■f ^ !,1 i i. •fi nv ^' Cornell University Library KFN5205.M12 1888 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/cletails/cu31924022809911 SURROGATE LAff AND PRACTICE. i-ji 1 BEING A TREATISE ON THE JURISDICTION OF THE SURROGATE'S COURT, AND THE REMEDIES OFFERED THEREBY. COMPRISING, ALSO, THE LAW OF Wills, Executors, Administration, Legacies, and Guardians, WITH COMPLETE FORMS FOR PRACTICE. TI3:i3EMD E3DITI02Sr. RB-WKITTEN AND ENLARGED BY Robert H. McClellan, CODNSBLOB AT LAW, AND FORMER SURROGATE OF RENSSELAER COUNTY. ALBANY, N. Y.; W. 0. LITTLE & CO., 1888. "3 7^^/7 Entered according to Act of Congress, By Robbkt H. McClellan, In the office of the Librarian of Congress, 1888. KIGGS PBINTINQ HOUSE, PBDSTING, ELECTEOTTPINQ JlSD BINDING, 461 BEOADWAT, ALBANT, N. T. PREFACE TO THIRD EDITION. During the seven years and upwards since tlie Code of Civil Procedure lias been in force, there have been so many decisions, settling the construction and efEect of so much of the Code as affects the practice in Surrogate's Courts and the duties of per- sonal representatives, that the author has been able to state the law with confidence. The Code did, indeed, change the practice ; but until it shall be again changed, or substantially amended, the law may be considered pretty weU settled for the present I have given the latest cases, have added to the forms, end beheve that the work wiU be acceptable and entirely reliable. Trot, September 1, 1888. EOBEET H. McCLBLLAN. TABLE OF OONTENTa CHAPTER I. PAGE Of the surrogate's court, and the powers and duties of the surrogate generally 1 CHAPTER II. Pleading in surrogate's court, and process and service thereof, etc 22 CHAPTER III. Hearing ; trial by jury ; reference 50 CHAPTER IV. Of wills, their execution and probate Section I. Of wills, who may make them 57 Section II. The execution of wills 60 Section III. Nuncupative wills 70 Section IV. The revocation of wills 72 CHAPTER V. How an executor is appointed, and the powers of the execu- tor before probate 76 vi Table of Contents. CHAPTER VI. Section I. ^^^ "What -wills may be proved ; the petition and citation 80 Section II. Of the proof of the will 90 Section III. Opinions of witnesses 107 CHAPTER Vn. Of mental unsoundness 112 CHAPTER VIII. Letters testamentary 124 CHAPTER IX. Probate of heirship '. . . 157 CHAPTER X. Administration 161 CHAPTER XI. General provisions in regard to letters testamentary and of administration.; for what reasons letters are revoked, etc. . 198 CHAPTER XII. Discovery and recovery of assets 225 CHAHTER XIII. Appointment of appraisers and the inventory 233 CHAPTER XIV. Of the collection and care of the estate 258 CHAPTER XV. Advertising for claims, and reference of disputed claims 299 Table of Contents. vii CHAPTER XVI. PAGE Funeral expenses and debts 319 CHAPTER XVn. Gifts and legacies and distributive shares, and payment thereof 378 CHAPTER XVIII. Accounting and settlement 398 CHAPTER XIX. The effect of the decree of the surrogate, and how it may be enforced 494 CHAPTER XX. Of the mortgage, lease or sale of real estate 519 CHAPTER XXI. Provisions as to sales by executors under powers given in the will, and confirming of sales 578 CHAPTER XXII. Guardians and wards 581 CHAPTER XXIII. Resignation of guardian 625 CHAPTER XXIV. Appeals 638 TABLE OF CASES. A. PAGE Abbey v. Christie 66 Abercrombie v. Holder 433 Ackermau-v. Emott 288, 4To Ackley v. Dygert 309, 534 Adair v. Brimmer 249, 265, 266, 287 420, 425, 426, 580 Adams v. Curtis 373 Adams, Matter of 426 Adee v. Campbell 463 Ainslee v. RadcliflE 832 Alexander v. Alexander 451 Allen v. Eighme 181 Allen V. Pub. Adm'r . . . 100, 113, 119 131 Ames V. Armstrong 267 Ames V. Duryea 81 Ames V. Downing 279, 284, 425 Andrews v. Townsbend 585 Angevine v. Jackson 640 Applegate t. Cameron 248 Archer V. Furniss 351 Armstrong v. Moran 383 Arser v. Orser 97 Arthur v. Nelson 446 Ashwell V. Lomi 119 Atkins V. Kinnan 529, 557 Atkinson v. Striker 318 Anderson, Goods of 63 Auken v. Kiener 370 Austin V. Monroe 331, 334 Austin, Estate of 438 B. Bacon v. Bacon 469 Bacon v. Benning 9 Baggatt V. Boulger 318, 505 Baier v. Baler , 486 Bailey v. Berger 363 Bailey v. Hilton 85, 498, 499 Bailey v. Stewart 83 Bailey V. SpofEord 270 Bain v. Matteson 188 B PAGE Bainv. Pine 376 Bainbridge v. McCuUough . . 431, 435 439 Baining v. Gunn 263 Ball V. Miller 539 Bankv. Crary 239 Bank T. Hasbrouck 496, 497 Bank of Niagara, Matter of 479 Burkhelter v. Norton 249 Banks v. Wilkes 267 Barber v. Barber 61 Barber v. Converse 171 Baskin v. Baskin 196 Barlow v. Myers 371 Barnes v. Barnes 354, 397 Barnes v. Underwood 463 Barnett v. Kincaid 536, 539 Baruettv. Gould 815 Barnett v. Noble 436 Barsalou v. Wright 306 Bartlett, Exparte 586 Bartlett v. New York 9 Barto V. Tompkins 561 Barry v. Lambert 258, 361 Baskin v. Baskin 63, 437 Bascom v. Albertson 200 Bate V. Graham 373 Battle, Matter of 516 Baucus V. Barr 497 Baucus V. Stover. . . 245, 349, 350, 435 434, 445, 511, 518 Bayeaux v. Bayeaux 77 Bayer v. Philips 600 Baylis v. Swartwout 389, 393 Bay ley v. Blackman 64 Beams v. Gould 11 Becker v. Lawton 322 Becker, Matter of 37, 147 Beckett, Will of 65 Beckett, In re 64 Bedell v. Carll 379 Bedford, Matter of 56 Table of Cases. PAGE Beebe, Matter of 333 Beebe v. Bstabrook 455, 456 Beers, Exparte . . . : 64, 66 Beers v. Shannon 336 Belding v. Leichardt 66 Belden v. Meeker 180 Belden v. Knowlton 363 Belden v. Weekes 137 Bamfield v. Ramsey 311 Benjamin v. Taylor 336 Bennett v. Grain 375 Bennett v. Byrne 597 Bennett v. Noble 434 Bentley, Matter of 345 Bertine v. Hubbell. 366 Bariwick v. Halsey 426 Beste V. Burger , 283 Betts V. Betts 443, 448, 450 Bevan v. Cooper . . . 101, 338, 885, 388 397 Bible Soc. v. Oakley 147, 197 Bibb V. Thomas 74 Birdsall v: Hewlett 453 Bishop V. Bishop 339 Blakev.Blake 477 Blanchard v. Nelson 132 Blanck v. Morrison 165 Blancan, Matter of 78 Bleecker v. Lynch 119, 131 Bloodgood v. Bruen 334, 371 Bloodgood V. Gregory 324 Bloom V. Burdick 11, 179, 544 Blossom V. Hatfield 373 Boerum v. Betts 25, 416 Boerum v. Schenck 475, 551 Bogert, Matter of 889 Bogert V. Hertell . . 260, 262, 263, 283 Bogert V. Furman 242 Bogert V. Van Velsor 286, 290 Bohde V. Bruner 447 Bolton V. Jack 85, 163 Bolt V. Rogers 551 Bonfantie v. Deguerre. . 404, 406, 408 Boone v. Cit. Sav. Bank 262 Boniller v. Mestre 138 Borst V. Spelman 380 Bostwick V. Atkins 284, 475 Bostwick V. Burns 864 Bostwick V. Beach 578, 579 Bostwick V. Watkins 556 PAGE Botsford V. Krake 71 Boughton v: Flint.. 883, 383, 433, 428 435 Boyle V. St. John 221 Boyer v. Marshall 325 Bradley v. Bradley 185 Btadner v. Faulkner 339, 452 Brainerd v. Birdsall 253 Bramley v. Forman 503, 506 Brant v. Wilson 7^ Brennan v. Lane 307, 258 Brevoort v. McJimsey 199 Brewster v, Balch 180, 496 Bricks, Estate of . .. 6, 16, 17, 315, 495 498, 499 Brick V. Brick 90, 14, 114 Brigham v. Budle 345 Brigham v. Jones 189 Brigham v. Marine Bank 334 Bright V. Currie 278 Brill V. Wright 398 Brink v. Gould 379 Brockett v. Bush 310 Broderick v. Smith 317 Brooks, Estate of 331 Bromley v. Miller. 270 Bronson v. Bronson. . . . 447, 476, 488 Brooks, Estate of 242 Brown's Accounting 265, 442, 448 Brown, Exparte 187 Brown, In re 451 Brown v, Campbell 474 Browne v. Bedford 488 Brown V. Knapp 453 Brown v. De Selding 64, 67 Brown v. Lyneh 586 Browne v. Lange 303, 305 Brown v. Lange 431 Brown v. Pub. Adm'r 333 Broom v, Van Hook 430, 438 Brownson v. Roberts 445 Burmaster v. Orth 593 Bruen, Estate of 343 Bruce v. Griscom 458 Bryan v. Stewart 324 Bucklin v. Chapin 306, 308, 309 Buckley, Matter of n Buckley v. Buckley . . 244 Bucklin v. Bucklin 379 Buokliurst V. Hunt 305, 363 Table of Cases. XI PAGE Buchan v. Rintoul 409, 433 Buchanan, Matter of 418, 443 Buckley v. Staats 333 Bullock V. Bogardus 800, 363 Bundy v. Bundy 365 Burdette, Estate of 177 Burdick v. Johnson 601 Burhans v. Burhans 313 Burke, Matter of 605 Burke's Will 131 Browne v. Bedford 425 Bunn V. Vaughn 189 Burr, Matter of 468 Burritt v. SlUiman 64 119 Burt V. Burt 258, 307 Burtis V. Dodge 444, 452, 453 Burwell v. Shaw 128 Bush V. Lee 513 Buskin v. Chapin 306 Butler, Matter of 243, 253 Butler V. Butler 61 Butler V. Benson 97 Butler V. B. and A. R. R. Co. . . . 477 Butler V. Emmett 533, 557, 559 Butler V. Johnson 430, 579' Byrnes v. Dibhle 167 Byrne v. Van Hoesen 583, 601 C. Cady, Matter of 210 Cairns v. Chaubert 444, 447 Calanan v. McClure 318 Camp V. Camp 456, 457 Camp V. Frazier 236, 330, 343 Campbell, Estate of 557 Campbell v. Browne : 376 Campbell v. Bruen 407 Campbell v. Cowdrey 453 Campbell v. Johnson 384 Campbell v. Logan. ... 61, 64, 66, 73 Campbell v. Thacher 16 Cant, Estate of 387 Cary v. Gregory 334 Carle v. TJnderhiU 23, 60, 68 Carnes v. Wilkins 303 Carroll v. Hughes 369, 426, 441 Carroll v. McFarland 339 Carroll v. Norton 63 Carter v. Beckwith 363 Cartwrlght v. Cartwright 117 PAGE Casey v. Gardner 133, 173, 174 Casoni v. Jerome 188, 496 Caswell V. Com. of Taxes 335 Caulfield v. Sullivan 140, 300 Caulkins v. Bolton 286, 323 Caw V. Robertson 95 Cha. Co. Bank v. "White ... 336 Chaffee v. Bap. Miss. Conv. 64. . . 97 Chalker v. Chalker 365 Chambers v. Queen's Procter 117 Chamberlain V. Chamberlain.. 00, 200 Chamberlain v. Taylor 579 Chapman v. Tibbetts 600 Chase v. Ewing 455 Chase, Matter of 191 Cheeseman v. "Wiggins 243, 373 Children Aid Soc. v. Loverige ... 95 Chipmau v. Montgomery 400 Christy v. Libby 399 Church V. Howard 260 Churchill v. Prescott . . . 168, 300, 426 493 Chouteau v. Suydam 325 Cipperly v. Baucus. 499 Clapp V. Meserole 189, 382 Clapp V. Fullerton 109 Clapp V. Clapp 333 Clark V. Clark, 266, 268, 390, 433, 453 599 Clark V. Bogardus 383 Clark V. Butler 146 Clark V. Battorf 250, 425 Clark V. Ford. . 371, 405, 406, 408, 430 Clark V. Fisher 114, 119, 131 Clark V. Montgomery . . .583, 594, 599 601 Clark V. State 180 Clark V. Van Amburgh 349, 381 Clayton v. Wardell 247, 299 Cleveland v. "Whiton 343 Clift V. Moses 374, 530 Clinch V. Eckf ord 445, 446 Clock V. Chadeagne 408, 411 Close v. Shute 408 Cluett v. Mattice 185 ClufE, Estate of 487 Clute V. Gould 476, 478 Clowes V. Van Antwerp 311 Coates V. Cheever 1 Coates V. Coates 389 Xll Table of Cases. PAGE Cobbv. Mussey 828 Cocks V. Barlow 286 Codding v. Newman 133 Coev. Coe 314 Coffin V. Coffin 63, 66, 67, 119 Cozine v. Horn 587, 598 Coggsball V. Green 214 Coben's Estate 62 Cole V. Ward 599 Cole V. Terpenning 348, 394 Colsou V. Braluerd ' 534 Columbian Ins. Co. v. Stevens. . . 362 Collamer, Matter of 365 Collins' Estate 525 Collins T. Hoxsie 450 Colegrove v. Horton 128 Collier v. Idley's Ex'rs 151 Collier v. Mimn 412 CoUyer v. CoUyer 101, 189, 285 Collyer, Matter of 244, 415 Collamer, Matter of 369, 428 CoUioun V. Jones 118,120 Colt V. Lasmer 283 Colter V. Layer 75 Conover v. Hoffman 73 Conrad v. Archer. 80 Consules, Re 485 Converse v. Miner 309 Cook V. Lowrey 474 Cooke V. Meeker 453, 454 Cook V. Colingridge 263 Cook V. Ryan 278 Cooke V. Piatt. 188 Cooper, Matter of 619 Cooper V. Felter 305, 307, 332 Coope V. Lowerre 131, 167 Copley V. O'Neil 603 Copeland v. Van Alst. 55 Cordier v. Thomjpson. . 336 Cornes v. Wilkins 317, 318 Cornwell v. Coruwell 191 Cornwell v. Wooley 95 Coruwallis' Estate 526 Cornwell v. Deck 270, 319, 331 Cottle v. Vanderbeyden 165, 166 Cottrell, "Will of 64,, 97 Cottrell V. Brock , 128, 214 Couch V. Delaplaine 560 Courtney v. "Williams 389 Cox V. McBurney . , 242 PAGE Cox V. Sohermerhorn 445 Craft V. "Williams 267, 268 Craig V. Craig 481 Creamer v. Waller 254 Cregin v. Brooklyn R. R. Co 275 Crispall V. Dubois 130 Cowdrey, Estate of 350 Crosier v. Cornell Co 127 Crosier v. Steamboat Co 183 Crowe V. Brady 250 Cruger v. Halliday 481 Cunningham's Estate 433 Cunningham, Matter of 433 Curry, Estate of 333 Curry, Matter of 230 Curser, In re 171 D. Dakiu V. Deming. . 400, 441, 445, 600 Damarell v. Walker 621 Danielsv. Pond 239 Darling v. Halsey 314 Darling v. Pierce 4 Davids, Matter of 581 Davies v. Skidmore 508 Davis V. Crandall 32, 385 Davis V. Christian 260 Davis V. Davis 566 Davis V. Patchin 36 Davis V. Stover 377 Davoue v. Fanning 284, 580 Dawson, Exparte 587, 598 Dawes v. Shed 334, 496 Day, Expai;te 60 Day V. Stone 336 Dayton v. Johnson 194 Dearing, Matter of 210 Decker v. Elwood 499 De Cordova v. De Cordova. . 249, 263 Decker v. Miller 349, 281, 425 Delaplaine v. Lawrence, 550, 551, 556 643 Delaplaine, Estate of 208, 278 Delefield v. Parish 99, 113, 119 D., L. and W. R. R. v. Gilbert . . 323 De Lamater v. McCaskie 239 De Marcellin, Matter of 598 Demarest v. Wynkoop 342 Denning v. Bank 498 Denise v. Denise 313 Table of Gases. Xlll PAGE Dennis v. Jones 525 Denike v. Harris 388 Denton v. Sanford 311, 287 Deobold V. Opferman 178 De Peyster v. Clarkson 437 De Peyster v. Clendinning 493 De Peyster v. Ferrers 494 Deraismes v. Deraismes 421, 489 Deraiames v. Dunham 493 Despard v. Churchill . . . 145, 239, 458 De Witt V. Barley 107 Dey Ermand, Matter of 17 Dickerson v. Robinson 259 Diez, Matter of 60, 68 Dill V. Wisuer 374 Dillaye v. Com. Bank 260, 283 Dissossway, In re- 510 Dissossway v. Bank 405, 431 Dixon V. Storm 368 Dobke V. McClaren 16 Dodge, Matter of 521, 569 Doe V. Roe 67 Doe V. Staple 75 Dolan, Matter of 388, 531, 543 Doll, Matter of 363 Dolboer v. Casey 301 Dominick v. Dominick 63 Dominick v. Michael 188 Doolittle V. Lewis 270 Doran v. Dempsey 516 Dorlon's Estate 524 Douglass V. Low 614 Douglass V. Satterlee 258 Down V. McGourkey 118 Downing v. Marshall. . . 244, 367, 453 Draper v. Anderson. , 614 Drake v. Price 444 Drexel v. Berney 213 Du Bois V. Burns, 367, 368, 369, 451 Du Bois V. Sands 6 Duffy V. Duffy 427 Duncan v. Swart 411 Duncan v. Guest 451 Dunford v. "Weaver 510, 511 Dunham v. Sage 372 Dunham v. Cornell 248 Dunn, Matter of 331 Dunkel, Jr., Matter of 404 Dunscomb v. Dunscomb ... 385 Dunning v. Ocean Bank 189 PAGE Dunning v. Nat. Bank 343 Dupuy V. Wartz 81 Dulton V. Dulton 84 Dygert v. Remerschneider 371 E. Early v. Early 99 Earle v. Earle 265 Earl of Euston y. Seymour 71 Eager v. Roberts 447 Egan V. Justices 271 Ean V. Snyder 100 Eddy V. Traver 523, 569 Elgin, Matter of , 619 Elliott Y. Cronk 306, 317 Elliot V. Lewis 448 Elmore v. Jaques 433 Ely V. Taylor 363 Emerson v. Bowers 131, 168 Emmersou v. Spicer 582 Ensign. Matter of 461 Ensign, In re 167 Erwin v. Loper 299, 308 Evans v. Evans 279, 283 Everts v. Everts . . . 349, 435, 433, 448 Evertson v. Tappan 438 Eyre v. Higbie 343 F. Fay v. Halloran 240 Fagan v Dugan 131 Pairman's Appeal 330 Farmers L and T, Co. v. Hill. ... 498 Farrington v. King, 534, 533, 536, 538 Farrell, Estate of 80 Farley v. McConnell 181 Faulkner, Matter of 80 Feely, Matter of 587 Ferris v. Brush 594 Ferrin v. Myrick . . 330, 333, 338, 356 603 Ferris, Estate of 138 Ferris v. Burrows 380 Ferrie v. Pub. Adm'r 166, 170 Fernbacher V. Pernbacher.. . 100, 311 265 Ferguson v. Cummings 510 Ferguson v. Browne 530, 538 Field V. Field 803, 453, 363 Filor, Estate of 594 XIT Table of Oases. PAGE Field V. Gibson 138 Field V. Schieffelin 259, 383, 600 Fiester v. Shepard 853, 393, 407 Field V. Van Cott 11, 180, 509 Fishv. Coster 188 Fislier v. Fisher 447 Fisher v. Banta 413, 495 Finnem v. Hinz 359, 360 Fitch V. Witbeck 538, 583, 589 Fithian, Estate of 230 Fithian, Matter of 403 Fitzpatrick v. Brady 851 Fitzgerald v. Fitzgerald 583 Flagg V. Ruden 348, 351 Flanagan v. Tinin 847 Fleiss V. Buckley 300, 318 Fleming v Bufnham 579 Flinn v. Chase. . 180 Fletcher's Adm'r v. Saunders 164 Fletcher v. Updike 371 Flood, Matter of 433 Foley V. Egan 616 Foland v Dayton 333 Forbes v. Halsey 535, 552 Forman v. Smith 114 Fort V Gooding 363 Forster v. Kane 366, 367 Forsyth v. Burr 353, 354 Foster v. Foster 93, 634, 642 Foster v. Wilbur 33 Fosdick V. Delafleld 135, 311 Fowler v. Lockwood 451 Fowler y. "Walter 188 Fox, Estate of 569 Fox,Inre 569 Fox V. Fox , 363 Fox V. Bums . . 247 Foy V Muzzy 239 Francis v. Grover ... 74 Francisco v. Fitch 310 Frane v. Rockett 315 Fraennick v. Miller 451 Frazer, Matter of 346 Frear's Case 516 Fredenburgh v. Biddlecom 814 Freeman v. Freeman 248, 435, 430 441 Freeman v. Coit 488 Freeman v. Kellogg 315 Freetoan v. Nelson 338, 846, 358 PAGE Fryv.Evans 277 Fritz V. Thomas 871 Fulton V. Fulton 379 Fulton V. Whitney 384, 495, 601 Furman v. Coe 436 FuUerton v. Jackson 630 G. GafEney' v. Pub. Adm'r 380 Gamble v. Gamble 68 Gansevoort v. Nelson 803 Gardnerv. Gardner, 118, 418, 432, 435 Gardner, Matter of 434, 535, 569 Ga.dner v. Miller 358 Gates, Matter of 231 Gfinet V. Binsse 30S Genet v. Tallmadge 600 Gerauld v. Wilson 49ft Geer v. Ransom 423 George, Matter of 405 Gerard, Matter of 44ft Gerould v. Wilson 180, 218 Gerould v. Watson 509 Geyrr, In re 886 Gilbert, Matter of 250, 634 Gilbert, In re. 609, 684 Gilchrist v. Rea. 536 Gilkin V. Carhart 435 Gill V. Brower 495 Gilbert, Matter of 390, 430 Gilchrist v. Rea 189, 335 Gillespie v. Brooks, 388, 390, 437, 445 Gillingham, Matter of .312 Gilman, Matter of . . . . 18, 61, 102, 264 Gilman v. Gilman. . 268, 269, 285, 810' 835, 351, 383, 386, 425, 427, 449, 451 Gill, Matter of 618 Gillies V. Kreuder 355, 511 Giles V. Talleyrand 451 Girvin v. Hickman 595, 618 Glacius V. Fogel . . . 838, 338, 343, 858 430, 451 Glann, Exparte 536 Glenn v. Burrows 370, 328 Glover v. HoUey 497 Gottsberger V. Taylor... 127, 179, 194 198, 316, 506 Goodwin v. Jones 270 Gooding v. Porter 307 Goodrich v. Jones 339' Tablk of CASEa XV PAGE Gooseberry's Estate 165, 174 Gorham v. Kipley 307 Gott V. Gulp 603 Gouraud, Matter of 148 Gourbault v. Pub. Adm'r, 66, 86, 116 Graham v. Lindea 526, 541 Graham v. Pub. Adm'r 10 Grant v. Grant , 98 Gratacap v. Phyfe 254, 404, 408 Gray, Matter of 289 Gray v. Byle 138 Greene v. Day 303, 451 Green v. Green 468 Green v. Sanders 198 Greenhough v. Greenhough 253 Greenland v. Waddell 430 Greeley's Will 93 Greyv. Grey 379 Gridley v. Curry 508 Griffin v. Sarsfield ,397 Grispell v. Dubois 119 Griswold, Matter of 83 Griswold v. Griswold 330 Groom v. Thomas 117 Grouham, Matter of 335 Grout, Matter of 335, 448 Grubb V. Hamilton 313 Grymes v. Howe 380 Guage V. Dauchy 380 Guibert v. Saunders 496 Guild V. Peck 407, 641 H. Hackney Vrooman 379 Haddow v. Lundy 400 Hagerty v. Hagerty 630 Haggert v. Morgan 9 Haight V. Brisbin. . 311, 218, 505, 578 Hasbrouck v. Hasbrouck 435 Hatch V. Sigman 99 Hall, Matter of 431, 428 Hall V.Hall 444,477 Hall V. Campbell 369 Hall V. Dusenbmy 848, 350 Hallv. Fisher 337 Hall V. Partridge 533, 539, 559 Hall V. Richardson 322, 323 Hallett V. Hare 461 Halser v. Halser 427 Halsey, In re 393 PAGE Halsey V. Reed 333 Halsey v. Van Amringe 445 Halstead v. Hyman 180, 285, 437 Hatten, Matter of 69 Hammersly, Matter of 92, 101 Hammersly, Estate of 191 Hannahs v. Hannahs 428, 429 Hammond v. Hoffman 331 Hancock, Will of 3 Hancock, Matter of 153 Hancox v. Meeker 479, 617 Hancox v. Wall 470, 476 Hannah, Matter of 640 Hardenburgh v. Manning 331 Hardy, Matter of 78 Hardy v. Ames 301 Harper v. Harper 67 Harring v. Cole 004 Harrington v. Libby 196, 285, 409' Harrington v. Keteltas 380 Harris, Matter of 441 Harris, In re 416 Harris v. Ely 403, 404 Harrison v. Clark 315, 496 Harrison v. McMahon ... 16, 331, 493 Harrison v. McMenomy 379 Harstrom, Matter of 6 Hart, Matter of 302, 216 Hart, Estate of 310 Hart V. Duffy 499 Hart V. Ten Eyck 333, 252 Hartt V. Russell 83 Hartnett v. Morris 600 Hartnett v. Waudell 9, 125, 311 Hasler v. Hasler 89, 320, 448 Hassey v. Keller 308, 311 Hassard v. Rowe 603 Havens v. Sherman 534 Hawley, In re 583 Hawley, Matter of ' 614 Hawley v. Cramer 553 Hawley v. James 476, 479 Haxtun, In re 536 Hayward v. Place 187, 300 Hazard v. Hefford 131 Heady'sWill 63 Hecht, Estate of 316 Hedges, Matter of 593 Heilman v. Jones 17, 147 Henry, Estate of 365 XVI Table of CASBa PAGE Henry v. Henry 93 Hendrickson v. Dickson 810 Hepburn v. Hepburn 333, 453 Herkimer V. Rice 374 Herrick v. Crow 551 Hewitt, "Will of 62 Hewitt V. Hewitt 543 Hewitt V. Bronson 331 Hewlett V. Wood 113 Hicks V. Hicks 175 Higbie v. "Westlake 369, 570 Hyland v. Baxter 345 Haight V. Brisben , 487 Hill V. Hanf ord 605 Hill V. Nelson 441, 445 Hills V Tallman's Adm'r 377 Hiliv. Nye 453 Hill V. "Walker 389 Hillman v. Stephens 199 Hitclicock V. Marshall 466 Hitchcock V. Linsly 387 Haas V. Childs 191 Hoffman v. Penn. Hospital 454 Holland v. Ferris 200 Holley V. S. G 438 Hollenbeck v. Van Valkenburgh, 09 HoUis V. Drew Seminary 59 Hollister v. HoUister 373 Hollister v. Burritt 271 Holman y. Holman 347 Holmes v. Cock 132, 153, 314 Holman v. Seeley 601 Holyoke v. Un. Ins. Co 370 Holmes v. Cook 546 Hone V. Lockman 331, 422, 424 Hone V. De Peyster 323, 361 Hone V. Van Schaick 285 Hood, Matter of,213, 405, 468, 469, 479 Hood V. Hood, 331, 404, 430, 495, 505 Hood, Estate of 403, 494 Hood, Andrew, Estate of 408 Hopkins, Matter of 447 Hopkins v.^Van Valkenburgh 536 Home V. Garner 454 Horn V. Pullman ... 55, 114, 115, 121 Horton v. Horton 558 Hosford, Matter of 584 Hosack V. Rogers 441, 479 Hotchkin v. R. E 342 Hough V. Benley 260 PAGB Houghton V. "Watson 582 House V. Grant 380 House V. House 339 House V. Agate 348 House V. Raymond 580 Hovey v. Smith 333 Howard v. Dougherty 191 Howard v. Heineischit 335 Howell, Goods of 63 Hoyt V. Bennett . . . 300, 303, 306, 310 317 Hoyt V. Hoyt 398 Hoyt V. Hilton..., 630 Hoyt V. Jackson 354 Hoyradt t. Kingman 63 Hubbard v. Hubbard 71 Hughey, Estate of 341 Hughes V. Sempson 289 Hullv. Edmunds 361 Hughes' Infant, Matter of 586 Hultslander v. Thompson 3U9 Humbert v. "Wooster 79 Hunt V. Mortrie 64 Hunter v. Hunter 336, 379 Huntington v. Gilmour 379 Hurlbut, Matter of 14, 35 Hurlburt, Matter of 399 Hurlbut V, Durant 350, 478 Hurst, Matter of.. 438 Hutchinsv. Costly 360 Hutchinson, Matter of 384, 487 Hyde v. Tanner 533, 540, 550 Hyde v. Stone 198 Hyland v. Baxter 439 Hylton V. Hylton 014 I. Ireland v. Corse 444 Irish V. Nutting 380 Isenhart v. Brown 334, 454 Isliam V. Davison 276 Isham V. Gibbons 10, 16, 174 J. Jackson, Matter of 427, 479 Jackson v. Jackson ,. 68 Jackson v. Robinson 10, 258 Jackson v. Christman 97 Jackson v. Borden 588 Jackson, Accoimting. , 470 Table of Cases. xvu PAGE Jackson v. Irwin 544 Jacot V. Emmett 426, 427, 437 Janssen v. Wemple 17 Jauncey v. Thome 94, 81, 97 Jenkins v. Young 550 James v. Beasley 339, 858 Jewett V. Keenholtz 559 Jeroms v. Jeroms 333, 257 Jeffsv.Wood 389 Joel V. Rlttermass 510 Johnston v. "WaUis 138, 198, 199 Johnston v. Smith 164, 180, 496 Johnson v. Corbett 244.. 268, 303, 333 Johnson t. Kellogg 323 Johnson v. Lawrence 478 Johnson v. Myers 363 Johnson's Adm'r v. Hedrick 426 Johnson v. Borden 585, 597 Johnson v. Beneett 476 Johnson v. Richards 495, 496, 503 Jones, Matter of 398, 419 Jones V. Jones 373 Jones V. Harderty 243 Jones, F. W., Estate of 404 Jordon V. Nat. Bank 277 Journault v. Ferris 429 Julke V. Adam 118 K. Kane, Matter of 604 Kane v. Astor's Ex'r 73 Kain v. Fisher 259 Kain v. Masterton 556 Kammerer v. Zeigler 533, 536 Kearney v. Mayor 98 Kavanaugh v. Willson 535 Kecheles, Estate 168 Keep, Matter of 424 Kellaher v. McCahill 599, 615 Kellinger v. Roe 642 Keller v. Stuck 334, 484 KeUinger, Estate of 511 Kellet V. Rathbone, 460, 412, 431, 460 Kellogg, Matter of 479, 617 Kellogg V. Clark 315 Kellum, Matter of 98 KeUum, Will of 147, 153 Kelly's Estate 556 Kelly V. West 171, 180, 496 Kennedy v. Ryall 168 G PAGE Kenny v. Tucker 445 Kenney v. Whitmarsh 61 Kerr v. Kerr 215 Kerr v. Dougherty 591, 453 Kerr v. Kreuder 388, 358 Kernochan, In re 343, 445 Kerrigan v. Kerrigan 351 Ketchum v. Milne 277 Kettletas v. Gardner 618 Kettletas v. Green 353, 391 Kettletas v. Kettletas 397 Keyser v. Kelly, 333, 340, 358, 859, 407 Kidd V. Chapman 306, 307, 817 KiUinger v. Roe 587, 598 King, Matter of 683 King V. King 260, 388 King V. Talbot .... 286, 237, 453, 434 474, 604 ■ Kingsley v. Blanchard . . 99, 100, 113 Kinney's Ex'r v. Hawley 328 Kinsman v. Kinsman 240 Kintz V. Friday 380 Kinne v. Johnson 114. 131 Kirby v. Taylor 614, 618 Kirby v. Tower 178, 584 Knapp, Matter of 449 Knapp V. Pub. Adm'r 246 Knight V. Currie 335 Knower, Matter of 428 Knox T. Jones 60, 69, 473 Kohler v. Knapp. . . . . 10, 187, 340 Kirsheise v. Scheig 185 Krantz, Matter of 499 Krill V. BrowneU 861 Kurtzman v. Chilton 511 L. La Baru v. Vanderbilt 854, 393 Lacey, Exparte 262 Lacey v. Dorris 386 Lacey v. Davis 267, 269, 288 Ladd V. Wiggin 258 LaPortv. Delafleld 473 Lafferty v. Lafferty 89 Laird, Matter of 330 Laird v. Arnold. 320 Lake v. Ranney 99, 113 Lamberson, Matter of 565 Lambert v. Craft . . 305, 306, 316, 350 354 XVIU Table of Gases. PAGE Langdon v. Astor's Ex'r 76 1/angdon v. Astor 458 Langbien, Estate of 106 Lansing v. Lansing 286 Lansing v. Swartz 307 Larkins v. Larkins 74 Larkins v. Maxon 361 Larrour v. Larrour 261 Lathrop v. Borden 118 Lathrop v. Smitla 174 Lawrence v. Elmendorph . . . 146, 300 569 Lawrence v. Lindsay 457, 642 Lawrence v. Norton 97 Lawrence v. Townsend 336 Lawrence v. Lawrence 279 Lawrence v. Parsons 191 Lay, Goods of 71 Laytin v. Davidson 478 Lazarus v. Bryson 553 Leaycraft v. Simmons 119, 121 Leonard v. Columbia Co 137 Le Court V. Le Court 319 Lefevre v. Lefevre 381 LeFortv. Delafield 199 Leggett, Matter of 440 Legett V. Hunter 491, 493, 580 Leggett V. Leggett 271 Leinkauf, Matter of 442 Litch V. Wells 260, 282, 283, 473 Leland v. Manning 326 Lent V. Howard 420, 443, 474 Leonard v. Nav. Co 274 Leslie, Matter of 383, 454 Lewis V. Jones 118, 634, 641 Lewis V. Lewis 63, 64 Lewis V. Moloney 399 Lewis V. Malone : 386 Lewis V. Watson 304, 635 Lindsay, Exparte 61 Lichtenberg v. Herdtfelder 273 Livingston v. Gardner 318 Livingston v. Newkirk 328, 575 Loder v. Hatfield 383, 894 Lockman Matter of 449 Lockman v. Riley 259, 390 Lockhart v. Pub. Adm'r 264, 285 Lockwood v. Lockwood 354 Lockwood V. Tliorne 304 Logan V. Deshay 379 PASB Low V. Purdy 601 Lucas V. Hersen 321 Luce, Matter of 536 Luckey, Estate of 330 Ludlow V. Pinckney 611 Luigke V. Wilkinson 475 Luntv. Lunt 262 Lupton V. Lupton 452, 453 Lyendecker v. Eiseman 246 Lynch v. Mahony 453 Lyon V. Smith 62,64 68 M. Macaulay, In re 392, 393 Macaulay, Matter of, 34 . . 35, 41, 88 392 Mabie v. Bailey 244 Mayer v. Clark 496 Mayer v. Gilllgan 526 Mairs, Matter of 196 Malcom, Will of 92 Maloney v. Woodin 137, 181 Mandeville v. Mandeville. . . . 132, 314 Mann v. Lawrence 428, 444 Manning v. Manning 437 Mann v. Eosevelt 584 Manson v. Manson 398 Maples V. Howe 550 Marre v. Ginochio 424, 429 Marsh v. Gilbert 457 Marsh v. Hajue 453, 458 Marsh v. Bowers 457 Maash, Matter of 98 Marsh v. Covey 351 Marsh v. Avery 367 Marshall v. Moseley 240 Martine's Estate 451 Martin, In re 120 Martin v. Decke 132, 212 Martin v. Gage 430 Martin, Good of 62 Martinv.R.R 175 Martin v. Buddington 35 Martin v. Punk 244 Marvin v. Marvin. . . 92, 113, 634, 641 Marx, Matter of 438, 601 Mason, In re 444, 479 McCabe v. Fowler 436 McOartee v. Camel 388, 394 McCloskey v. Reid 584 Table of Cases. XIX PAGE McCormick, Exparte 60 McCuev. O'Hara 368 McCue V. Garvey 319 McDonnell, Exparte V67 McDonald, Matter of 267 McDonougli V. Loughlin 67 McDowell V. Caldwell 594 McFeeley, Matter of 551 McGregor v. Buel 138, 191 McGregor v. McGregor. . .'. 281 McGowan. Matter of .151 McGuire v. Kerr 63 McKim V Aiilbach. .... 267 McLougWin V McDavitt 130 McLaughlin's Will 114 McLaskey v Reid 581 Mclntyre, Matter of 253, 228 McMahon v. Harrison . 181, 167, 414 McNally V. Bunn 99 McKamara v. Dwyer 336 McNaughton v. Clarey 468 McNulty V. Hurd 431 McPherson v. Clark 74 McRae v. McRae 290 McWhorter v. Benson. . 443, 447, 478 Mead v. Jenkins.. . .374, 520, 523, 526 629, 538 Mead v. Sherwood 525 Mead v Willoughby 415 Meehan v. Rourke ... 66 Meeker, In re 366 Meecham v. Stemes 445 Merchant's Estate 128 Merchant V. Merchant 380, 429 Mer. Nat. Bank t. Weeks 259 Mundorf v. Wangler 494 Menck, Matter of 411 Merritt v. Thompson 363 Merritt v. Seaman 277 Moorhouse v. Hutchinson 213 Mesick v. Mesick 267 Melcher v. Firk 839 Metcalf V. Clark 138 Met. Trust Co. v. Rogers .... 229 Metzger v. Metzger 421 Michoud V. Girod 584 Middlebrook v. Corwin 239 Middlebrook v. Mer. Bank 270 Milbank v. Crane 49t Miles. In re 368 PAGE Miles, Matter of 364 Miles V. HofEman 289, 474 MiUer v. Birdsong 361, 355 Miller v. Knox 334 Miller, Matter of. . . 345, 330, 333, 448 450, 616 Milward, Goods of 63 Minuse v. Cox 427 Minier V. Minier 372 Minchin v. Merrill 553 Mitchum v. Mitchum 552 Mitchell V, Mount 338, 356 Moffett, Matter of 478 Moke V. Norrie 135 Molloy, Estate of 177 Molloy V. Vanderbilt 334 Monell V. Monell 367 Montgomery v. Dunning. . . , 253, 425 Morrell v. Dickey 336 Moore v. Moore 66, 539, 553 Moore v. Hegeman 461 Moore v. Willett 260 Mooers v. White , 526 Mooers v. Johnson 535 Moorhouse v Hutchinson 213 Morgan v. Hannas 442, 616, 617 Morgan, Matter of 488 Morrill v Dickey 608 Morris v. Kniffin 61. 66 Morrison v Morrison 354 Morrow v. Morrow 349, 381 Moses V. Murgatroyd, 243 Mott V. Ackerman 188 Moultrie v. Hunt 60, 80, 191 Mount V. Mitchell 831 Mowrey v. Sibber 130 Mowrey v. Feet 311, 313 Muir V. Wilson 594 Mumford v. Coddington 353 Munsdorf v. Wangler 506 Munro's Estate 17 Murdock v. GifEord 239, 244 Murphy v. Hall 138 Murray v. Blatchford 258, 259 Murray v. Smith. 800 Misrcein v. Smith's Adm'^ 377 Mut. Life Ins. Co. v. Schwarrer. . 498 M. Ins. Co. V. Hinman 373 Meyer v. Gllligan 314 Mygatt V. Wilcox 497 XX Table of Cases. N. PAGE Nat. Bank v. Speight 317 Neilly v. NeiUy 431, 433 Nelson v. McUiffert 73, 131 Nesmith v. Dinsmore 455 Newhouse v. Goodwin 133 Newville v. Thomson 879 Nexsen v. Nexsen 66, 100, 113 Niagara, Matter of Bank 616 Nichols, Matter of 73, 418 Nichols V. Chapman . 383, 399 Nichols V. Smith 378 Nicholson v. Showerman 363 NicoU, Matter of 585 Niles V. Stevens 580 Nipper y. Groesbeck 64 Noble V. Smith 879 Norton v. Sillscocks 613 Norton v. Lawrence 93 O. O'Brien, Matter of 403 O'Donnell v. Lindsay 551 Ogden V. Smith 580 Ogilvie V. Ogilv;e 384, 438, 437 Olmsted v. Vreedenburgh 357 O'Neil, Matter of 631 O'Neil, Will of 58, 63 O'Neil V. Murray 119, 131 O'Reilly v Meyer 448 Ormi^ton v. Olcott . . . 266, 286, 387 Orcutt V. Arms 283 Orser v. Orser 64 Orton V. Orton 380, 388 Osborn v. McAlpine 449 Otis V. Thompson 583 Overheiser v. Morehouse 361 Overseers v. Overseers 551 Owens V. Bloomer 340 P. Paddock v. Kirkham .•. , . 311 PafC V. Kinney 498 Paige, Matter of 119 Paise V. Halbut 551 Parkinson v. Jacobson 532 Parker v. McClure 455 Parham v. Moran 180 Parish v. Parish 634, 641 Parsons v. Lyman 146 Patchin v. Wilson 261 PAGE Patterson v. Copeland 836 Patterson v. Hamilton 635 Patterson v. McCune 520 Patterson v. Patterson 377, 332 Paton, Matter of 441, 449 Paul v. Squibb 553 Paulding v. Sharkey 268, 420 Payne v. Matthews 834 Pearson v. Pearson 386, 454 Peebles v. Case ._. 97 Peck, Estate of 119 Peck V. Sherwood.. 317, 318, 347, 391 431 Peck V. ■ Gary 118 Pelletreau v. Smith 543 Peufield V. Thayer. . . . , 379 People V. Byron 581, 594 People V. Coleman 330 People V. Corlies 503 People V. Cowles 513 People V. Com'r of Taxes 330 People V Downing 506, 584 People V, Falconer 11 People V. Hascall 506 People V. Hartmann 313 People V. Kearney 583 People V. Norton 11 People V. Pelham 255 People V. Eues 436 Peopje ex rel. v. Streeter 133 People V. Surrogate 13 People V. Byron 458, 584 People V. Westbrook 536 Pepoon, Will of 97 Perkins v. Stimmell 595 Peters v. Pub, Adm'r 168 Peterson v. Ohem. Bank 270 Petrie V. Clark 260 Petrie, Estate of 487 Petrie v. Petrie 888 Pett V, Pett 461 Pew V. Hastings 16, 498 Peyster, Estate of 433 Philips, In re 63, 64 Phillips, Estate of 483 Phoenix v. Livingston 479 Phoenix v. Phoenix 478 Phyfe, Matter of. 803, 304 Pieree, Matter of 586, 698 Pierrepoint v. Edwards 381 Table of Cases. X3a PAGE Pike, Matter of 447 Pinckney v. Smith 33, 35, 45 Pinkemelli v. BischofE 314 Pipes V. Barse 457 Pitcher, Estate of 471 Pitts V. Jomeson 241 Place, Matter of 186, 210 Piatt V. Moore 454 Piatt V. Piatt ..339 Pollock, Matter of 436 Pool V. "Wilkinson 602 Popham V. Spencer 24, 200, 402' Post V. Mason 10, 103, 119 Postly V. Cheyne 132, 210 Potter V. McAlpine 233 Potter V. Pearson 553 Potts V. Hart 273 Potts V. Smith 163 Power V. Lester 371 Powers V. Powers 284 Prentice v. Jamessen 578 Prescott, Matter of 74 Priest V. Watkins 80 Price V. Price 274 Prince v. Hazleton 71 Proctor V. Wanamaker 215 Pruyn v. Brinkerhoff 95 Pryor v. Clapp 24, 147 Pryer v. House 10 Pub. Adm'r v. Elias 229 Pub. .Adm'r v. Hughes 166 Pub. Adm'r v. Ward 229 Pugsley V. Aiken 837 Pullman v, Willetts 448 Pumpelly v. Tinkham 185 Purdy V. Austin 370 Putnam v. Eitchie 583, 600 Q- Quackenboss v. Southwick. . 471, 489 Quarles v. Quarles , 455 Quinv. Hill 321 Quin V. Quin 74 Quintard v. Morgan 185 R. Rait V. Rait 604 Ramsey v. Wandell 578 Randell v. Cyett 263 Rapelje v. Hall 427, 474, 617 PAGE Rappleyea v. Russell 321 Rapp V. Martin 595 Raymond v. Dayton 429 Raynor v. Laux 314, 315 Raynor v. Gordon 538 Rear, Matter of 404 Rea V. McEachron 558 Realv. People Ill Reed v. Reed 17 Reid V. Vanderhgyden 643 Reilley v. Duffy 404 Remsen v. Brinckerhoff 63 Ren wick v. Ren wick 535 Renholm v. Pub. Adm'r 167 Reynolds v. Collier, 339, 306, 309, 317 Reynolds, Exparte 630 Richard's Case 597, 598 Richardson v. Judah, 559 Richmond V. Foote 524,533 Richardson v. Judah 529 Richardson v. West 506 Richter v. Poppenhausen 279 Rider v. Legg ; 100 Ridgley v. Johnson .... 264 Reigelman, Estate of 151 Riegelman v. Riegelman .... 351, 392 Rightmyer v. Raymond 336 Rieck V. Fish 694 Rigby, Exparte 258 Rlgney v. Coles 531, 564 Riggs V. Cragg. . 6, 353, 411, 415, 442 451 Ripley v. Simpson 289 Ritch, Matter of 404 Robbins, Estate of 333 Robbins v. Weller 336 Robins v. Coryell 61 Robert's Will, Matter of 80 Roberts, Matter of 458 Roberts v. Ditmas 309, 364 Robert v. Morgan 433 Robertson v. McGeoch 133 Robinson v. Robinson 409 Robinson r. Smith 68 Roderigas v. East Riv. Sav. Bank, 127 163, 169, 175, 181 Roe V. Boyle 315 Rogers v. Rogers. . 283, 433, 452, 491 Rogers v. Murdock 280 Rogers v. Gordon 535 xxu Table of Cases. PAGE Eogers v. Squires 260, 380, 28S RoUwagen, Matter of 92 RoUwagen v. Kollwager 99, 122 RoUwaffen v, Powell 450 Rooney, Matter of 322 Roome v Phillips 188 Rosenfeld, Estate of 531, 529 Root, Matter of 167, 171 Roosevelt, Matter of 470 Roosevelt v. Mark 328 Roosevelt v. Roosevelt. .'. . . . 286, 288 Rorke v. McOonville 389 Ross, Matter of 55 Rossv. Harden 325, 331 Rose V. Lewis 405 Ross V. Roberts 493 Ross V. Wood 614 Rouss V. Bradney 370 Rudd V. Rudd 280 Rudden v McDonald 62, 68 Rugg, In re 511 Rugg V. Rugg 64, 67, 68, 98 Ruggles V. Sherman 279 Rundell v. Allison 387 Rundell v. Lakey 330 Rusko, Matter of 450 Russell v. Hartt 39, 47, 89 Russell V. Lane 363 Rutherford v. Rutherford 67 S. Sage V. Woodin 378 Saltus, Matter of 425 Saltus V. Salters 499, 516 Saltus V. Pruyn 337 Samuels v. Estate of Thomas. . . 319 Sands v. Craft 310 Sanford v. Granger 526, 223, 535 Sandfordv. Sanford.... 281, 306, 457 Savage v. Gould 286, 477, 488 Savage v. Sherman 479 Sawyer v. De Meyer 388 Sayre v. Ladd 352 Seguine v. Seguine 64 Schell, Matter of 445, 479 Schenck v. Dart 444 SchiefEelin v. Stewart 426 Schmidt v. Heusner 254 Schneider v. McFarland 533, 534 Sehofleld v. Hustis 216 PAGE Schoonmaker v. Roosa 325 Schroeppel v. Hopper 242 Schroeder, Matter of 637 Schryver v. Holborrow 381, 314 Scofield V. Adams 385 Scofleld V. Churchill . . . 137, 179, 180 203, 296 Scofield V. Scofield .246, 247 Scranton V. Farm. Bank.... 260, 336 Seaman's Bank, In re 535 Seaman v. Duryea 413, 614 Seaman v. Whitehead.. 351, 365, 367 440, 496, 511 Seaman v. Wood. 363 Seabury v. Bever 333 Seers v. Fisher 453 Sears v. Mack 569 Secor V. Sentis 445, 446' See V. Dill 120 Seip V. Drack 332 Selover v. Coe 307, 316, 374 Seymour v. Butler 397, 453 Seymour v. Van Wyck 66 Shakespeare v. Markham 434 Shannon v. Howell 394 Sharp, Estate of 106, 284 Shearin v. Pub. Adm'r 351 Sheldon v. Bliss 247 Sheldon v. Hoy 377, 336 Sheldon v. Wright 534, 547, 559 Shepard v. Salturs 335 Sheridan v. Houghton 99 Sherman v. Ballon 584 Sherman v. Page 78, 243, 353 Sherman v. Willett 383 Sherwood v. Judd 300, 508 Sherwood v. Johnson 331 Sherwood v. Woosteer 146, 427 Shields v. Shields " 315 Shook V. Shook 491, 580 Short V, Smith 74 Shultz V. Dambmann 60 Shultz V. Pulve;: 378 Shultz V. Shultz 98 Shuttleworth v. Winter 428 Sibley v. Waffle 534 Sigourney V. Sibley 8 Silverton v. MoKinistry 553 Simmons v. Simmons 73 Simpson's Estate 816 Table of Cases. xxm PAGE Simpson's Will 61 Sims V. Doughty 389 Singleton v. Smith 458 Sipperly v. Baucus. ... 16 Sisson V. Conger Ill Sisters of Charity v. Kelly 63 Skidmore v. Davies .... 614, 625, 633 Skidmore v. Romaine 535 Slingerland, Matter of ... 226 Slocum V. English 523 Shirley v. Shirley 379 Smithv. Bixby 599 Smith V. Christopher 433, 434 Smith V. Drake 553 Smith V. Gage 242 Smith V. Howell 339 Smith V. Kearney 280, 389 Smith V. Lansing 384 Smith V. Lawrence 281, 404 Smith V. Murray 353, 38? Smith V. Remington 388, 394 Smith V. Smith 597 Smith V. Tiffany 278 Smith V. Goertner 604 Smith V. Van Kuren 405 Smithv. Weld : 279 Snyder, Matter of 511, 516 Snyder v. Sherman 55 Snyder v. Snyder 362, 435 Snyder v. Young 363 Socia V. Berthould 283 Sackett's Estate 630 Solomon, Matter of .' 576 Solomon v. Heichel 336, 316, 359 Somerville v. Crooks 314, 315 SoverhiU v. Suydam 249, 250 Spaulding v. Wakefield's Estate. . 283 Spencer v. Popham 45, 319 Spear Tinkham 426, 437 Spencer v. Strait 361 Springstead v. Samson 330 Spurway v. Glynd 454 Stagg V. Beekman 382, 389 Stallknecht y. R. R 274 Stall V. Wilbur 340 Stanton v. Wetherwax 117 State V. Clark 599 Steinele v. Oeshsler 373, 393 Stephenson v. Short 59 Stephens v. Van Buren 437 PAGE Stevens v. Gage 436 Stevens v. Stevens 304, 635 Stevenson v. Weirser 331 Stewart v. Lispenard 113 Stewart v. O'Donnell 199 Stiles v. Brush 495 Stillwell V. Carpenter 336, 431 Stillwell V. Swartwout. . 531, 554, 564 St. John V. McKee 439 St. John V. Voorhies. . . . 341, 351, 359 Stogel V. Cruikshank 135 Stokes, Matter of 18 Stone V. Morgan 641 Stone V. Seymour 81 Stone V. Scripture 146, 181 Stouvenell's Estate 403, 404 Storm, Matter of 368 Story V. Dayton 35, 499 Strever v. Peltman 260, 273 Strong V. Strong 17 Stuart V. Kissam 378 Stubbs V. Stubbs 330 Stuy vesant v. Hill 258 Suarez v. Mayer 200 Suckley, Matter of 461 Susz V. Forest 350 Sullivan v. Fosdick 164, 180, 187 Sullivan v. Sew. Mach. Co 277 Summerfield v. Howie 330, 231 Sursen v. Zimmerman 140 Sutherland v. Bush 259, 267, 383 Sutton V. Newton 74, 361 Sutton V. Pub. Adm'r 167 Suartwout v. Suartwout 619 Sweezy v. Willis 165, 167, 343 T. Talman v. Syr. R. R. Co 376 Tallmadge v. Chapel 378 Tarrant v. Ware 64 Taylor, Estate of 347 Taylor v. Delacey 165, 174 Taylor v. Dodd 397 Taylor v. Fire Dept 379 Taylor V. Morris 580 Taylor v.^Shuit 268, 369 Taylor v. Wendell 333 Terry v. Dayton. . . 432, 434, 456, 457 Terwilliger v. Brown 552 Thacher v. Henderson 583 XXIV Table of Cases. PAGE Thayer v. Clark. ... 11, 493, 497, 506 Thatcher v. Bancroft 356 Theological Sem. V. Calhoun — 100 Thompson, Matter of 338, 356 Thompson v. Brown 279, 600 Thompson v. Carmichael 457 Thompson v. Connor 61 Thompson, Ex parte 71 Thompklns v. Moreman 491 Thompson v. Taylor 351, 353 Thompsonv. Thompson, 118,243, 408 Thompson v. Seastedt 68 Thomson v. Tracy 639, 643 Thurman v. Taylor 497 Thomson v. Thurber 252 Thomson v. Thomson. . 404, 408, 630 Thompson v. Quinby 60, 61 Thompson v. Whitmarsh 283 Thorne, Matter of 598 Thomas v. Bennett 600 Thorn v. Garner 426, 495 Thorn V. Shlel 82 Thorne v. Underhill 436 Tiffany v. Clark 475 Tifft V. Horton 344 Tifftv. Porter 388 Tilden's Estate, Ee 415 Tilden, In re . 500 Tilden v. Fiske 486 Tilton V. Ormsby 330, 231 Tilliendahl, Estate of 429 Tindall v. Jones 303 Timon v. Claffy 98 Tooker v. Bell 353 Torry v. Black 601, 603 Torry v. Bowen 63 Torry v. Frazer 604 Tonnele v. Hall 61, 63, 387 Towner v. Tooly 387 Townsend v. "Whitney 503, 509 Tracy v. Suydam 306, 309, 370 Treat v. Fortune 480, 433 Trustees V. Calhoun 64, Trustees v. Kellogg 387 Tucker t. Tucker.. . . 9, 305, 306, 317 430, 451, 495 Tunison v. Tunison 66, 123 Tuttle V. Heavey. 600 Tuttle V. Heiderman 353 Tuttlev. Tuttle 380, 382 PAGE Tyler v. Gardiner 114 Tyler v. GilmaoQ 66 U. TJnderhiU v. Dennis 598, 642 Underhill v. Newburger, 305, 316, 369 430, 436, 433, 440 Underhill v. Nichols 510, 516 Upson V. Badeau 488 V. Valentine v. Duryea 384 Valentine, Estate of 442 Valentine, Matter of 587 Van Allen v. Hewins 89, 151 Van Alst v. Hunter 12a Van Bramer v. Hoffman 453 Van Buren v. Dash 383 Van Derpoel v. Van Allen 289 Van Deusen v. Sweet 11 Van Dyke, Matter of 407 Van Epps v. Van Deusen 584 Van Epps v. Van Epps 384 Van Giesen v. Bridgeford. . . 169, 185 Van Quysling v. Van Kuren 114 Van Hauswick v. Wiese 61 Van Home, Matter of 618 Van Hoosester v. Van Hoeser 66 Van Hoose v. Bush 360 Van Home, In re 614 Van Kleck v. Phipps 131 Van Kuren V. Parmaleee 870 Van Eensselaer, Matter of 213 Van Saun v. Farley 316 Van Saun v. Fales 307 Van Schoonhoven, Matter of 493 Van Vleck v. Burroughs, 23, 363, 408 431, 430, 439 Vanderheyden v. Vanderheyden, 417 441, 448, 47» Vandemark v. Vandemark. . . 76, 633 641 Vandewater, Matter of 593 Vaughn v. Burford 68 Vedder v. Mudgett 299 Vedder v. Saxton: , 346, 347 Vernam v. Spencer. 64 Verplank, In re 451 Voessing v. Voessing 605 Voelckmer v. Hudson 244 345 Table of Cases. XXV PAGE Vogel V. Arbogast 248 Voorhis, Estate of 197 Voorhees v. Voorhees 98, 119 Vreedenburgh v. Calf 16, 499 Vraeland v. McClelland 119, 163 Vroom V. Van Home 181 Vuele V. Martin 411, 433 W. Wade V. Kalbfleisch S74 Wadsworth, Matter of 488 Wadsworth v. Alcott 240, 241 Wager v. Wager 290, 805, 400 Wagstaffi V. Lowerre 8T8 Wait V. Breeze 121, 132 Wakeman v. Everett 271 Wakeman v. Hazleton 450 Waldron v. McComb 559 Waldron v. Waldron 333 Walker v. Browne 599 Walker v. Craig 260 Walsh, Estate of 61 Walsh V. Eyan 93 Walsh V. Walsh . , 98 Walton V. Howard 366, 368, 370 Walton V. Walton 400 Wallace v. Storry 383 Wallace v. Swinton 347 Ward, Matter of 167 Ward V. Ford 445 Ward V. Smith 284, 552 Warren v. PafE 334, 394, 430 Watson, Matter of 513 Watrouse v. Smith 381 Watson V. Donnelly 115 Watson V. Nelson 511 Webb, Matter of 139, 270 Weed V. Holbrook , — 114 Welsh, Matter of 120 Welch V. N. Y. C. E. R 163 Weller, In re 311 Weller v. Townsend 2 Wellerv. Weller 810 Wells V. Wallace 16 Wendell, Matter of 242 West, Matter of 209, 210 West V. Gunther 584 Westervelt v. Gregg 404, 416, 434 Westervelt v. Westervelt 444 Weston, In re 289 D PAGE Weston V.Ward 388 Wetch V. N. Y. C. E. E. Co 181 Wetmore v. Parker 26 Wetmore v. Porter 373 Wheeler v. Enthven 453 Wheeler v. Wheeler 258, 259 Wheelright v. Wheelright 441 Wheelright v. Ehodes 391, 445 Whelpley V. Loder 866 White V. Beard 341 White v. Howard 200, 872 White V. Joy 277, 336 White v. Lewis 253 White V. Parker 605 White V. Price 263 White V. Story 310 Whitlock's Estate 802 Whitbeck v. Patterson 66 Whitmore v. Poose 317 Whitney, Estate of 441 Whitney v. Phoenix 266, 416 Whitney v. Whitney 371 Whitson V. Whitson 383 Wiokwire v. Chapman 165 Wigand v. De Jonge 4, 21, 414 Wiggins, Matter of 487 Wilcox, Estate of 443, 449, 526 Wilcox V. Smith. . . 304, 305, 383, 365 370, 419, 430, 642 Wilcox V. Wilcox 592, 598 Wilder v. Keeler 338 Wilder v. Eamsey 064 Williams, Matter of 453, 454 Williams, Estate of 140, 168 Williams v. Conrad 493 Williams v. Fitch 641 Williams v. Purdy 488 Williams v. Siorrs 582 Williams v. Williams 243, 329 Williamson v. Williamson. . . 888, 458 454 Wilkes V. Eogers .... ^ 605 Willis V. Mott 68 Willis V. Sharp 334 Willis V. Wallace 495 Willick V. Taggart 600 Wilson, Matterof 67 Wilson, Estate of 359 Wilson V Hatterick 64 Wilson V. Moran 119 XXVI Code of Civil Peocbdb;ee. PAGB Wilmerding v. McKesson . . . 264, 368 Withers, Estate of 367 Wing, Matter of 230. 231 Wise V. Murphy 272 Wood's Estate 330, 405 Wood, Estate of 473 Wood V. Brown 367, 368 Wood V. Burns 405 Wood V. Byington 526, 535 Woodv. Crook 318 Woodv.Ellis". 600 Wood V. McChesney 564 Wood V. Moorehouse 347, 551 Wood V. Rasco .... 408, 433, 433, 434 Wood V. TunniclifE 373, 379, 483 Wood V. Wood 60, 133, 314 Wood V. Vandenburgh . . 60, 319, 387 Woodhead, Estate of 513, 616 PAGE Woodhouse v. Woodhouse 510 Woodin V. Bagley 308, 309 Woodruff V. Cook 379, 536 Woodruff V. Woodruff 404 Woolworth, In re 608 Wormuthv. Hale 198 Wright's Accounting 499 Wright V. Wright 371, 430 Wurtz V. Jenkins 281, 497 Y. Yale T. Baker 17 Yerger v. Jones 360 Young V. Brush 448, 449 Young V. Cuddy 315 Young V. Purdy 451 Young V. Young 351, 379 CODE OP CIVIL PEOCBDUEE. SECTION. PAGB 396 148 403.... 275 403 275 405 275 437 27 444 32 446 27 447 27 505 277 506 277 533 40 524 40 535 40 744 43 745 43 746 43 747 43 749 43 750 44 751 44 796 45 797 45 798 45 799.. 45 800 46 801 46 SECTION. PAGE 803 46 1376 341 1377 341 1378 343 1379 342 1380 343 1381 343 1434 ;... 551 1435 551 1436 551 1814 835 1815 336 1816 337 1817 337 1819 387 1820 387 1831 341 1833..... 315 1833 347 1835 337 1826 338, 358 1837 339 1829 271 1832 437 1833 "; 438 1835 361 Code of Civil Pkoceduee. xxvn SECTION. PAGE 1836 361 1887 373 1840 373 1841 373 1843 373 1848 373 1844 874 1845 375 1846 375 1847 375 1848 375 1849 376 1850 376 1851 376 1853 376 1853 376 1854 377 1855 :. 377 1856 377 1857 877 • 1858 377 1859 378 1860 378 1865 93 3473 7 3473 10 ' 3474 10 3475 11 3476 9, 162 3477...' 11, 164 3478 13, 164 3479 13 3480 13 3481 15 3483.... 3 3484 3 3485 3 3486 4 3487 4 3488 5 3489 5 3490 6 3491 6 3493 6 3498 7 3394 7 3495 31 3496 31 3497 33 3498 18 SECTION. PAGE 2500 19 2501 19 3503 20 3508 30 2504 IS 3505 13 3506 14 3507 14 3508 14 3509 14 2510 20 2511 30, 334 2513 20 2513 30 2515 24 3516 24 2517 24 2518 34 2519 25 2520 25 2531 36 2532 29 3528 29 2524 30 3535 81 2536 33 3527 33 3538 34 3529 33 2530 35 2531 36 3583 37 3533 39 3534 39 3585 41 3536 41 3537 43 3539 50 3540 51 3541 20, 54 2542 31, 54 2543 21, 54 2544 54, 94 3545 54 3546 55, 423 3547 57, 536 2548 57, 537 2549 57, 537 2550 465 2551 465 XXVIU Code of Civil Pkocedue£. BECTION. PAQB 2552 355, 518 2553.. 508 2554 504 2555 355, 509 2557 365 2558 365 2559 365 2561 100, 367 2563 171, 368 2563 570 2564 570 2565 234 2569 634 2570 634 2571 634 2573 634 2573..... 635 2574 635 2575 636 2576 636 2577 636 2578 637 2579 638 8580 •. 638 2581 638 2582 639 2583 639 2584 639 2585 639 2586 640 2587 640 2588 640 2589 641 2590 126, 181 2591 137, 183 2593 182 2594 136 2595 177 2596 127, 179 2597 200, 633 2598 202. 623 2599 203, 623 3600 204, 634 3601 205, 625 2603 306 2603 217 2604 2l7 2605 217 2606 218, 400 2607 504, 596 SECTION. PAGE 2608 S20 2609 221 2610 221 2611 80 2612 80 2613 81 3614 ..... 81 2615 86 2616 86 2617 92 2618 72, 94 2619 94 2620 96 2621 98 2622 99 2624 101 2625 101 3636 102 2627 ... 108 2628 103 2629 108 3630 104 3631 104 2633 104 2638 105 2684 105 2535 105 2636 135 2637 129 2638 133 3639 133 3640 134 2641 135 2643 135 3644 188 2645 133 2647 147 2648 147 2649 148 2650 . . 150 2651 151 2652 151 8653 153 2654 157 3655 159 2656 159 2657 160 2658 160 2659 161 2660 168 Code of Civil Proceduee. XXIX SECTION. PAGE 2661 169 2663 171 2663 .' 