreclosure of 35, 36, 37, 38 dower in 38 if deficiency remains on foreclosure, creditor may present peti- tion 72 334 INDEX. NOTICE OF PENDENCY. page form : creditor's notice of pendency of action 62 of action by creditor, extending time to institute proceeding. . . 59 to be recorded and indexed 61 what notice should specify 59 OBJECTION. raised by answer 174 motion to dismiss petition or set aside citation. . . .174, 175 to claim or debt nullifies admission by executor or administra- tor 181, 182, 188 decree available only on appeal 175 that proceedings have uot been in conformity to law 177, 178 personal estate is not insuflScient to pay debts 177 petition was not presented within three years 177, 178 real property is not subject to disposition 178 when not made by respondent upon return of citation 170 PAPERS. service of, after appearance by attorney 158 PARTIES. creditor may appear and make himself party 179 dying before decree 87, 88, 150 may appear to raise questien of jurisdiction only 159 be brought in by supplemental citation 88, 147 contest debts or funeral expenses 181 necessity of applying real property to payment of debts 181 file answer to petition 177 prosecute or defend in person or by attorney 158 omission of necessary party cured by amendment or supple- mental citation 176 person interested may appear and make himself party 154 to special proceeding — those cited or who intervene Ill, 113 who are necessary, to the proceeding 84, 87 to accounting 273 whose names cannot be ascertained by petitioner 101, 103 PARTITION SALE. proceeds continue to be realty 38, 48 PARTNERSHIP REALTY. disposition of share of deceased partner 27, 28 PENDENCY OP ACTION. between executor or administrator may extend time to institute proceeding 59, 60, 61 INDEX. 335 PENDENCY OF ACTIOl'J— Continued. page form : creditor's notice of 62 notice of, filed in county clerk's office 59 PENSION. real property bought with, exempted 48, 49 PERSONAL PROPERTY. allegations as to amount of, established to satisfaction of surro- gate 206 amount of, to be set forth in petition 80, 82, 206 certain interests in realty deemed 31, 22, 23 discovered after application of real property to payment of debts 27.5 doubtful not considered 207 includes contracts for sale of lands and moneys unpaid thereon . 47 may be shown to be less than amount of inventory 207 misappropriation of 208, 209 other than contained in inventory may be shown by heir or devisee 207 primary fund for payment of debts, 14, 17 proof of amount available, necessary for a decree 217 to be exhausted before resorting to proceeds of real property for payment of debts 268 PETITION. form : petition by creditor 93-96 petition by executor or administrator .88-93 may be on information and belief 80 omission or defect in, cured by amendment or supplemental citation , 57, 88, 84, 176 person interested not named in, to be cited 109 requisites of 17, 79,80,82,206 fact to be set forth if name cannot be ascertained by petitioner^. 101, 102 must be verified - 79 set forth amount of debts and funeral expenses. .17, 79, 82, 170 inadequacy of assets for their payment 17, 79, 83 names of all representatives when made by one of several executors or administrators 86 executors or administrators 80, 84 every person interested in real estate of decedent. 85 general guardian of infant who is heir or devisee. 84 heirs and devisees 80, 84 husband or wife of decedent 80, 84 occupants of parcels of real property 83 general description of all of decedent's real property 83 336 INDEX. PETITION— Contmwed. page state value of each distinct parcel 83 whether it is improved and occupied 83 whether encumbered by mortgage lien 83 statement of amount due thereon 83 served with citation in New York County H^ POWER OF ^DISPOSITION. (See Testamentary Power.) POWER OF SALE. (See Testamentary Power.) PROCEEDS. accounting for 269, 270, 271, 272 of partition sale continue to be realty 38, 42 are subject to disposition 38 real property disposed of under decree, how applied 254, 266, 267 real property, fraudulent conveyance whereof has been set aside 44 PROOF. burden of, in establishing claim 172, 183 judgment against decedent ^ . . 185 against representative not evidence of debt 185 necessary for a decree 215, 216, 217 of individual claims not necessary to decree 18 service of citation 114, 137, 138 by affidavit 137, 138 by written admission 137 form: proof of service 137, 140, 141, 142 PUBLICATION. form: affidavit of 140 order for service out of state or by 131, 132, 133 order for service by ; when and how made 128, 129, 130 proof of service by 138 service of citation by 136, 127, 128 when complete 134, 135 PURCHASER. from heir or devisee, when protected 266 of decedent's interest in land contract 360 title of, not afifectcd by certain irregularities 363, 264, 265 when superior to prior unrecorded deed 24 when on credit 356 when claim of, deducted from his bid 258, 259 who may not be 361 INDEX. 