171 2664 171 2665 173 2666 174 2667 176 2668 190 2069 190 2670 193 3671 193 2673 194 3673 194 2674 194 2675 195 2676 195 2677 195 2678 195 3679 196 2680 196 2681 197 2683 197 2683 197 2684 200 3685 209 2686 ., 211 2687 214 231 233 2690 323 2691 316 2692... 199 2693 199 2694 200 2695 138 2696 138 2697 189 2698 140 2699 144 2700 144 2701 145 2702 146 2703. 106 2704 106 2705 107 2706 236 2707 226 2708 238 2709 229 2710., 329 SECTION. PAGE 2711 230 2712 230 2713 231 2714 232 2715 252 2716 256 2717 347, 387 2718 350, 392 2719 353, 396 2720 247 2721 247 2723 399 2723 399 2724 402 2725 403 2726 403 2727 , 407 3738 409 3739 409 2530 415, 413 2531 415, 413 3734 418 2735 '422 2736 440 2737 445 2738 446 2739 432 2740 435 2741 436 2742 494 2743 450 3744 451 2745. 452 2746 463 2747 465 2748 465 2749 520 3750.. 531 2751 522 2753 524 2753 525 2754 530 2755 533 2756 534 2757 535 3758 538 3759 538 2760 540 2761 542 3763 543 XXX Code of Civil Prooeduee. SECTION. PAGE 2763 543 2764 543 2765 544 2766 546 2767 547 2768 548 2769 549 2770 549 2771 550 2772 550 2773 551 2774 552 2775 554 2776 •. 558 2777 561 2778 561 2779 661 2780 562 2781 562 2782 : .... 562 2783 562 2784 563 2785 564 2786 564 2787 565 2788 566 2789 ,.... 566 2790 566 2791 566 2792 567 2793 567 2T94 569 2795 570 2796 573 2797 578 2798. 575 2799 576 2800 575 2801 578 2802 469 2803 469 2804 470 2805 470 2806 471 2807 471 3808 472 3809 472 2810 473 2811 473 2812 480 BBCTION. PAGE 3813 480 2814 ... 480 2815 , 486 2816 486 3817 486 2818 490 2819 493 2820 494 2831- 585 2832 585 2823 587 3834 588 3825 590 2836 590 2827 591 2838 592 3839 593 38S0 593 2831 593 2832 618 2833 619 3834 631 2835 635 2836 636 2887 629 2838 606 2839 607 2840 607 2841 608 2842 609 3843 659 2844 611 3845 613 2846 613 3847 613 284S 614 3849 614 2850 615 3851 629 3853 630 3853 630 3854. 631 3855 631 3856 631 3857 633 2858 633 3859 633 2860 633 3246 360 PRACTICE IN SURROGATE'S COURT. CHAPTEE I. Or THE Surrogate's Court and the Powers and Duties OF THE Surrogate Generally. The surrogate's courts are the courts of original jurisdiction for the proof of wills and the issuing of letters testamentary thereon and the granting of letters of administration upon the estates of intestates, and with wills annexed. They are provided for by the constitution (art. 6), and their juris- diction is regulated and restricted by the statutes of the State. They are courts of record. (Code Civ. Pro., as amended by chap. 416, Laws of 1877, § 2.) They were not courts of record, under the Eevised Statutes (2 E. S., 220-276), and attorneys, admitted to practice in all the courts of the State, were held not to be offi- cers of this court {Coaies v. Gheever, 1 Cow., 460), but to represent their clients specially. Under the statutes, as amended, attorneys must be held to represent their clients in this as in other courts of record. The court is held by the county judge of each county, or in the city and county of New York and in counties having a population exceeding forty thousand, in which the board of supervisors have provided for a separate office, to perform the duties, by a surrpgate. The county judge acting as surrogate, or the surrogate, before entering upon the duties of his office, files his official oath and bond in the office of the clerk of the county, with two or more sureties approved by the clerk, for the faithful performance of his duties. (1 E. S., 382, §§ 77, 78, as amended by chap. 239, Laws 1871, and Laws 1858, chap. 213.) In New York city and county, the surrogate holds office for three years, but in the other counties for six, and their salaries are fixed by the legislature, and can neither be increased or diminished, during their terms of office. (Cons., art 6, § 14.) The surrogate may be removed by the senate 2 Provisions for Vacancy. on the recommendation of the governor, after service of the copy of the complaint against him, and after having had an opportunity of being heard in his defense. (Cons., art. 6, § 11.) If a vacancy occurs outside of the counties of New York and Kings, caused by the death of the incumbent, the election of his successor will be to fill the vacancy and for a whole term, com- mencing on the first day of January succeeding the election. {Weller v. Toionsend, 102 K Y., 430.) The new revision of the statutes (chap. 8) provides for the hold- ing of the court by. other officers. § 2483. Official designation. — Where the county judge is also surrogate, he may be designated, in any paper or proceeding relat- ing to the office of surrogate, as the surrogate of the county, without any addition referring to his office as county judge. A local officer elected, as prescribed in the constitution, to discharge the duties of surrogate, or of county judge and surrogate, is designated in this act, and, when acting as surrogate, may be designated as the "special surrogate" of his county. Where an officer, other than the surrogate, acts as surrogate in a case prescribed by law, he must be designated by his official title, with the addition of the words, "and acting surrogate." (Laws 1853, chap. 648.) § 2484. Who to act in case of vacancy or disability. — ^Where, in any county, except New York or Kings, the office of surrogate is vacant; or the surrogate is disabled, by reason of sickness, absence, or lunacy ; and special provision is not made by law, for the dis- charge of the duties of his office in that contingency ; the duties of his office must be discharged, until the vacancy is filled, or the disa- bility ceases, as follows : 1. By the special surrogate. 2. If there is no special sun'ogate, or he is in like manner dis- abled, or is precluded or disqualified, by the special county judge. 8. If there is no special county judge, or he is in like manner disabled, or is precluded or disqualified, by the county judge. 4. If there is no county jiidge, or he is in like manner disabled, or is precluded or disqualified, by the district-attorney. But before an officer is entitled to act, as prescribed in this sec- tion, proof of his authority to act, as prescribed in section 2487 of this act, must be made. He cannot sit in any case in which he has been attorney or counselor, or m which he is interested, or in which he would be excluded from being a juror by reason of consanguinity or affinity. (Code, § 46.) He shall not be interested in the costs of a proceed- ing before him. (Section 47.) His partner shall not practice When Subrogate Disqualified. 3 before him, nor shall he practice in his own court (Section 49.) His clerk shall not practice before him. (Section 50.) He shall no't demand or receive fees in any case in a matter pending before him, or for preparing any paper in such a case. (Section 51.) Grant of letters by a judge of probate who has a valid claim against the estate, is void for want of jurisdiction, although he had determined not to encorce the claim. {Sigourney v. Sibley. 21 Pick., 101 ; 32 Am. Dec, 248.) The constitutional provision (Cons., art. 6, § 13) that a judge shall not hold office longer than the last day of December, after he shall be seventy years of age, has been held not to be applica- ble to a surrogate. The fact that, by consent, pending a contest as to the probate of a will, property is placed in the surrogate's hands, does not dis- qualify him to act, as he is responsible for the property to some one in any event ; to the executor, if the will be proved, or to the administrator, if intestacy is established ( Will of Hancock, 91 N. Y., 287 ; reversing S. C, 27 Hun, 78.) As to further statutory disqualification, seejiosi, §§ 2496, 2497. § 2485. Vacancy; when disqualified. — "Where the surrogate of any county, except New York or Kings, is precluded or disquali- fied from acting with respect to any particular matter, his juris- diction and powers with respect to that matter vest in the several officers designated in the last section, in the order therein provided for. If there is no such officer qualified to act therein, the surro- gate may file in his office a certificate stating that fact ; specifying the reason why he is disqualified or precluded, and designating the surrogate of an adjoining county, other than New York or Kings, to act in his place in the particular matter. Thereupon the surrogate so designated has, with respect to that matter, all the jurisdiction and powers of the surrogate making the designation, and may exercise the same in either county. The surrogate of Cortland county, acting as attorney for plaint- iffs in an action against executors, recovered a judgment against them in 1871. The executors were then compelled to account before the district attorney, acting as surrogate, and a decree was made in 1872. The plaintiff then paid the surrogate in full for services as attorney, and he ceased to act for him. In 1876, both executors having died, an administrator with the will annexed was appointed. On the next day the plaintiff filed a petition before the surroga-te, his quondam attorney, praying for a sale of the 4 When Surrogate Disqualified. real estate of the decedent to pay the amount due on the judg- ment recovered in 1871, and the surrogate made an order for the sale. It was held that the surrogate was disqualified under the statute, and, if not disqualified, it would be improper for him to act, having been counsel in the matter on which he would have to adjudicate. {Darling v. Pierce, 15 Hun, 542.) See in connection with the above section (2485), section 46, Code of Civil Procedure. So, also, where a surrogate, before his election, had given gen- eral legal advice to an execyitor, performed other legal services for him, and appeared for him as attorney in suits brought by him for foreclosure, as executor, and after his election assumed juris- diction as surrogate over the executor, and settled his accounts, embracing payments to himself for such services, and after exer- cising such jurisdiction continued to act as attorney of record in litigations brought in adjoining counties, it was held, that the sur- rogate was interested within the meaning of the statutes (Laws 1847, chap. 280, § 81), and that he never had jurisdiction over the executor and all his decrees were void. ( Wigand v. De Jtmge, 8 Abb. N. C, 260.) The omission of a special guardian to object to the jurisdiction of the surrogate, does not pireclude the infants. (Id.) § 2486. Vacancy hy disqualification in New York and Kings. — In the county of New York, the court of common pleas for that city and county, at a scecial term thereof, and, in the county of Kings, the supreme court, at a special term thereof held in the city of Brooklyn, must, upon the presentation of proof of its authority, as prescribed in the next section, exercise all the powers and jurisdiction of the surrogate's court, as follows : 1. "Where the surrogate is precluded or disqualified from acting, with respect to a particular matter, it must exercise all the powers and jurisdiction of that court with respect to that matter. 2. Where the office of surrogate of the county is vacant, or the surrogate is disabled by reason of sickness, absence, or lunacy, it must exercise all the powers and jurisdiction of that court until the vacancy is filled, or the disability ceases, as the case may be. § 2487. Proof of authority. — The authority of another officer or, in the county of New York, of the court of common pleas, or in the county of Kings, of the supreme court, to act as prescribed in the last three sections, must be proved in one of the following modes : 1. Where the surrogate is disqualified, or precluded from acting Surrogate Appointed by Court. 5 in a particular matter, that fact may be proved by the surrogate's certificate thereof ; or, except as otherwise prescribed in section 2485, by affidavit or oral testimony. 2. The fact that the surrogate is so disqualified or precluded, or that he is disabled, or that the office is vacant, and also the authority of the officer, or of the court, as the case may be, to act in his place, may be proved, and are deemed conclusively estab- lished, by an order of the general term of the supreme court, held within the department embracing the county. After such an order is made, the surrogate shall not make the certificate speci- fied in section 2485 of this act, and if such a certificate has been theretofore filed, the powers and jurisdiction of the sur- rogate therein designated, as specified in that section, thenceforth cease. § 2488. Appointment hy supreme court. — An order may be made, as prescribed in subdivision second of the last section, upon or without notice, as the general term thinks proper. It must recite the cause of the ' making thereof ; it must designate the officer or court, empowered to discharge the duties of the office of surrogate ; and, if it relates to a particular matter only, it must designate that matter. It may, in the discretion of the court, require an officer to give security, for the due discharge of his duties therein. Where the office of surrogate is vacant, or the surrogate is disabled by reason of lunacy, the attorney-general, if directed by the governor, must, or the district attorney, upon his own motion, may, apply for the order ; and the general term must grant it upon his application. The general term may also grant the order, upon the application of a party, or a person about to become a party, to any special proceeding in the surrogate's court Where the surrogate is sick or absent, the granting of the order rests in the discretion of the court, and its effect may be qualified, as the court thinks proper. § 2489. How authority superseded. — Where an order is made by the general term, as prescribed in the last two sections, or an appointment is made by the board of supervisors, as prescribed in section 2492 of this act, for any cause except a vacancy in the office of surrogate, it may be revoked, without prejudice to any proceedings theretofore taken by virtue thereof, by the general term of the departmerit embracing the surrogate's county, upon proof that it was improvidently made, or that the cause of making it has become inoperative. Such an order or appointment, made upon the ground that the surrogate's office is vacant, is super- seded, without any formal revocation, by the filling of the vacancy. After the order or appointment is revoked, or the vacancy is filled, as the case may be, the unfinished business, in any proceedings taken by virtue of the order or appointment, must be transferred to, and may be completed by, the surrogate, 6 ■ Court May Tkansfek to Surrogate. in the same manner and with like effect, as where a new surrogate completes the unfinished business of his predecessor. In certain counties, provision is made for the election of special surrogates and special county judges to act when those regularly elected shall be disqualified. (Laws 1851, chap. 108.) § 2490. Proceedings in New York and Kings regulated. — In a special proceeding cognizable before a surrogate, taken in the court of common pleas, or the supreme court, as prescribed in this article, the seal of the court in which it is taken, must be used, where a seal is necessary. The special proceeding must be entitled in that court ; and the papers therein must be filed or recorded, as the case may be, and issues therein must be tried, as in an action brought in that court. The clerk of that court must sign each record, which is required to be signed by the surrogate or the clerk of the surrogate's court. The issuing of a citation may be directed, and any order intermediate the citation and the decree may be made, by a judge of the court § 2491. Transfer to surrogate's court. — The court xa&y, at any time, in its discretion, upon being satisfied thalt the reason for the exercise of its powers and jurisdiction has ceased to operate, make an order to transfer to the surrogate's court, any matter then pending before it. Such an order operates to transfer the same accordingly. Immediately after such a transfer, or after the revocation of the order of the general term, as prescribed in the last section but one, the surrogate must cause entries to be made in the proper book in his office, referring to all the papers filed, and orders entered, or other proceedings taken, in the court of common pleas, or the supreme court ; and he may cause copies of any of the orders or papers to be made, and recorded or filed in his office, at the expense of the county. § 2492. Temporary surrogate. — In any county, except New York or Kings, if the surrogate is disabled, by reason of sick- ness, absence, or lunacy, or the office of surrogate becomes vacant before the expiration of a full term, and there is no special surro- gate, or special county judge of the same county, who is compe- tent and able to act as surrogate, the board of supervisors may, in its discretion, appoint a suitable person, to act as surrogate, until the surrogate's disability ceases, or his term of office expires, if the disability continues until then ; or until a special surrogate or a special county judge is elected or appointed. A person so appointed must, before entering upon the execution of the duties of his office, take and file an oath of office, and give an official bond, as prescribed by law, with respect to a person elected to the office of surrogate. General Jurisdiction of Court. 7 § 2493. Temporary surrogates compensation. — An officer, or a person appointed by the board of supervisors, who acts as surro- gate of any county during a vacancy in the office, or in conse- quence of disability as prescribed in the last nine sections, must be paid, for the time during which he so acts, a compensation equal pro rata, to the salary of the surrogate; or, in a county whert the county judge is also surrogate, to the salary of the county judge. The amount of his compensation must be audited and paid, in like manner as the salary of the surrogate, or of the county judge, as the case may be. "Where an officer of the county performs the duties of the surrogate, with respect to a particular matter, wherein the surrogate is disqualified or precluded from acting, the supervisors of the county must allow him a just com- pensation for his services therein, to be audited and collected in the same manner. § 2494. Acts of temporary surrogate, how recorded. — Where an act is done, or a proceeding is taken by, before, or by authority ot an officer, or a person appointed by the board of supervisors, temporarily acting as surrogate of any county, as prescribed in this article, the same must be recorded, or the proper minutes thereof must be entered, in the books of the surrogate's court, in like manner as if the same was done or taken by, before, or by authority of the surrogate of the county ; and the officer or per- son so acting, or the clerk of the surrogate's court, must sign the certificate of probate and any letters so issued, and must certify the record thereof in the book. ^ In regard to the general powers of the surrogate, it is provided by the new revision as follows : § 2472. General jurisdiction. — ^Each surrogate must hold, within his county, a court, which has, in addition to the powers conferred upon it, or upon the surrogate, by special provision of law, juris- diction, as follows : 1. To take the proof of wills ; to admite wills to probate ; to revoke the probate thereof ; and to take and revoke probate of heirship. , 2. To grant and revoke letters testamentary and letters of ad- ministration, and to appoint a successor in place of a person whose letters have been revoked. 3. To direct and control the conduct, and settle the accounts, of executors, administrators, and testamentary trustees ; to re- , move testamentary trustees, and to appoint a successor in place of a testamentary trustee so removed. 4. To enforce the payment of debts and legacies ; the distribu- tion of the estates of decedents; and the payment or delivery, by executors, administrators, and testamentary trustees, of money or other property in their possession, belonging to the estate. 8 General Jurisdiction. 5. To direct the disposition of real property, and interests in real property, of decedents, for the payment of their debts and funeral expenses, and the disposition of the proceeds thereof. 6. To administer justice, in all matters relating to the affairs of decedents, according to the provisions of the statutes relating thereto. 7. To appoint and remove guardians for infants ; to compel the payment and delivery by them of money or other property be- longing to their wards ; and, in the cases specially prescribed by law, to direct and control their conduct, and settle their accounts. This jurisdiction must be exercised in the cases, and in the manner, prescribed by statute. The court being a court of record, has common law jurisdic- tion, and having a clerk and seal, may grant naturalization. {Matter of Harstrom, 7 Abb. K C, 891.) For a history of the surrogate's court and its predecessors, see an opinion by Judge Daly, in Brick's Estate (15 Abb., 12). A surrogate's court can only exercise the power prescribed by statute, and such incidental powers as are requisite to the exercise of the powers expressly given, or to the attainment of justice in the cases to which its jurisdiction extends. Unless a warrant for the exercise of jurisdiction in a particular case can be found in the statute, either given expressly or by implication, the whole proceeding is void. {Higgs v. Gragg, 89 IST. Y., 479.) Upon the subject of the general jurisdiction of the surrogate, it may be noted that while formerly the court was not a court of record, and had only special and limited statutory jurisdiction {People V. Corlies, 1 Sandf., 228), under the law, as it now stands, surrogate's courts having common law jurisdiction, and being courts of record, their powers are extended. {Matter of Harstrom, 7 Abb. N. C, 391.) The decisions, therefore, formerly made ex- tending the jurisdiction of the surrogate's court have more authority than under the former statute. It was held that, although the surrogate's court can only exercise such powers as the statute conferred, under the authority to do certain acts, and to exercise a certain degree of power yet not given by any certain expressed words, may be fairly inferred from the general language of the statute, or, if necessary, to accomplish its objects, and, to the just and useful exercise of the powers which are expressly given, it may be taken for granted. {Dubois v. Sands, 43 Barb., 412.) It was further held that the provision that the power of the surrogate shall be exercised in the cases and in the manner pre. Exclusive Jurisdiction. 9 scribed by law is not jurisdictional, except in respect to the mode of acquiring jurisdiction. Therefore, neither literal nor technical construction, inconsistent with the general purposes of the law, or well established prin- ciples affecting the administration of estates and the operation and execution of law, should be given to the statutes which only affected the mode of procedure in the surrogate's court {Hart- neU V. WandeU, 60 N. Y., 346 ; reversing 2 Hun, 552.) While these are to be taken under the amended statute to the full extent, it is still true that jurisdiction cannot be conferred as to the matter as to which the court has no power by assent or submission of the parties. {Bacon y. Deming, 6 Paige, 95.) Nor can the appearance of the parties, and their submission in the matter in which the court has no jurisdiction, be sustained as an arbitration. {Tucker v. Tucker, 4 Ct. App. Dec, 428.) But if the court has jurisdiction of the subject matter, vol- untary appearances of the parties gives jurisdiction, as well of them. (Section 2528.) § 2476. Exclusive jurisdiction. — The surrogate's court of each county has jurisdiction, exclusive of every other surrogate's court, to take the proof of a will, and to grant letters testamentary thereupon, or to grant letters of administration, as the case requires, in either of the following cases : 1. Where the decedent was, at the time of his death, a resident of that county, whether his death happened there or elsewhere. 2. Where the decedent, not being a resident of the State, died within that county, leaving personal property within the State, or leaving personal property, which has since his death, come into the State, and remains unadministered. 3. Where the decedent, not being a resident of the State, died without the State, leaving personal property within that county, and no other; or leaving personal property which has, since his death, come into that county, and no other, and remains unad- ministered. 4. Where the decedent was not, at the time of his death, a resi- dent of the State, and a petition for probate of his will, or for a grant of letters of administration, under subdivision second or third of this section, has not been filed in any surrogate's court; but real property of the decedent, to which the will relates, or which is subject to disposition under title fifth of this chapter, is situated within that county, and no other. Eesidence and domicil are not synonymous terms. {Barlett v. City of New York, 5 Sand,, 44; Eaggart v. Morgan, 5 K. y.,422.) 2 10 Jurisdiction Acquired Not Lost. Domicil is only acquired by actual residence. {Graham v. Pvblic Administrator, 4 Bradf., 127.) A residence taken for one's health even for two years, does not change the domicil. (Jsham v. Qib- bans, 1 Bradf., 69.) The second subdivision supplies the casus omissus in the statute, pointed out in Kohler v. Knapp (1 Bradf., 241). The jurisdiction of the surrogate's court is not only exclusive to prove the will, but a court of equity has no jurisdiction to set aside a will oi personal property, which has been duly admitted to probate, because of fraud or undue influence ; the probate is con- clusive. {Post V. Mason, 91 N". Y., 539.) But the supreme court, in an action in equity, under chapter 238, Laws of 1853, as amended by chapter 316 of Laws of 1879, has jurisdiction to try the execution of a will, the competency of the testator, and to set the will aside and declare it void as to real estate. {Pryer v. Howe, 37 Hun, 383 ) § 2473. Presumption of jurisdiction. — Where the jurisdiction of a surrogate's court to make, in a case specified in the last section (§ 2472) a decree or other determination, is drawn in question col- laterally, and the necessary parties were duly cited or appeared, the jurisdiction is presumptively, and, in the absence of fraud or collusion, conclusively, established, by an allegation of the juris- dictional facts, contained in a written petition or answer, duly verified, used in the surrogate's court. The fact that the parties were duly cited is presumptively proved, by a recital to that effect in the decree. § 2474. Jurisdiction not lost by defect of record. — The surrogate's court obtains jurisdiction in every case, by the existence of the jurisdictional facts prescribed by statute, and by the citation or appearance of the necessary parties. An objection to a decree or other determination, founded upon an omission therein, or in the papers upon which it was founded, of the recital or proof of any fact necessary to jurisdiction, which actually existed, or the failure to take any intermediate proceeding, required by law to be taken, is available only upon appeal. But, for the better pro- tection of any party, or other person interested, the surrogate's court may, in its discretion, allow such a defect to be supplied by amendment. The irregularity of proceedings before the' surrogate cannot be shown in a collateral action. {Jachson v. Robinson, 4 Wend. 436.) In an action founded on a decree e. g. against sureties on an administratqr's bonds, the defendants cannot deny the jurisdiction Concurrent Jurisdiction. 11 or question the decree. {Field v. Van Cott, 15 Abb. K C, 319 ; Peopk V. Falconer, 2 Sandf., 81 ; People v. Norton, 9 K Y., 176 ; Thayer v. Clark, 4 Abb. Ct. App. Dec; 891 ; 48 Barb., 243.) The omission by the surrogate on granting administration, to take a bond with two or more sureties, is error merely, to be cor- rected on appeal, and it is not a jurisdictional defect exposing the proceedings to collateral impeachment {Bloom v. Burdick, 1 Hill, 130.) It is not necessary that the record should show affirmatively, and on its face, that the court had jurisdiction. Jurisdiction may be shown by proof aliunde. {Van Beusen t. Sweet, 51 N. Y., 378.) Chapter 359, Laws of 1870, relating to New York city, and the Code, put the orders of the surrogate's court on the footing of orders of courts of general jurisdiction, and the necessary facts are presumed. This effect is not confined to proceedings before the surrogate, but extends to proceedings based on the surrogate's decree in all other events. {Beams v. Gould, 11 N. Y., 455.) § 2475. Effect of exercise of jurisdiction. — Jurisdiction, once duly exercised over any matter, by a surrogate's court, excludes the subsequent exercise of jurisdiction by another surrogate's court, over the same matter, and all its incidents, except as other- wise specially prescribed by law. Where a guardian has been duly appointed by, or letters testameritary or of administration have been duly issued from, or any other special proceeding has been duly commenced in, a surrogate's court having jurisdiction, all further proceedings, to be taken in a surrogate's court, with respect to the same estate or matter, must be taken in the same court. It follows, then, that the presentation of a petition in a county, alleging residence therein of the decedent, gives to the court jurisdiction to try the question of residence, of which it cannot be deprived by subsequent proceedings in another county, on allegation of residence of decedent in the latter county. {Matter of Buckley, 41 Hun, 106.) § 2477. Concurrent jurisdiction. — "Where personal property of the decedent is within, or comes into, two or more counties, under the circumstances specified in subdivision third of the last sec- tion (§ 2476) ; or real property of the decedent is situated in two or more counties, under the circumstances specified in subdivision fourth of the last section ; the surrogate's courts of those coun- ties have concurrent jurisdiction, exclusive of every other sur- rogate's court, to take the proof of the will and grant letters 12 JuRisnicTioK Affectkd by DEBTa testamentary thereupon, or to grant letters of administration, as the case requires. But where a petition for probate of a will, or for letters of administration, has been duly filed in either of the courts so possessing concurrent jurisdiction, the jurisdiction of that court excludes that of the other. § 2478. Jurisdiction affected hy locality of debts. — For the pur- pose of conferring jurisdiction upon a surrogate's court, a debt, owing to a decedent by a resident of the State, is regarded as per- sonal property, situated within the county where the , debtor, or either of two or more joint debtors, resides ; and a debt, owing to him by a domestic corporation, is regarded as personal prop- erty, situated within the county where the principal office of the corporation is situated. But the foregoing provision does not apply to a debt evidenced by a bond, promissory note, or other instrument for- the payment of money only, in terms negotiable, or payable to the bearer or holder. Such a debt, whether the debtor is a resident or a non-resident of the State, or a foreign or a domestic government. State, county, public officer, association, or corporation, is, for the purpose of so conferring jurisdiction, regarded as personal property, at the place where the bond, note, or other instrument is, either within or without the State. § 2479. Jurisdiction in case of new county. — Where a new county has been heretofore, or is hereafter erected, or territory has been heretofore, or is hereafter, transferred from one county to another, the jurisdiction of the surrogate's court of each of the counties affected thereby, to take the proof of a will, or to grant letters, depends upon the locality, when the petition is presented, of the place where the property of the decedent is situated, or where the event occurred, as the case may be, which, determines jurisdiction. If, before the erection of the new county, or the transfer of the territory, letters have been granted, upon the ground that the de- cedent died or resided within the county, the surrogate's court, from which they were issued, has exclusive jurisdiction of the estate, and of all matters incidental thereto; and if the place where the decedent died or resided is embraced within another county, certified copies of any papers or proceedings, filed, en- tered or recorded in the surrogate s court thereof, must be fur- nished, on payment of the fees therefor, by the proper officer, to any person interested in the estate ; and, upon the latter's request and payment of the fees therefor, the proper officer of the court so having jurisdiction must file, enter, or record the same, in like manner and with like effect as the originals. Where the letters were granted upon any ground other than the decedent's death or residence within the county, the jurisdiction of the court from which they were issued, remains unaffected by any change in the territorial limits of its county. (As amended, 1883.) When Surrogate to Attend. 13 § 2480. Proceedings, how transferred. — A special proceeding pending in a surrogate's court, whose jurisdiction to entertain the same is taken away by the provisions of the last section, or in consequence of the erection of a new county, or the alteration of the territorial limits of a county, after this act takes effect, must be transferred, by order of the court in which it is pending, to the surrogate's court having jurisdiction ; and the latter court has the same jurisdiction, power and authority with respect there- to, which the former court would havp had, if the territorial limits of its county had not been changed. § 10. (S. L. 1867, Chap. 782.) The board of supervisors of each county shall provide the surrogate's court of such county with rooms, fuel, lights and stationery, suitable and sufficient for the transaction of its business ; and if such board shall neglect to do so, the said court may, by an order duly entered, direct the sheriff of the county to do so ; and the expense incurred by the sheriff, in carrying such order into effect, when certified by him, shall be a county charge. § 2504. Surrogates court; lohen to he open. — ^The surrogate's court is always open for the transaction of any business, within its powers and jurisdiction. § 2505. When surrogate to attend. — The surrogate must, unless prevented by sickness or other unavoidable casualty, attend at his office on Monday of each week, except during the month of August, or, where Monday is a public holiday, ori the following Tuesday, to execute the powers conferred and the duties imposed upon him. But the surrogate of any county may, by an instru- ment in writing, under his hand, filed in the office of the clerk of the county, at least twenty days before the first day of January in any year, designate a day of the week, other than Monday, on which he will attend at his office, or a month, other than August, during which he will be absent therefrom, or both, during that year; and where the county judge is also surrogate, he is not required to attend at his office on any day, when the county court or court of sessions is sitting. The surrogate must also execute the duties of his office, at such other times and places, within his county, as the public convenience requires. (Amended, chap. 102, Laws 1881, in relation to the surrogate of the county of New York) The surrogate may not refuse to act in a proper case. When he declines to exercise a conceded jurisdiction, and to act until the happening of a contingency which may never happen, for an in- adequate or indefensible reason, a writ of mandamus may properly issue to command the surrogate to exercise the jurisdiction. (Peo- ple ex rel. Morgan v. The Surrogate, 19 N. Y. Week Dig., 138.) 14 Clerk Appointed and Powers. § 2506. When and where court to be held. — The surrogate's court, in a county where the county judge is also surrogate, may be held at the time and place at which the county court is held ; and, in that case, the order of business of the county court, the court of sessions, and the surrogate's court, is under the direction of the county judge. § 2507. Seal. — The surrogate's court has a seal, of which the ' surrogate has charge. § 2508. Clerks in surrogate's office. — Each surrogate may ap- point, and at pleasure remove, as many clerks for his office, to be paid by the county, as the board of supervisors of his county, or, in the city and county of New York, the board of aldermen, authorize him so to appoint. The board of supervisors or the board of aldermen, as the case requires, must fix the compensa- tion of the clerk or clerks so appointed ; and may authorize them, or either of them, to receive, for their or his own use, the legal fees for making copies of any record or paper in the office of the surrogate. A surrogate may appoint, and at pleasure remove, as many additional clerks, to be paid by him, as he thinks proper. §2509. Olerk of surrogate's court; how appointed ; his powers. — A surrogate may, by a written order, filed and recorded in his office, and which he may, in like manner, revoke at pleasure, ap- point a clerk employed in his office to be the clerk of the surro- gate's court. The clerk so appointed njay exercise concurrently with the surrogate the following powers of the surrogate : 1. He may certify and sign as clerk of the court any of the records of the court, including the certificate specified in section 2629 of this act, and the records and papers specified in subdi- vision ninth of section 2481 of this act 2. He may issue any mandate, to which a party is entitled as of course, either unconditionally, or upon the filing of any paper ; and may sign, as clerk of the court, and affix the seal of the court to, any letters or mandate, issued from the court (^Matter of Hurl- hurt, 42 Hun, 311 : 4 N. Y. St Eep., 354.) 3. He may certify, in the manner prescribed by chapter ninth of this act, a copy of any papet, required or permitted by law to be filed or recorded in the surrogate's office. 4. He may adjourn to a definite time, not exceeding thirty days, any matter, when the surrogate is absent from his office, or unable, by reason of other engagements, to attend to the same. 5. He may take the acknowledgment or proof of any instru- ment, to be used or filed in the court of which he is clerk. The surrogate may prohibit the clerk from exercising any power specified in this section, but the prohibition does not affect the validity of any act of the clerk done in disregard of the prohi- bition. Incidental Powers of Surroqate. 15 § 2481. Incidental powers of the surrogate. — A surrogate in court, or out of court, as the case requires, has power: 1. To issue citations to parties, in any matter within the juris- diction of his court ; and, in a case prescribed by law, to compel the attendance of a party. 2. To adjourn, from time to time, a hearing or other proceeding in his court ; and where all persons who are necessary parties have ' not been cited or notified, and citation or notice has not been waived by appearance or otherwise, it is his duty, before proceed- ing 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. 8. To issue, under the seal of the court, a subpoena, requiring the attendance of a witness, residing or being in any part of the State ; or a subpoena duces tecum, requiring such attendance, and the production of a book or paper material to an inquiry pending in the court. 4. To enjoin, by order, an executor, administrator, testamentary trustee, or guardian, to whom a citation or other process has been duly issued from his court, from acting as such, until the further order of the court. 5. To require, by order, an executor, administrator, testamentary trustee, or guardian, subject to the jurisdiction of his court, to perform any duty imposed upon him, by statute, or by the surro- gate's court, under authority of a statute. 6. To open, vacate, modify, or set aside, or to enter, as of a former time, a decree or order of his court ; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause. The powers conferred by this subdivision must be exercised only in a like case and in the game manner, as a court of record and of general jurisdiction exercises the same powers. Upon an appeal from a determination of the surrogate, made upon an application pursuant to this sub- division, the general term of the supreme court has the same power as the surrogate ; and his determination must be reviewed, as if an original application was made to that term. 7. To punish any person for a contempt of his court, civil or criminal, in any case, where it is expressly prescribed by law that a court of record may punish a person for a similar contempt, and in like manner. 8. Subject to the provisions of law, relating to the disqualifica- tion of a judge in certain cases, to complete any unfinished business, pending before his predecessor in the office, including proofs, accountings and examinations. 9. To complete, and certify and sign in his own name, adding to his signature the date of so doing, all records or papers, left uncompleted or unsigned by any of his predecessors. 10. To exemplify and certify transcripts of all records of his court, or other papers remaining therein. 16 PowEK TO Open Decrees. 11. With respect to any matter not expressly provided for m the foregoing subdivisions of this section, to proceed in all matters subject to the cognizance of his court, according to the course and practice of a court, having, by the common law, jurisdiction of such matters, except as otherwise prescribed by statute ; and to exercise such incidental powers as are necessary to carry into effect the powers expressly conferred. In' relation to opening, or modifying decrees, it will be seen that the power of the supreme court, at a special term, to grant a new trial, is only for surprise, for newly discovered evidence, and the misconduct of the jury. In relation to which matters we would refer the practitioner to section 1002 of the Code. It will be noticed that the surrogate's court in relation to the cases specified and as to the power to be exercised by the supreme court, has power to open a decree, or grant a new trial, under section 2481, subdivision 6, for fraud, for clerical error, or for other sufficient, cause. Before the Code, there were numerous adjudications upon these points, and we think that it will be found that the Code has. simply rendered statutory what formerly was to be found in the common law. Thus it was held that he had power to open a decree made by him, on a final accounting, of an admin- istrator, for the purpose of rectifying a clerical error of a considerable amount, and to require a further accounting. {Sipperly v. Baucus, 24 N. Y., 46.) Also to open a decree, taken, by default, in consequence of an accident or mistake, by which one of the parties had been deprived of a hearing. {Pew v. Hasi- inrjs, 1 Barb. Ch., 452 ; Harrison v. IfcMahon, 1 Bradf., 283.) So- he may undo what he has been induced to do through fraud, or on the mistaken supposition of jurisdiction, or of death, or of in- testacy; or he may correct mistakes resulting from accident or oversight. {Brick's Estate, 15 Abb., 12 ; Dobke v. McGlareUy 41 Barb., 491; Vreedenburgh v. Calf, 9 Paige, 128; Campbell v. Thacher, 54 Barb., 882.) It was further held that he should not decline to exercise the incidental powers of the court, necessary to carry into effect the powers expressly conferred, because the statutes were silent on the subject. See cases above cited, and IsUam V. Gibbons (1 Bradf., 69.) He may open a decree on the application of one who had no notice of the accounting ( Wells v. Wallace^ 2 Eedf., 58) ; or when, on final accounting discharging the administrator or executor from the payment of a legacy based upon a release signed by the legatee, it was shown that the release Power to Open DECKEEa 17- was obtained by fraud {Strong v. Strong (3 Eedf., 477). But it was held that the surrogate had no power to open the decree in a case where no fraud in procuring it was alleged, and where the error suggested rests upon facts not positively stated, and not ap- parent in the proceedings ( Yale v. Baker^ 2 Hun, 468), or where all the parties interested were represented, on the ground of error as to law or facts. {Brick's Estate^ 15 Abb., 12.) Nor should he revoke his decision for incompetency of counsel, nor to enable witnesses to contradict their former testimony. {Munrd's Estate, 15 Abb., 363.) He has no power, unless conferred by statute, to open a decree affecting an infant, after he attains his majority. It is only in case of bad faith on the part of the guardian ad litem, or the ex- ecutor or surety, or surprise upon the court, that the infant is entitled to have a decree set aside. {Brick's Estate, sup.) It is a matter of course the proceeding to the second trial where the former decree has been reversed on appeal {Mead v. Mead, 18 Barb., 578); but in such a case he has no discretion upon remit-' titur^ from the supreme court affirming his decree as to part of the claims allowed, and directing further hearing as to others, to re-open such former decree as to the claims affirmed, and grant a new hearing for errors of law. {Heed v. Heed, 52 N. Y., 651.) The application for new trial may also be defeated by laches, and by waitmg nearly four years after discovering the fraud {Strong v. Strong, 3 Eedf., 477); and a motion should not be entertained upon the same facts upon which the order or decree was originally made, only upon new facts, showing that it was made without jurisdiction, or through inadvertence, mistake or fraud. {Janssen v. Wemple, 3 Eedf., 229.) The surrogate should not exercise his powers under section 2481 of the Code, to open a decree after the time for appeal has passed, unless some satisfactory excuse is shown for the neglect to contest the proceedings and appeal from the decree, or unless some error was committed by the surrogate to warrant the opening of the decree. {Matter of Dey Ermand, 24 Hun, 1.) A creditor of a testator, not being a proper party to proceedings for the probate of a will, cannot invoke the authority conferred by subdivision 6 of the above section (§ 2481), to open, vacate, etc., the decree admittting the will. {Heilman v. Jones, 5 Eedf., 398.) In the exercise of the equitable authority of the court, should 3 18 May Commit for Perjuky. a petitioner designate any paper, document or book containing €vidence material to an issue involved, the surrogate may make an order for its deposit in court for inspection. This is not by virtue of any statute authorizing discovery. {Matter of Stokes, 28 Hun, 564.) The surrogate having vacated the order of his court, under which money belonging to the estate has been paid to certain of the beneficiaries at his or her instance, may require repayment •of the same by the persons who have received it under this last subdivision. {Matter of Oilman, 7 N. Y. St Rep., 321.) The provisions of chapter 18, relating to the jurisdiction of the surrogate's court, to take the proof of a will, and to grant letters testamentary, or letters of administration, or regulating the mode ■of proceeding in any matter connected with the estate of a decedent, applies, unless otherwise expressly , declared therein, ■whether the will was made, or the decedent died, before or after this chapter takes effect (Section 2482.) He may also issue a commission to take testimony in the same manner as other courts of record, the statute concerning which is made to apply so far as they can be applied to the substance and subject matter. (Section 2538,) He may commit a witness or party for perjury. " Whenever it shall appear to any court of record, or to any surrogate, that any witness or party who has been legally sworn and examined in any cause, matter or proceeding pending before such court or surrogate, has testified in such a manner as to induce a reasonable presumption that he has willfully and corruptly testified falsely to some material point or matter, such court or surrogate may immediately commit such party or witness, by an ■order or process for that purpose, to prison, or take recognizance with sureties for his appearance and answering to an indictment for perjury." (Art 1, title 4, chap. 1, part 4 of R. S., § 5, as amended by chap. 782, Laws 1867.) § 2498. What booJcs to he kept. — Each surrogate must provide and keep the following books : 1. A record book of wills, in which must be recorded, at' length, every will required by law to be recorded in his office, with the decree admitting it to probate, and also, if the probate is not contested, the proof taken thereupon. 2. A record book of letters testamentary and letters of admin- istration, in which must be recorded all such letters, issued out of his court Books to be Kept. 19 3. A record book, in -which must be recorded every decree, whereby the account of an executor, administrator, trustee, or guardian is settled. 4. A boolc, containing a minute of every paper filed, or other proceeding taken, relating to the disposition of the real property of a decedent, and a record of every order or decree, made there- upon ; with a memorandum of every report made, and other pro- ceeding taken, founded vipon a decree for such a disposition. 5. A book, containing a record of every decree or order, the record of which is not required by this section to be kept else- where ; together with a memorandum of each execution issued, and of the satisfaction of each decree recorded therein. 6. A book, in which must be recorded all letters of guardian- ship, issued out of his court 7. A book of fees and disbursements, in which must be entered, by items, all fees charged or received by him for services or ex- penses, and all disbursements made or incurred by him, which are chargeable against those fees, or to the county. The expense of providing the books specified in this section is a younty charge. § 2499. Books to be indexed. — To each of the books, kept as prescribed in the last section, must be attached an alphabetical index, referring to the page of the book, where each subject may be found. The surrogate may keep two or more books, for a further division of the subjects specified in either subdivision of the last section ; in which case, he must keep a separate index to each set of books. Each decree, revoking the probate of a will, or revoking or otherwise affecting letters testamentary, letters of administration, or letters of guardianship, or suspending or re- moving a testamentary trustee, or modifying or otherwise affect- ing any other decree, must be plainly noted at the end or in the margin of the record of the will, letters, or original decree, with a reference to the book and page where the subsequent decree is recorded. The books, kept as prescribed in the last section, ap- pertain to the surrogate's office, and must be open, at all reasona- ble times, to the inspection of any person. § 2500. Papers and books to be preserved. — A surrogate must carefully file and preserve in his office, every deposition, affidavit, petition, report, account, voucher, or other paper, relating to any proceeding in his court ; and must deliver to his successor all the papers and books kept by him. § 2501. jSurrogate to report fees. — The surrogate of each county, except New York, must, at his own expense, make a report to the board of supervisors of the county, on the first day of each annual meeting thereof, containing a statement, verified by his oath, of all fees received or charged by him for services or ex- 20 Stenographer and Powers. penses, since the last report, and of all disbursements chargeable •against the same, or to the county, stating particularly each item thereof. § 2502. Id. ; in New York county. — The surrogate of the county of New York must, at his own expense, make and file in the office of the county clerk, a like report, between the first and twentieth days of January in each year. § 2503. What papers to he transmitted to the secretary of state; expenses thereof. — A surrogate who admits to probate the will of a person, who was not a resident of the State at the time of his death; or grants original or ancillary letters testamentary upon such a will, or original or ancillary letters of administration upon the estate of such a person ; must, witlyn ten days thereafter, trans- mit to the secretary of state, to be filed in his office, a certified copy of the will or letters. The surrogate's fees for making the copy, and the expenses of transmission, must be audited by the comptroller, and paid out of the treasury upon his wai-rant § 2510. Surrogate liable for acts of clerk. — A surrogate, hereafter elected or appointed, and the sureties in his official bond, are liable for any act of the clerk of the surrogate's court in the discharge of his official duties, during the surrogate's term of office, as if the act was performed by the surrogate. The surrogate may take security from the clerk to indemnify him against the liability created by this section. § 2511. Clerk, etc., not to he appraiser, attorney, etc. — A clerk, or other person employed in any capacity, in a surrogate's office, shall not act as appraiser, as attorney or counsel, or as referee or special guardian, in any matter before the surrogate. § 2512. Stenographer for surrogate's courts in Neiu York and Kings. — The surrogate of each of the counties of New York and Kings must appoint, and may, for cause, remove a stenographer, for his court who is entitled to a salary fixed by law, and to be paid as the salaries of clerks in the surrogate's office are paid. § 2513. Id. ; in other counties. — The surrogate of each county, except New York and Kings, may, in bis discretion, appoint, and at pleasure remove, a stenographer for his court, who shall be paid a reasonable compensation, certified by the surrogate, in every case in which he takes notes of testimony. Such compensation is part of the costs of the proceedings. § 2541. Duty of stenographer. — The stenographer of a surro- gate's court must, under the direction of the surrogate, take full stenographic notes of all proceedings in which oral proofs are Minutes, how Authenticated. 21 given, except where the surrogate otherwise directs. The" testi- mony must be legibly written out at length by him from his notes; and the minutes thereof, as so written out, must, after being authenticated, as prescribed in the next section, be filed in the surrogate's office. § 2542. How minutes of testimony authenticated. — The minutes of testimony, written out as prescribed in the last section, or taken by the surrogate, or under his direction, while the witness is testifying, must, before being filed, be authenticated by the signa- ture of the stenographer, referee, the surrogate, or the clerk of the surrogate's court, as the case may be, to the effect that they are correct § 2543. Id. ; to he hound in volumes. — In the city and county of New York, in the county of Kings, and in any other county where the supervisors so direct, the minutes of testimony written out by the stenographer must be bound, at the expense of the county, in volumes of convenient size and shape, indorsed, "Stenographic minutes," and numbered consecutively. Upon the record of a decree made in any contested matter, the surrogate must cause to be made a minute, referring to each volume of the stenographic minutes, and to the pages thereof, containing any testimony relating to the matter. To give efficiency to the process of the court, it is provided that every sheriff, jailor, coroner or other executive officer, to ■whom any citation, subpoena, attachment or other process issued by a surrogate's court, may be directed or delivered for the pur- pose of being executed, shall execute the same in the same manner as if issued by a court of record, and, for any neglect or misfea- sance therein, shall be subject to the same penalties, actions and proceedings as if the same had pccurred in relation to any process issued by courts of record. (2 E. S., 223, § 9.) § 2495. Surrogate ivhen not to he counsel, etc. — A surrogate shall not be counsel, solicitor, or attorney, in a civil action or special proceeding, for or against any executor, administrator, temporary administrator, testamentary trustee, guardian or infant, over whom, or whose estate or accounts, he could have any jurisdiction by law. § 2496. Surrogate., when disqualified. — In addition to his gen- eral disqualifications as a judicial officer, a surrogate is disquali- fied from acting upon an application for probate, or for letters testamentary, or letters of administration, in each of the following cases : 1. Where he is, or claims to be, an heir or one of the next of 22 Practice, when Surrogate Disqualified. kin to the decedent, or a devisee or legatee of any part of the estate. 2. Where he is a subscribing witness, or is aecessarily exam- amined or to be examined as a witness, to any written or nun- cupative will. 3. Where he is named as executor, trustee, or guardian, in any will, or deed of appointment, involved in the matter. § 2497. Disqualification ; when objection must he taken. — An ob- jection to the power of a surrogate to act, based upon a disquali- fication, established by special provision of law, other than one of those enumerated in the last section, is waived by an adult party to a special proceeding before him, unless it is taken at or before the joinder of issue by that party ; or, where an issue in writing is not framed, at or before the submission of the matter or ques- tion to the surrogate. But an infant is not concluded by the omission of his special guardian to object to the jurisdiction of the surrogate, on account of disqualification. ( Wigand v. De Jonge, 8 Abb. N. C, 260.) § 2529. Surrogates son not to practice before him. — A surrogate's father or son shall not practice or be employed as attorney or counsel, in any case, in which his partner or clerk is prohibited by law from so practicing, or being employed. CHAPTER II. Pleading in Surrogate's Court, and Process and See- vice Thereof, etc. , It has been frequently said, hastily said, as we think, that there are no rules of pleading in this court. But the courts have held (see Foster v. WiThur, 1 Paige, 537 ; Van Vleck v. Burroughs, 6 Barb., 341, and Carle v. Underhill, 3 Brad., 101), that litigants in this court, shall present their cases in such form, as to give the court notice of the propositi6ns which they seek to establish or controvert ; and the practice which has almost universally obtained in the several surrogate's courts of this State, is exceedingly uniform. From that practice, clear and simple rules of pleading may be deduced. The court itself is the successor in its functions of the ecclesias- tical courts of England. These courts were established in the Pleading, Origin of. 23 time of William I, by act of Parliament, and it was ordained, that they should decide according to the canon law ; that is according to rules established by the ordinances of the Catholic councils or the decretals of the several popes. The ecclesiastical courts, like the court of chancery, in the earlier times in that country, was officered by clerical persons, unversed in the common law, as it then existed, and adopting the canons, they adopted, also the method of procedure which had descended from the Eoman courts, or their successors on the, European continent. (See an admirable and complete history of the surrogate's courts by Daly, justice, acting as surrogate, 15 Abb., 12.) This method of procedure was far more simple and inartificial than that built up in the common law courts, and abolished in this State by the legislature, in the adoption of the Code of Pro- cedure. Indeed, that Code is, practically, an adoption of the rules of the civil law as to pleading. In. the ecclesiastical courts, and others governed by the civil law, as we understand it, the suitor applied by petition, stating the facts upon which he relied for the relief he sought, and asking for such relief ; and, when the parties all were gotten into court, the other party stated the facts upon which he relied to defeat the claim for relief, or, to oust the court of jurisdiction. We see traces of this practice in the chancery pleadings in use in this State until 1848. The party now styled the plaintiff was then called the complainant, and he styled himself, " your orator," anglice, petitioner, or one who prays, in his bill of complaint. The ecclesiastical courts preserved more nearly the practice of the civil law, and upon the petition of the suitor issued the pro- cess, summons, citatipn, or subpoena, as the case required, and the party defending was required to state, in apt language, the grounds of his defense. Keeping in mind, then, the origin of the surrogate's courts, we can readily see how a system of pleading has arisen, and has been continued, and how it has, in some cases, been embodied in the Eevised Statutes of the State. , The theory, then, on which the practice of the court is founded, is that the court, in all cases, is moved by petition, stating the facts which confer jurisdiction of the persons or matter, upon the court, and asking for the process or relief appropriate to the facts. The court thereupon enters the proper order for the relief, or for process, and, if process is asked, issues it. On the return of 24 Proceedings, how Commenced. the process, the party cited or summoned, if there be a contest, states, in apt language, the facts upon which he relies, and, the issue being made up, a trial is had. It does not follow that the petition shall always be actually made in form, but in all cases, it is believed, it is presumed to have been made. The new revision of the statutes adopts these views, and makes authoritative the rules of pleading as above deduced from theory and the actual practice of the court § 2515. Process ; how executed and returnable. — A citation or other mandate of a surrogate's court must, except where it is otherwise specially prescribed by law, be made returnable before the surrogate from whose court it was issued, and may be served or executed in any county. A warrant of attachment must be directed to the sheriff of the surrogate's county; who may execute it in any county, and must convey the person arrested to the place where it is returnable. § 2516. Proceedings to he commenced hy citation. — Except in a case where it is otherwise specially prescribed by law, a special proceeding in a surrogate's court must be commenced by the service of a citation, issued upon the presentation of a petition. But upon the presentation of the petition, the court acquires jurisdiction to do any act which may be done before actual service of the citation. The petition in each proceeding should be distinct, and relate only to the one proceeding. Therefore, a petition for an account- ing cannot include one for the appointment of an administrator with the will annexed. {Popham v. Spencer, 4 Redf., 399.) § 2517. Id. ; within the statute of limitations. — The presentation of a petition is deemed the commencement of a special proceed- ing within the meaning of any provision of this act, which limits the time for the commencement thereof. But in order to entitle the petitioner to the benefit of this section, a citation, issued upon the presentation of the petition, must, within sixty days there- after, be served, as prescribed in section 2520 of this act, upon the adverse party, or upon one of two or more adverse parties, who are jointly liable, or otherwise united in interest ; or, within the same time, the first publication thereof must be made, pur- suant to an order made as prescribed in section 2522 of this act {Pryer v. Clapp, 1 Dem., 387.) § 2518. Persons constituting a class ; ivhen to be cited ; citation when some are unknown. — Where it is prescribed, in any pro- Citation, Provisions as to. 25 ■vision of this chapter, that a petitiou must pray that a person, or that creditors, next of kin, legatees, heirs, devisees, or other persons constituting a class, may be cited for any purpose, all those persons are necessary parties to the special proceeding. Where persons to be cited constitute a class, the petitioner must 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 that fact must be set forth, 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 before him to testify respecting the matter. If he is satisfied, upon the allegations of the petitioner, or after making the inquiry, that the name of one or more of the persons to be cited cannot be ascertained with reasonable diligence, the citation may be directed to that person or those persons, by a general designation, showing his, her or their connection with the decedent, or interest in the property or matter in question ; or otherwise sufficiently identify- ing the person or persons intended. A citation thus directed has the same force and effect as if it was directed to the person or persons intended, by their names ; and where the person or persons so intended are duly cited, in any manner prescribed by law, the decree binds them as if they were named therein. A petition, duly verified, is deemed an affidavit within the meaning of this section. The insertion of a name in a citation, after its issue by any one other than the surrogate or his clerk, is unauthorized, and service gives no jurisdiction over the person. {Boerum v. Beits, 1 Dem., 471.) § 2519. Contents of citation. — A citation must be made return- able upon a day certain, designated therein, not more than four months after the date thereof ; and must specify whose estate or what subject-matter is in question. The names of all the persons to be cited, as far as they can be ascertained, must be contained in the citation. Where the name, or part of the name, of either of them cannot be ascertained, that fact must be stated in the citation. § 2520. Citation ; how served within this 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, 4 26 Service of Citation. 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 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. Any person, although a party to the special proceeding, may serve a citation. {Wetmore v. Parker, 7 Lans., 121; 52 N. Y., 450.) PEOOF OF SEEVICE OF CITATION. Surrogate's Court — Kensselaeb County. In the Matter of the proof of THE Will of John Doe, De- ceased. Eensselaeb County, ss.: Charles Doe, of the city of Troy, in said county, being duly sworn, says, that he is eighteen years old and upwards ; that on the day of , 1880, and more than eight days before the day of , 1880, at the town of Bruns- wick, in said county, he served the annexed citation on Sarah Eich, whom he knows to be the person so named in said citation, by delivering to and leaving with her a copy thereof ; that on the same day at said town of Brunswick, he served said annexed cita- tion on Charles Smith, the person named therein, by leaving a copy thereof at his residence with Sarah Jones, a person of mature age and apparently of discretion, with a request that the same be delivered to said Charles Smith, deponent having been informed by said Sarah Jones that said Charles Smith was absent from home but would return in about three days ; that on the day of , 1880, and more than fifteen days before the day of , 1880, he served said citation on therein named, at the town of Elmira, by delivering to and leav- ing with him a copy thereof. CHAELES DOB. Sworn before me, this day of January, 1880. William Lord, Notary Public, Rensselaer Co. Admission of Service. I admit due, timely and personal service of the within citation. JAMES SMITH. § 2521. Substitute for personal service upon a resident — Where it appears, by affidavit, to the satisfaction of the surrogate froiQ Substituted Service of CrrATioN. 27 ■whose court a citation issued, that proper and diligent effort has been made to serve it upon a resident of the State, as prescribed in the last section ; and that the person to be served cannot be found, or, if found, that he evades service, so that it cannot be made ; the surrogate may make an order, directing that service thereof be made, as prescribed in section 436 of this act, and the provisions of that section, and of section 437 of this act, relating to the service of a summons, apply to the service of a citation, pursuant to an order made as prescribed in this section. The sections referred to, so far as they relate to the surrogate s court, with explanations showing their application, are as follows : § 446. Sow service must he made. — The order must direct, that the service of the summons (citation), be made, by leaving a copy thereof, and of the order, at the residence of the defendant (party), with a person of proper age, if, upon reasonable application, ad- mittance can be obtained, and such a person found who will receive it ; or, if admittance cannot be so obtained, nor such a person found, by affixing the same to the outer or other door of the defendant's (party's) residence, and by depositing another copy thereof, properly inclosed in a post-paid wrapper, addressed to him, at his place of residence, in the post-office at the place where he resides. § 437. Papers to he filid; 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 ; other- wise the order becomes inoperative. On filing an affidavit, show- ing service according to the order, the summons (citation) is deemed served. «*«-»**** AFFIDAVIT TO PEOCUEE OEDEE FOE SUBSTITUTED SEEVICE. Surrogate's Court. In the Matter of the Estate of / John Smith, Deceased. I Rensselaer County, ss. : Charles Smith, of Nassau, in said county, being duly sworn, says, that at the request of Sarah Smith, administratrix of the goods of the above n^med deceased, the deponent endeavored to serve the annexed citation on Job Smith therein named ; that said Job Smith resides in said town of Nassau with his family ; and deponent, on the fifth day of June, 1879, went to the residence of said Smith and inquired for him, and the wife of said Smith re- fused to tell where he could be found ; and deponent made inquiry 28 - Substituted Service. from several other persons who are acquainted with said Job Smith, and was informed that said Job Smith was about home, but none of them could tell his precise whereabouts. That deponent endeavored to make service of said citation on James Jones, in said citation named ; that said Jones resides in the town of Berlin with a person named Jolls, and deponent went to the house of said Jolls on the day of , 1879, and on approaching said house, deponent saw said Jones in front thereof, but before deponent could approach near enough to de- liver a copy of said citation to him, said Jones went into said house and fastened the door, and deponent was not able to enter said house peaceably ; and further deponent says not. CHAELBS SMITH. ■ Sworn before me, etc. OEDEE FOE SUBSTITUTED SEEVICE. At a surrogate's court, held in and for the county of Eensselaer, at the surrogate's office in the city of Troy, on the day of , 1880. Present — Hon. Moses Warren, Surrogate. In the Matter op the Estate of \ John Smith, Deceased. f On reading and filing the affidavit of Charles Smith, made in this matter, from which it appears that Job Smith, one of the parties to whom the citation issued in this matter, out of this court, dated June 1, 1879, was issued, cannot be found, although he resides in the town of Nassau (or, that although the said Job Smith can be found, he evades service of the citation directed to him, issued in this matter, out of this court, dated June 1, 1879), and that proper and diligent effort has been made to serve said citation on said Job Smith : Ordered, that said citation be served upon said Job Smith by leaving a copy thereof, with a copy of this order, at the residence of said Smith, with a person of mature age, if, upon request, ad- mittance can be obtained, and such a person found who will re- ceive it; or, if admittance cannot be so obtained, nor such a person found, by affixing a copy of said citation and of this order to the outer door of the residence of said Smith, and by deposit- ing copies of said citation and of this order, securely inclosed in a post-paid wrapper, addressed to said Smith at the town of Nassau, in the post-office at Nassau. "Witness, Moses Warren, surrogate, and the seal of the- [SEAL.J court, the day and year first above written. MOSES WAEEBN, Surrogate. V Sebvice on Unknown Parties, etc. 29 PEOOF OF SERVICE OF CITATION AND ORDER. Surrogate's Court. In the Matter of the Estate of / John Smith, Deceased. l" Rensselaer County, ss. : James Lord, of the town of Nassau, in said county, being dulj sworn, says, that on the day of , 1880, he served the annexed citation, and the order of this court in this matter in reference to the service thereof, on Job Smith, by affix- ing copies of said citation and order to the front outer door of the residence of said Smith, after deponent had requested and endeav- ored to gain peaceable admittance to such residence, and after he was unable so to do. And deponent further says that on the same day he deposited copies of said citation and said order, securely inclosed in a post-paid wrapper, addressed to said Job Smith, at the town of Nassau, in the post-office at . And further deponent says not JAMES LORD. Sworn, etc. § 2522. Service hy puhlicalioii, etc. — 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 fol- lowing 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 the State, has departed therefrom, with intent to defraud his creditors, or to avoid the service of process. 3. Where the person to be served, whether an adult or an infant, is a resident of the State, but is temporarily absent there- from. 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 cita- tion, issued from the same surrogate's court, upon the presentation of the same petition, before the expiration of the limitation appli- cable 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 had not been extended by the attempt to serve the citation. § 2523. Id. ; upon persons unknown, etc. — 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 satisfied, by 80 Okder fob Publication. affidavit, 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, legatees, heirs, devisees, or other persons included in a class, to whom a citation has been directed, designating them by a general descrip- tion, as prescribed in this article. § 2524. Order ^ when and hoio Tnade ; contents thereof. — Where an order, directing the service of a citation without the State, or by publication, is made as prescribod in either of the last two sections,, the party applying therefor must produce proof, by affi- davit or otherwise, to the satisfaction of the surrogate, that the case is one of those specified in those sections. The order must direct that service of the citation, upon the person named or de- scribed in the order, be made by publication of the citation in two newspapers, designated as prescribed in this article, for a specified time, which the surrogate deems reasonable, not less than once in each of six successive weeks; or, at the option of the petitioner, by delivering a copy of the citation, without the State, to each person so named or described, in person ; and if the person to be served is an infant, under the age of fourteen years, also the person with whom he is sojourning, or, if the service is made upon a corporation, 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 specified post-office, a copy of the citation and 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 that person with whom such infant is sojourn- ing; or a statement that the surrogate, being satisfied, by the affidavit upon which the order was granted, that the petitioner cannot, with reasonable diligence,. ascertain a place or places where the person to be served would probably receive matter transmit- ted through the post-office, dispenses with the deposit of any papers therein. OEDEE FOE PUBLICATIOlSr AND SEEVICE WITHOUT THE STATE. At a surrogate's court, held in the county of Rensselaer, at the surrogate's office in the city of Troy, on the day of , 1880. Present — Hon. MosES Warren, Surrogate. In the Matter of the Estate of | John Smith, Deceased. I On reading and filing proof to the satisfaction of the surrogate, Substituted Service. 31 that (a) The First National Bank of Detroit is a necessary party to this proceeding, and is a foreign corporation ; (6) that A. B. is a necessary party to this proceeding and is a non-resident of the State ; (c) that A. B. is a necessary party to this proceeding, and has departed from this State to avoid the service of. process; {d} that A. B., a necessary party to this proceeding, and being a resi- dent of this State, and an adult, has been continually without the United States for more than six months next before this date, and has not made a designation of a person upon whom to serve u summons in his behalf ; (e) that C. D. is a necessary party to tliis proceeding, and an attempt has been made to serve a citation from this court, upon the petition m this matter, before passing of the statute of limitations upon the claim sought to be enforced in this proceeding ; (/) that E. P. is a necessary party to this proceeding, and that his residence cannot, after diligent inquiry, be ascertained by the petitioner; {g) that certain persons next of kin of E. S., deceased, are necessary parties to this proceeding, and their names and residences are unknown. It is ordered that the citation issued in this matter be served upon the said A. B., by the publication thereof in the State paper, and the Troy Daily Times, for six weeks, once in each successive week, or the petitioner may serve the same without the State on said First National Bank of Detroit, by delivering a copy thereof to the president of said bank. (See §| 431, 432.) (a) The peti- tioner shall also deposit, on or before the first day of the publica- tion of said citation, copies of said citation and this order in the post-office at Troy, contained in a securely closed post-paid wrapper, directed to the said A. B., at Galena, 111. ; (J) the surro- gate being satisfied by the affidavits on which the order is granted^ that the petitioner cannot, with reasonable diligence, ascertain a place or places where the said next of kin of said E. F., deceased, would probably receive matter transmitted through the post- office, service by mail on them is not required. Witness, Moses "Warren, surrogate, the day and year first above written. MOSES WAHREN, Surrogate. § 2525. What time required for delivery of copy, etc. — Where ser- vice is made by delivering a copy of the citation without the State, Eursuant to an order made as prescribed in the last section, it must e made, if within the United States, at least thirty days, if with- out the United States, at least_forty days, before the return day of the citation. Proof of publication, deposit, or delivery may be when as 'prescribed in section 444 of this act Where an executor was a non-resident, and the surrogate made an order directing the service of the citation, either personally, without the State, or by publication, and it was served personally niore than thirty days before the return day, the service was held 82 Service on Infants. good notwithstanding less than six weeks intervened between the day the citation was issued and the day named therein for the re- turn thereof. {In re Macaulay, 94 N. Y., 574.) Section 444, referred to, is as follows : § 444. Proof of service. — Proof of the publication of the sum- , mons and notice (citation), must be made by the affidavit of the printer or publisher, or his foreman or principal clerk. Proof of deposit in the post-office * * * must be made by the affi- davit of the person who deposited * * * it. , § 2526. /Service vpon a corporation, infant, lunatic, etc. — Service of a citation must be made upon an infant under the age of four- teen years, a person judicially declared to be incompetent to man- age his affairs by reason of lunacy, idiocy, or habitual drunk- enness, or a corporation, in the manner prescribed for personal service of a summons upon such a person, or upon a corporation, in article first of title first of chapter fifth of this act That is to say, if the person served is an infant under the age •of fourteen years, a copy must be delivered to the infant in per- son, and also to his father, mother, or guardian ; or, if there is none within the State, to the person having the care and control of him, or with whom he resides, or in whose service he is em- ployed. Service upon the mother of an infant under fourteen years of age, without service on the infant, gives no jurisdiction over the infant {Davis v. Crandall, 101 K Y., 311.) If the person to be served be one judicially declared incompe- tent, by reason of lunacy, idiocy or habitual drunkenness, and for or whom a committee has been appointed, service is to be made by delivering a copy to such person, and one to his committee. In any other case of service required upon a natural person, it may be made by delivering a copy to him in person. (Section 426.) § 2527. Id. ; upon infant, etc. ; additional requirement in certain cases. — Where a person, cited or to be cited, is an infant of the age of fourteen years or upwards, or where the surrogate has, in his opinion, reasonable grounds to beHeve, that a person, cited or to be cited, is an habitual drunkard, or for any cause mentally incapable adequately to protect his rights, although not judicially declared to be incompetent to manage his affairs, the surrogate may, in his discretion, with, or without an application there- for, and in the interest of that person, make an order requiring that a copy of the citation be delivered, in behalf of that person to a person designated in the order ; and that service of the cita- Service on Lunatic or Drunkard. 83 tion shall not be deemed complete until such delivery. "Where the person, cited or to be cited, is an infant under the age of four- teen years, or a person judicially declared to be incompetent to manage his affairs, by reason of lunacy, idiocy, or habitual drunk- enness, and the surrogate has reasonable ground to believe that the interest of the person, to whom a copy of the citation was de- livered, in behalf of the infant or incompetent person, is adverse to that of the infant or incompetent person, or that, for any reason he is not a fit person to protect the latter's rights, the surrogate may likewise make such an order ; and as a part thereof, or by a separate order, made in like manner at any stage of the proceed- ings, he may appoint a special guardian ad litem to conduct the proceedings in behalf of the incompetent person, to the exclusion of the committee, and with the same powers, and subject to the same liabilities, as a committee of the property. Jurisdiction can be obtained of infants, or other persons under disability, only by service in the manner and for the time pro- vided by law. They cannot waive any requirement, nor can they appear voluntarily, and thus render service on them unnecessary. {PincJcney v. jSmith, 26 Hun, 524.) OEDER FOE SUBSTITUTED SEEVICB IN CASE OF HABITUAL DEUNKAED NOT JUDICIALLY DE- CLARED. At a surrogate's court, held at the surrogate's office in the city hall, in the city of Albany, on the day of , 1880. Present — Hon. Peter A. Eogees, Surrogate. In the Matter of the Will of / J. J., Deceased. j The surrogate having, in his opinion, reasonable ground to be- lieve that A. B., a person to be cited in this matter, is (a) an infant of the age of fourteen years and upwards ; or (6), an habitual drunkard, or (c), is for some cause mentally incapable adequately to protect his rights, although not judicially declared to be incom- petent to manage his affairs. It is ordered, that a copy of said citation be delivered in behalf of the said A. B., to C. D., residing in the city and county of Albany, at least eight days before the return day of said citation, and that service of the said citation shall not be deemed complete until such delivery. Witness, Peter A. Rogers, surrogate, and the seal of the [l. a] court, the day and year first above written. P. A. ROGERS, Surrogate. 34 Effect of Appearance. OEDER FOR SUBSTITUTED SERVICE IN CERTAIN CASES UNDER LAST CLAUSE OF § 2527. At a surrogate's court, held at the surrogates office in the village of Salem, in the county of Washington, on the day of , 1880. Present — Hon. LoNSON Fraser, Surrogate. In the Matter of the Estate of / A. B., Deceased. f An application having been made for the judicial settlement of the accounts of C. D., executor of the will of A. B., deceased, in which proceeding E. F., an infant under the age of fourteen years, is a person to be cited ; or {b) G. H., a lunatic, or an idiot, or an habitual drunkard, is a person to be cited, and the surrogate having reasonable grounds to believe that J. K., the guardian of said infant, or the committee of said lunatic, or idiot, or drunkard, who would be a proper person on whom to serve said citation, is an improper person in this case, for the reason that his interest is adverse to that of such infant (or lunatic, or idiot, or habitual drunkard), or that said guardian is, for some cause, absent from this State. It is ordered that a copy of said citation be delivered in behalf of said G, H. to J. A., residing in the town of Jackson, at least eight days before the return day of said citation. And it is further ordered that the said J. A. be and he is hereby appointed special guardian ad litem of said G. H. to conduct the proceedings in his behalf in said settlement. Witness, Lonson Fraser, surrogate, and the seal of the [l. s.] court, the day and year first above written. L. FRASER, Surrogate. But it may not be necessary to serve process upon some or all of the parties ; they may appear. § 2528. Appearance, how mack, and effect thereof. — In a surro- gate's court, a party of full age may, unless he has been judicially declared to be incompetent to manage his affairs, prosecute or defend a special proceeding, in person or by an attorney regularly admitted to practice in the courts of record, at his election; except in a proceeding to punish him for a contempt, or where he is required to appear in person, by special provision of law, or by a special order of the surrogate. The appearance of i a party, against whom a citation has been issued, has the same effect as the appearance of a defendant in an action brought in the supreme court. {Matter of Macaulay, 27 Special Guardian Appointed. 85 Hun, 577 ; Matter of Hurlburt, 42 Hun, 311 ; S. C, 4 K Y. St. Eep., 354) On the return day of a citation, the person served filed an answer stating that he appeared solely for the purpose of objecting to the jurisdiction of the surrogate, on the ground that the order directing the citation to be served was irregular. The answer then went on to deny certain allegations of the petition on the merits. It was held that answering on the merits was equivalent to a general appearance, and was a waiver of all irregularities in the service of the citation. {Matter of Macaulay, supra.) So, also, a special guardian may be appointed on the return of the citation. § 2530. Special guardian ; when to he appointed. — Where a party, who is an infant, does not appear by his general guardian ; or where a party, who is a lunatic, idiot, or habitual drunkard, does not appear by his committee, the surrogate must appoint a competent and responsible person, to appear as special guardian for that party. Where an infant appears by his general guardian, or where a lunatic, idiot, or habitual drunkard, appears by his committee, the surrogate must inquire into the facts, and must, in like manner, appoint a special guardian, if there is any ground to suppose that the interest of the general guardian or committee is adverse to that of the infant, or incompetent person ; or, that, for any other reason, the interests of the latter require the appoint- ment of a special guardian. A person cannot be appointed such a special guardian, unless his written consent is filed, at or before the time of entering the order appointing him. No person ^ought to be selected a special guardian unless he is an attorney of the courts of record, fully competent to understand and protect the rights of the infant, and who has no interest ad- vers^o his, and is not connected in business with the attorney or cou^elor of the adverse party. And he should also be of ability sufficient to answer to the infant for any damage which may be sustained by his negligence or misconduct. (Eule 49 ; Story v. Dayton, 22 Hun, 450.) Nor can a special guardian be appointed until the citation has been served on the infant {Pinckney v. Smith, 26 Hun, 54.6.) The last form of order under section 2527, may be used for the appointmsnt of a special guardian. 36 Proceedings as to Special G-uardiax. CONSENT OF PERSON TO BE APPOINTED SPECIAL GUAEDIAN. Surrogate's Court. In the Matter of the Will of / A. B., Deceased. j I, C. D., consent that the surrogate may appoint me special guardian of E. F., an infant (or a lunatic, etc.), in the matter now pending before him for proof of the will of A. B., deceased. (Signed) 0. D. Dated, January 21, 1880. But the application for the appointment of a special guardian, as it can only be done on notice, under ordinary circumstances, should usually be made upon the presentation of the petition under the following section : § 2531. Notice of proceedings to appoint special guardian. — Where a person, other than the infant, or the committee of the incompetent person, applies for the appointment of a special guardian, as prescribed in the last section, at least eight days' notice of the application must be personally served upon the infant, or incompetent person, if he is within the State, and also upon the committee, if any, in like manner as a citation is re- quired by law to be served. But except in a case specified in title fifth of this chapter, the surrogate may, by an order to show cause, prescribe a shorter time, and direct the service of the order to be made in such a manner as he deems proper. The applica- tion may be made at the time of presenting the petition, and, in that case, the order to show cause may, in the surrogate's discre- tion, accompany the citation. If, then, it shall appear by the petition, that some party to be cited is one who would require the appointment of a special guard- ian, an order somewhat to the following effect should be entered: ORDEE TO SHOW CAUSE WHY A SPECIAL GUARD- IAN SHOULD NOT BE APPOINTED. At a surrogate's court, held at' the surrogate's office, in the city hall, in the city of Albany, on the day of ,1880. Present — Hon. Peter A. Rogers, Surrogate. In the Matter of the Will of A. B., Deceased. It appearing that C. D., a person to be cited in this matter, is Service, How Made. 37 an infant It is ordered that said C. D. appear in this court on the day of • ■ , 1880, at ten o'clock in the fore- noon (on the return day), and show cause why E. F. should not be appointed his special guardian in this proceeding. P. A. EOGERS, Surrogate. ' But the surrogate may, under this section, except when the proceeding is for the disposition of the real property of a decedent, for Jhe payment of his debts and funeral expenses, provided for in title 5 of this chapter, provide for the service a shorter time than eight days for the order to show cause, and he may direct the service of the order to be made in such a manner as he deems proper. It would seem under this provision, that when the person or persons to be served are in court, or immediately accessible, the order might be made that they show cause forthwith, and the appointment be made without delay. An omission to appoint a special guardian to take care of an infant's interests in a proceeding to prove a will, when the infant has been duly served with the citation, does not render the cita- tion void, but only voidable at the election of the infant. {Matter of Becker, 28 Hun, 207.) It seems that an infant may apply for the appointment of a special guardian. It is only when the application is made by a person other than the infant that notice must be given. {Matter of Ludlow, 5 Redf., 391.) But we are inclined to question this authority. An infant cannot confer jurisdiction by any act. It can be obtained only in the manner pointed out in the statute. § 2532. Proof of service of citation, subpoena, etc. — Proof of service of a citation, or a subpoena, issued from a surrogate's ^gjdrt, must be made in the manner prescribed by law, for proof OT service of a summons issued out of the supreme court In every other case, proof of service must be made by affidavit ; or where the person served is of full age and not incompetent, by a written admission signed by him, accompanied with proof, by affidavit or otherwise, of the genuineness of his signature. Thus, it appears by section 434 of the Code of Civil Procedure, that proof of service * * * must be made by affidavit, except as follows : 1. If the service was made by the sheriff, it may be proved by his certificate thereof. 