337 'QUESTION OF FACT. page evidence on, taken and reported by referee 209, 310 trial of by jury , 210 surrogate 209, 210 REAL PROPERTY. accounting for proceeds of 369, 270, 271, 273 amount of to be sold, limited by surrogate 219 contracts for purchase of 46 decedent's interest in, how conveyed 259, 260 converted into personalty by will 14 conveyance of, by executor or administrator to holder of con- tract of sale made by decedent 276, 377, 278 conveyed in fraud of creditors 43, 44, 45, 64 creditor purchasing, may have amount of claim allowed on bid, 357, 359 devised charged with payment of debts 16, 53 exempt, not subject to disposition for payment of debts. . .47, 48, 49 general description and value of in petition 79, 83 ■order of sale of parcels 173 proceeds of, on partition sale 38, 43 when disposed in this proceeding, how ap- plied 194, 254, 366, 267 purchaser's title to, not afEected by certain irregularities 263, 364, 265 share of a partner in, when subject to disposition 37, 38 situs of, effect on jurisdiction 82 sold on execution , 29, 31 deemed realty when purchaser entitled to deed 39, 30 redemption of 31 ■subject to disposal for decedent's debts 30, 21, 24 testamentary power of sale 55 surplus moneys on foreclosure sale 35, 36, 37 title to, in controversy 330 value and character of, shown in petition 170 when converted into money before sale in Surrogate's Court — 33 conveyance of, not to affect purchaser or mortgagee from heir or devisee 365, 366 who not to purchase 261 IIBDEMPTION. of real property sold upon execution 39, 31, 33 REFEREE. fees of 335 may be appointed to take and report evidence 306 power of • • 209 52 338 INDEX. RESTITUTION. page action for, when 275 by heir or devisee or other person aggrieved 275 REVIEW. of jury trial, by motion for new trial 312 REVOCATION OF LETTERS. grant of administration to successor may be in same special proceeding 253 of executor or administrator for failure to give bond. . .- 348, 249, 250, 251, 252 upon application of person interested 249, 350, 351 SALE ON CREDIT. may be allowed by surrogate 256 SECURITY. required of executor or administrator 13, 17, 244, 253 successor to executor or administrator , .149, 252 to prevent decree ; conditioned to pay debts, etc 327 SET-OFF. of judgments, surrogate no jurisdiction to allow. 187 SETTLEMENT. (See Accounts.) SHERIFF. certificate of, oli execution sale 29 deed of, on execution sale 30, 31 SPECIAL APPEARANCE. (See Appearance.) SPECIAL GUARDIAN. (See Guardian, special.) SPECIAL PROCEEDING. by whom instituted 67, 68, 69, 72, 73 cannot be dismissed after decree made 173 does not lapse 112 , how instituted '. . 78 I institution of, effect on statute of limitations 199 not authorized until grant of principal letters 77, 78 not to be abandoned at option of petitioner 172 parties to Ill, 112 surrogate may order discontinuance of. 173. STATUTE OP LIMITATIONS. (See Limitation.) INDEX. 339 STJBPCENA. PAGE form: subprena upon inquiry 99 to aid inquiry by surrogate 97, 102 wliere necessary facts not sliown by petition 97, 99 SUBSTITUTE FOR PERSONAL SERVICE. form : aflBdavit to procure order for substituted service 123 none in case of infant under fourteen years 123 upon resident where he cannot be found or evades service 131 SUCCESSOR. to executor or administrator, must complete unfinished business. 149, 254 must give security 149 SUPPLEMENTAL CITATION. form : order for supplemental citation 148 petition for supplemental citation 147, 148 for representatives of party dying before service upon him 150 vfhere necessary parties have been omitted, or not cited 88, 147, 17a SURPLUS MONEY. after payment of debts and funeral expenses, is real property. . 267, 268 dower in, on foreclosure of purchase money mortgage 38 on foreclosure may be appropriated for payment of decedent s debts 35 should be paid into SuiTOgate's Court, when 35, 65 TEMPORARY ADMINISTRATOR. may not institute proceeding , 57, 69 TESTAMENTARY POWER OP SALE. discretionary or imperative 15, 16 does not prevent disposition in this proceeding 218 executor having, need not institute proceeding 55, 106 imperative, may be enforced by court of equity 318 TIME. when proceeding may be instituted 56 extended during pendency of action to set aside fraudu- lent conveyance 64 how extended 59 not by death of creditor 63 nor by vacancy in administration 64 340 INDEX. TITLE. PAGE in controversy. 320 of purchaser not affected by certain irregularities 363, 264, 365 affected if conveyance made by heir or devisee, when. 365, 366 TRIAL BY JURY. (See Jury trial.) VACANCY. in administration does not extend time for instituting proceed- ing 64 VALIDITY. of a judgment against the decedent 186 contested claims, determined by surrogate 19 conveyance, not subject to inquiry by Surrogate's Court 64 debts, may be contested by any party 186 by heir or devisee 154, 179 not necessarily aldjudicated by decree 83 VERDICT. of jury certified to Surrogate's Court 310, 213 conclusive unless new trial granted < 311 VERIFICATION. of petition , 79 before what oflScer 79 if made without the state, now certified 79 WAIVER OF CITATION. by appearance in person 143, 158 attorney 143, 158 instrument in writing 143, 158 form: waiver of citation 144 must be acknowledged, certified and filed 144 none by infant or incompetent 143, 143 WIDOW. a necessary party 86 has right of dower in land purchased by contract 222, 323 her estate not affected, if dower has been assigned 86, 333 may receive gross sum in satisfaction of dower. 331, 323 must be named in petition 80, 84 WITNESS. fees of . . , 225 f ■/«' V i _