2. If the defendant served is an adult, who has not been ju- 38 Proof of Service, How MIde. diciallj declared to be incompetent to manage his affairs, the ser- vice 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 afiSi- davit of a person, other than the plantiff, showing that the signa- ture is genuine. A certificate, admission, or affidavit of service of a summons, must state the time and place of service. A written admission of the service of a summons, or of a paper accompanying 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. We will not consider the proof of service furnished by the cer- tificate of the sheriff. AFFIDAVIT OF SEEVICE TO BE ANNEXED TO CITATION. County of Columbia, ss.: A. B., of the town of Chatham, in said county, being duly sworn, says, that on the day of , 1880, at said town of Chatham, he served the annexed citation on C. D. and E. F., named therein, by delivering to and leaving with each a copy thereof. And deponent says he is upwards of eighteen years of age. A. B. Sworn before me, this day ) of , 1880. f The restriction in section 434, that the plaintiff shall not serve a summons, does not apply to the service of a citation in this court. ADMISSION OF SERVICE INDORSED ON CITATION. I admit due and personal service of the within citation on me at the city of Troy, this day of , 1880. (Signed) A. B. The signature may be proved by acknowledgment or by affi- davit. The following may serve as a suggestion of an affidavit: AFFIDAVIT AS TO SIGNATURE. Rensselaer County, ss. : John Jones, of the city of Troy, in said county, being duly sworn, says, that he knows A. B., whose name appears affixed to the foregoing (or annexed) admission of service, and that deponent Practice as to Pleadings. 39 "vras present and saw the said A. B. sign said admission or, that he has frequently seen A. B., whose name appears affixed to the foregoing (or annexed) admission of service, write, and he is acquainted with the handwriting of the said A. B.; and de- ponent verily believes that the signature aforesaid purporting to be the signature of the said A. B., is in the proper handwriting of said A. B. JOHN JONES. Sworn before me, this 21st day ) of January, 1880. ) G. D., Notary Public, Rensselaer County. The surrogate is given full power to control the form and sub- stance of the pleadings in his court, and to require them to be re- duced to writing, if he shall deem it proper. It will be remem- bered that the first pleading is a petition, which answers to the complaint in a civil action. It has been the practice in some sur- rogate's courts, to require the answer or objections to be reduced to writing. I § 2533. Written pleadings may he required. — The surrogate may, at any time, require a party to file a written petition or answer, con- taining a plain and concise statement of the facts constituting his claim, objection or defense, and a demand of the decree, order, or other relief, to which he supposes himself to be entitled. The sur- rogate may require the petition or answer to be verified, and a copy thereof to be served upon any other person interested A party who fails to comply with such a requirement may be treated as a party in default Except where such a requirement is made, or har a case where a written petition is expressly required by this ^ct, a petition, or the answer thereto, may be presented orally ; in which case, the substance thereof must be entered in the records of the courta All the pleadings, when in writing, shall be verified, and the verification shall be substantially in form liise those provided for by the Coda But the papers on which the court is to be moved need not, in every case, be a petition. Thus, where the surrogate has acquired jurisdiction of the proceeding and the parties, the affidavit of an attorney or counsel that infants have become interested by reason of the death of one of the original parties, is sufficient to give information and authorize him to act A petition is unnecessary. {Russell V. Eartt, 87 N. Y., 19.) §2534. Verification of pleadings. — The provisions of sections 623, 524, 525 and 526 of this act apply to a verification made 40 Verification of Pleadings. pursuant to this chapter, and to the petition or other paper so verified, where they can, be so applied in substance, without regard to the form of the proceeding. These sections are as follows : § 523. Verification. — Where a pleading is verified, each subse- quent pleading, except a demurrer, or the general answer of an infant by his guardian ad litem, must also be verified. But the verification may be omitted, in a case where it is not otherwise specially prescribed by law, where the party pleading would be privileged from testifying, as a witness concerning an allegation or denial contained in the pleading. A pleading cannot be used in a criminal prosecution against the party as proof of a fact admit- ted or alleged therein. § 524. Forms and constrvtction of certain allegations and denials in verified pleading. — The allegations or denials in a verified plead- ing must, in form, be stated to be made by the party pleading. Unless they are therein stated to be made upon the information and belief of the party, they must be regarded, for all purposes, including a criminal prosecution, as having been made upon the knowledge of the person verifying the pleading. An allegation that the party has not sufficient knowledge or information to form a belief with respect to a matter, must, for the same purposes, be regarded as an allegation that the person verifying the pleading has not such knowledge or information. § 525. Verification ; how and hy whom made. — The verification must be made by the affidavit of the party, or, if there are two or more parties united in interest, and pleading together, by at least one of them, who is acquainted with the facts, except as follows : 1. Where the party is a domestic corporation, the verification must be made by an officer thereof. 2. Where the people of the State are, or a public officer in their behalf is, the party, the verification may be made by any person acquainted with the facts. 3. Where the party is a foreign corporation, or wKere the party is not within the county where the attorney resides, or, if the latter is not a resident of the State, the county where he has his office, and capable of making an affidavit ; or, if there are two or more parties in interest, and pleading together, where neither of them, acquainted with the facts, is within the county, and capable of making an affidavit ; or where the action or defense is founded upon a written instrument for the payment of money only, which is in the possession of the agent or attorney ; or where all the material allegations of the pleading are within the personal knowledge of the agent or attorney ; in either case, the verifica- tion may be made by the agent of or the attorney for the party / Publication in Certain Cases. 41 § 526. Form of affidavit of verification. — The affidavit of veri- fication must be to the effect that the pleading is true to the knowledge of the deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. Where it is made by a person other than the party, he must set forth in the affidavits the grounds of his belief as to all matters not stated upon his knowledge, and the reason why it is not made by the party. A verification to the effect that the petitioner "knows the cop- tents thereof, and that the same are true," was held to be sufficient and equivalent to saying that they are true to the knowledge of deponent {In re Macaulay, 9-i N. Y., 574.) The forms of verification are so familiar to the practitioner that they do not need to be repeated here. § 2535. Publication of citation, etc. — Where a provision of this chapter, or an order made pursuant to such a provision, directs the publication of a citation, notice, or other paper, or the service thereof by publication, the publication must be made in a news- paper published in the county. The surrogate may also, in his discretion, direct the publication thereof in any other newspaper published 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 m the news- paper printed at Albany, in which legal notices are required by law to be published. § 2536. Citation, when publiglied in State paper. — In either of the following cases, a citation, notice, or other paper, directed to be published by a provision of this chapter, or by an order made pursuant to such a provision, inust, in addition to the publication thereof, made as prescribed in the last section, be published in the newspaper printed at Albany, in which legal notices are required by law to be published : 1. Where the special proceeding is instituted in the surrogate's court of the county of New York, or of the county of Kings, or the order for publication is made by the surrogate of either of those counties. 2. Where the special proceeding relates to the estate of a de- cedent, and the order directs the additional publication therein, such a direction may be given, in the discretion of the surrogate, where the person upon whom the service is to be made, or to whom notice is to be given, is not a resident of the State. But where it affirmatively appears, from the papers upon which the order is granted, or from the papers then on file in surrogate's 6 42 Money Paid Into Court. court, relating to the same estate, that the property of the de- cedent, or, if the special proceeding relates to a portion only of the property, that the portion to which it relates does not exceed two thousand dollars in value, the order may, in the dis- cretion of the surrogate, direct the publication required by this section to be made gratuitously ; in which case, that newspaper must make the publication without charge. The following provisions in relation to moneys paid to the sur- rogate, or securities taken by him, are new. Formerly the moneys paid to the surrogate were retained and invested, or paid out by him. (2 R S., 08, § 80 ; Id., 106, etc.) § 2637 Money paid into court and securities taken, how disposed of. — Where a staute requires the payment of money into the sur- rogate's court, or the deposit of a security, for the payment of money, with the surrogate, the same must be paid to or deposited with the county treasurer of the county, to the credit of the fund, or of the estate, or of the special proceeding ; unless the surro- gate specially directs the payment or deposit to be made to or with himself, or the clerk of the surrogate's court. Where the surro- gate or the clerk of the surrogate's court so receives money or a security, he must, within four days thereafter, pay the money to, or deposit the security with, the county treasurer of the county ; unless the statute contains special directions for another disposi- tion thereof. Each security, so deposited with the county treas- urer, must be held and disposed of by him, subject to the direc- tion of the surrogate's court ; except that he must, unless otherwise so directed, collect the principal and interest secured thereby. All money collected by, or paid to the county treasurer, as prescribed in' this section, must be held, managed, invested, and disposed of by him, in like manner as money paid into the supreme court in an action pending therein. The regulations, contained in the gen- eral rules of practice, as specified in section 744 of this act, and the provisions of title third of chapter eight of this act apply to money paid to and securities deposited with the county treasurer, as prescribed in this section ; except that the surrogate s court ex- ercises, with respect thereto, or with respect to a security, in which any of the money has been invested, or upon which it has been loaned, the power and authority conferred upon tlie supreme court by section 747 of this act These sections are as follows : § 744. General rules may regulate concerning payment into court. — The general rules of practice may contain regulations, concern- ing the payment of money into court, in an action, and the care and disposition thereof, which shall govern, where provision is not otherwise made by law. Funds Paid, How Treated. 43 § 745. Money to he paid to county treasurer and securities taken in his name. — Unless the court otherwise specially directs, money paid into court must be paid, either directly, or by the officer who is required by law first to receive it, to the county treasurer of the county where the action is triable. Where it is paid to an officer, other than the county treasurer, he must pay it to the county treasurer, within four days after he receives it. In the city of New York, he must pay it to the chamberlain, within two days after he receives it. A bond, mortgage, or other secu- rity, or a certificate or transfer of stock, taken upon the invest- ment of money paid into court, must be taken tO the county treasurer of the county where the fund belongs, in his name of office ; or to such other county treasurer as the court specially directs. But this, and the next section do not prevent the court, upon the application of a party to an action, from directing in what manner or place, money paid into court in the action, shall be deposited or invested. § 746. Funds, xohere and how deposited or invested. — Provisions may be made in the general rules of practice, for the deposit, in a bank or trust company, of money paid into coiirt; for the invest- ment thereof in the public debt of the United States, or of a State, or for loaning it upon approved interest-bearing mortgages upon real property ; and for the transferring or disposing, from time to time, of the money, or any investment, or security. But the money must be deposited or loaned in the county where the fund belongs, where that can be done conveniently and safely, and with advantage to the parties interested. §'747. Powers of courts as to transfer, etc., of an investment hy guardians, etc,. — The supreme (surrogate's) court may direct that money paid into court, in an action brought therein, or a bond, mortgage, or other security or public stock, in the possession or ^nder the control of a county treasurer, which represents money so paid in, to be transferred and delivered to a general or special guardian, committee, or other trustee, upon his giving, or if he has given, security, satisfactory to the court, for the faithful execution of his trust, or that a bond, mortgage, or other security, or public stock, be taken in the name of the guardian, committee, or other trustee ; and be collected, invested or loaned as the court directs, or as prescribed in the general rules. § 749. Powers of certain officers touching securities, etc. — A county treasurer, or other officer, or a guardian, committee, or other trustee, in whose name is taken a bond, mortgage, or other security or public stock, representing money paid into court in an action; or to whom stock or a security, or an account, deed, voucher, receipt, or other paper, representing or relating to such money, is transferred, delivered, made or given pursuant to law, 44 Power to Issue Commission. is vested witli the title for the purposes of the trust, and may bring an action upon, or in relation to the same, in his official or representative character. § 750. Provisions relating to death, removal, etc., of county treas- urer. — On the expiration of the official term of a county treasurer, or where a vacancy occurs in his office, by death or otherwise, all public stock, bonds, mortgages and other securities held by him, as prescribed in this title, vest in his successor in office ; and all money deposited, as prescribed in this title, in a bank, trust com- pany, or other depository, to his credit, vests in and must be carried to the account of his successor in office. § 751. Authority for payment of money hy bank or trust com- pany. — Money paid into court , in an action (proceeding), and deposited in a bank or trust company, to the credit of a county treasurer, shall not be paid out without the production of a certified copy of an order of the court for that purpose, counter- signed by the judge, by whose directions it is made. Section 752 prescribes that the county treasurer shall so keep his accounts as to show the source of each fund, and section 753 provides that he shall report annually to the court The provisions relating to the county treasurer as custodian of moneys paid into court in the city of New York, apply to the chamberlain. (Section 754.) § 2538. Certain provisions of Code applicable. — Except where a contrary intent is expressed in, or plainly implied from the context' of a provision of this chapter, the following portions of this act, to wit : title first, and articles third and fourth of title sixth, of chapter eighth, and articles first ahd second of title third of chap- ter ninth, apply to surrogate's courts and to the proceedings therein, so far as they can be applied to the substance and subject matter of a proceeding, without regard to its form. This section gives to the court the power in relation to commis- sions to take testimony and depositions proceedings for discovery of books and papers, the service of papers and mistakes, omis- sions, defects and irregularities, and amendments, giving the same power to surrogates as is possessed by judges or courts of record. The provision in relation to depositions to be taken within the State (Code, § 870, etc.), confers entirely new power upon the court, to take and perpetuate testimony or to take testimony de bene esse. , As to amendments, where the petition prays for certain relief, different from that specified in the order granting the citation, and Service of Citation. 45 the citation itself issued thereupon, the papers, after appearance without objection to the defect, may be amended to correspond to the petition. {Spencer v. Popham, 5 Eedf., 425.) But these provisions do not extend to curing jurisdictional de- fects. Where, on the return day, without service on the infant, a guardian was appointed, who admitted service for the infant, and after evidence and an adjournment a decree was entered, it was held that no jurisdiction was acquired of the infant. (Pinckney V. Smith, 26 Hun, 524.) § 796. Papers, how served. — A notice or other paper in an ac- tion, may be served on a party or an attorney, either by deliver- ering it to him personally, or in the manner prescribed in the next section. § 797. Other modes of service. — When the service is not per- sonal, it may be made as follows : 1. Upon a party or an attorney, through the post-office, by de- positing the paper properly inclosed in a post-paid wrapper, in the post-office of the party or the attorney serving it, directed to the person to be served, at the address, within the State, designated by him for that purpose, upon the proceeding papers in the action ; or, where he has not made such a designation, at his place of resi- dence, or the place where he keeps an office, according to the best information which can conveniently be obtained concerning the same. 2. Upon an attorney, during his absence from his office, by leaving the paper with his partner or clerk therein, or with a per- son having charge thereof. 3. Upon an attorney, if there is no person in charge of his office, and the service is made -between six o'clock in the morning and nine o'clock in the evening, either by leaving it, in a con- spicuous place in his office, or by depositing it, inclosed in a sealed wrapper, directed to him, in his office letter box, or if the office is not open, so as to admit of leaving the paper therein, and there is no office letter box, by leaving it at his residence within the State, with a person of suitable age and discretion. 4. Upon a party, by leaving the paper at his residence between six o'clock in the morning and nine o'clock in the evening, with a person of suitable age and discretion. § 798. Prescribes that double time shall be given where the service is by mail. § 799. When paper to be served on attorney. When service not required. — Where a party has appeared, a notice or other paper, required to be served in an action (proceeding), must be served on his attorney. If a defendant (party) has not appeared, service 46 Inspection- of Papers. of a notice or other paper in the ordinary proceeding in the action need not be made upon him, unless he is actually confined in jail for want of bail. § 800. Where service intiay he made on clerk for non-resident. — Where a party to an action (proceeding), who has appeared in person, resides without the State, or his residence cannot, with reasonable diligence, be ascertained, and he has not designated an address, within the State, upon the preceding papers, service of a paper upon him may be made by serving it on the clerk. § 801. In New York city, deposit in a branch post-office is equivalent to deposit in the principal office. § 802. Not to apply to service of summons, etc. — This article does not apply to the service of a summons, or other process ; or of a paper to bring a party into contempt ; or to a case where the mode of service is specially prescribed by law. Article 4 of title 6 of chapter 8, referred to in section 2538, above quoted, relates to the discovery of books and papers. (Sections 803-809.) We will endeavor to summarize them. The court may compel a party to produce or discover a paper or allow inspection, or a copy to be made of any paper in his pos- session or under his control, relating to the merits of the proceed- ing. The cases in which discovery may be compelled must be prescribed in the general rules, where not prescribed by law. Discovery is had upon petition verified by affidavit to a judge ; upon which an order may be made to claim inspection or dis- covery, or to show cause why the prayer of the petition should not be granted. The order may contain a stay. The judge who granted the order may vacate it on proof by affidavit that the order has been complied with, or that it ought not to have been granted. The court may appoint a referee to superintend the discovery or inspection, and may allow costs not exceeding twenty dollars, of motion. As penalties for disobedience to the order, the court may strike out the pleading of the party disobeying, or any cause of action or defense interposed by him, may exclude the notice paper from being given in evidence, or may punish the party as for a contempt. Article 1 of title 3 of chapter 9 relates to depositions taken and to be used within the State, and article two, of the same title and chapter, to depositions taken without the State, to be used within the State. Commission to take Testimony. 47 Where, in proceedings for the probate of a will made and proved abroad, a commission was issued by the surrogate to take testimony of witnesses in another country, and the original will was produced before the commissioners, it was held that the com- mission made the commissioners officers of the court for the purposes for which it was issued ; that they stood in the place of and represented the court, and that the exhibition of the will before them was substantially a production thereof before the court {Russell v. Harii, 87 N. Y., 19.) A commission does not always issue as a matter of right Where one might, by the exercise of diligence, have been exe- cuted, and the deposition obtained in time to use it before the hearing was closed, the surrogate, in the exercise of his discretion, is not bound to open the hearing and receive it {Leslie v. Leslie, 15 Week Dig., 56.) We will furnish a set of forms for deposition, which may be used upon the proof of a will : AFFIDAVIT. Subrogates Court — Rensselaer County. In the Matter of the Will of ( John Doe, Deceased. I Rensselaer County, ss. : Lewis Jones, being duly sworn, says, that he is one of the ex- ecutors named in the will of John Doe, late of the city of Troy, in said county, deceased, proceedings for the proof of which will are now pending in this court; that Henry Jones residing in the eity of Milwaukee, in the State of Wisconsin, is a necessary and material witness in this proceeding, in support of the probate of ^d will as he is advised by , Esq., his counsel in this proceeding, after stating to him the facts which deponent expects to prove by said Henry Jones, and deponent prays for a commis- sion to examine said Henry Jones accordingly. LEWIS JONES Sworn before me, this 5th day ) of December, 1873. j D. Dunn, Gom'r of Deeds, Troy, K Y. NOTICE. Title Same as Affidavit. Please take notice, that upon an affidavit, of which the annexed is a copy, a motion will be made in this matter, before the surro- 48 Order for Commission. gate of Eensselaer county, at his office in the court house in the city of Troy, on the 17th day of December, 1873, at ten o'clock in the forenoon of that day, for an order that a commission issue out of and under the seal of this court, to be directed to Robert N. Austin, Esq., residing in the city of Milwaukee, in the State of Wisconsin, counselor at law, authorizing him to examine Henry Jones, a witness residing in said city of Milwaukee, on oath, in support of the proof of the will propounded in this proceeding, on interrogatories to be annexed to said commission. Dated Tkoy, December 5, 1873. Yours, etc., JOHN WALSH, Ait y for Executor. To George Scott, Esq., William Low, Esq., Dennis Miller, Jr., Sp'l Guardian. ORDER. At a surrogate's court held in and for the county of Rensselaer, at the court house, in the city of Troy, on the 17th day of December, 1873. Present — Hon. MoSES Warren, Surrogate. In the Matter of the Applica- tion ' FOR Probate of the Will OF John Doe, Deceased. On reading and filing the affidavit of Lewis Jones, the executor named in the paper writing purporting to be the last will and tes- tament of John Doe, late of Troy, deceased, and it appearing that Henry Jones, residing in the city of Milwaukee, in the State of Wisconsin, is a material witness in this matter, and on proof of due service of notice of this motion upon all the parties who have appeared in this proceeding, and after hearing Mr. La Mott W. Rhodes, in opposition : ' Ordered, that a commission issue out of and under the seal of this court, directed to Robert N. Austin, Esq., counselor at law, in the said city of Milwaukee, authorizing him to take the testi- mony of the said Henry Jones, on oath, upon interrogatories to be annexed to said commission, and that the return thereon may be sent by mail, addressed to the surrogate of the county of Rensselaer. MOSES WARREN, Surrogate. Interrogatories. 49' COMMISSION. The People of the State of New York to EoBERT N. Austin, Esq., counselor at law, residing in the city of Milwaukee, in the State of Wisconsin: Know ye, that with full faith in your prudence and r 1 competency, we have appointed you a commissioner, L ■ 'J and by these presents do authorize you to examine Henry Jones, residing in the city of Milwaukee, aforesaid, as a witness, in the matter of the application for the probate of the will of John Doe, late of the city of Troy, deceased, upon the in- terrogatories annexed to this commission, to take and certify the deposition of the said witness, and return the same according ta the directions hereunto annexed. "Witness, Moses Warren, surrogate of our county of Eens- selaer, at the city of Troy, this seventeenth day of [l. S.J December, in the year one thousand eight hundred and seventy-three. MOSES WABREN, Surrogate. John Walsh, Attorney. INTEREOGATORIES TO SUBSCRIBING WITNESS. Interrogatories to be administered to Henry Jones, a witness to be produced, sworn and examined before Robert N. Austin, Esq., commissioner, in the city of Milwaukee, in the State of Wisconsin, in the matter of the application for probate of the will of John Doe, deceased, now pending before the surrogate of the county of Rensselaer, under and in pursuance of the commission hereunto- annexed. First Interrogatory. What is your name, your age, your occupa- tion or profession, and Vhere do you reside ? Second Interrogatory. Did you know John Doe, late of the city of Troy, in the State of New York, in his life-time ? How long did you know him ? Third Interrogatory. Look at the instrument in writing here- unto annexed, dated December 5, 1871, purporting to be the last will and testament of the said John Doe, and say whether you saw the said John Doe sign the same ? State when he signed it,^ the place where, and who were present at the time ? Fourth Interrogatory. State whether at the time the said John Doe signed said instrument anything was said, and by whom, as. to what the instrument was ? What was said on that subiect ? 7 60 Trial and Eefebence. Fifth Inierrogalmy. Did you sign the instrument ? If yea, at whose request did you sign? Sixth Interrogatory. Who else signed it beside yourself, and at whos^ request? When did you and Sarah Williams sign? Seventh Interrogatory. State whether, in your opinion, at the time spoken of, the said John Doe was of sound mind and memory, and whether you observed any indication that he was under re- straint or subject to the influence of any person at that time ? Eighth Interrogahyry. What was the age of the said John Doe at that time ? Was he » citizen of the United States ? Ninth Interrogatory. Do you know any other matter or thing relating to the execution of the said paper and the condition of the mind of the said John Doe at that time ? The interrogatories, when settled, are to be indorsed by the surrogate : " Allowed January 17, 1873. " MOSES WARREN, Surrogate." CHAPTER III. Hearing — Trial by Jury — Reference. The rules of evidence and for the examination of witnesses are not different from those in other courts of record. There are, however, provisions more beneficent in relation to the examination of aged or sick witnesses in the county of the surrogate, or another county within the State. § 2539. Testimony of aged or sick witness in same county. — Upon the application of a party to a special proceeding, and upon proof, by affidavit, to the satisfaction of the surrogate, that the testimony of a witness in his county, who is so aged, sick, or infirm, as to be unable to attend before him to be examined, is material and necessary to the applicant, the surrogate must, where the special proceeding was instituted to procure the probate or revocation of probate of a will, and, in any other case, may, in his discretion, proceed to the place where the witness is, and there, as in open court, take his examination. Such a notice of the time and place of taking the examination, as tho surrogate prescribes, must be given, by the party applying therefor, to each other party, except Testimony of Aged WiTNEsa 51 a party who has failed to appear as required by the citation. The surrogate may also, in his discretion, require notice to be given to any other person interested. The following may suggest the affidavit to be used : Surrogate's Court. In the Matter of the Will of / A. B., Deceased. f Eensselaer County, ss. : C. D., of the city of Troy, in said county, being duly sworn^. says, that he is one of the parties to this proceeding ; and that upon the hearing of this matter before the surrogate, deponent ig: advised by his counsel that the testimony of E. F., of the town of Nassau, in said county, is material and necessary. That de- ponent expects to prove certain conduct and language of the said A. B., in his life-time, by the said E. R, which will tend to show that the said A. B. was of unsound mind. That said E. F. is so aged, or sick, or infirm, as to be unable to. attend before said sur- rogate to be examined, and deponent asks that the examination of said E. F. may be taken at his home, in said town of Berlin. C. D. Sworn before me, etc. The surrogate will manifestly, if the day is fixed upon in open court, require no notice to be given to any party, but if the application is made at a time when the parties are not in court, at a bearing, he will direct notice to be given to all those who have appeared. The following may serve as the notice : Surrogate's Court. In the Matter of the Will of / A. B., Deceased. I Please take notice that the surrogate will proceed to take the examination of E. F., a witness in this matter, at the home of the said E. F.. in the town of Berlin, on the second day of February, 1880, at twelve o'clock, nooa Dated Troy, January 20, 1880. . E. H. G., Attorney for 0. D. To , etc. § 2540. Examination of aged or infirm witness in another amnty. — In a case specified in the last section, except that the -62 Examination in Another Countt. •witness is in another county, where the witness is a subscribing witness to the will, if the surrogate has good reason to believe that the witness cannot attend before him within a reasonable time, to which the hearing may be adjourned, he may make an •order directing that the witness be examined before the surrogate -of ti e county in which he is, specifying a day on or before which a certified copy of the order must be delivered to the latter sur- rogate ; and directing notice of the examination to be given to such persons, and in such manner as he thinks proper. A copy of the ■order, attested by the seal of the surrogate's court, must be trans- mitted by him to the surrogate designated in the order, together with the original will, where the testimony relates to the execu- tion of a written will. The latter surrogate must thereupon, on the day specified in the order, or another day to which he may :adjourn the examination, take the examination of the witnesses, as if he possessed original jurisdiction of the special proceeding. The examination, after it is reduced to writing and subscribed by the witness, or otherwise duly authenticated, together with a ■statement of the proceedings upon the execution of the order, must be certified by the surrogate taking the examination, attested by the seal of his court, and returned without delay, with the original will, if any, to the surrogate who directed the examination, by whom all those papers must be filed ; and in the ■other cases named in section 2539, he may appoint a referee to take the testimony, who shall report the same to the said sur- rogate. An examination so taken has the same effect as if it was taken before the latter surrogate. The affidavit in the proceeding to be taken when the witness is in the same county, may be used with perhaps an additional allegation that the deponent is informed by the attending physician of the witness that he will probably not be able to attend the ■court within a specified time. The following may serve as the order to be made : ORDER FOR EXAMINATION. At a surrogate's court, held in and for the county of , at the surrogate's office, in the of , on the day of , 1874. Present — Hon. MosES Warren, Surrogate. In the Matter of the Application FOR THE Proof of the Will of , Deceased. Application having been made for the probate of the will of the above named deceased, and it appearing satisfactorily to the Testimony Taken 4N Another County. 53 surrogate that , one of the witnesses to said will, is aged (sick or infirm), and resides in the town of , in the county of , and that it is not probable that his attendance can be procured within a reasonable tin.e. Ordered, that said be examined before the surrogate of the said county of . It is further ordered, that this order, together with the wUl offered for probate, be delivered to said surrogate of said county of , on or before the day of , next, and it is further ordered, that notice of such examination be given to . Witness, Moses "Warren, surrogate, and the seal of said [l. s.] court, the day and year first above written. MOSES WAEREN, Surrogate. A copy of this order, attested by the seal of the surrogate's court, must be transmitted by him to the surrogate designated in the order, together with the original will, where the testimony re- lates to a written will The surrogate, by whom any such order and will shall be re- ■ ceived, shall on the day mentioned in such order, or on another day to which he may adjourn the examination, proceed to take the examination of such aged, sick or infirm witness, in the same manner, and with the like effect, as though such witness had attended and been examined before the former surrogate. Such examination shall be reduced to writing, and be sub- scribed by the witness; and the examination, together with a statement of the proceedings before the surrogate taking the same, shall be certified by him under his seal of office, and be re- turned without delay to the surrogate who ordered the exam- igjttion. The following is suggested as the return to be made under the order; Surrogate's Court. In the Matter of the Will of / , Deceased. j I, Lonson Fraser, surrogate of the county of Washington, do certify, that an order having been made by the surrogate of the county of Rensselaer, for the examination of , an aged witness to the above mentioned will, resident in the town of Salem, which said order is annexed marked A, I., on the day of , 1880, I attended at the time and place men- 54 Testimony, How Taken and Preserved. tioned in said last-mentioned order, and took the examination of said witness upon oath, which examination was reduced to writing and subscribed by said witness and is hereto annexed marked 0. Witness my hand and the seal of this court, this my of [L. a] day of , 1880. LONSON FEASER, Surrogate. When the trial is had before a surrogate, he may appoint a: stenographer as we have seen. § 2541. Duty of stenographer. — The stenographer of a surro- gate's court must, under the direction of the surrogate, take full stenographic notes of all proceedings, in which oral ^oofs are given, except where the surrogate otherwise directs. The testi- mony must be legibly written out at length by him, from his notes ; and the minutes thereof, as so written out, must, after be- ing authenticated, as prescribed in the next section, be filed in the surrogate's office. § 2542. Minutes of testimony, how authenticated. — The minutes of testimony, written out as prescribed in the last section, or taken by the surrogate, or under his direction, while the witness is testi- fying, must, before being filed, be authenticated by the signature of the stenograpner, referee, surrogate, or the clerk of the surro- gate's court, to the effect that they are correct § 2543. Testimony to he hound in volumes. — In the city and county of New York, in the county of Kings, and in any other county where the supervisors so direct, the minutes of testimony written out by the stenographer must be bound, at the expense of the county, in volumes of convenient size and shape, indorsed " Steno- graphic minutes," and numbered consecutively. Upon the record of a decree made in any contested matter, the surrogate must cause to be made a minute, refemng to each volume of the steno- graphic minutes, and to the pages thereof, containing any testi- mony relating to the matter. § 2544. Bequest does not disqualify a witness. — A person is not disqualified or excused from testifying respecting the execution of a will, by a provision therein whether it is beneficial to him or otherwise. § 2545. Exception to ruling and finding — Effect of appeal. — An exception may be taken to a ruling by a surrogate upon the trial by him of an issue of fact, including a finding, or a refusal to find, upon a question of fact, in a case where such an exception may be taken to a ruling of the court upon a trial, without a jury, of an issue of fact, as prescribed in article third of title Practice on Exceptions. 55 first of cliapter tenA of this act (Section 992, etc.) The j)ro- Tisions of that article relating to the manner and effect of taking such an exception, and the settlement of a case containing the exceptions apply to such a trial before a surrogate ; for which purpose the decree is regarded as a judgment, and notice of an exception may be filed in the surrogate's offica Upon such a trial the surrogate must file in his office his decision in writing, which must state separately the facts found and the conclusions of law. Either party may, upon the settlement of a case, request a finding upon any question of fact, or a ruling upon any question of law ; and an exception may be taken to such a finding or ruling, or to a refusal to find or rule accordingly. An appeal from a decree or an order of a surrogate's court brings up for review,. by each court to which the appeal is carried, each decision, to which an exception is duly taken by the appellant, as pre- scribed in this section. But such a decree or order shall not be reversed, for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby. To justify a reversal, it must appear that had competent evi- dence, which was rejected, been received, the appellant's case would not have failed ; or, without improper evidence, which was received, the respondent's case was deficient. {Snyder v. Sherman, 88 N Y., 656; Horn v. Pullman, 72 N. Y., 269 ; 10 Hun, 471; Oopeland v. Van Alst, 9 "Week. Dig., 407 ; In re Ross, 87 N. Y., 514 ; Brick v. Brick, 66 id., 144.) In place of the various provisions heretofore in force in relation to reference to an auditor, and in the city of New York, to a referee, we have a general provision. ^§ 2546. Reference, when mdered. — In a special proceeding, other than one instituted for probate or revocation of probate of a will, the surrogate may, in his discretion, appoint a referee to take and report to the surrogate the evidence upon the facts, or upon a specific question of fact ; to examine an account rendered, to hear and determine all questions, arising upon the settlement of such an account, which the surrogate has power to determine ; and to make a report thereon, subject, however, to confirmation by the surrogate. Such a referee has the same power, and is entitled to the same compensation, as a referee appointed by the supreme court, for the trial of an issue of fact in an action ; and the pro- visions of this act, applicable to a reference by the supreme court, apply to a reference made as prescribed in this section, so far as they can be applied in substance, without regard to the form of the proceeding. The surrogate of the county of New York may, on the written consent of all the parties appearing in 56 Powers of Eefebee. a probate case, appoint a referee to take and report the testimony therein. The referee must be sworn. (See § 1016.) The provisions of section 1018, prescribing the general powers of a referee upon a trial, so far as applicable to a trial of a refer- ence ordered by the surrogate's court, are as follows : The trial by a referee of an issue of fact or of an issue of law,, must be brought on upon like notice, and conducted in like man- ner, and the papers to be furnished thereupon are the same and are furnished in like manner as when the trial is by the court without a jury. Upon the trial of an issue of fact, the referee ex- ercises also the same power as the court, to allow amendments to- the summons or to the pleadings ; to compel the attendance of a witness by attachment, and to punish a witness for contempt of court for non-attendance, or refusal to be sworn, or to testify. * * * The powers conferred by this section are exercised in like manner, and upon like terms, as similar powers are exercised by the court upon a trial. The rules of the supreme court also apply. Where a surro- gate appoints a referee to examine an account rendered, and to hear and determine all questions arising upon the settlement thereof, which he himself has power to determine, and to make a report thereon, subject to confirmation by the surrogate, the rules of the supreme court are apphcable to such a reference, and the report of th6 referee becomes absolute (rale 30) and stands as in all things confirmed, unless exceptions thereto are filed and served within eight days after service of notice of the filing of the re- port. Where no exceptions have been filed, the surrogate has no alternative but to confirm the report {Matter of Leffingwell, 30 Hun, 528.) But where the order of reference of an account, and objections provided only that the referee " examine the same and make re- port thereon to this court," the referee, after taking evidence and hearing objections, made a report passing upon the facts and the questions raised before him. To this report exceptions were taken and served, and on a motion to confirm the report the surrogate refused to consider the exceptions to the referee's report and the questions raised thereby, and confirmed the report This was held to be error, and that the surrogate should have considered the rulings made by the referee on the exceptions taken to the report in detail. {Matter of Bedford^ 30 Hun, 551.) Jury Triai. and Appeal. 57 So, also, a jury trial may be ordered to try any. question of fact arising out of a proceeding to mortgage lease or sell real estate, for the payment of debts. § 2547. Jury trial may he ordered. — The surrogate may, in his discretion, make an order, directing the trial by a jury, at a circuit court to be held within the county, or in the county court of the county ; or, in the city and county of New York, in the court of common pleas, of any controverted question of fact arising in a special proceeding for the disposition of the real property of a decedent, as prescribed in title fifth of this chapter. The order must state, distinctly and plainly, each question of fact to be tried ; and it is the only authority necessary for the trial. § 2548. Trial hy jury, how reviewed. — A trial by a jury, pur- suant to an order made as prescribed in the last section, can be reviewed, in the first instance, only upon a motion for a new trial. A new trial may be granted by the surrogate, or the court in whicli the trial took place, or if it took place at the circuit court, by the supreme court, in a case where a new trial of specific ques- tions of fact, tried by a jury, pursuant to an order for such a trial made in an action, would be granted. The verdict of the jury- must be certified to the surrogate's court, by the clerk of the court in which the trial took placa § 2549. Appeal from order granting or denying new trial. — An appeal may be taken from an order, made upon a motion for a new trial, as prescribed in the last section, as if the order had been made in an action, and with like effect Costs of such an appeal miiy be awarded by the appellate court, as if the appeal was from an order or decree of the surrogate's court. CHAPTER IV. Of "Wills, their Execution and Probate, section l 0/ Wills, who m.ay make them. A last will and testament, whether consisting of one or several instruments, is a disposition of the estate of the testator to take effect only on his death. The distinction formerly existing between tuills and testaments, the former relating to the disposition of personal property, and 58 Who May Make a Will. tha latter to real estate, bas become obsolete, together with the technicality that a testamentary paper not appointing executors, was not a will, but only a codicil or "unsolemn will," the term codicil being derived from the diminutive of Codex, a will. (Wil- liams on Exrs., 7.) The last will and testament may consist of several papers, the will proper, and one or more codicils, the latter term being now applied to the supplementary papers adding to or taking from, or changing the dispositions made in the will, and they all together' when proved constitute one will. But it would seem that a document, containing testamentary dispositions, not aiuthenticated according to the provisions of the statutes of wills, may not be held to be a part of a valid will^ simply because it is referred to in the body of such will. {In re Will of a Neil, 91 N. Y., 516.) The power to make a, will and testament in this age, we would say, ia founded in natural right, although the right, as now pos- sessed, was for a long time not recognized by the law as respects. the disposition of real estate ; while even in the reign of Henry IL a man could only dispose by will of one-third of his per- sonalty, one-third being distributed to his next of kin, and the remainder to his wife. (2 BL Com., 492.) Now, speaking generally, and with the licpitations to be noted all persons except idiots, persons of unsound mind and infants, may devise their real estate by a last will and testament duly executed. (2 R S., 57.) Married women formerly disabled, are now enabled to devise real estate in the same manner and with the like effect as if they were unmarried. (S. L. 1868, chap. 782, § 3.) Every male person of the age of eighteen years or upward, and every female of the age of sixteen years or upwards, of sound mind and memory, may give and bequeath his or her personal property by will in writing. (S. L. 1867, chap. 282, § 4.) Such wills shall be in writing, and- executed with the for- malities prescribed by statute, except in the case of a nuncupative will bequeathing personal estate, made by a soldier while in actual military service, or by a mariner while at sea. (2 E. S., 60.) The limitations as to the power to dispose of real and personal property, are that a man cannot so devise his land but that it will be subject to the dower of his widow. (1 R. S., 740.) In the time of the Emperor yalentinian, in the fourth century, Who May Make a "Will. 59 tlie rapacity of the clergy and the liberality of wealthy penitents demanded an edict that a spiritual director should no longer be permitted to receive any gift, or legacy, or inheritance, from the liberality of his spiritual daughter. This was incorporated into the Code of Theodosius. (Lib. xvi, title 2, Leg. 20.) The spirit of the edict has been adopted in our law. , No person having a husband, wife, child, or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts, and any such devise or bequest shall be valid to the extent of one-half and no more. (S. L. 1860, chap. 260. See, also, S. L. 1848, chap. 319, § 6.) And no such devise or bequest shall be valid in any will which shall not have been made and executed at least two months before the death of the testator. {Lefevre v. Lefevre, 59 N. Y., 434; Kerr v. Dougherty, 79 id., 327; Stephenson v. Short, 17 W. Dig., 149.) But the provision of the act of 1848 applies only to cor- porations formed under the act, or the acts amendatory thereof. Foreign corporations are not restricted by the statute, but may take as other persons, unless they are restricted by the laws of the State under which they are organized. {Hollis v. Drew Semi- nary, 95 N. Y., 166.) In determining whether the will gives more than half, which is inhibited, the whole estate must be treated as converted into money at the death of the testator. (Id.) >«' Every citizen of the United States may take lands by devise. (1 R S., 719 § 8.) And any person may take personal property by bequest under any will, except a witness thereto. (2 E. S., 65, § 50.) But a bequest to a witness does not disqualify the witness. The bequest is only void. (Section 2544.) Wills may be deposited with any surrogate or county clerk, or with the registrar of deeds in the city or county of New York for safe keeping, and a written receipt may be taken therefor. The will must be inclosed in a sealed wrapper, so that the contents thereof cannot be read, and have indorsed thereon the name of the testator, his place of residence and the date of the delivery. It must not be opened, read or examined on any pretense, until delivered to the proper person. It may be delivered to the tes- 60 "Will, How Executed. tator in person, on his written order properly yerified, or after his death, to the person named in the indorsement on the wrapper, if any indorsement be made, or if it has been deposited with any officer other than the surrogate, to the surrogate of the county. The surrogate will publicly open the wrapper, make known the contents ,of the will and retain it for proceedings to prove it. (2 E. S., 404.) SECTION II. The Execution of Wills. In respect to real property, the lex loci rei sitae or place where the property is situated, is the law regulating the requirements of the execution of the will, while as to personal property, the law of the domicile regulates the manner of execution and the right to dispose of the property and construction of the instrument {Moultrie v. Hunt, 23 N. Y., 394 ; Shultz v. Damhmann, 3 Bradf.,, 379 ; Wood v. Wood^ 5 Paige, 696 ; Chamberlain v. Oharnherlain, 43 K Y., 424; Knox v. Jones, 47 id., 389.) A will of real or personal property, may be in any form or language ; but its execution must be accompanied with certain formalities, to the intent that the court may be assured that the instrument was really a will, and that the testator was not im- posed upon as to the character of the instrument Whether or not a paper is a will, depends not on its form, or on any declaration of the testator, but the substance of the paper. Thus, a paper expressing a wish to give certain sums and that " neither the executors or heirs will object to carrying out this my will " is testamentary in its character, and, if properly executed, could be proved as a will. {Carle v. Underhill, 3 Bradf., 101.) This was held also in the case of a conjoint or mutual will in peculiar form, executed in Bavaria. {Matter of Frederick Diez, 50' N. Y., 88.) So it may be in any number of papers, but each must be properly executed. Reference may be made in a will to another document for purposes of description, but there can be no valid disposition except in the will ; and a will cannot reserve the power to give by an instrument not executed as a will. {Thompson v. Quimhy, 2 Bradf., 449.) A joint or mutual will is valid, and may be proved on the death of either party. {Ex parte Day, 1 Bradf., 476; Mc parte M'Cor- mich, 2 id., 169 ; Wood v. Vandenburgh, 6 Paige, 277, and Matter ofDeiz, 50 K Y., 88.) Will, How Subscribed. 61 So a will may be conditional, but the condition must appear on its face, and go to tlie root of the entire instrument in order to affect the question of probate. If thia is not clear the will should be admitted to probate, and tbe effect of the condition then be- comes a matter of construction. {Ex parte Lindsay, 2 Bradl, 204 ; Thompson v. Connor, 3 id., 866.) An instrument executed as a will, which simply nominates car- tain persons as executors, and authorizes them to sell real estate,, is a will, and is entitled to probate as such. {Barber v Barber,. 17 Hun, 72, afi&rmed on appeal.) Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner (2 E. S., 63, § 40.) 1. It shall be subscribed by the testator at the end of the will. The name may be written by another person in the presence of the testator and by his express direction. {Robins v. Coryell, 27 Barb., 556 ; Campbell v. Logan, 2 Bradl, 90, and cases cited.) But in such a case the statute requires that the writer shall affix bis own name as a witness. (2 E. S., 63, § 41.) ■ But bis omission to do so does not affect the validity of the will ; it only exposes him to a penalty of fifty dollars. (Id.) Subscription may also be made by the mark of the testator. {Kenney v. Whitmarsh, 16 Barb., 141, and cases cited; Van Eaus- wych V. Wiese, 44 Barb., 494; Butler v. ButUr, 1 id., 526; Morris V. Eniffin, 37 id., 836; Walsh Estate, 1 Tuck, 132; Simpson's Will, 2 Eedf., 29.) Such subscription must be at the end of the will And this may be limited to mean the foot of the formal instrument, not- withstanding other papers such as maps are annexed to it, and so referred to as to constitute them a part of the will {Tonnele v. Hall, 4 N Y., 140; Thompson v. Qtiimhy, 2 Bradl, 449.) But a moderate space left blank between the last line of the will and the subscription was held not to be fatal {Matter of G^-Zwian, 38 Barb. 364.) It was accordingly held that where the decedent signed so mucb of the instrument as made a full disposition of his prop- erty, and then there was underwritten an appointment of executors which was signed only by the witnesses, which was followed by a direction to the executors to pay debts and personal charges, the instrument was not signed at the end, and probate was refused^ 62 "Will Subscribed Before Witnesses. {McOuire v. Kerr, 2 Bradf., 244; In re Will of Hewitt, 91 K Y., 261 ; In re Will of ONeil, id, 516.) But m a similar English case (/ra the Goods of Howell, 2 Curt., 342, see Wms. on Ex'rs, 66, 67), althougli probate was refused to the executors, the will as appearing above the signature of the decedent was admitted to probate. So there should not be an unnecessary or unreasonable space between the end of the will and the signature of the testator. ss. : Rensselaer County, ) John Doe, being duly sworn, says that the foregoing petition by him subscribed is true, except as to the matters wldch are therein stated to be alleged on information and belief, and as to those matters he believes it to be trua JOHN DOE. Sworn to before me this 3d day ) of February, 1880. ) James Lansing, Commissioner of Deeds, Troy, K Y. CiTATi03sr Issues. 85 This petition must be verified as above and the oath can be administered by any officer authorized to administer oaths. {Bolton V. Jacks, 6 Kobt, 166.) Where a will had been admitted to probate after the surrogate had ascertained by satisfactory evidence, i. e., a verified petition, that the testator left him surviving no next of kin, on an applica- tion to revoke the probate on proof of the existence of next of kin, it was held discretionary with the surrogate, to grant or deny the application. {Bailey v. Hilton, 14 Hun, 3.) The surrogate, on the filing of the petition, enters an order that a citation issue. The following may serve as a form ; ORDEE FOR CITATION. At a surrogate's court, held in and for the county of , at the court house in the village of , on the day of , 1874. Present — ^Hon. , Surrogate. In the Mattee of the "Will of / , Deceased. I On reading and filing the petition of , duly verified, propounding for probate, a paper purporting to be last will and testament of , late of the town of , deceased- Ordered. that a citation issue to the husband, heirs at law, and widow and next of kin of said deceased, pursuant to the prayer of said petition, requiring them to appear in this court on the day of , 1874, at ten o'clock A. M., to attend the probate of said will. ,^ ■ , Surrogate. The order may also, under section 2527, quoted ante (pp. 56, 57), contain a provision for service upon a third person in behalf of an habitual drunkard, an infant or a person mentally incapable ade- quately to protect his rights. If it appear by the petition that the narne of one or more par- ties to be cited, cannot after diligent inquiry be ascertained by him, the surrogate must proceed to inquire into the matter. (Sec- tion 2518, ante; pp. 40, 41.) For this purpose he may, in his dis- cretion, issue a subpoena, requiring any person to attend before him to testify respecting the matter. But if the petition show that inquiry has been made of those persons, or the persons who 86 Contents of Citation. might reasonably be expected to know of the facts if they could be proved, the surrogate will probably be satisfied that the names or residences desired cannot, with reasonable diligence be ascer- tained. The citation will then be directed to the person or per- sons whose names are unknown by a general designation, stating his, her or their connection with the matter, or otherwise suffi- ciently identifying the person or persons intended. (Section 2518.) § 2615. Who to be cited. — The following persons must be citedj upon a petition, presented as prescribed in the last section : 1. If the will relates exclusively to real property, the husband, if any, and all the heirs of the testator. 2. If the will relates exclusively to personal property, the hus- band or wife, if any, and all the next of kin of the testator. 3. If the will relates to both real and personal property, the husband or wife, if any, and all the heirs, and all the next of kin of the testator. It is unnecessary to cite a legatee who is neither heir at law or next of kin. {Walsh v. Hyan, 1 BradL, 433.) "When a married woman is a necessary party, it is no longer necessary to include her husband in the citation. {Bleecker v- Lynch, 1 Bradf., 458 ; Keeney v. Whitmarsh, 16 Barb., 141.) As to general provisions in relation to citations, see section 2518. § 2616. Contents of citation. -^-The citation must set forth the name of the decedent, and of the person by whom the wUl is propounded; and it must state whether the will relates, or purports to relate, exclusively to real property, or personal property, or to botL "Where the will propounded was nuncupa- tive, that fact must be stated in the citation. "Where the surro- gate is unable to ascertain to his satisfaction, whether the decedent left, surviving him, any person, who would be entitled to the property affected by the will, if the decedent had died intestate, the citation must be directed, where the will relates to real prop- erty, to the attorney-general ; where it relates to personal property, to the public administrator, who would have been entitled to ad- ministration, if the decedent had died intestate. {GombauU v. Public Administrator, 4 Bradf., 226.) Under the act of 1837, the citation was directed to the general guardians of minors, if any such resided in the State, and before the issuing of the citation a special guardian was appointed for minors having no general guardians, and the citation was also directed to such special guardian. But since the statute of 1863, Citation and Service. 87 and under the new revision, the petition need not state whether any parties are minors, and no special guardian need be appointed until the return of the citation. (Section 2527.) A notice to infants of application for the appointment of a special guardian for them may be incorporated in the citation, and it is usually so served. CITATION. To Mary "Williams, Sarah Boyd, William Jones, Henry Jones, Sarah Jones and James Jones, heirs at law and next of kin of Henry Williams, late of the town of Brunswick, in the county of Rensselaer, deceased: You and each of you are cited and required to appear at the of&ce of our surrogate, in the city of Troy, in the county of Eensselaer, on the 10th day of April, 1880, at 10 o'clock A. M. of that day, to attend the probate of the will of said deceased, which will then be offered for probate by Henry Williams, an executor named therein, and which relates to both real and personal estate. Notice is further given to such of the above named persons who a,re infants, that said executor wiU apply to the surrogate on the day and at the time and place last mentioned, for the appointment of a special guardian of each of you, in the special proceeding commenced by the petition filed in this matter. In testimony whereof, we have caused the seal of ofiice of [l. S.J our said surrogate to be hereto affixed. Witness, Moses Warren, surrogate of the county of Eens- selaer, the 22d day of February, A. D., 1880. MOSES WAEREN, Surrogate. "^The citation must be made returnable upon a day certain, not more than four months after the date thereof. (Section 2579.) The manner of service which, under the new revision is general, applying to all citations issued out of the court, is prescribed by section 2520 ei ySeq., quoted ante, where will be found proof of service and forms to procure substituted service by publication as to unknown parties, or otherwise, and as to these who are non- residents of the State, or who cannot be served within the State. It may be stated here generally, that the time for service on parties in the county of the surrogate, or adjoining counties, is eight days ; in other counties of the State, fifteen days, and with- 88 Citation and Service. out the State, or on parties unknown, by publication six weeks, together with service by mail, as to those whose names and resL dences are known. Infants under fourteen years of age, must be served personally and a copy must be delivered to its parent, guardian, or to the person in whose charge the infant may be. Service on the infant alone, or on the person in whose charge he may be only, is insuffi* cient. The appearance of a party of full age, and not judicially de- clared incompetent either in person or by an attorney, is deemed a sufl&cient waiver of service. (Section 2528 ; Matter of Macaulayr 27 Hun, 577.) On the return day, the surrogate will enter the appearances and the default of those not appearing, and if it then shall appear that some proper parties were omitted in the petition or citation, or, that the service is not complete, he will enter an order for an ad. journment and for a new citation, making it returnable on the adjourned day. But in case it shall appear that some proper par- ties, heirs at law or next of kin, were, through ignorance of their names, or from any other cause, omitted from the first petition, the proper course undoubtedly would be, at any time, on discover, ing the omission, or on the return day, to make a supplementary petition, stating the omission and the cause of it, and giving the names of such parties, upon which a new citation would issue of course. The petition might be as follows : Surrogate's Court. In the Matter of the "Will of / John Doe, Deceased. X The supplementary petition of A B, the executor named in the will of the above named deceased, respectfully shows : Your peti- tioner has discovered since his former petition was filed in this matter, and to which he now refers, that the said John Doe left him surviving as your petitioner is informed and believes a nephew, named C D, who resides in the town of , in the county of and State of , who is an heir at law and one of the next of kin of said deceased, and a proper party to be cited in this proceeding. That your petitioner omitted the name of the said D from his said former petition, for the reason ss.: In Case Parties Die. 89 that at the time of making the same he was ignorant of the fact of his existence and relationship to the testator. He therefore prays that a citation may issue to the said G D. Dated February 4, 1880. (Signed) A. B. State of New York, County, A. B., being duly sworn, says that the foregoing petition by him subscribed is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be true, A. B. Sworn before me this 4th day ) of February, 1880. ) Charles W. Snyder, Notary Public, Rensselaer County. Should it be desired to save the time necessary for service, and all the parties interested are of full age, they may join in the peti- tion for immediate proof of the will, and the surrogate may then enter an order that the proof be taken without delay. {Euerts v. Everts, 62 Barb., 577.) This case also holds that if the court has jurisdiction of the subject matter, a voluntary appearance com- pletes the jurisdiction and authorizes any decree or judgment which the court may make. This is also now made statutory. (Section 2528, sup.) It may occur that persons cited may die before the proceeding is concluded. In such a case, if the will relates to real estate, it would appear to be the proper course, in case of such death, before the>day appointed for taking the proof, to petition fo;* a new cita- tion to his heirs at law, and for an adjournment, to permit of the service. It is not, indeed, necessary that there be a formal petition ; an affidavit showing the facts is sufficient ; but a petition is more in accordance with the practice of the court {Russell v. Hartt, 87 N. Y., 19.) The surrogate has power to direct the continuance of the proceeding and the substitution of the personal representa- tives of such a contestant ( Van Alen v. Hevnns, 5 Hun, 44 ; Lafferty v. Lafferty, 5 Eedt, 826.) It may be, however, in such a case, that the parties who would be cited as lieirs at law of the one 12 90 Witnesses and Fees. so dying, have been already cited as heirs at law of the testator. In such a case, certainly, no adjournment would be necessary, as. the court has already jurisdiction of thena. As to the survivors, the surrogate is not divested of his jurisdiction, but as to them he may proceed, if they make no objection to a decrea {Brick v. Brick, 66 KY., 144.) The expenses of the executor, or other person who shall serve the citation, or the time of a person so employed for that purpose, will be allowed as part of the expenses of administration, without regard to creditors, as well as the expense of advertising the citation. ' At the time of the issuing of the citation, or at any other time, a subpoena will issue signed by the surrogate or the clerk of his court, to compel the attendance of witnesses. The subpoena also issues upon the order of the court which is entered in the surro- gate's minutes, and a clause may be added to such subpoena, com- manding any person having the custody of or power over any will to produce the same before the surrogate for the purpose of proof. (Section 2481, subd. 3.) Disobedience to the subpoena is punished by commitment. (See Contempts, post.) The fees of witnesses are the same as in courts of record ; fifty cents for each day's attendance, and where the witness resides more than three miles from the place of trial, traveling fees of four cents per mile going and returning. SECTION II. Of the Proof of the Will The citation having been duly served, and due proof of the service having been filed with the surrogate, or, aU the parties in- terested appearing, the surrogate enters in his minutes the pro- ceedings and appearances, and shall ascertain whether any, and which of the parties interested as heirs, widow or next of kin are minors, or lunatic or an idiot, to the end that special guardians may be appointed for them. The section regulating this is 2520^ 2520, quoted ante, with forms for the consent and appointment. The surrogate acquires jurisdiction of the person of the infant by service of the citation, and the omission to appoint a guardian, for him, as required by the statute, though an error, will render the judgment voidable, but not void. The appointment of a special guardian for an infant party in a contested probate pro- ceeding, who is present when the appointment is made, is regular Proceedings on Contest. 91 ■witiiout service of a notice or citation upon the infant, when he does not, by himself, or his guardian, object. {Matter of Seahra, S8 Hun, 218.) A special guardian, who, in this proceeding, rep- resents infants, has no duty to discharge in reference to the estate, and his compensation should come from the infants or their estate. The costs which may be allowed out of the general estate are limited to those specified in sections 2558, 2561 of the Code. {Matter of Budlong, 100 N. Y., 203.) The surrogate has no authority to make an ex parte order for an allowance to a special guardian unsuccessfully contesting a will. (Id.) The special guardian shall appear in person before any evidence shall be taken. The parties being all in court, if any of them wish to contest the probate, they now signify their wish and file their objections to probate. OBJECTIONS TO PEOBATE. Surrogate's Court — Eenssblaer County. In the Matter op the Will of / , Deceased. I To Hon. Moses Warren, Surrogate. A. B. and C. D., heirs at law and next of kin of the above named deceased, respectfully object to the probate of the paper writing propounded as the last will and testament of said de- ceased, and say, on information and belief, that said paper writing is not the last will and testament of said deceased A B., C. D. Edward A Pattison, Attorney. Eemsbelaer County, ss. : A. B., being duly sworn, says, that he is one of the contestants above named, and has heard the foregoing objections read, and that the same are true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be true. A B. ' Sworn before me, etc. The above objection puts in issue all the material allegations in the petition. 92 Intervention. § 2617. Persons not cited may intervene. — Any person, although, not cited, who is named as a devisee or legatee, in the will pro- pounded, or as executor, trustee, devisee, or legatee, in any other paper, purporting to be a will of the decedent, or who is other- wise interested in sustaining or defeating the will, may appear, and, at his election, support or oppose the application. A person so appearing becomes a party to the special proceeding. But this section does not affect a right or interest of such a person, unless he so becomes a party. I This is called intervention, and for the purpose a petition should be filed, ( Walsh v. Ryan, 1 Bradf., 433 ; Foster v. Foster, 7 Paige, 48 ; Matter of Will of James Malcom, Dayton's Sur. [3d ed.J, 169 ; Norton V. Lawrence, 1 Eedf., 473 ; Marvin v. Marvin, 11 Abb. N. S., 97.) It seems, that any interest, however slight, or the bare possi- bility of an interest, is sufficient to entitle one to oppose probate. {Matter of Greeley's Will, 15 Abb. N. S., 393.) But the wife of an heir at law cannot contest a will to protect her inchoate right of dower. {Matter of Rollwagen, 48 How., 103.) If a dispute arises as to the right of a contestant to be a party to the proceeding, the surrogate will try that question at the out- set, unless it appears that a different course would be advisable. {Henry v. Henry, 4 Dem., 253.) It is necessary for a person, ia order to avail himself of the provisions of the Code in regard to intervention, to establish, by competent proof, that he belongs to- one of the classes specified. If he claims under a former will, he must also prove the provisions of the wilL {Matter of Ham- mersley, 7 N. Y. St Eep., 292.) PETITION FOR LEAVE TO INTERVENi; Suekogate's Court — Rensselaer County. In the Matter of the Will of ( • ., Deceased. X To Moses Warren, Esq., Surrogate of the Covnty of Rensselaer i The petition of , of the of in said county, respectfully shows : That your petitioner is a legatee named in the will of deceased, proceedings for proof of which are now pending in this, court ; that your petitioner is not one of the heirs at law or next Intervention. 93 of kin of said deceased, and therefore has no standing in this. court, except by leave thereof. Your petitioner's interests would be beneficially affected by the proof of said will, and he therefore prays leave to intervene in said proceedings and appear therein, to the end that he may car& for his own interests. Dated April 15, 1880. (Signed) . Eensselaer County, ss. : • ■ , being duly sworn, > says, that the foregoing' petition by him subscribed, is true of his own knowledge, except as to the matters which are therein stated to be alleged on infor- mation and belief, and as to those matters he believes it to be true. (Signed) . . Sworn before me, this day \ of April, 1880. ) OEDEE THAT PAETY MAY INTEEVBNE. At a surrogate's court, held in and for the county of , at the , in the of , on the- day of , 187—. Present — • — , Surrogate In the Matter of the Will of , Deceased. ( On reading and filing the petition of , from which it- appears that said petitioner is a legatee named in the will of said deceased, and not being one of the heirs at law or next of kin of said deceased, and it appearing that said petitioner is interested in the proof of said will : Ordered, that said have leave to intervene in these proceedings, and appear therein, and move in the matter' as he shall be advised. (Signed) , Surrogate. At this point, certainly, and it may be at any stage of the pro- ceedings, begun to prove a will before the surrogate, he has power to allow the proponent to withdraw the same from probate. The 94 "WiTifESSES Absent. power to entertain a suit or proceeding, implies the power to dis- miss or discontinue it. {Heermans v. Hill, 4 Th. & C, 602.) In place of section 10 of chapter 60 of Laws of 1837, we have § 2618. Witnesses and proof required. — Upon the return of the •citation the surrogate must cause the witnesses to be examined before him. The proofs must be reduced to writing. Before a Awitten will is admitted to probate, two, at least, of the subscribing witnesses must be produced and examined, if so many are within the State, and competent and able to testify; Before a nuncupa- tive will is admitted to probate, its execution and the tenor thereof must be proved by at least two witnesses. Any party who con- tests the probate of a will may, by a notice filed with the surro- gate at any time before the proofs are closed, require the examina- tion of all the subscribing witnesses to a written will, or of any other witness, whose testimony the surrogate is satisfied may be material ; in which case all such witnesses who are within the State, and competent and able to testify, must be so examined. § 2619. Absent witnesses to he accounted for. — The death, absence from the State, lunacy, or other incompetency of a witness, re- quired to be exardined as prescribed in this or the last sectioa, or proof that such witness cannot, after due dihgence, be found within the State or elsewhere, must be shown by afiidavit or other competent evidence, to the satisfaction of the surrogate, before dispensing with his testimony. Where a witness, being within the State, is disabled from attending by reason of age, sickness or infirmity, his disability must be shown in like manner ; and in that case the testimony of the witness, where it is required, and he is able to testify, must be taken in the manner prescribed by law, and produced before the surrogate as part of the proofs. The testimony of aged, sick or infirm witnesses in this State, is provided for by sections 2539 and 2540, which are quoted ante, with forms proper to be used. The proving and execution of a commission is also discussed with forms, ante. % 2544 Witness to will not disqualified. — A person is not dis- qualified or excused from testifying respecting the execution of a will by a provision therein, whether it is beneficial to him or otherwise. The following provisions of the Eevised Statutes remain in force : § 50. (2 E. S., 65.) If any person shall be a subscribing wit- ness to the execution of any will, wherein any beneficial devise, legacy, interest or appointment of any real or personal estate shall Legacy to Subscribing Witness. &5> be made to sucli witness, and sucli will cannot be proved witbout tbe testimony of such witness, the said devise, legacy, interest or appointment shall be void, so far only as concerns such witness^ or any one claiming under him ; and such person shall be a com- petent witness and compellable to testify respecting the execution of the said will, in like manner as if no such devise or bequest. had been made. In a case arising under this section where there were three sub- scribing witnesses to the will, to each of whom a legacy or bene- ficial interest was given, and the will was satisfactorily proved before the surrogate by the oaths of two of the witnesses (the probate not being contested and the third witness not being sworn), such third witness, after the time for appealing from the surro- gate's decree establishing the will has expired, was held entitled to the legacy given to him by the will. The record of the testimony taken by the surrogate on the probate of the will before him, with his decree thereon, is competent evidence to show that the will was proved without his testimony. {Caw v. Bobertson, 5 N. Y., 125.) Where the third witness was sworn, but was not examined as to the execution of the will, and the decree recited that the will was daly proved by the testimony of the other wit- nesses, it was held that such third witness was not sworn or examined as a subscribing witness to the will, and was not, there- fore, deprived of his legacy. (Id.) A bequest is not void, even if the legatee is examined, if the will was sufficiently proved without his testimony. {Cornwell v. Wooley, 1 Abb. Ct. App. Dec, 441.) An appointment by the will of the witness' to be an executor does not disqualify him from testifying as a witness. {Children's Aid Soc. v. Loveridge, 70 N. Y., 387.) A gif* by will to an executor of a legacy as a compensation for his services, over and above his commissions, stands in the same position and partakes of the same character as the commissions. It is not an absolute gift, and not such a devise or legacy as becomes forfeited under the statute by the legatee becoming a subscribing witness to the execution of the will. {Pruyn v. Brinherhoff, 57 Barb., 176. But qiiere.) One who is heir at law, or one of the next of kin, if he is a legatee, saves his share which he would take by descent or distri- bution provisionally. § 51. (2 E. S., 65.) But if such (subscribing) witness would have been entitled to any share of the testator's estate in case the 96 "Wills, How Proved. "will was not established, then so much of the share that would iave descended or been distributed to him as wiil not exceed the value of the devise or bequest made to him in the will, and he shall receive the same of the devisees or legatees named in the will, in proportion to, and out of, the parts devised and bequeathed to them. As to the action by a witness in such a case, see section 1868 of the Code. When the witnesses to the will are produced before the surro- gate and there is no contest, it is usual to take their depositions jointly. DEPOSITIOK Surrogate's Court — Eensselaer County. In the Matter of the last Will AND Testament of John Doe, De- ceased. Eensselaer County, ss. : Lewis Jones, of the town of Nassau, and Grove P. Jenks, of the town of Schodack in said county, being each duly sworn, do depose and say, and each for himself says, that he is a subscribing witness to the last will and testament of John Doe, late of the city •of Troy, in said county, deceased, and that the said deceased did, on the ■ day of , 1869, in the presence of these •deponents, subscribe his name at the end of the instrament which is now shown to these deponents, and which purports to be the last will and testament of the said deceased, and which bears date on the day last aforesaid, and that the said deceased at the time of subscribing his name as aforesaid, declared said instrument to be his last will and testament and requested these deponents to sub- •scribe the same as witnesses, and that these deponents did there- upon subscribe their names at the end of said will as witnesses. And these deponents further say, that at the time of subscrib- ing said instrument as aforesaid, the said John Doe was of sound mind and memory, above twenty-one years of age, and not under any restraint, and was a citizen of the United States. LEWIS JONES, GEOVE P. JENKS. Subscribed and sworn before me, this ) 5th day of December, 1873. \ Moses Warren, Surrogate. § 2620. Proof of handwriting. — If all the subscribing witnesses to a written will are, or if a subscribing witness, whose testimony is required, is dead, or incompetent, by reason of lunacy or other- When Witnesses Forget. 97 "wise, to testify, or unable to testify ; or if such a subscribing wit- ness is absent from the State, and the surrogate is satisfied that his testimony cannot with due diligence, be obtained by a com- mission ; or if such a subscribing witness has forgotten the occur- rence, or testifies against the execution of the will, the will may nevertheless be established, upon proof of the handwriting of the testator, and of the subscribing witnesses, and also of such other circumstances as would be sufficient to prove the •will upon the trial of an action. Where a subscribing witness is absent from the State, upon application of either party, the surrogate shall cause the testimony of such witness to be taken by commission, when it is made to appear that by due diligence such testimony may be obtained. Where a written will is proved, as prescribed in this section, it must be filed and remain in the surrogate's office. Where in any matter before the surrogate, or in a surro- gate's court, the testimony of any witness shall be taken by or on a commission, the same, together with the commission on which it is taken, shall be duly filed in the office of the surrogate, but need not be recorded. The testimony or other proceeding duly taken to be used before the surrogate, or surrogate's court, by a stenographer, shall be filed and need not be recorded. For a new method of proving handwriting by comparison, see Laws 1880, chap. 36. Where the attestation clause is full and complete, it is not always essential that all the particulars required by the statute to constitute a valid execution of the instrument should be expressly proved. The presumption is in favor of due execution, and a failure of recollection on the part of the subscribing witnesses will not defeat the probate, where the surrounding circumstances, taken together with the attestation clause, satisfactorily establish such execution {Matter Will ofPepoon, 91 N. Y., 255.) In a case where both the subscribing witnesses swore positively that they did not sign, nor did the testator sign in their presence, on pi«(6f of the handwriting of testator and subscribing witnesses, the will was sustained. {In re Cottrell, 95 N. Y., 829.) A will may be proved without the testimony of the subscribing witnesses by other witnesses. {Butler v. Benson, 1 Barb., 526.) By proof of the handwriting of the testator and of the witnesses, and a full attestation clause. {Lawrence v. Norton, 45 Barb., 448 ; Orser v. Orser, 24 K Y., 51.) So also, a will may be proved even in opposition to the testimony of the subscribing witnesses, if the court or jury is satisfied that it was properly executed. {Jauncey V. Thorne, 2 Barb. Ck, 40; Jackson v. Ghristman, 4 Wend., 277; Chaffee v. Baptist Miss. Conv., 10 Paige, 85 ; Peebles v. Case, 2 13 98 Peoof of Lost "Will. Bradf., 226 ; Matter of Kellum, 62 N. Y., 617 ; Trustees of Auburn Sem. V. Calhoun, 25 id., 422; Bugg y. Bugg, 21 Hun, 383; affirmed 83 N. Y., 592 ; Walsh v. Walsh, 4 Eedf., 165.) § 2621. Proof of lost or destroyed will. — A lost or destroyed will can be admitted to probate in a surrogate's court ; but only in a case wbere a judgment establishing the will could be rendered by the supreme court, as prescribed, in section 1865 of this act The section referred to is as follows : § 1865. Proof of lost wills in certain cases. — But the plaintiff is not entitled to a judgment establishing a lost or destroyed will, as prescribed in this article, unless the will was in existence at the time of the testator's death, or was fraudulently destroyed in his life-time ; and its provisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness. (See Grant v. Grant, 1 Sandf. Ch., 235 ; Matter of Marsh, 9 IST. Y. Si Eep., 441.) When a will has been lost or destroyed under circumstances showing that it was not with the knowledge or consent of testator, the fact of its legal existence at his death may be proved by cir- cumstantial testimony. So where it appeared that the wiU, at the time of its execution, was placed by the testator in the hands of a custodian who took charge of it and locked it up in a trunk, and supposed it was there at the time of the testator's death, but upon search it could not be found, the evidence warrants a finding that it was in existence at testator's death, or that it was fraudulently lost or destroyed in his life-time. {Shultz v. Shultz, 35 N. Y., 653.) A will destroyed by the testator under undue influence, and in belief of a fraudulent statement, is a will " fraudulently destroyed within the statute." {Voorhees v. Yoorhees, 39 N. Y., 463.) The destruction of the will by testator's direction, and in his presence, is not to be regarded as fraudulent, because it was not done in the presence of two witnesses, so as to amount to a valid revocation. {Timon v. Glaffy, 45 Barb., 438.) To establish the loss of the will sought to be proved in this proceeding, proof must be made of diligent search, and that all the sources of information in regard to the will are exhausted. {Kearney v. Mayor, 92 N". Y., 617.) "Where a will was last seen in the possession of the person in whose behalf it was claimed to Proof of Lost Will. ^ 99 have been made, but there was no evidence that it was lost or de- stroyed, and the testimony as to the provisions was indefinite and not full, probate was refused. {McNally v. Brown, 5 Eedf., 372.) The loss having been proved, , it is not necessary that the wit- nesses should remember the exact language of the will, but they must be able to testify at least to the substance of the whole will, so that it can be incorporated in the decree if the will is admitted to probate. {Early v. Early, id., 376.) It cannot be established by the testimony of two witnesses who difEer materially either as to the beneficiaries or the amount of the bequests. {Sheridan v. Houghton, 16 Hun, 628 ; 84 N. Y., 643.) The witnesses must agree as to the contents of the will, and their knowledge must have been derived from the wiU itself. So when one witness, sworn as to the contents of the will from knowledge, and the other as to declarations of the testator as to its contents, the tes- timony was held insufiicient {Hatch v. Sigman, 1 Dem., 519.) § 2622. Surrogate to be satisfied. Possession accounted for. — Before admitting a will to probate the surrogate must inquire particularly into all the facts and circumstances, and must be satis- fied of the genuineness of the wUl, and the validity of its execu- tion. Before admitting a written will to probate, the surrogate may, in his discretion, require proof of the circumstances attend- ing the execution, the delivery, and the possession thereof, or any of them, to be made by the affidavit, or the testimony, at the hearing, of the person who received the will from the testator, if he can be prodTuced, and, also, of the person presenting it for probate. § 2623. When proof suffi/yient. — If it appears to the surrogate that the will was duly executed, and that the testator, at the time of executing it, was in all respects competent to make a will, and not under restraint ; it must be admitted to probate as a will valid to pass real property, or personal property, or both, as the surro- gate ^determines, -and the petition and citation require, and must be recorded accordingly. The decree admitting it to probate must state whether the probate was or was not contested. The party propounding the will has the burden of proving to the satisfaction of the court that the instrument was duly exe- cuted by a testator of sound mind, of lawful age and not under restraint {Delafield v. Parish, 25 N. Y., 99 ; Kingshy v. Blan- chard, 66 Barb., 317 ; Rollwagen v. Rollwagen, 63 JST. Y., 504 ; Lake v. Banney, 33 Barb., 49 ; Co-mstock v. Hadlyme Ec. Soc, 8 Conn., 254; 20' Am. Dec, 100.) 100 Costs on Probate. The soundness of mind of the testator is a fact which must be proved, and the burthen of proof rests on the party propounding the -will ; and when the proof is not directly given, it may be derived from circumstances proved before the surrogate. The question will then be, will the court find as a fact from the proof, that the testator was of sound mind? {Kingshy v. Blanchard, sup.) It has been held, however, that inasmuch as the legal presump- tion is, that every man is compos mentis, usually the burden of proof that he is non compos mentis rests with the party who- alleges that condition of mind. {Ean v. Snyder, 46 Barb., 230 ; Alhn V. Puhlic Administrator, 1 Bradf., 378.) If there is a reasonable doubt whether one or more of the di- rections of the statute have not been omitted, probate must be refused, even though it appear probable that the paper expresses- the testator's intention. {Theological Sem. v. Calhoun, 25 N". Y., 422 ; aider v. Zegg, 51 Barb., 260 ; Nexsen v. Nexsen, 3 Abb. C- of App., 360 ; see, also, valuable note as to requisites of execution of wills, in 36 Am. Dec, 316.) The matter of costs to be allowed in these proceedings, is regu- lated by section 2561 of the Code. § 2561. In a case other than one specified in the last section (trial by jury or appeal), the surrogate, upon rendering a decree, may, in his discretion, fix such a sum to be allowed as costs, in addition to the disbursements, as he deems reasonable, not exceed- ing where there has not been a contest, twenty -five dollars ; or where there has been a contest, seventy-five dollars, and, in addi- tion thereto, where a trial or hearing upon the merits before the surrogate necessarily occupies more than two days, ten doUars- for each additional day ; and where a motion for a new trial is made before the surrogate, if it is granted, seventy dollars ; if it is denied, forty doUars. {Ftmhacher v. Fernbacher, 4 Dem., 227.) The surrogate has power to allow costs of a successful contest of probate to each of several contestants appearing, and contesting by separate attorneys, even though they filed no written objec- tions, and may charge the costs on the proponent personally ; and he should do so where the proponent proceeded without any evi- dence to sustain his venture, trusting to chance for its develop- ment The proponent of a will is not entitled to costs as a matter of right, if he fails to establish it, save in the case provided for by Construction of Wills. 101 section 2557, subdivision 3, where lie, as executor, performed it in good faith as the means of contesting a conflicting will first propounded by another person. {Collytr v. Collyer, 4 Dem., 53.) § 2624. Decree to decide construction, etc. — But if a party ex- pressly puts in issue, before the surrogate, the validity, construc- tion, or effect of any disposition of personal property, contained in the will of a resident of the State, executed within the State, the surrogate must determine the question, upon rendering a de- cree, unless the decree refuses to admit the will to probate, by reason of a failure to prove any of the matters specified in the last section. This section is section 11 of chapter 359 of Laws of 1870, which related only to New York city, made general in its appli- cation. Advantage of the provision can be taken only in proceedings to prove a will. {Sevan v. Cooper, 72 N. Y., 317.) As the pro. ceeding is taken on probate, and some legatees may not be next of kin, and consequently not before the court, the surrogate's court of New York county, properly provides by rule, that if there are any such parties not before the court, the proceeding shall be sus- pended until they can be brought in. The mere fact that one has been a party to a controversy over the probate of a will in the surrogate's court, does not entitle him, under the last section, to insist that, before the entry of the decree according probate, the surrogate shall pass upon all questions that such party shall see fit to raise respecting the validity, construc- tion or effect of such will, or any of its provisions. As regards the persons who may invoke, and the occasion for invoking the surrogate's jurisdiction to construe wills and pass upon their effect and validity at the time of admitting them to probate, this section has worked no substantial change in the law existing before the passage of the Code as fixed by the law of 1887. {Matter of Eamersky, 1 N. Y. St Eep., 319.) § 2625. Surrogate to state grounds of decision. — Where the sur- rogate decides against the sufficiency of the proof, or against the vd!idity of a will, or upon the construction, validity or legal effect of any provision thereof, he must make a decree accordingly; and, if required by either party,' he must enter in'the minutes the grounds of his decision. 102 Effect of Probate. DECEEE ADMITTING WILL TO PEOBATE; At a surrogate's court, held in and for the county of , at the surrogate's office, in the city of ', on the 5th day of December, 1873. Present — Hon. , Surrogate, In the Matter of the Last Will AJSTD Testament of , Deceased. On reading and filing due proof of the service of the citation issued in this matter, and upon due proof of the execution of the paper propounded as the last will and testament of late of the '■ of , in said county, de- ceased, bearing date — the day of 1870, A. B. and C. D., heirs at law and next of kin, appearing in person, and A. F., G. H. and A. E., infants, heirs at law and next of kin oi said deceased, appearing by , their special guardian, and it appearing by such proof that the said will was duly executed; that the testator, at the time of executing the same, was of full age for making a will, was of sound mind and memory, and not under restraint, and in all respects competent to devise real estate, and the probate thereof not having been con- tested : It is ordered, adjudged and decreed that the said paper pur- porting to be the last will and testament of the said , deceased, was duly executed to pass real and personal estate, and that the same, with the proofs thereof, be recorded and admitted to probate as a will of real and personal estate. Witness, — — , surrogate, and seal of the [l. S.J court, the day and year first above written. — , Surrogate. § 2626. Probate, how far conclusive as to personalty. — A decree admitting to probate a will of personal property, made as pre- scribed in this article, is conclusive as an adjudication upon all the questions determined by the surrogate pursuant to this article, until it is reversed upon appeal, or revoked by the surrogate; except that a determination made- under section 2624 of this act is conclusive only upon the petitioner and each party who was duly cited or appeared, and every person claiming from, through or under either of them. The decree of the surrogate determines only the sufficiency of the execution of the will. {Matter of Oilman, 38 Barb., 364.) But after the expiration of one year from the time it was ad- PURCHASEK FROM HeIE. 103 mitted to probate, it is conclusive, so that a court of equity has no power to set aside the probate. It is also conclusive as to the disposition made therein of the personal property, notwithstanding the fact that the will relates to both real and personal property. {Post V. Mason, 26 Hun, 187 ; 91 K Y., 539.) § 2627. Probate, how far conclusive as to realty. — A decree, ad- mitting to probate a will of real property, made as prescribed in this article, establishes, presumptively only, all the matters de- termined by the surrogate, pursuant to this article, as against a party who was duly cited, or a person claiming from, through or under him ; or upon the trial of an action, or the hearing of a special proceeding in which a controversy arises concerning the will, or where the decree is produced in evidence, in favor of or against a person, or in a case specified in this section, the testi- mony taken in the special proceeding wherein it was made, may be read in evidence with the same force and effect as if it was taken upon the trial of the action, or the hearing of the special proceeding wherein the decree is so produced. A will once proved as a will of personalty may afterwards be proved as a will of real estate, but in that event, must be recorded anew. {Smith's Estate, 1 Tuck., 108.) § 2628. When purchaser from heir protected. — The title of a purchaser in good faith and for a valuable consideration, from the heir' of a person who died seized of real property, shall not be affected by a devise of the property made by the latter, unless within four years after the testator's death, the will devising the same is either admitted to probate and recorded as a will of real property in the office of the surrogate having jurisdiction, or established by the final judgment of a court of competent juris- diction of the State, in an action brought for that purpose. But if, at the time of the testator's death, the devisee is either within the age of twenty-one years, or insane, or imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, for a term less than for hfe ; or without the State ; or, if the will was concealed by one or more of the heirs of the testator, the limita- tion created by this section does not begin until after the expira- tion of one year from the removal of such a disability, or the deUvery of the wUl to the devisee or his representative, or to the proper surrogate. § 2629. Certificate to he indorsed on wills ; wills may he read in evidence. — The surrogate must cause to be indorsed upon, or an- nexed to, the original will admitted to probate, or the exemplified copy, or statement of the tenor of a will, which was admitted without production of an original written will, a certificate, under lO-i Eecoed Evidence, How Fak. his hand, or the hand of the clerk of his court, and his seal of ofiice, stating that it has, upon due proof, been admitted to pro- bate, as a will valid to pass real or personal property, or both as the case may be. The will, or the copy, or statement so authenti- cated, the record thereof, or an exemplified copy of the record, may be read in evidence, as proof of the original will, or of the contents or tenor thereof, without further evidence, and with the effect specified in the last three sections. CERTIFICATE TO BE ENDOESED OE ANNEXED. STATE OF NEW YORK, ) Rensselaer County, >■ Surrogates (hurt. ) I, Moses Warren, surrogate of said county, do certify that the within (or foregoing, or annexed) will has, upon due proof, been admitted in said court to probate, as a will valid to pass real and personal estate. Witness my hand, and the seal of the court, this ■■ [L. a] day of , 1880. MOSES WARREN, Surrogate. % 2630. Secording wills proved in other counties. — A transcript of a will of real property, proved and recorded in any court of the State, of competent jurisdiction, and of all the notices, process, and proofs relating to the same, must, when duly exemplified, be re- corded, upon the request of any person interested therein, in the surrogate's court of any county, in which real property of the'tes- tator is situated § 2631. Records of certain ancient wills evidence. — The exempli- fication of the record of a will, proved before the judge of the former courts of probate, and recorded in his office before the first day of January, in the year 1785, certified under the seal of the officer having custody of the record, must be admitted in evidence in any case, after it has been made to appear that diligent and fruitless search has been made for the original will. § 2632. Record of wills, when evidence. — An exemplified copy ' of the last will ami testament of any deceased person, which has been admitted to probate, whether as a will of real or personal property, or of both, and recorded in the office of the surrogate of any county in this State, before the first day of January, 1840, shall be admitted in evidence in any of the couits of this State, without the proofs and examinations taken on the probate thereof, and whether such proofs shall have been recorded or not, with like effect as if the original of such will haa been produced and proven in such court And the recording of such will shall be evidence that the same was duly admitted to probate. The exem- County Clerk to Eecord Will. 105 plification of the record of a will which has, before the first day of January, 1840, been proved before the surrogate or judge of probate, or other ofiicer exercising the like jurisdiction of another State, must, when certified by the ofiicer having, by law, when the certificate was made, custody of the record, be admitted in evidence as if the original will was produced and proved. § 2633. Wills of real estate must be recorded as deeds. — A will of real property, which has been at any time, either before or after this chapter takes effect, duly proved in the supreme court, or the court of cha^icery, or before a surrogate of the State with the certificate of proof thereof annexed thereto, or indorsed thereon, or an exemplified copy thereof, may be recorded in the office of the clerk or the register, as the case requires, of any county in the State, in the same manner as a deed of real property. Where the will relates to real property, the executor, or administrator, with the will annexed, must cause the same or an exemplified copy thereof to be so recorded, in each county where real property of the testator is situ- ated, within twenty days after letters are issued to him. An exemplification of the record of such a will, from any surrogate or other office where the same has been so recorded, either before or after this chapter takes effect, may be in like manner recorded in the office of the clerk or register of any county. Such record or exemplification, or an exemplification of the record thereof, must be received in evidence, as if the original will was produced and proved. § 2634 County Clerk to index and his fees for record. — Upon recording a will or exemplification, as prescribed in the last section, the clerk or register must index it in the same books, and sub- stantially in the same manner, as if it was a deed recorded in his office, and he is entitled to receive the same fees therefor as for recording a deed. An executor or administrator with the will annexed, who causes such a record to be made, must be allowed, in his account, the fees paid by him therefor. There is a new provision in relation to the retention of wills after probate by the surrogate. Formerly he was required to re- tain wills proved when the subscribing witnesses were dead or absent, only as wills of personal estate. But the following pro- vision IS made : § 2635. Surrogate to retain will a year. Then how to deliver. — Except where special provision is otherwise made by law, a written will, after it has been proved and recorded, must be re- tained by the surrogate until the expiration of one year after it 14 106 Eecord of Wills in Other States. has been recorded, and, if a petition for the revocation of probate thereof is then filed, until a decree is made thereupon. It must then be returned, upon demand, to the person who delivered it, unless he is dead, or a lunatic, or has re- moved from the State; in which case it may, in the dis- cretion of the surrogate, be delivered to any person named therein as devisee, or to an heir or assignee of a devisee ; or, if it relates only to personal property, to the executor, or administrator, with the will annexed, or to a legatea The following are provisions in relation to wills of real estate proved in other States : § 2703. Becording wills proved in other States. — Where real property, situated within the State, or an interest therein, which would descend to an heir, is devised, or made subject to a power of disposition, by a will, valid, and duly executed for that pur- pose, under the laws of the State, of a person who was, at the time of his death, a resident elsewhere within the United States ; and the will has been finally admitted to probate, by the judg- ment, decree or order of a competent court, within the State or territory where the decedent so resided; and is filed or recorded in the proper ofiice, as prescribed by the laws of that State or terri- tory , an exemplified copy of the will, or of the record thereof, of the judgment, decree, or order admitting the same to probate, and of the proofs, or of the record thereof, or a certificate of the sub- stance of the testimony, if such a certificate is on file or recorded, or if no proofs nor any certificate of the substance thereof is on file or recorded, a certificate of that fact may be recorded with the surrogate of any county of the State where the real property is situated. Such a record, or an exemplified copy thereof, is pre- sumptive evidence of the will and of the execution thereof in any action or special proceeding relating to the real property. Refore a will made by a person resident in another State can be recorded, it must appear not only that it was duly admitted to probate by a court duly constituted under the laws of the State where the decedent resided, but that the will was executed accord- ing to the laws of this State. {Estate of Shearer, 1 Civ. Pro. R., 455 ; Estate of Langhein, 1 Dem., 448.) § 2704. Papers, how authenticated. — Where letters testamentary or letters of administration, granted by a court elsewhere within the United States, are, or an exemplified copy of the judgment, decree, or order of such a court is, proved, recorded, or otherwise used, as prescribed in this article, they or it must be authenticated by the seal of the court, and the signature of the clerk, if any, and of the chief judge or presiding magistrate thereof. Where an Certificate on Foreign Papers. 107 exemplified copy of a will, or of proofs, or of the record thereof, is recorded or otherwise used, as prescribed in this article, it must be authenticated in like manner, if the originals or the records, as the case may be, remain in the court; if they are kept in the custody of a separate officer, they must be authenticated by his official seal and his signature. Where a certificate of the sub- stance of the testimony is recorded, as prescribed in the last section, it must be made by a judge of the court, and attested by the seal thereol § 2705. Contents of certijicaie appended to papers. — A certificate, under the great or principal seal of the State or territory, and the hand of the secretary of state, or other ofiicer who has the custody thereof, must be appended to the exemplification, letters, or cer- tificate of the substance of the testimony, to the effect that the court is duly constituted; that it has jurisdiction, under the laws of the State or territory, to grant the letters, or to make the judg- ment, decree, or order, as the case requires ; that the records or proofs exemplified are kept, pursuant to those laws, by that court, or by the officer who authenticates the same ; that the seals, ap- pended to the exemplifications or certificates are genuine ; and that the officer making the certificate verily belieres that each of the signatures, attesting the exemplification or certificate, is genuine. section III. Opinions of Witnesses. Subscribing witnesses to the will are the subject of an excep- tion to the general rule, that witnesses must state facts and not opinions. They may give their opinion as to the soundness or unsoundness of the testator's mind when the will was executed. {Be Witt V. Barley, 9 N. Y., 371.) For subscribing witnesses are called for the express purpose of observing and testifying as to this. The history of judicial decisions in relation to the general ques- tion of the competency of unskilled witnesses to give their opin- ions, as to whether the testator was of sound mind or not, in this State, is interesting. The courts in this State, seem to have held uniformly, that in cases requiring skill or science to form an opinion, non-experts could not give such opinions. (See cases in Be Witt v. Barley, supra.) In many cases the rule as stated above, was relaxed, as the courts said, ex necessitate, but in the case before us, they held positively, that the question of the soundness or unsoundness of the testator's mind, was a question involving special skill and %. 108 Opinions of "Witnesses. science, and, holding that medical men might give their opinions, they held as conclusively, tnat laymen, not having special or sci- entific knowledge, could not give their opinions. Judge Denio, relying upon the opinions of the judges of the ecclesiastical courts of England, and the rule as held in other States of the union, dis- sented from the prevailing opinions and the case was sent to a new trial and came again before the court of appeals. (See 17 N. y., 340.) The learned judge delivering the opinion of the court, on the reargument, proved that in the ecclesiastical courts of England, answering to our probate courts, in Yermont, Connecticut, Penn- sylvania, Ohio, Maryland, North Carolina, Tennessee, Georgia, Alabama and Indiana, and in the courts of the United States, such opinions are uniformly received, and he limits the decision of the court in the same case as formerly decided, to holding merely that a non-professional witness cannot be asked the broad question whether he considered the party non compos mentis, or, which is the same thing, incapable of managing his affaira The will of De Witt was, in that case, in question, and was contested, not on the ground that he was a maniac, but that he was affected with mental imbecility, arising from old age, and the learned judge says : " To me it seems a plain proposition, that upon inquiries as to mental imbecility arising from age, it will be found impracticable, in many cases, to come to a satisfactory con- clusion without receiving, to some extent, the opinion of wit- nesses. How is it possible to describe in words that combination of minute appearances, upon which the judgment, in such cases, is formed ? The attempt to try such a question would, in most cases, I am persuaded, prove entirely futile. Such an attempt was made in the present case, and the learned judge before whom it was tried, had, I presume, the decision of this court before him, and intended to coniorm to it ; but, as I shall hereafter show, without success. A witness can scarcely convey any intelligible idea upon such a question without infusing into his testimony more or less of opinion. Mental imbecility is exhibited in part by attitude, by gesture, by the tone of the voice, and the expres- sion of the eye and face. Can they be described in language so as to convey to one not an eye witness an adequate conception of their force ? " Again he says (p. 350), in relation to the statement that the question of sanity or insanity is one of science, and that only Opinions Allowable, When. 109 experts should be permitted to give their opinions : " Now, how- ever true this reasoning may be of cases of the mere derangement ■of mental powers, otherwise vigorous, it has no application to cases of idiocy, or of imbecility from the natural decay of those powers. The latter class of cases depend upon indications which are equally patent to all ; and a man of sound judgment and ex- perience in life can observe these indications and draw just infer- ences from them, as well without as with a scientific education. But even in cases of insanity proper, if the derangement of the mind is general, science is hardly necessary to enable persons hav- ing opportunities for personal observation to judge of its existence. It is only where the derangement is partial, involving only a portion of the mental powers, or where it consists in some single hallucinated idea that much difficulty arises. It would be far better to make of these cases (cases of partial insanity) an excep- tional class, than to adopt a general rule in reference to them, which would include a much larger class, to which such rule could have no just application." The court here puts imbecility in the same category as to opin- ions of witnesses, as intoxication, identity of persons, proof of liandwriting, and age of persons, being admitted ex necessitate, because the impression is produced on the mind of the witness by facts and circumstances which cannot, by any possibility be ■conveyed to another. The court held finally, that upon an issue in regard to the mental imbecility of a grantor, the opinions of unprofessional witnesses, founded upon personal observation of his appearance and conduct, may be given in evidence. The opinions received, however, must be confined to facts alone, and must not embrace any matter of law. Siich opinions are re- ceived ex necessitate, as they are in the other cases above referred to. But in such cases the witnesses must state, so far as they are able, the facts and reasons upon which their conclusions are founded, that the jury or court may have all practicable means of estimating the accuracy of their opinion. The next case in point is Clapp v. Fullerton (34 K Y., 190). Here the will was contested on the ground of the imbecility of the testator, and that he had an insane delusion in regard to the illegitimacy of one of his children, who contested the will. Non- professional witnesses, not being subscribing witnesses, were per- mitted to state before the surrogate the facts on which their opinions were based, and that in their opinion, the testator was 110 Conflicting Cases. incapable of transacting business during the last year of tis life, bis incapacity arising from imbecility induced by age. It wotdd seem tbat such evidence, from these witnesses, was within the rule established in Dewitt v. Barley (sup). The court held (p. 194), " "When a layman is examined as to facts within his own knowledge and observation, tending to show the soundness or unsoundness of the testator's mind, he may characterize, as rational or irrational, the acts and declarations to which he testifies. It is legitimate to give them such additional weight as may be derived from the convictions they produced at the time. The party calling him may require it to fortify the force of the facts, and the adverse party may demand it as a mode of proving the truth and good faith of the narration. But to render his opinions admissible, even to this extent, it must be limited to his conclusions from the specific facts he discloses. His position is that of an observer, and not of a professional expert He may testify to the impressions produced by what he witnessed ; ~ but he is not legally competent to express an opinion on the general question, whether the mind of the testator was sound or unsound." The court, holding this, professes to affirm the de- cision in Dewitt v. Barley (sup). But the profession have generally supposed that the cases are in conflict, and that Clapp v. Fullerton overrules Dewitt v. Barley. It is difficult, and perhaps impossible, to reconcile them, while they both seem to be authority ; but it may be properly said, that upon the question of the imbecility of a testator, distinguishing imbecility from dementia, which is accompanied by derangement, unprofessional witnesses may give their opinions, with the facts upon which they are founded, as to the soundness or unsoundness of the mind of the testator. The rules as to the admissibility of the opinions of witnesses in the common law courts, differ widely from the rule as above stated. Indeed it may be doubted whether the rules established in the common law courts can properly be applied to the probate courts. In the latter courts the testimony is considered by the same officers who rule as to its admissibility, and appeals from them are in the nature of a re-hearing in equity, and the appel- late court succeeds to the jurisdiction and authority of the old court of chancery {Clapp v. Fullerton, sup.); and it may be pre- sumed that the rules of evidence of the latter court are to be ob- Opinions in Criminal Cases. Ill served, and tliat the cases are to be distinguished from the criminal trials in which insanity is set up as a defense. We can conceive of no other supposition which will reconcile the cases above reviewed with later decisions upon review, of ver- dicts in criminal cases. In the case, O'Brien v. The People (36 N. Y., 276), an unpro- fessional witness, a printer by trade, testified that he saw the pri- soner about twelve or one o'clock of the day of the homicide ; that he had a wild, vacant look about his eyes ; was fidgety and uneasy ; spoke in a husky tone of voice. The counsel for the prisoner then proposed to prove him insane or delirious, by the opinion of the witness, and asked, " Was he, or not, in your opinion, insane or delirious." The question was excluded, and the ruling was correct within Clapp v. Fullerton. The witness could not testify generally as to the insanity of the prisoner, he could only give the impression which the acts and conversation which he stated and narrated produced in his miad ; this he was not asked to do, counsel not seeming to conform to the decision in Clapp v. Fullerton. So in Real v. The People (42 N. Y., 270), the prisoner being on trial for murder, witnesses were asked : " Prom what you saw that night, what impression did his acts and words make upon your mind ; what impression as to the state of his mind did his words and conduct have upon your mind?" It does not seem that they were called upon to state the acts, conduct and conversation of the prisoner and then to give the impression which the acts, con- duct and conversation which they detailed and related, produced upon their minds. The court, affirming Clapp v. Fullerton, held the questions improper, that the witnesses were not competent to give an opinion as to whether the facts testified to by them indi- cated mental unsoundness. The supreme court in deciding case, Sisson v. , Conger (1 TL & C, 564), seems to have misapprehended the distinction taken by the court of appeals in the case of Real v. The People. The action was brought to establish a lost or destroyed will made by Na- thaniel Sisson, and it was defended, among other grounds, on the ground of the mental unsoundness of the testator, and several non- professional witnesses were asked : " From the acts and declaration of S. (the deceased), by you related and testified, and as you ob- served, what impression did it make on your mind as to his mental condition?" The court held that the question was almost 112 Clapp v. Fullerton Affirmed. identical with those put to the witnesses in the case of Real (42 N. Y., 270), and held it called for an opinion which the witnesses were not competent to give ; that the incorporation into the ques- tion of the words, " by you related and testified,'' do not make the question competent We submit that the court missed the very distinction taken by the court of appeals, which must be considered as holding that the impression produced by acts and conversations related, is a different thing from an opinion as to the mental condition of the testator. In the case of Hewlett v. Wood (55 N. Y., 634), a witness not an expert was allowed to testify as to the impressions made upon his mind in relation to the capacity of the testator for business, or otherwise, and it was held error ; the court holding that he could not testify or express an opinion as to the general soundness of mind of the testator. The court held explicitly, confirming the rule in Glapp v. Fullerton, that persons not experts may testify to facts or incidents known or observed by them in relation to a testator, which tend to show soundness of mind or the contrary, and may testify to the impression produced upon them by what they beheld or heard, and whether the acts and declarations thus testified to seem to them rational or irrational But opinions of witnesses as to capacity are only entitled to weight, when accompanied by facts, upon which they are based, and it is the duty of the court to consider whether the conclu- sions of the witnesses are sustained by them. {^Nexsen v. Nexsen, 3 Abb. 0. of App. Dec, 360 ; 2 Keyes, 229.) CHAPTER VII. Of Mental Unsoundness. "All persons, except idiots, persons of unsound mind, and in- fants, may devise real estate." (2 R S., 56, § 1, as amended by S. L., 1849, 628.) " Every male of the age of eighteen years, and every female of the age of sixteen years, of sound mind and memory, and no others, may bequeath personal estate." (2 R S., 60, § 21, as amended as above.) Idiocy Considered. 113' A party propounding a will, is bound to show that the testator was competent to make a will and the will proposed, and having done this, the contestant to defeat the will must show conclusively, that the testator was of unsound mind, or that the will was ob- tained by undue influence. {Allen v. Public AdmW, 1 Bradf., 378 ; Marvin v. Marvin^ 3 Abb. Ct. of App., 192 ; Kingshy v. Blanchard, 66 Barb., 317; DelafieUy. Parish, 25 K Y., 9; Lalce V. Ranney, 33 Barb., 49.) Unsoundness of mind may be considered under three divisions,, idiocy, imbecility and lunacy. Idiocy is a congenital defect. An idiot is a person who has been without understanding from his nativity, and whom the law therefore presumes never likely to attain any. Idiocy implies either congenital defect, or some obstacle to the development of the faculties in infancy It is an imbecility (congenital) or ster- ility of the mind, not a perversion of the understanding. (Bouv. Law. Diet, tit idiocy, idiot) Idiocy is not always readily distinguished from imbecility. Where the former is caused, not by absolute congenital defect, but by an arrest of development, the line of distinction can with diffi- culty be traced. Thus, if development should be arrested at an early stage of infancy, at the age of a few months, the subject would be an idiot, not recognizing friends, and showing scarcely more intelligence than the brute creation. But if development continue to the age of some years, and the infant shall have ac- quired some education in its affections and perceptions and then development be arrested, it may be very difficult to decide whether the subject is an idiot, an imbecile, or compos mentis. The court of errors formerly held in Stewart v. Lispenard (26- Wend., 255), that mere imbecility does not incapacitate. An im- becile, of however low degree of capacity, has the power of legal assent, or will, and the question in each such case is. whether that power was duly exercised. This rule which in its application in the case before the court declared a person of the very lowest grade of human intelligence, competent to make a valid will, never received the cordial assent of the courts, or the profession at large, although the courts felt compelled to follow it until the case of Delafield v. Parish (25 N. Y., 9), in which case the former was overruled. The question in Delafield v. Parish was whether, as a question. 15 114 Capacity Necessary. of fact, the testator, Parish, after an apoplectic stroke, which re- fiiilted in permanent paralysis of the right side {hemiplegia), was degraded to a state of absolute dementia, or whether his mind con- tinued so active that he was compos mentis. The court, in decid- ing the case, took the view, from the conflicting evidence, that the testator, after the seizure, did not utter an intelligible word, and was nan compos mentis, and states the rule thus. The only standard as to mental capacity, in all who are not idiots or luna- tics, is found in the fact whether the testator was compos mentis or non compos mentis, as these terms are used in their fixed legal meaning, and the question in every case is, had the testator, as compos mentis, capacity to make a will, not had he capacity to make the will produced. If compos mentis, he can make any will, however complicated ; if non compos mentis, he can make no will, not the simplest {Delafield v. Parish, sup., p. 97.) It is essential, then, in each case that the testator should have sufficient capacity to comprehend perfectly the condition of his property, his relations to the persons who were or might have been the objects of his bounty, and sufficient active memory to collect in his mind without prompting, the particulars or elements, of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relation to each other, and be able to form some rational judgment with relation to them. {Kinne v. Johnson, 60 Barb., 69 ; Weed v. Hol- brooh, 2 Eedf., 878; McLaughlin's Will, id., 504; Brick v. Brick, 66 K Y., 144 ; Horn v. Pullman, 72 id., 269 ; Forman v. Smith, 7 Lans., 443. See, also. Van Ouysling v. Van Kuren, 85 N. Y., 70 ; Tylor v. Gardiner, id., 559.) This brings us back to the former decisions. Thus, in Clarke. Fisher (1 Paige, 171), the chancellor held that a testtator must be of sound and disposing mind and memory, so as to be capable of making a testamentary disposition of his property with sense and judgment, in reference to the situation and amount of such prop- erty, and to the relative claims of the different persons who are or might be the object of his bounty. In considering the question of capacity, it is proper to look into the will proposed, and if it is unreasonable on its face, when taken in connection with the amount of property, and situation of relatives, this may be con- sidered in judging of the state of the testator's mind. {Clark v. Fisher, sup.) But where the testator has mind and memory to understand his Will in Advanced Age. 115 relations to other persons, his will must stand for the reason of the act, and it is not sufficient to impeach his competency, that the will is not such, in all respects, as might have been expected. (Watson V. Donnelly, 28 Barb., 653.) There is no presumption against a will because it was made by a person of advanced age ; nor can incapacity to make a will be inferred from an enfeebled condition of mind or body. If the testator has sufficient intelligence to comprehend the condition of his property, his relation to those who are, or may be the objects of his bounty, and the scope and meaning of the provisions of his will, and if it is his free act, it will be sustained. In this case , the testator was eighty-three years of age, and of impaired mental and physical powers, and the will gave the principal part of the property to the testator's grandson and his wife, with whom he lived, passing over his own children. {Horn v. Pullman, 72 N. Y., 269.) It would seem to us that where the family relations of the tes- tator were simple, and his property was small in amount, and con- sisted of few items, a will would he sustained with evidence of a lower grade of intellect than would be required in such a case as that of Parish, where the property was vast and widely distributed, and where the family relatives were collateral. The terms compos mentis and non >compos mentis, as used in DelafieldY. Parish {sup.), are simply equivalent to the terms in the statute, of sound mind and memory, and of its converse, of un- sound mind. The phrase then, persons non compos mentis, includes a designa- tion of all those who may not make wills, except those incapaci- tated by nonage. The incapacity may proceed from idiocy or congenital defect, from imbecility, produced by disease or other- wise, to a degree which produces unsoundness ; by sickness, in- ducing delirium or perverted affections or perceptions ; by drunken- ness, or by absolute mania. As there are no two cases m which imbecility exists to the same extent, or with the same precise indications, each case must be judged by itself, with the light of the authorities above quoted. A lunatic, in the former signification of the term, was defined as an insane person, who had lucid intervals, sometimes enjoying his senses and sometimes not (Burrill's Law Diet, tit Lunatic.) But the term lunacy has latterly come to be considered more as synonymous with insanity (see Bouvier's Law Diet, tit Insanity); 116 Definition of Terms. except, perhaps, that the term insanity may be considered as broader than lunacy and to include the signification of the terms, lunacy, idiocy, and unsoundness of mind This latter sense and use of the term insanity, and the consequent disuse of ; the term lunatic, has come about by reason of the discovery that the opinions formerly held as to the recurrence of lucid intervals, are in a great degree erroneous. For formerly a lucid interval was supposed to be the result of a complete remission of the disease, or temporary complete restoration, while " in modern practice, the term lucid interval signifies merely a remission of the disease, an abatement of the violence of the morbid action ; a period of com- parative calm ; and the proof of its occurrence is generally drawn from the character of the act in question. It is hardly necessary to say that this is an unjustifiable use of the term, which should be confined to the genuine lucid interval that does occasionally occur." (Bouvier, sup.") Insanity, then, when distinguished from idiocy, and as synonymous with lunacy, is defined by Bouvier as " the prolonged departure, without adequate cause, from the states of feeling and modes of thinking usual to the individual in health." We are disposed to criticize this definition and amend it thus : " The prolonged departure, through morbid action, from the states of feeling and modes of thinking usual to the individual in bealtk" Lucid intervals, we have seen, are not so much favored as formerly, and do not occur so usually as formerly supposed, while it is admitted that they may and sometimes do occur ; and during the occurrence of a lucid interval the subject may make a valid will. {GombauU v. Public administrator, 4 Bradf., 226.) Where the condition of insanity is established by proof, the burden of proving that the will was executed in a lucid interval falls upon the proponent (Id.), and it is no light burden. Some high authori- ties have declared that there are no such periods as lucid intervals, as distinguished from entire recovery (Ray's Med. Juris., § 382), and compare the condition of the subject of the disease in the ap- parent lucid interval, to the condition of one laboring ui;der a quotidian fever, during the intermission of the disease. He may be better, but the disease still exists. (Id., § 377.) Dr. Reid (Essays on Hypochondriacal and other Nervous Affections, 21st essay), says : " There are few cases of mania or melancholy where the light of reason does not now and then shine out between the clouds. In fevers of the mind, as well as those of the body, there Lucid Intervals. 117 occur frequent intermissions. But the mere interruption of a dis- order is not to be mistaken for its cure or its ultimate conclusion. Little stress ought to be laid upon those occasional and uncertain disentanglements of intellect in which the patient, for a time only, is extricated from the labyrinth of his morbid hallucinations. Madmen may show, at starts, more sense than ordinary men." Dr. Oombe (Observations on Mental Derangement, p. 241), says : " But however calm and rational the patient may appear to be during the lucid intervals, as they are called, and while enjoying the quietude of domestic society, or the limited range of a well regulated asylum, it must never be supposed that he is in perfect possession of his senses, as if he had never been ill" But the ecclesiastical court in England, in the proof of wUls, has gone very far in holding that lucid intervals exist, and in ad- mitting to probate wills made in such supposed conditions ; much further formerly than of late. Thus, in Cartwright v. Cartwright (1 Phillimore, 90, quoted in Eay's Med. Juris., § 390), a single woman in 1775, having been afflicted with the worst symptoms of insanity, and so furious as to render it necessary to tie her hands, prevailed on her physician to liberate her that she might write, he remarking that it made no difference what she wrote, as she was not fit to make a proper use of them. She wrote on several pieces of paper in succession, and tore them up and threw them into the grate, walking up and down the room in a wild and ferocious manner and muttering to herself. After one or two hours spent in this manner, she succeeded in writing a will that suited her, occupying but a few lines. It was decided that this was done in a lucid interval. "For," said the court " I think the strongest and best proof that can arise as to a lucid interval, is that which arises from the act itself ; that I look upon as the thing to be first ex- amined, and if it can be proved and established, that it is a rational act, rationally done, the whole case is proved." The court begged the whole question, and held it to be a rational act, because it was a proper and consistent will. The same court in Oroom v. Thomas (2 Hagg., 433), denied probate where the evidence of lucid interval was much stronger than in Cartwright v. Cartwright. In a more recent case Chambers v. The Queen's Proctor (2 Curtis, 515), pro- bate was granted in case of a man who was admitted to have en- tertained insane delusions during three days immediately preced- ing the execution of the will, and to have committed suicide the next day after. (See cases in Eay, §§ 390, etc.) 118 Partial Insanity. , Partial insanity, as it was formerly called, now distinguished aa monomania, does not necessarily invalidate a will, where the pro- visions of the will are entirely unconnected with the particular delusion ; but otherwise, if the delusion relates to the subjects of his will and has perverted the testator's judgment so as to con- trol the dispositions of the will. {Stanton v. Wetherwax, 16 Barb., 259; Colhoun v. Jones, 2 Eedf., 34.) But where the de- lusion has not only impaired but perverted the testator's judg- ment and understanding in relation to subjects connected with the provisions of the will, so as to exercise a controlling influ- ence in the disposition of his property, the will is not the will of a person of sound mind ; the mind of the testator being un- sound in relation to the very subject on which he is called to exercise its powers. (Id.) In this case, the testator was held to be more than a monomaniac. (See, also, Lathrop v. Borden, 5 Hun, 560.) To the same purport is the case of Thompson v. Thompson (21 Barb., 107), holding that absurd opinions on some subjects do not show insanity in a person who continues in the possession of his faculties, discreetly conducting business, where the court is sat- isfied, as a matter of fact, in view of the above rule, that his false opinions did not incapacitate him. The testator Thompson, in this case, had the most extravagant opinions imaginable in this age about religion, the finding of treasures and the philosopher's stone. The case is reported fully in 2 Bradford, at page 449, in which the doctrine that a reasonable will is evidence of a rational mind is carried to the extreme. Drunkenness does not necessarily invahdate a will. The mere fact that a man is an habitual drunkard, and non compos in his drunken fits, is not enough to invalidate a will executed by him. {Gardner v. Gardner, 22 Wend., 526; Down v. McGourkey, 9 Week. Dig., 5; Julhe v. Adam, 1 Eedf., 454; Peck v. Gary, 27 K Y., 9.) Indeed, a will made by an habitual drunkard while subject to a commission, is not absolutely void ; if such person is of suffi- cient mental capacity, he may make a valid will. The existence of the commission is only prima facie evidence, and may be rebutted by proof. {Lewis v. Jones, 50 Barb., 645.) But where intoxication has been indulged in to such extent as to produce imbecility, then the will will be invalidated, not because of the habitual intoxication, but because of the consequent imbecility. Undue Influence. 119 {Burritt v. Silliman, 16 Barb., 198.) This last case was reversed in 13 N. Y., 93, but upon another ground than the above decision. Undue influence will invalidate a will made through such influenca Undue influence is presumed in a case where the will was drawn by a beneficiary. {Orispellv. Dubois, 4 Barb., 393.) By the civil law such presumption absolutely invalidated a will drawn by the beneficiary. But our law goes not to this extent, merely carefully inquiring into the circumstances, and demanding satisfactory proof that the party executing the will had full tes- tamentary capacity, clearly understood, and freely intended to make that disposition of his property which the instrument purports to direct (Id., p. 398 ; see, also, Vreeland v. McClelland, 1 Bradf., 393 ; Wilson v. Moran, 3 id., 172 ; Leaycrafi v. Sim- mons, 3 Bradf., 35 ; Clark v. Fisher, 1 Paige, 171 ; Matter of Paige, 62 Barb., 476 ; Allen v. Pvh. Adm'r, 1 Bradf., 378 ; Bleecker V. Lynch, id., 458; O Niel v. . Murray, 4 Bradf., 311; Voorhees v. Yoorhees, 39 N. Y., 463 ; Ashwell v. Lomi, 4 Eng., 710, note ; Post V. Mason, 91 N. Y., 539 ; Marvin v. Marvin, 3 Hun, 139 ; Coffin V. Coffin, 23 K Y, 9 ; Delafield v. Parish, 25 id., 9.) Where a will has been prepared or procured by one interested in its provisions, an additional burden is imposed upon those who seek to establish it The circumstance is regarded by the court with suspicion and jealousy, and there must be stronger proof than would else be required, that the paper propounded ex- presses the free, unbiased testamentary purpose of* the alleged testator, and not merely the wishes of the interested beneficiary. {Estate of Pech, 10 K Y. St Eep., 698.) "Where a will, executed by one having full testamentary capacity and duly aditnitted to probate, contained a legacy to the draughts- man, an attorney, who, at the time of the execution of the will, was, and for a long time previous had been, the counsel of the testator, the court of appeals held, that this alone did not raise a presumption in aid of one seeking to overthrow the will, that the inflvence of the attorney was unduly exercised, nor did it, in the absence of evidence, warrant a presumption that the inten- tion of the testator was improperly, much less fraudulently, con- trolled; that it was for the plaintiff, therefore, in an action brought to set aside the will, to give some other evidence tend- ing to show fraud or undue influence. {Post v. Mason, sup.) So, 120 Undue Influence Presumed. where the probate of a will was contested on the ground of undue: influence, and it appeared that the testatrix had testamentary capacity, a present knowledge of the contents of the will, and that its execution was surrounded by all the guards the statute has pre- scribed to prevent fraud and corruption, it was held that the will could only be avoided by proof of influence amounting to force or coercion, and that the burden of proving this was upon the party making the allegation. It was also held, that the facts that the proponent of the will was a son of the testatrix, that he communicated to the scrivener the provisions to be inserted in the will, and was himself a beneficiary, were insufficient to establish undue influence. There must be evidence that the parent was im- posed upon or overcome by the practices of the child to the benefit of the latter. {In re Martin, 98 N. Y., 193.) Where a change is made in the will of a sick man, which, judg- ing from the ordinary motives actuating men, is unnatural and is apparently contrary to his previous, fixed and determined pur- pose, it is the duty of the courts to scrutinize closely, with a view of ascertaining whether the act was free. To establish fraud and undue influence in such a case, it is not necessary that the precise mode of committing the fraud should be proved. And when it is found that a beneficiary had an interest to defraud the testator ; that he employed some of the means usually resorted to for that purpose, and that a result was produced contrary to the known fixed purpose of the testator, while no satisfactory explanation was furnished, the legitimate result of the findings is, that the will was vitiated by fraud. {McLaughlin v. McDeviit, 63 N. Y., 213.) A will made by a testator in favor of his physician is presump- tively open to the imputation of undue influence. The burden of proof to show the contrary is upon, the beneficiary. {Colhun v. Jones, 2 Eed£, 34.) As to what evidence is sufficient to overcome the presumption of fraud and undue influence in proving a will in favor of testator's physician, see (dispell v. Dubois (4 Barb., 393); Noxen V. Nbxen (3 Abb. Ct. App. Dec, 360); Mowrey v. Sibber (2 Bradf., 133); Lee v. Bill (11 Abb., 214); Matter of Welsh (7 N. Y. Leg. Obs., 153). Whenever a person of weakened and imbecile mind is induced by fraud, imposition or undue influence to make a testamentary disposition of his property, differently from what he would if in the full possession of his faculties, the same will be set aside upon the same principle that a court of chancery sets aside a convey- Undue Influence. 121 ance of property obtained under like circumstances. {Clark v. Fisher, 1 Paige, 171.) So undue influence may be proved by circumstances and pre- sumption from facts, unrebutted by the party charged therewith. {Leaycraft v. Simmons, 3 Bradf., 35 ; Baker's Will, 2 Eedf., 179 ; Fagan v. Dugan, id., 341 ; Brick v. Brick, 66 N. Y., 144 ; Van Kleek v. Phipps, 4 Eedf., 99.) But it was held in Bhecher v. Lynch (1 Brad£, 458), that the dependence of the testatrix upon the principal beneficiary of the will, for the management of her pecuniary and domestic affairs, is not, of itself, ground for the imputation of fraud or undue influ- ence. In order to annul a will for undue influence, it must be shown that the influence exercised amounted to coercion, which restrained independent action and destroyed free agency ; or that by importunity which he was unable to resist, the testator was constrained to do that which was against his free will and desire. {Children's Aid Society v. Loveridge, 70 K Y., 387; Burke's Will, 2 Redf., 239 ; Brick v. Brick, 66 N. Y., 144; Horn v. Pullman, 72 id., 269 ; Wait v. Breeze, 18 Hun, 403 ; Hazzard v. Hefford, 2 id., 445.) Undue influence means fraud. {Kinne v. Johnson, 60 Barb., 69.) In determining whether a will has been procured to be made by undue influence, it is proper to see if the testamentary pro- visions are in harmony with the decedent's dispositions and affec- tions. {Allen V. Public Administrator, 1 Bradf., 378.) This rule is to the same effect as that in cases of alleged unsoundness of mind, that the court will look into the will and family relations to see if it be a reasonable and consistent will. {Clark v. Fisher, 1 Paige, 171.) But the testator's declaration that he had been influenced to make will, in which he had not done justice, was held not to be evidence that it was induced by undue influence. {Nelson v. McOiffort, 3 Barb. CL, 158.) While in seeming con- tradiction to the last principle, it has been held that subsequent recognition of the will by the decedent, when in health, and in the undoubted full possession of his faculties, are material facts in its favor ; and repeated statements of testamentary intentions made to acquaintances may have weight in ascertaining whether the will accorded with his mind. {Allen v. Public Administrator, 1 Bradf., 378, and ONiel v. Murray, 4 id., 311.) But if the will proposed be the will of another, to which the 16 122 Persuasion ]Sot Influence. testator assented from mere habit, produced by prostration of both body and mind, it cannot be sustained as his will. {New- house V. Godwin, 17 Barb., 236 ; Wait v. Breeze, 18 Hun, 403.) One has a right, by fair argument or persuasion, to induce another to make a will, and even to make it in his own favor. Influence without artifice or fraud does not avoid a will. {Blanchard v Nestle, 3 Den., 37 ; Tunison v. Tunison, 4 BradL, 138.) And although the mere fact that the mind of the testator has been influenced by the arguments and persuasions of the persons principally benefited, however indecorous, indelicate or improper they may be, will not ordinarily, in the absence of fraud, vitiate a will ; still, to be sustained, it must be the will of the testator, however induced. {Newhouse v. Godwin, sup.) The amount of influence which will be held sufficient to in- validate , a will is dependent on the strength or weakness of the mind of the testator. However little, if sufficient in the par- ticular case to destroy free agency, it is undue and vitiates the act instigated by it. {Bollwagen v. Rollwagen, 63 N. Y., 504.) In nearly every case where undue influence is alleged, it is complicated with mental weakness, for it is hardly possible to conceive of the absolute substitution of the volition of one for that of another, except where the decedent was greatly enfeebled in mind and body, affected with congenital imbecility, or under the influence of or degraded by the efifects of stimulants and drugs. In the last condition, it seems peculiarly to be the fact that the opium eater, when under the influence of the drug, is almost incapable of resisting importunity, and in the execution of a will, as in any other act, if subjected to any influence, however slight, would yield, whatever the consequences of the yielding, rather than exert the little force necessary to assert independence. This condition is the result of the, stupefying influence of the drug, begetting the most absolute indifference to external objects, and intensifying the wish which all men have for self-indulgence. Senile imbecility is considered as one form of dementia, and in considering it the age of the decedent is not by any means the only question to be considered. For all are aware that by reason of a hereditary tendency to long life, or by observing habits of temperance, some men are younger at eighty years of age than others at sixty. Senile imbecility proceeds generally from morbid disturbance of the circulation, resulting in a deficiency of the supply of blood Old Age Not Dementia, 123 to the brain, and defective stimulation of that organ. This dis- turbance may proceed from several causes, prominent among which are, lack of supply of blood from defective digestion and assimilation of the food, or mechanical obstruction to circulation, caused by ossiffication of certain arteries. In either case, the brain, lacking the stimulus of a healthy and normal circulation, the person is deficient in perception, and incapable of reflection, and dementia is the result. But such cases are clearly to be distinguished from the slow- ness of intellect manifested even in vigorous old age. In the latter case the brain takes the impression from the perception more slowly perhaps, and requires more time to arrive at a conclusion, but its action is normal and its results reliable. To compare ihe immaterial with the material ; the machine, through reduced sup- ply of power, operates more slowly, but, time being given, the appropriate product is achieved. This phenomenon is observable in many persons, even before advanced agei is attained. ■ Still the same question is to be asked as to the will of the old man as to the will of the young and vigorous testator ; was the de- cedent coTnpos mentis, or was he non compos mentis ? The courts have been very tender of the wills of old persons, and inclined to go as far as possible in carrying them into effect ; and in the opinions may be found a strain of sentiment unusual in judicial determinations. Chancellor Kent, in Van Alst v. Hunter (5 Johns. Ch., 148), in a case where the decedent at the making of the proposed will was between ninety and one hundred years of age, and greatly debilitated, says : " It is one of the painful consequences of extreme old age, that it ceases to excite interest, and is apt to be left solitary and neglected. The control which the law still gives to a man over the disposal of his property is one of the most efficient means which he has in protracted life to command the attention due to his infirmities. The will of an aged man ought to be regarded with great tenderness, when it appears not to have been procured by fraudulent acts, but contains those very dispositions which the circumstances of his situation and the course of the natural affections dictated." From this extract it will be perceived that the chancellor felt moved with sympathy, and regarded the will with tenderness, but the question may be asked, with whom did he have this sympathy, with the living or the dead? Manifestly, with the dead, who could not appreciate it Notwithstanding, it is not to be disguised that the aged man, 124 What is Delirium. with perceptions blunted and memory impaired, readily falls intO' a state of dependence upon the persons surrounding him, and in- sensibly, the will of such person is substituted for the will of the decedent, and testamentary dispositions may be obtained which are to be looked upon with suspicion and not tenderness. Here the principle that the will is to be looked into to see if the testa- mentary disposition is in accordance with the natural claims of the objects of the testator's bounty, above referred to, is of great value, and if it appears that the testator omitted to give suitable bequests to those whom he always had regarded with affection, it affords grave ground for suspicion of undue influence. Delirium ig a temporary insanity, and during its continuance renders the subject of it incompetent to make a valid will, and is aptly defined by Wharton and Stille (Med. Juris., § 235), as a " state of dreams, brought on, not by sleep, but by disease." The perceptive powers of the subject are suspended or their objects distorted; and the patient reasons as he perceives, irrationally, and this is true of all forms of the disease, however caused. CHAPTER VIII. Letters Testamentary. After the proof of a will of personal estate, letters issue of course thereon, to the parties named therein as executors, if there be no notice of objection to their issue, and the letters so issued are the warrant of the executors in the execution of their duties. Notwithstanding that the statute, in terms, restricted the power of the surrogate to issue letters testamentary to the persons " named in the will," where the will provided that the executrix might nominate, and requested that " such male friend as she may de- sire shall be appointed with her as an executor," an appointment of an executor in pursuance of this request, was vaJid, and letters- testamentary were properly issued to him, this was so held by a majority of the court, which further held, that the statute that the surrogate shall issue letters testamentary " to the person named therein as executor " (2 R. S., 69, § 1) and all other statutes affect- ing the surrogate's court, should be liberally construed in further- ance of justice and to give effect to the intent of testators. {Hart- When Letters Issue. 125 neit V. Wandell, 60 N. Y., 346; 16 Abb. N. S., 383.) But in de- termining whether the will effectually appoints an executor, the intention of the testator is to be gathered from the will only. {Fosdick V. Delafield, 2 Eedf. Sur. Eep., 392.) An executrix is included in the general term of executors, and acquires power to hold and convey by words naming his execu- tors, and appointment of executors as guardians and trustees, in- cludes an executrix. {Moke v. Nome, 14 Hun, 128.) An executor is not absolutely prohibited from occupying the relation of trustee for his own benefit, and especially is this so, where he is but one of several trustees. (Id.) § 2636. When letters testamentary to be given. — Where a will, which is admitted to probate, names one or more persons to be executor or executors thereof, upon a contingency, the surrogate must inquire into the facts, and, if the contingency has happened, that fact must be recited in the decree. Immediately after a will has been admitted to probate, the person or persons named therein as executors, who are competent by law to serve, and who appear and qualify, are entitled to letters testamentary thereupon, unless, before the letters are granted, a creditor of the decedent, or a per- son irbterested in the estate, files an affidavit, specifying his de- mand, or how he is interested, and either setting forth specifically one or more legal objections to granting the letters to one or more of the executors, or stating that he is advised and believes that there are such objections, and that he intends to file a specific statement of the same. Where such an affidavit is filed, the sur- rogate must stay the granting of letters, at least thirty days, or until the matter is sooner disposed of. A specification or state- ment of an objection, made as prescribed in this section, must be verified by the oath of the objector, or his attorney, to the effect that he believes it to be true. It is not a valid objection to the issue of letters after probate, that a paper purporting to be a codicil to such will has been offered for probate by the terms of which another person is nomi- nated as an executor, where the nomination of the original will is not revoked. {Siolzel v. Cruikshank, 4 Dem., 352.) The surrogate enters an order for the issue of letters, either in the following form, or he may include this order in the decree for probate. 126 Eequisites of Letters. ORDER FOR ISSUE OF LETTERS. At a surrogate's court, held in and for the county of at the surrogate's office, in the of — the day of , 1874. Present , Surrogate. In the Matter of the Will of | , Deceased. I on The will of said deceased having been duly proved as a wUl of real and personal estate, it is ordered that letters testamentary issue thereon to , executrix, and in said will named, upon their taking and filing the oath prescribed by law. , Surrogate. § 2594. Official oaths, before whom taken. — The official oath or affirmation of an executor, administrator or guardian, to the effect that he will well, faithfully and honestly discharge the duties of his office, describing it, must be filed with the surrogate before letters are issued to him. The oath may be taken before any officer, within or without the State, who is authorized to take an affidavit, to be used in the supreme court Where it is taken without the State, it must be certified as required by law, with respect to an affidavit to be used in the supreme court The oath is as follows : OATH OF EXECUTOR State of New York, ) County, \ I, , do solemnly swear that I will well, faithfully and honestly discharge the duties of executor of the will of , deceased, according to law. Sworn before me, this 9 th day ) of December, 1873. j , Surrogate. § 2590. Hequisites of letters. — Letters testamentary, letters of administration and letters of guardianship must be in the name of the people of the State. Where they are granted by a surro- gate, or by an officer or person appointed by the board of super- visors, temporarily acting as surrogate, they must be tested in the name of the officer granting them, signed by him, or by the clerk of the surrogate's court, and sealed with the seal of the surrogate's court Where they are issued out of another court, they must Effect of Letters. 127 be tested in the name of the judge holding the court, signed by the clerk thereof, and sealed with its seal. Letters in one case were allowed to be sealed on the trial, after objection had been raised to the absence of a seal {Moloney v. Woodin, 11 Hun, 202.) Letters are void when issued by a clerk on a blank signed by the surrogate, who knew nothing of the application. j^Boderigas V. East Riv. Sav. Inst., 43 K Y. Supr., 217 ; 76 N. Y., 316.) § 2591. Tenor and effect of letters. — Subject to the provisions of the next section, regulating the priority among different letters, letters testamentary, letters of administration and letters of guar- dianship, granted by a court or officer having jurisdiction to grant them, as prescribed in this chapter, are conclusive evidence of the authority of the persons to whom they are granted, until the de- cree granting them is reversed upon appeal, or the letters are re- voked, as prescribed in this chapter. Where letters of administration show on their face that the in- testate died, leaving assets in the county of the surrogate granting them, they are conclusive as to the authority of the surrogate to issue them. {Leonard v. Columbia Steam Nav. Co., 84 N. Y., 48 ; Belden v. Weekes, 47 N. Y, 307.) Only the jurisdiction of the surrogate to issue them can be attached collaterally. {Crosier v. Cornell Steamboat Co., 27 Hun, 215.) § 2596. Sureties liable for money received before letters. — A person to whom letters are issued is liable for money or other personal property of the estate, which was in his hands, or under his con- trol, when his letters were issued ; in whatever capacity it was re- ceived by him, or came under his control. Where it was received by him, or came under his control, by virtue of letters previously issued to him, in the same or another capacity, an action to re- cover the money, or damages for failure to deliver the property, may be maintained upon both official bonds ; but, as between the sureties upon the official .bond given upon the prior letters and those upon the official bond given upon the subsequent letters, the latter are liable over to the former. {Gottsherger v- Taylor, 19 N. Y., 150; Scofield v. Churchill, 72 N. Y, 565.) But at any time before the letters are granted a creditor of the decedent or a person interested in the estate may file an affidavit, specif 3nng his demand, or how he is interested, and either setting forth specifically one or more legal objections to granting the letters to one or more of the executors, or stating that he is advised 128 Objections to Executor. and believes ttiat there are such objections, and that he intends to file a specific statement of the same. Where such an afiidavit is filed the surrogate must stay the granting of letters at least thirty- days, or until the matter is sooner disposed of. (Section 2636, sup.) This is in place of section 22, chapter 460, of Laws of 1837. If the affidavit shows an intention to file objections against only one of several executors, the surrogate will suspend action as to all. {McGregor v. Buell, 24 K Y., 166.) If the objector shall swear positively that he is a creditor, it seems that the surrogate will not try the issue as to whether h« is a creditor, but will entertain the objection. {Estate of Horatio K Ferris, 1 Tucker, 15 ; Cotlerell v. Brock, 1 Bradf., 148 ; Burwell v. Shaw, 2 id., 322 ; Merchant's Est, 1 Tucker, 17.) The objections must be specific. {Colegrove v. Horton, 11 Paige, 261. AFFIDAVIT OF INTENTION TO FILE OBJECTIONS. Suerogate's Court — Eensselaer County. In the Matter of the Will of| , Deceased. | Eensselaer County, ss. : A. B., of the town of , in said county, being duly sworn, says, that he is" a legatee named in the will of (or a creditor of) , late of said town, deceased, which has been admitted to probate by the surrogate of said county, in which said will C. D. is named as an executor ; that deponent intends in good faith to file with said surrogate, objections to the compe- tency of said C. D., to act as such executor, and he is advised and believes that there are just and substantial objections to his com- petency and to the granting of letters testamentary to the said C. D., and that he intends to file a specific statement of the same A. B. Sworn, eta Having filed his affidavit, the objector has thirty days in which to file his objections and prosecute them. He wiU therefore prepare his objections. The following states all the legal objections to the issue of letters as is believed and the pleader may use those upon which he intends to rely a specification or statement of an objection, must be verified by th Surrogate to Try Objections. 129 •oath of the objector or his attorney, to the effect that he believes it to be true. (Section 2636, sup.) OBJECTIONS TO ISSUE OF LETTEES. Surrogate's Court — Rensselaer County. In the Matter of the Will of , Deceased. ♦7b the Surrogate of the County of Rensselaer : The undersigned, a legatee named in the -will of (or a creditor of) the above named deceased, objects to the issue of letters testa- mentary to C. D., an executor in said will named, for the follow- ing reasons : (a.) That the said C. D. is incompetent to execute the duties of such trust as an executor, by reason of his improvidence. (J.) That the-said C. D. is incompetent to discharge the duties of such trust, by reason of habitual intemperance in the use of alcoholic liquors. (c.) That the said C. D. is an alien, not being an inhabitant of this State. {d.) That the said C. D. has been convicted of an infamous crime, to wit, the crime of . (e.) That the said C. D.'s circumstances are so precarious as not to afford adequate security for his proper administration of the estate of the deceased. (/) That the said C. D. is unable to read and write the English language. Dated December 9, 1873. A. B. James Lansing, Attorney. Eensselaer County, ss. : A. B., being duly sworn, says, that he believes the foregoing statement of objections to the issue of letters testamentary to C. D. to be trua A. B. Sworn before me, etc. § 2637. Surrogate to inquire into objections. — The surrogate must inquire into an objection, filed as prescribed in the last section ; and, for that purpose, he may receive proof, by affidavit or other- wise, in his discretion. If it appears that there is a legal and suffi- cient objection to any person, named as executor in the will, letters shall not be issued to him, except as prescribed in the next sec- tion. 17 180 Trial of Objections. It is presumed that the surrogate would not, in any case, trj the objections by affidavit The better practice would be to try them upon the return of a citation for that purpose. The follow- ing forms may serve the pleader : OEDER FOR CITATTOK At a surrogate's court, held in and for the county of , at the surrogate's office, in the of , on the day of , 1880. Present , Surrogate. Is THE Matter of the Will of | , Deceased. I The will of said' deceased having been proved, and A. B. having filed objections to the issue of letters testamentary to 0. D., an executor in said will named, now, on motion of said A. B. : Ordered, That a citation issue to the said C. D., requiring him to show cause why he should not be required to give bonds as such executor upon the issue of such letters to him. , Surrogate. The citation, when issued, should be served in the same manner and giving the time as laid down heretofore (p. — , ante). CITATION". The People of the State of New York to 0. D., greeting: You are hereby cited to appear before our surrogate of our county of Rensselaer, at his office in the city of Troy, on the day of , 1873, at ten o'clock in the forenoon, then and there to attend the adjudication of our said surrogate upon certain objections filed to your competency to act as an ex- ecutor of the will of , late of the town of , deceased, and to show cause, if required, why you should not be ordered to give bond for the faithful performance of your duties as such executor. Witness, Moses Warren, surrogate of our said county, and [l. s.] the seal of our said court, this • day of , 1880. , Surrogate. It would seem that if the objector does not prosecute his ob- jections during the thirty days m which the issue of letters is stayed, he will be deemed to have abandoned them, and letters "What Objections Good. 131 will issue to the executor against whom the objections were filed. On the return of the citation, the parties join issue, and it ia suggested that the issue be framed fully in writing. ANSWER TO OBJECTIONS. Sttrkogate's Couet— Rensselaer Countt. In the Matter of Leotees Testa- mentary ON the "Will of ■, Deceased. C. D., an executor named in the will of the above named de- ceased, in answer to the objections filed by A. B. in this matter, respectfully says : That he, the said C. D.. is not incompetent to discharge the duties of executor as aforesaid, by reason of habitual intemper- ance in the use of alcoholic liquors. And he prays the adjudication of the court upon such ob- jection. Dated February 11, 1880. C. D. L. "W. Rhodes, Attorney. Rensselaer County, 55.; C. D., being duly sworn, says, that he believes the foregoing answer by him subscribed is true. C. D. Sworn, etc. The issue haying been joined, the burden of proof is upon the objector to show that- the executor is incompetent, for incompe- tence is not presumed more than unsoundness of mind. The proof as to the objections must necessarily vary as to each. Upon the objection that the executor named has been convicted of an infamous crime, however guilty or base he may be, the record of conviction must be produced to sustain the objection, or it will fail. {^Goope v. Lowerre, 1 Barb. Ch., 45 ; Harrison v. Mc- Mahon, 1 Bradi, 283 ; McMahon v. Harrison, 6 N. Y., 443 ; Em- erson V. Bowers, 14 id., 449.) A professional gambler is pre- sumptively incompetent. [McMahon v. Harrison, sup.') "Where an executor had no property except an unliquidated demand, and was about to remove from the State, he was required 132 • When Security Eequired. to give security. ( Wood v. Wood, 4 Paige, 299 ; Holmes v. Cock,. 2 Barb. Ch., 426.) But an executor should not be required to give security, merely because he does not own property to the full value of the estate of his testator, and where there is no ground for supposing that the trust fund is in danger. {Mandevilh v. Mandeville, 8 Paige, 475.) It is not material to inquire whether the testator was aware of the want of responsibility in the executor, at the time of making the will. ( Wood v. Wood, 4 Paige,_ 299.) Thrift, integrity, good repute, business capacity and stability of character are " circumstances " which may be very properly con- sidered in determining the question of adequate security. The word "circumstances" does not refer exclusively to pecuniary re- sponsibility. {Martin v. Duke, 5 Eedf., 597.) § 2638. Bond; when required. — In either of the following cases a person named as an executor in a will may entitle himself to letters testamentary thereupon, by giving a bond as prescribed by law, although an objection against him has been established to the satisfaction of the surrogate : 1. Where the objection is, that his circumstances are such, that they do not afford adequate security to the creditors or persons interested in the estate, for the due administration of the estate. 2. Where the objection is that he is not a resident of the State, and he is a citizen of the United States. But a person against whom there is no objection, except that of non-residence, is entitled to letters testamentary, without giving a bond, if he has an office within the State for the regular transac- tion of business in person ; and the will contains an express pro- vision to the effect that he may act without giving security. {Postley v. Cheyne, 4 Dem., 492.) The hearing having been concluded, the surrogate either sus- tains or dismisses the objections. If he sustains the objections to the competency of the executor he will eater an order in terms, " that the surrogate doth order and adjudge that the executor named in the will of said deceased is incompetent to execute the trust imposed upon him by reason of his being an alien not an inhabitant of this State " (or, whatever the objection may be). But if he fail to sustain the objections, he may, without further delay, enter an order for the issue of letters. Ordinarily, unless required by the terms of the will appointing them, or unless required by the surrogate, executors are not re- quired to give bonds. Bond of Executor. ' 133 The bond should be taken in the name of the people {Rolmes V. Cock, 2 Barb. Ch., 426), and covers the proceeds of real estate received by the executor. {Hood v. Hood, 19 Hun, 800.) Where a non-resident executor gives a bond to the people, as above required, the people are trustees of an express trust, under section 449 of the Code of Civil Procedure. An action will lie in their name for a breach of the condition. {People ex rel. v. Strul- ler, 16 Hun, 234.) § 2645. Executor or administrator to qualify ; penalty ofhond. — An executor from whom a bond is required, as prescribed in this article, or an administrator with the will annexed, must, before letters are issued to him, qualify as prescribed by law, with re- spect to an administrator upon the estate of an intestate ; and the provisions of article fourth of this title, with respect to the bond to be given by the administrator of an intestate, apply to a bond given pursuant to this section ; except that, in fixing the penalty thereof, the surrogate must take into consideration the value of the real property, or of the proceeds thereof, which may come to the hands of the executor or administrator, by virtue of any pro- vision contained in the will. EXECUTOE MAY EBNOUNCE. § 2639. Renunciation and retraction. — A person, named as ex- ecutor in a will, may renounce the appointment by an instrument in writing, signed by him, and acknowledged or approved, and certified, in like manner as a deed to be recorded in the county, of attested by one or more witnesses, and proved to the satisfaction of the surrogate. Such a renunciation may be retracted by a like instrument, at any time before letters testamentary, or letters or administration with the will annexed, have been issued to any other person in his place ; or, after they have been so issued, if they have been revoked, or the person to whom they were issued has died, or become a lunatic, and there is no other acting execu- tor or administrator. Where a retraction is so made, letters testa- mentary may, in the discretion of the surrogate, be issued to the person making it An instrument specified in this section must be filed and recorded in the surrogate's office. As to the power of an executor to retract his renunciation as settled by authority, before the late amendments, as above, see Robertson v. McGoech (11 Paige, 640), Casey v. Gardiner {4: Bradi, 13), Codding v. Newman (3 TL & C, 364). As to the statute be- fore the amendment, see 2 E. S., 70, § 8. The renunciation may be in the following form : 134 Executor Appointed by Executor. Surrogate's Court County. Ik the Matter of the Will of I , Deceased. j I, C. D., named as an executor in the will of the above named deceased, do hereby renounce the appointmeat as such executor. (Signed) C. D. Dated Troy, December 30, 1874. In presence of E. F. The execution of this may be proved by the subscribing wit- ness, or may be acknowledged by the executor, in the form in which deeds are required to be acknowledged, to entitle them to be recorded. We have seen {ante) that an executor may be appointed by a power given to another party in the will. The decision of the court of appeals in Harinett v. Wandell, confirming an appoint" ment made by an executrix, required some legislation to regulate the exercise of the power to appoint, and we accordingly have the following : § 2640. Selection of an executor under a power. — Where the will contains a valid power, authorizing the selection, as executor thereof, of a person not named therein, the selection must be made, by the person appointed for that purpose, within thirty days after making the decree admitting the will to probate ; in default whereof, the power of selection is deemed to have been re- nounced. Such selection must be made by an instrument, in writing, designating the person selected, signed by the proper person, and acknowledged or proved, and certified in like manner as a deed to be recorded in the county, or proved to the satisfac- tion of the surrogate, and filed in the surrogate's office. Where the will authorizes the person so to be selected to act with the ex- ecutor or executors named therein, the issuing of letters must be delayed until the expiration of the period fixed in this section for the exercise of the power of selection, and, if the selection is so made, for five days thereafter. SELECTION UNDER POWER. Surrogate's Court — County of ' — . In the Matter of the Will of / , Deceased. j In pursuance of the power given to me by the above described will, which has been duly admitted to probate, I, Objections to Appointed Executor 135 , do hereby select and nominate as an executor of said will, , of the town of , in said county, and request that letters testamentary issue to said -, with me. Dated February 11, 1880. (Signed) Eensselaer County, ss. : On this day of , 1888, before me personally came , to me known to be the same person described in and who executed the foregoing instrument, and acknowledged that she executed the same for the uses and pur poses therein mentioned. A. B., Notary Public, Hens. Co. § 2641. Objection to person selected, how taken. — "Within five days after a selection is made, as prescribed in the last section, any person may file an affidavit, verified as prescribed in section 2636 of this act, showing that he is a creditor of the decedent, or a person interested iu the estate, and setting forth specifically one or more legal objections to granting letters to the person selected. The proceedings to be taken thereupon are the same as prescribed in sections 2637 and 2638 of this act. If letters are not issued to the person so selected, the power of selection is deemed to be ex- hausted. The forms and proceedings may be found under the sections named. But should some or one of the executors fail to appear, it would seem to be irregular to issue letters testamentary, without a re- nunciation of the remaining executors, or until they shall have been summoned as provided by law. § 2642. Mxxcutor failing to qualify or renounce, how treated. — If a person named as executor in a will does not qualify or renounce within thirty days after probate thereof ; or if a person, chosen by virtue of a power in the will, does not qualify or renounce within thirty days after the filing of the instrument designating him ; or, in either case, if objections are filed and the executor does not qualify or renounce, within five days after they are determined, in his favor, or, in a case specified in section 2638 of this act, within five days after an objection has been established, the sur- rogate must, upon the application of any other executor, or any creditor or person interested in the estate, make an order requiring him to qualify within' a time therein specified; and directing that, in default of so doing, he be deemed to have renounced his appointment Where it appears by affidavit or other writ- 136 Executor Must Qualify or Eenounoe. ten proof , to the satisfaction of the surrogate, that such an order can- not with due diligence be served personally within the State upon the person therein named, the surrogate may prescribe the manner in which it must be served, which may be by publication. If the person so appointed executor does not qualify within the time fix d, or within such further time as the surrogate allows for that purpose, an order must be made and recorded reciting the facts, and declaring that he has renounced his appointment as executor. Such an order may be revoked by the surrogate in his discretion, and letters testamentary may be issued to the person so failing to renounce or qualify, upon his application, in a case where he might have retracted an express renunciation, as prescribed in sec- tion 2639 of this act. And where any powers to sell, mortgage or lease real estate, or any interest therein, are given to executors as such, or as trustees, or as executors and trustees, and any of such persons named as executors shall neglect to qualify, then all sales, mortgages and leases under said powers, made by the executors who shall qualify, shall be equally valid as if the other executors or trustees had joined in such sale. The order may be made upon suggestion, and without a formal petition for all the facts to be presented appear by the will, which has been proved and by the probate. The time within which the executor delinquent shall appear and qualify is to be fixed by the surrogate, and it is presumed where the service can be made personally, it will usually be very short, for there has already been some delay. ORDER THAT EXECUTOR QUALIFY OR RENOUNCE. At a suiTogate's court held in and for the county of , at the surrogate's office in the of , on the — day of , 1880. Present — Hon. , Surrogate. In the Matter of the Will of , deceased. It appearing that A. B., an executor named in said will has not qualified or renounced, notwithstanding that thirty days have elapsed since the probate of said will : Orihred, that said A. B. quality within days after the service of a copy of this order on him, or that, in default of so doing, the said A. B. be deemed to have renounced his appoint- ment as such executor. , Surrogate. Foreign Executors. 137 OEDEK DECLARING RENUNCIATION. At a surrogate's court held in and for the county of , at the surrogate's office in the of , on the day of , 1880. Present — Hon. , Surrogate. In the Matter of the Will of j -, DECEASED. f An order having been made in this court that A. B., an execu- tor named in the said will, qualify within a time limited in said order, or that he be deemed to have renounced, and on reading and filing due proof of the service of said order on said A. B., and the said A. B. not having qualified or obtained further time for that purpose : Ordered, that said A. B., by reason of the premises, has re- nounced his appointment as an executor of the will of said , Surrogate. The cases in which such order may be revoked, in the discre- tion of the surrogate, are these : Any time before letters testamentary or letters of administra- tion, with the will annexed, have been issued to any person, in his place, or, after they have been so issued, if they have been re- voked ; where the person to whom the letters have been issued ha3 died, or became lunatic, and there is no other acting executor or administrator. (Section 2639, sup.) Letters testamentary issue upon a will of a testator domiciled without the State, at the time of his death, leaving personal prop- erty within the county of the surrogate, and in no other, or leav- ing personal property which has since his death come into the county, and in no other, and remains unadministrated. (Section 2476, subd. 3, Kohlii v. Knapp, 1 Bradf., 241.) It is a general rule of law that foreign executors are not recog- nized in their official capacity by domestic courts of law, and cannot sue or be sued in our courts as such. The same is true of administrators. Actions in equity have been entertained within this State against foreign^ executors, who have brought or had in this State property of the testator, to prevent its waste and secure the application of it to the debts of the testator, according to the law of the State whence the executors derive their authority. 18 138 Ancillary Letters on Foreign Wills. {Matier of Wehb, 11 Hun, 124; Gray v. £i/le, 5 Cir. Pro., 887; Field V. Gibson, 56 How., 232 ; Meicalf v. Clark, 41 Barb.. 45 ; Murphy V. Rail, 45 Hun, 628.) For the purpose, then, of securing the assets of a person domi- ciled in another State, which are or have come into thia State, indeed, to protect those in whose hands such assets may be in this State in delivering them, letters should be procured in this State. Foreign executors have no authority within this State by virtue of the original letters. But if jurisdiction can be obtained of a foreign executor, he may be compelled to the specific performance of an agreement made in this State, after the death of the testator, for the sale of property constituting part of the asseta {Johnston Y. Wallis, 41 Hun, 420.) Letters issued upon a will admitted to probate in another State, or upon an estate of a decedent so domiciled, are termed ancillary letters, and their issue is regulated by statute. § 2695 Anci llary letters. — Where a will of personal property made by a person who resided without the State at the time of the execution thereof, or at the time of his death, has been admitted to probate by a competent court, within the foreign country, or the State, or the territory of the tJnited States, where it was exe- cuted, or where the testator resided at the time of his death; the surrogate's conrt having jurisdiction of the estate must, upon an application made as prescribed in this article, accompanied with a copy of the will, and of the foreign letters, if any have been issued, authenticated as prescribed in this article, record the will and the foreign letters, and issue thereupon ancillary letters testa- mentary, or ancillary letters of administration with the will annexed, as the case requires. But the grant of ancillary administration to others than the executors named, does not constitute the persons appointed, trus- tees of a trust created by the will, and as to which the executors are appointed trustees. {Bonilla v. Mestre, 84 Hun, 551.) § 2696. Ancillary letters upon grant of foreign administration. — Upon an application by the party entitled as hereinafter provided, or by his duly authorized attorney in fact, made as prescribed in this article, to a surrogate's court having jurisdiction of the estate- and upon the presentation of a copy authenticated as prescribed in this article of letters of administration upon the estate of a decedent who resided, at the time of his death, without the State but within the United States, granted within the State or territory Ancillary Letters. 139 ■where the decedent so resided ; or where the decedent, at the time of his death, resided without the United States, upon the presen- tation to such surrogate's court of satisfactory proof that the party so applying, either personally or by such attorney in fact, is enti- tled to the possession in the foreign country of the personal estate of such decedent, the surrogate's court to which such copy of such foreign letters are so presented, so authenticated, or such proof is so presented, must issue ancillary letters of administration in ac- cordance with such application, except in the following cases : 1. Where ancillary letters have been previously issued, as pre- scribed in the last section. 2. Wher© an application for letters of administration upon the estate has been made by a relative of the decedent, who is legally competent to act, to a surrogate's court of this State having juris- diction to grant the same ; and letters have been granted accord- ingly, or the application has not been finally disposed of. § 2697. To whom ancillary letters granted. — Where the will specially appoints one or more persons as the executors thereof, with respect to personal property situated within the State, the ancillary letters testamentary must be directed to the persons so appointed, or to those who are competent, to act and qualify. If all are incompetent or fail to qualify, or in a case where such an appointment is not made, ancillary letters testamentary, or ancil- lary letters of administration, issued as prescribed in this article, must be directed to the person named in the foreign letters, or to the person otherwise entitled to the possession of the personal property of the decedent, unless another person applies therefor, and files with his petition, an instrument executed by the foreign executor or administrator, or person otherwise entitled as afore- said, or, if there are two or more, by all who have qualified and are acting ; and also acknowledged or proved, and certified, in like manner as a deed to be recorded in the county, authorizing the petitioner to receive such ancillary letters ; in which case, the surrogate must, if the petitioner is a fit and competent person, issue such letters directed to him. Where two or more persons are' named in the foreign letters, or in an instrument executed as prescribed in this section, the ancillary letters may be directed to either or any of them, without naming the others, if the others fail to qualify, or if, for good cause shown, to the surrogate's satis- faction, the decree so directs. Where a decedent, residing in the State of Tennessee, left assets in the county of New York, and the administrator of the domicil applied here for ancillary letters, the surrogate held that he might, in his discretion, refuse to grant such letters, in view of the fact that certain relatives of the decedent had applied for letters, and 140 Ancillary Letters. that such applications were pending and undeterminea. JSsfate of Williams, 5 Dem., 292 , 5 K Y. St. Eep., 361.) §2698. Letters issue on petition , citation to issue. — An applica- tion for ancillary letters testamentary, or ancillary letters of admin- istration, as prescribed in this article, must be made by petition. Upon the presentation thereof, the surrogate must ascertain, to his satisfaction, whether any creditors, or persons claiming to be cred- itors, of the decedent, reside within the State; and if so, the name and residence of each creditor, or person claiming to be a creditor, so far as the same can be ascertained. He must thereupon issue a citation, directed to each person whose name and residence have been so ascertained ; and also directed generally to all creditors, or persons claiming to be creditors, of the decedent Any such person, although not cited by his name, may appear and contest the application, and thus make himself a party to the special pro- ceeding. Upon a trial, the defendant produced the records of the surro- gate's office in New York, which showed that the will was admitted to probate, as to personal estate only, upon production of a duly authenticated copy under the seal of the French court, wherein it was proved. It was claimed that the will was not sufficiently proved; It wes held that, as the testator was a citizen of this State, having a domicile and property here, at the time of his death, the surrogate had jurisdiction to take proof of and admit the will to probate, and if he admitted it without sufficient proof, or the formalities required by law, it was not judicial action with- out jurisdiction, but error, to be corrected only by application to the surrogate or by appeal from his decree. {Oaulfield v. Sullivan, 85 N. Y., 153.) The phrase, ancillary letters, makes the term domicilliary letters, applying to the letters issued at the decedent's domicile, a useful one. Where, pending an application by one " legally competent to act," for original letters of administration of the estate of an in- testate who resided in another State at the time of his death, a domicilliary administrator asks that ancillary letters be issued to him. The surrogate, under these provisions, may grant letters in his discretion to either applicant (^Sursen v. Zimmerman, 4 Dem., 250.) Ancillary Letters. 141 PETITION FOR ANCILLARY LETTERS TESTAMEN- TARY. ■Surrogate's Court — ■ County. In the Matter of the "Will of / A. B., Deceased. j To Hon. , Surrogate of the County of Rens- selaer: The petition of C. D., of the city of Chicago, in the State of Illinois, respectfully shows, upon information and belief, as follows : A. B., late of said city of Chicago, was a resident of said city at the time of the execution of his will, and said will has been admitted to probate by the probate court of Cook county, in which Chicago is situated, and which is a competent court for that purpose, as by the exemplified copy of said will, and of the decree so admitting it to probtte, hereto annexed, will more fully and at large appear, and your petitioner was named in said will as an executor thereof, and letters testamentary have been duly issued to your petitioner by said probate court, as by an exemplified copy of said letters will appear, which copy is hereto annexed. And your petitioner further shows as aforesaid, that at the time of his death the testator was domiciled in said city of Chicago, and that he left certain personal property, in the county of Rensselaer, and in no other county within the State of New York (or that he left certain personal property which, since the death of the tes- tator, has come into said county of Rensselaer, and no other), and remains unadministered, the value whereof does not exceed dollars. That no ancillary letters have been issued within the State of New York upon the said probate. And your petitioner has made diligent inquiry as to whether there are any creditors of the decedent, or persons claiming to be creditors, and he is unable to learn that there are any such persons (or your petitioner, upon diligent inquiry, has learned that C. D., of Troy, N. Y., and E. F., of West Troy, N. Y, are or claim to be creditors of the decedent, and he can learn of no other persons who are or claim to be creditors as aforesaid). Your petitioner, therefore, prays that said will of said A. B. may be recorded in this court as a will of personal estate, and that letters testamentary may issue to your petitioner in due form, when he shall have filed the bond required by the statute in such case made and provided, and in all respects have qualified. And your petitioner will ever pray, etc. Dated February 11, 1888. (Signed) C. D. 142 Ancillary Letters. County, ss. : C. D., being duly sworn, says, that the foregoing petition by him subscribed is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be true. (Signed) C. D. Sworn, etc. PETITION FOR ANCILLARY LETTERS OF ADMINIS- TRATION. Surrogate's Court — County of . In the Matter of the Estate of / , Deceased. f To Hon. , Surrogate of the County of .• The petition of A. B., of the city of Troy, respectfully shows> on information and belief, as follows : C. D., at the time of his decease, was a non-resident of the State of New York, and domiciled in the city of Chicago, in the county of Cook, in the State of Illinois, and died in said city intestate, and thereupon letters of administration of his goods, chattels and credits were duly issued and granted by the probate court of said county of Cook to A. D., the widow of said C. D., and to B. B., both of said city of Chicago, as by said letters of administration hereto annexed, will more fully appear. That the said C. D., at the time of his death, left certain personal property in the county of Rensselaer and in no other county of the State of New York, the value whereof does not now exceed the sum of dollars, and which remains unadministered (or, that since the death of the said C. D. certain personal property belonging to his estate has come into the county of Renssselar, and into no other county within the State of New York, the value whereof does not now exceed the sum of dollars, and remains unadministered). That the said administratrix and administrator have executed an instrument hereto annexed authorizing your petitioner to re- ceive ancillary letters of administration. That your petitioner has made diligent inquiry as to whether there are any persons creditors or claiming to be creditors of the said C. D., and has not learned that there are any such persons. Wherefore your petitioner prays that ancillary letters of ad- ministration of the goods, chattels and credits of the said C. D. may issue to your petitioner upon his filing the bond and qualify- ing as required by law. And your petitioner will ever pray, etc. Dated Troy, February 11, 1888. (Signed) C. D. Ancillary Letters, How Issued. 143 Eensselaer County, ss. : C. D., being duly sworn, says that the preceeding petition by him subscribed is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be true. (Signed) 0. D. Sworn, etc. OEDER FOR CITATION UNDER SECTION 2698. At a surrogate's court, held in the county of ■ , at the , on the ■ day of , 1888. Present — Hon. • , Surrogate. In the Matter of the Will of , deceased. On reading and filing the petition of C. D. for record of the will of A. B., late of the city of Chicago, in the State of Illinois, and for the issue of ancillary letters testamentary upon said will to said petitioner, and it appearing that said will has been admitted to probate by the probate court of the county of Cook, in said State of Illinois, and letters testamentary issued by said court to said C. D. Ordered, that said will and letters be recorded, and it further appearing that there are certain persons, creditors or claiming to be creditors of the said A. B., deceased ; it is further Ordered, that a citation issue to F. F. and G. H., of the city of Troy, claiming to be creditors of said deceased, requiring them to show cause why ancillary letters testamentary should not issue to said C. D., the petitioner aforesaid. (Signed) , Surrogate. CITATION. To E. F. and G. H., of the city of Troy, m the county of Rensse- laer and State of New York, and to all persons, creditors or claiming to be creditors of A. B., late of the city of Chicago, in the State of Illinois, deceased. You, and each of you, are cited and required to appear at the office of our surrogate of the county of Rensselaer, in the city of Troy, on the day of , 1888, and show cause why ancillary letters testamentary upon the will of said A. B. should not be granted to C. D., of said city of Chicago, who has applied for the same. In testimony whereof, our said surrogate has hereunto [l. s.] signed his name and affixed the seal of said court, this day of , 1888. , Surrogate. 144 Ancillary Administrator, His Duties. The time for service is eight days within the county ; or, in an.' adjoining county, fifteen days elsewhere in the State, and by pub- cation six weeks, on all out of the State, together with mail ser- vice of thirty days. (See ante, p. — .) § 2699. Hearing; security. — Upon the return of the citation,. the surrogate must ascertain, as nearly as he can do so, the amount of debts due, or claimed to be due, from the decedent to residents of the State. Before ancillary letters are issued, the person, ta whom they are awarded, must qualify, as prescribed in article fourth of this title, for the qualification of an administrator upon, the estate of an intestate ; except that the penalty of the bond, may, in the discretion of the surrogate, be in such a sum, not ex- ceeding twice the amount which appears to be due from the de- cedent to residents of the State, as will, in the surrogate's opinion, effectually secure the payment of those debts ; or the sums which the resident creditors will be entitled to receive, from the persons, to whom the letters are issued, upon an accounting and distribu- tion, either within the State, or within the jurisdiction where the- principal letters were issued. From these provisions it seems to oe assumed, that the foreign court having jurisdiction, will fix the amount and determine the sufiiciency of the security, and that the surrogate issuing the an- cillary letters, is only called upon to protect the local creditors by requiring proper security. In the absence of such local creditors, any remedy in behalf of the next of kin or creditors in the State, should be sought, before the surrogate or court issuing the original letters. {Estate of McEvoy, 3 Law Bui., 31.) § 2700. Duty as to assets of persons acting under ancillary letters. — The person to whom ancillary letters are issued, as prescribed in this article, must, unless otherwise directed in the decree award- ing the letters ; or in a decree made upon an accounting ; or by an order of the surrogate, made during the administration of the estate ; or by the judgment or order of a court of record, in an ac- tion to which that person is a party, transmit the money and other personal property of the decedent, received by him after the let- ters are issued, or then in his hands in another capacity, to the State, territory, or country, where the principal letters were granted, to be disposed of pursuant to the laws thereof. Money or other property, so transmitted by him, at any time before he is so directed to retain it, must be allowed to him upon an accounting. It is the duty of an ancillary administrator, with the will an- nexed, to collect and administer the entire personal estate within. Distribution Under Ancillary Letters. 145 this State, not merely the property disposed of by the will. {Sulli- van V. Fosdick, 10 Hun, 173.) It seems that ancillary administrators can maintain an action in their official capacity as such, upon a contract made with them as administrators under the original letters issued in the jurisdiction of principal administration, before the issue of ancillary letters here. {Bingham v. Marine Nat Bank, 41 Hun, 377.) § 2701, Power of court to decree distribution of assets. — The surro- gate's court, or any court of the State, which has jurisdiction of an action to procure an accounting, or a judgment construing the will, may, in a proper case, by its judgment or decree, direct a person to whom ancillary letters are issued as prescribed in this article, to pay,, out of the money or the avails of the property received by him under the ancillary letters, and with which he is chargeable upon his accounting, the debts of the decedent, due to creditors residing, within the State ; or, if the amount of all the decedent's debts,, here and elsewhere, exceeds the amount of all the decedent's per- sonal property applicable thereto, to pay such a sum to each credi- tor residing within the State as equals that creditor's share of all the distributable assets, or to distribute the same among legatees. or next of kin, or otherwise dispose of the same as justice requires. Whether or not our courts will decree distribution of the assets collected here under ancillary letters, or will remit the dispositions- thereof to the courts of the testator's domicil, is not a question of jurisdiction but of judicial discretion under the circumstances, of the particular case, and the fact that the testator appointed citizens of this State executors, as well as citizens of his own State, and charged the former with the care and administration of the prop- erty here, does not alter the rule. So while our courts may not aid in carrying out here a bequest in violation of our statutes and contrary to our policy, they cannot declare' such a legacy void where it is valid by the law of the testator's domicil. Hence, in case of a bequest of property here by a citizen of another State, upon a trust void under our statute against perpetuities, it was held that an order directing that the proceeds of such property be remitted to the State of the testator's domicil for distribution, was proper. {Despardy. Churchill, 53 K Y., 192.) Where beneficiaries have been cited to attend an accountmg in this State by the executor of the will of a foreign testator, the court here has jurisdiction to determine whether they are entitled 19 146 Liability Under Ancillary Letters. to a legacy, and is not obliged to compel them to proceed in the courts of the testator's domicil. {Clark v. Butler. 4 Dem., 378.) The principle which should govern in all cases of double ad- ministration, is so to martial the different funds as to produce equality among all creditors, whether foreign or domestic. {Law- rence v. Elmendm-ph, 5 Barb., 73,) One acting under ancillary letters is liable to account here only for such assets as he collects by virtue of such letters. He is not liable here for money voluntarily paid to him acting under letters granted in another State, and before the issue of letters to him here. {Parsoiis v. Lyman, 20 N. Y., 108.) But an administrator appointed here of a decedent domiciled abroad, who brings assets into this State and inventories them here, must account here. {Sherwood v. Wbosier, 11 Paige, 441.) The authority of an ancillary administrator in this State to receive and satisfy the debts due here, is exclusive of that of any foreign executor or administrator Hence a satisfaction of mort- gage on lands in this State, executec} by an administrator ap- pointed in the State of the domicil of the deceased, after the appointment of an administrator here, is no defense to an action of foreclosure by the latter, though the foreign administrator had the securities in his possession and received the naoney before either administrator was appointed. {Stone v. Scripture, 4 Lans., 186.) §2702. General powers and duties under ancillary letters. — The provisions of this chapter, relating to the rights, powers, duties and liabilities of an executor or administrator, apply to a person to whom ancillary letters are granted as prescribed in this article, except those contained in title fifth thereof ; or where special pro- vision is otherwise made in this article ; or where a contirary intent is expressed in or plainly to be inferred from the context NEW HEAEING OF PEOOP WITHIN ONE YEAR The word probate, as used in our statutes generally, is synony- mous, or nearly so, with the word proof, or the proceedings for proof. The word has an entirely different significatipn in the English statute and reports. There, after a will has been proved, a, copy is engrossed upon parchment, and to it is aifixed a certifi- cate of the probate court that the will so engrossed has been proved in the court, and this parchment is called jpro6«fe, and it is synonymous with the letters testamentary with us, and it is said Proceeding for ISiew Hearing. 147 tliat probate is granted to an executor, as we say, that letters tes- tamentary are issued to an executor. § 2647. Persons interested may apply for revocation. — A person interested in the estate of the decedent may, within the time specified in the next section, present to the surrogate's court, in which a will of personal property was proved, a written petition, duly verified, containing allegations against the validitjr of the will, or the competency of the proof thereof ; and praying that the probate thereof may be revoked, and that the persons enume- rated in the next section but one, may be cited to show cause why it should not be revoked. Upon the presentation of such a petition, the surrogate must issue a citation accordingly. The pendency of this proceeding will not prevent the issue of letters testamentary to the executor, but he will possess, pending the controversy, only limited powers, similar to those of an execu- tor in the case of an appeal from the probate. {Bihh Society v. Oakley, 4 Dem., 450.) It would seem, that a creditor of the decedent is not a person interested in the estate, within the above section, so as to be enti- tled to petition for a revocation of probate. {Heilman v. Jones, 5 Eedf., 898.) It is the duty of the surrogate, at once, upon the presentation of the petition, to issue the citation appropriate to the case. {Pryor v. Glapp, 1 Dem., 387.) The former statute, and this section, do not confer upon the surrogate power to revoke a probate for want of jurisdiction. Where on a petition, showing jurisdiction, probate is granted after proper citation, the probate cannot be revoked save on appeal {Heilman v. Jones, sup. But, quoire.) Where a petition is made by one who was an infant, for the revocation of the probate of a will under this section, it must be made within one year after he attained his majdrity. {Matter of Becker, 28 Hun, 207.) These proceedings are not confined to cases of wills bequeath- ing or affecting personal property only, but may be taken as to wills affecting both real and personal estate. {Matter of Will of John Kellum, 50 K Y., 298 ; reversing the same case, 6 Lans., 1.) § 2648. When application rrnist he made: — A petition must be presented, as prescribed in the last section, within one year after the recording of the decree admitting the will to probate ; except that, when the person entitled to present it is then under a disa- bility specified in section 896 of this act, the time of such a disa- 148 "Who to be Cited. bility is not a part of tHe year limited in this section, unless sucli person shall have appeared by general or special guardian on said probate. But this section does not affect an application made pursuant to subdivision sixth of section 2481 of this act. It was held that, under the provisions of the E. S., for which this is substituted (2 E. S., 61, §§ 30, 31), the object of the provision was not to allow the next of kin ' to contest the probate before the surrogate, and then allow them, on the same grounds, to file the same objections and enter upon a new contest on the issues already tried. It would seem that the decision applies to the pro^^ ceeding under the above section. {Matter of Gourand, 28 Hun, 560.) Section 396, referred to, is as foUows : § 396. Exceptions, as to persons under disahilities. — If a person' entitled to maintain an action specified in this title * * * ig^ at the time when cause of action accrues, either. 1. Within the age of twenty-one years ; or 2. Insane ; or, 3. Imprisoned on a criminal charge, or in executions upon con- viction of a criminal offense, for a term less than for life. The time of such disabihty is not a part of the time limited in this title for commencing the action, except that the time so limited cannot be extended more than five years by any such disability, except infancy ; or, in any case, more than one year after the disability ceases. Subdivision sixth of section 2481, refen-ed to, is in relation to the general power of the surrogate, and is as foUws : 6. To open, vacate, modify or set aside, or to enter as of a former time, a decree or order of this court ; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause. The powers conferred by this subdivision must be exercised only in a like case and in the same manner as a court of record and of general jurisdiction exercises the s^me powers. § 2649. Prayer of petition ; who to he cited. — A petition, pre- sented as prescribed in the last two sections, must pray that the citation may be directed to the executor or administrator, with the will annexed ; to all the devisees and legatees named in the will ; and to all other persons who were parties to the special proceeding . in which probate was granted. If a legatee is dead, his executor or administrator must be cited, if one has been appointed ; if not, euch persons must be cited as representing him as the surrogate designates for the purpose. Proceedings on New Hearing. 149 PETITION TO CONTEST PROBATE WITHIN ONE YEAR Surrogate's Court. In the Matter op the Will of John | Doe, Deceased. f To the Surrogate of the County of Rensselaer r The petition of A. B., of the city of Troy, respectfully alleges, upon information and belief, as follows : That he is one of the next of kin of John Doe, late of the town of Nassau, in said county, deceased, and that heretofore, on or about the day of , 1871, and within one year from the exhibiting hereof, a certain instrument in writing was admitted to probate by the surrogate of the county of Rensselaer, as and for the last will and testament of said John Doe, deceased, and lettters testa- mentary thereon were afterwards issued by said surrogate to D. J. B., executrix named in said supposed will. And that said A., B., C. D., E., F., are named as legatees in said will, and reside in Troy, in the State of New York, and that G. H., of the town of Nassau, is the sole devisee named therein, and some of the legatees have died since the death of the said John Doe, and your petitioner refers to the proceedings for the proof of said will remaining in this court, for the pointing out of all other per- sons who were parties to said proceeding. And the said A. B. further alleges as aforesaid : (a.) That the said John Doe did not sign said supposed will; or, (6.) That the witnesses to said supposed will, did not sign the same; or, (c.) That the said will was not published as by law required, nor did the said John Doe request the witnesses thereto to sign the same as witnesses ; or, (c?.) That at the time of the execution of the said supposed will, the said John Doe was not of sound mind and memory, but of unsound mind and memory, and was incapable of making a valid will ; or, (e.) That the proof, heretofore presented to said surrogate, was ■uncertain and not competent to establish the due execution thereof, and the competency of the said John Doe. The said A. B., therefore, prays that a citation may be issued to the said D. J. B., executrix, and the said legatees, devisee and aU persons who were parties to the special proceeding in which pro- bate was granted, requiring them to appear before the surrogate at a time and place to be therein fixed, to show cause why the probate of the said supposed will should not be revoked. Dated December 20, 1872. (Signed) A. B. X. Y., Attorney for said A. B. 160 On Citation Executqr to Suspend. Eensselaer County, ss.: A. B., being duly sworn, says, that he is the petitioner named in the foregoing petition, and that said petition is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and, as to those matters, he be- lieves it to be true. (Signed) A. B. Sworn, etc. ORDER FOR CITATION. At a surrogate's court, held in the county of -, at the surrogate's office in the of , on the — day of , 1880. Present — Hon. , Surrogate. In the Matter of the Will of John Doe, deceased. On reading and filing the petition of A. B., one of the next of kin of John Doe, late of the town of ; deceased, praying that the proper persons be cited to show cause why the probate of the will of the said deceased should not be revoked. Ordered, that the executor of said will and all the legatees and the devisee named therein, and all persons who were parties to the proceeding for the proof of said will be cited to appear in this court on the day of , 1880, to show cause why the probate of the said will should not be revoked. . Surrogate. For manner and time of service, see ante. It will be observed that under the law as it now stands, the executor, legatees, devisees, and all the persons who appeared be- fore the surrogate on the probate, are to be cited ; under the re- vised statutes, only the executors and the legatees residing within the State were to be cited. (2 R. S., 61, §§ 29, et seq.) For the purpose of ascertaining who are the legatees, executors or devisees named in the will, reference may be had to the will and*the surrogate's records, and without doubt the surrogate may take such proof as he deems proper as to whether they are still alive, or, if deceased, who are their personal representatives, or if there are any. § 2650. Executor to suspend proceedings. — After service upon him of a citation, issued as prescribed in the last three sections, the executor or administrator, with the will annexed, must suspend Hearing on Eevocation. 151 until a decree is made upon the petition, all proceedings relating to the estate, except for the recovery or preservation of property, the collection and payment of debts, and such other acts as he is expressly allowed to perform, by an order of the surrogate, made upon notice to the petitioner. The last clause of the section, that the executor suspend, except ■OA to such other acts as he is expressly allowed to perform, is not to be held to enlarge the power of the surrogate, but to restrict it, and an order cannot be niade under it for the payment of a legacy. {Matter of McOowan, 28 Hun, 246 ; Estate of Riegelman, 2 Civ. Proc. E., 98.) § 2651. Hearing. — Upon the return of the citation, the surro- gate must proceed to hear the allegations and proofs of the parties. The testimony, taken upon the application for probate, of a witness who is dead, or without the State, or who, since his testimony was taken, has become a lunatic, or otherwise incompe- tent, must be received in evidence. Before proceeding, the surrogate will appoint special guardians for minors, habitual drunkards or lunatics, as in a proceeding to prove the will. The proceedings upon the hearing ate the same as if no proofs had been taken on the former hearing, and each party may pro- duce and fexamine witnesses. We are aware that Mr. Surrogate Bradford, in Collier v. Idhy's Executors (1 Bradf., 94), suggests, that where the allegations raise some issue narrower than the broad one of the invalidity of the will, and the incompetency of the first proofs, a rule of evidence different from the one above stated, may be adopted. But the case expressly holds, as the point to be de- cided, that the allegations being broad enough to contest the will and its probate on every material point, the witnesses to the will must be produced and be examined de novo. The proceedings so instituted, do not abate by the death of the contestant ; and the surrogate has power to direct continuance of the same, and the substitution of the executors of the contestant in his place. ( Yan Allen v. Heivins, 5 Hun, 560.) § 2652. Decree. — If the surrogate decides that the will is not sufficiently proved to be the last will of the testator, or is, for any reason invalid, he must make a decree revoking the probate thereof ; otherwise he must make a decree confirming the probate. 152 Effect of Eevocation. DECEEE EEVOKING PEOBATE. At a aurrogate's court, held in the county of , at the sur- rogate's office in the of , on the day of , 187—. Present — Hon. , Surrogate. In the Matter of the Paper pur- porting TO be the Will of John Doe, Deceased. A. B. having heretofore filed allegations against the probate of the above mentioned paper, and a citation having been issued to the proper persons, and proofs having been offered in the matter, and the surrogate having deliberated thereon, and it appearing that the said John Doe, deceased, at the time of the making of the instrument in writing, admitted to probate in this court, on the ) day of —, 1879, as the last will and testament of the said deceased, was not of sound mind (or, that said will was not duly executed): It is ordered, adjudged and decreed, that the probate heretofore granted by this court, on the said instrument as, and for the last will and testament of the said John Doe, deceased, be and the same is hereby annulled and revoked. It is further ordered that notice of this decree be published for three weeks successively, in a newspaper printed in the county of Eensselaer. Witness, ■ surrogate, and the seal of the court, [l. a] the day and year first above written. ■ , Surrogate. Under the practice before the Code, it was held that the revo- cation of probate of a will, as a will of personal estate, does not impair its probate as a will of real estate, if it has been proved as such. {Matter of Will of Kellum, 50 K Y,, 298.) But in those proceedings devisees were not cited or made parties. The change made in the practice is, to include devisees as parties, and they must be concluded to a certain extent, so that if probate shall be revoked, the former probate is no longer prima facie, or any evi- dence in support of the will. As to the condition of the proceeding after a decree for revoca- tion of probate which was appealed from the supreme court, it was held that during the pending of this appeal, the supreme court had no jurisdiction to appoint a receiver of the estate of the testa- tor. The jurisdiction as to the estate and the control and care of it is in the surrogate's court {Matter of Hancock, 27 Hun, 575.) General Form of "Will. 153 The case would be one for the appointment of a temporary ad- ministrator (formerly called a collector), under section 2668 of the Code. § 2653. Notice to he published. — Where the decree revokes the probate of a will, as prescribed in this article, the surrogate must cause notice of the revocation to be immediately published, for three successive weeks, in a newspaper published in his county. FOEM OF WILL. The last will and testament of A. B., of the town of , in the county of and State of New York. I, A. B., make this my last will and testament as follows : First. I direct that my funeral charges, expenses, of administer- ing my estate, and my debts, be paid out of my personal estate ; and if my personal estate be insufficient for those purposes, I ex- pressly charge the payment thereof, or of any deficiency, upon the real estate whereof I may die seized, and for that purpose, or for the payment ot the legacies hereinafter bequeathed, I authorize my execi\itors hereinafter named to sell at public or private sale, the whole, or such part of my real estate as may be sufficient for those purposes.* Second. I give and bequeath unto my beloved wife, if she shall survive me, the sum of dollars, to be paid to her, with interest from the time of my decease, in lieu of her dower, and of her distributive share in my estate, f Third. I give and bequeath to my daughter C. D., wife of one thousand dollars, to be paid to her by my executors, for her separate use.:]: And I further direct, that if she should die during my life- time, leaving issue, and any of her descendants shall be living at my decease, said sum shall be paid to said descendants in the proportion that the same would be paid to them under the statutes of this State, if the said 0. D. had died intestate, leaving said sum for distribution as a part of her personal estate.§ * The direction to pay funeral charges and debts and expenses out of the personal estate, and the charge of them on the real estate are surplusage, hut the draftsmen will find it to Le more satisfactory to the testator than his explanation will be. t The direction for interest is unnecessary, but it is inserted for the reasons mentioned in the foregoing note. X The words /or her aepa/rate use are also unnecessary, but used for the above reason. § This is also provided for in the statute. 20 ( 154 Will. Fourth. I give and bequeath unto , infant son of ■ . , of , one hundred dollars, and I authorize my executors, if they shall deem it safe and pru- dent, to pay the said legacy to the father of said infant, and to take his receipt therefor, and his agreement to hold the same in trust for the said infant, to be paid to him when he shall arrive at full age, ■with interest : or, \l they shall think best, the said executors may deposit said legacy in some savings bank to be selected by them, to the credit of said infant, and proof of such deposit shall be a sufficient discharge to my said executors for the same. Fifth. I give and bequeath to each of my brothers, A. and B., the sum of five hundred dollars, and I direct that in case either of my said brothers should die during my life-time, his legacy shall not lapse, but shall go to the survivor. If both of my said brothers shall die durmg my life-time, then the legacies to them shall lapse into the residue of my estate. Sixth. I give and bequeath my ten shares of one hundred dol- lars each of stock in the Union National Bank of Troy, to my friend . Seventh. I give and devise to my beloved wife the dwelling house and lot, in the village of , where I now live, for and during her natural life ; and from and after her death, I give and devise the same to my son A. R, his heirs and assigns for- ever. Mghih. I hereby dispose of the custody and tuition of my infant children during their minority, and while they shall remain unmarried, to my beloved wife, so long as she shall remain my widow ; but if she shall die, or marry during the single life and infancy of any of my children, then, and in that case, I dispose of and commit their custody and tuition to my friend R F. Ninth. I give, devise and bequeath all the residue of my estate, real and personal, to my children, share and share alike, as tenants in common. Lastly. I appoint my son S. B., and my friend A. R, executors of this my last will and testament, hereby revoking all former wills by me made. In witness whereof, I have hereunto subscribed my name this day of , in the year of our Lord one thousand eight hundred and seventy-five. (Signed) A. B. Bequest to Married Woman. 155 The foregoing instrument was, at the date thereof, subscribed by the said A. B., in our presence, and he at the same time de- clared the same to be his last will and testament, and requested us to sign our names as witnesses, which we do in his presence. C. D., Troy, Bens. Co., K Y. E. M. D., Troy, Hens. Co., K Y. Attestation Clatise, where the execution was Acknowledged. On the day of the date of the foregoing instrument, the above named A. B. acknowledged to us, and each of us, that he had sub- scribed the foregoing instrument, and at the same time declared the same to be his last will and testament, and requested us to sign the same as witnesses, which we do in his presence. C. D., TVoy, Bens. Co., K Y. E. M. I>.,'Troy, Bens. Co., K Y. Attestation Clause showing Eaxcution, and good in any State, except Louisiana; three Witnesses are required. On this day of , 1875, the undersigned be- ing present, and believing the above named A B. to be of sound mind and memory, saw the said A B. subscribe the foregoing wiU, ' and, at the time of such subscription, the said A B. stated to each -of the undersigned, that the paper so subscribed by him, was his last will and testament, and requested us, and each of us, to sign said will as witnesses. Whereupon we do in his presence, and in presence of each other, attest and subscribe the same as witnesses, the day and year above written. 0. D., Troy, Bens. Co., N. Y. E. F., Troy, Bens. Co., K Y. a H., Albany, N. Y ■Clause in a will, limiting Certain Property to the use of a Married Woman. I give and bequeath to A. B. and C. D., the survivor of them or their successors, appointed by the supreme court, the sum of two thousand dollars, in trust, to receive the interest thereof during the joint lives of Gr. H. and B. H., his wife, and to pay the same to the said E. H., and her assigns, notwithstanding her coverture, for her sole and separate use, from time to time, during the joint lives of the said G. H., and E. H., his wife, so that the said E. H. shall not sell, mortgage, charge, or otherwise dispose of the same in the way of anticipation. And if the said E. H. shall survive her said husband, then upon trust to pay the said principal sum to the said E. H. ; but in case the said E, H. shall die during the life-time of her husband, then in trust, after the decease of the said E. BL, to assign and transfer the said sum of two thousand V 156 Codicil. dollars, to such person or persons and in such shares and subject to such conditions, as the said K. H., by her last will and testa- ment in writing, or by any writing in the nature of, or purporting to be her last wUl and testament, shall limit or appoint, and in de- fault of such appointment, upon trust to pay, transfer and assign the same to the next of kin, of the said E. H., not including therein the said G. H., her husband. Clause in a Will limiting Real Estate to the separate Use of a Mar- ried Woman. I give and devise to A. B. and C. D., during the joint lives of B. H. and G. H., her husband, all that parcel of land conveyed to me by E. J., by deed dated ISTovember 1, 1873, and recprded in the o£6.ce of the clerk of the county of , in book No. of deeds, page , etc., upon trust to pay the rents. issues and profits thereof to the said E. H., or to such person or persons as she shall by writing appoint to receive the same, during the joint lives of the said E. H. and G. H., for her sole and sepa- arate use, so that the said E. H. shall not sell, mortgage, or other- wise dispose of the same in the way of anticipation. From and immediately after the decease of the said G. H., then I give and devise said premises to the said B. H., if she shall survive her said husband. But in case the said B. H. shall die in the life-time of her husband, then I give and devise the same to her heirs at law,, as tenants in common. Legacy to Charitable or Religious Corporations. I give and bequeath to the (American Bible Society stating the name, if possible, or otherwise clearly describing the society), the sum of one thousand dollars, to be applied to the uses of said society. Codicil. Whereas, I, A. B., did heretofore make my last will and testa- ment, dated the day of — ^ , 1875. N"ow I make this a codicil to said will First. I give and bequeath to my beloved wife the further sum of five thousand dollars. Second. Whereas I did in said will give and bequeath to my son R E. the sum of one thousand dollars, now I revoke said bequest, for the reason that I have paid said sum to him. Inasmuch as I contemplate advancing to my children sums of money hereafter, I direct that all moneys which I shall advance to them, or which shall be owing to me from any of them at my decease, shall be considered part of my residuary estate, and shall be deducted from his or her respective share. Probate of Heirship. 157 In witness whereof I now hereunto subscribe my name this day of , in the year of our Lord, one thousand eight hundred and seventy- A. B. The foregoing instrument was at the date thereof subscribed by the above named A. B., in our presence, and he declared the sanie to be a codicil to his last will and testament, and requested us tO' sign the same as witnesses, which we do ia his presence. J. L., Troy, N. Y. G. S., Troy, K Y. CHAPTBE IX. Probate of Heirship. For the purpose of having an adjudication as to the ownership of real estate acquired by descent, proceedings may be had in the surrogate's court § 2654. Heir may apply. — Where a person, seized in fee of real property within the State, dies intestate, or without having de- vised his real property to specific persons, his heirs, or any of them, may present to the surrogate's court which has acquired jurisdiction of the estate, or, i£ no surrogate's court has acquired such jurisdiction, then to the surrogate's court of the county where the real property, or any part thereof, is situated, a written peti- tion, duly verified ; describing the real property ; setting forth the facts upon which the jurisdiction of the court depends ; and the interest or share of the petitioner, and of each other heir of the decedent in the real property ; and praying for a decree establish- ing the right of inheritance thereto, and that all the heirs of the decedent may be cited to attend the probate of that right Upon the presentation of such a petition, the siirrogate must issue a citation accordingly. PETITION FOE PEOBATE OF HEIRSHIP. Surrogate's Court — Eensselaer County. In the Matter of the Eeal Estate / OF A. B., Deceased. ( The petition of B. B., of the town of Nassau, in said county, re- spectfully shows to the court A. B., in his life time, was an inhabitant of said town of Nassau, l58 Oeder for Citation. a,nd on the 17th day of January, 1880, died intestate, and at the time of his death he was seized in fee of all that farm of land situate (describing the land clearly and briefly), and leaving him surviving his children your petitioner, and Sarah Jones, of the city of Buffalo, in the county of Erie, and his grandchildren, A. B. and C. D., both residing in Nassau aforesaid, who are all and the only heirs at law of said deceased, and to whom said real estate ■descended by the Laws of this State in the following proportions, to wit: to the said B. B., petitioner, and the said Sarah Jones, each an undivided one- third thereof, and to the said A. B. and 0. D., grand-children as aforesaid, each an undivided sixth thereof. And your petitioner prays for a decree establishing the right of inheritance of said parties in said real estate, and that said heirs at law of the decedent may be cited to attend the probate of that right And your petitioner will ever pray, eta B. B. Dated February 17, 1880. Eensselaer Co^T^prY, ss. : B. B., being duly sworn, says, that he is the petitioner named in the foregoing petition, and that said petition is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters, he be- lieves it to be true. B. B. Sworn, eta And thereupon an order is made for the issuing of a citation. OEDER At a surrogate's court, held in the county of Rensselaer, at the surrogate's office in the city of Troy, on the 17th day of February, 1880. Present — Hon. MosES 'Wakren, Surrogate. In the Matter of the Real Estate / ^ OF A. B., Deceased. f On reading and filing the petition of B. B., from which it ap- pears that said deceased lately died, being an inhabitant of the county of Rensselaer, and seized of certain real estate described in said petition, and also certain heirs at law in said petition named. Ordered, that a citation issue to said heirs at law, requiring them to attend the probate of the right of inheritance in said real estate, Hearing on Citation. 159 on tlie day of , next, at ten o'clock in the fore- noon. Moses Warren, Surrogate. § 2655. Citation, and appearance of parties. — The citation must set forth the name of the decedent and of the petitioner, the in- terest or share which the petitioner claims, and a brief description of the real property. Any heir of the decedent, who has not been cited, may nevertheless appear at the hearing ; and thereby make himself a party to the special proceeding. But this section does not afiEect a right or interest of such a person, unless he be- comes a party. § 2656. Hearing ; decree. — Upon the return of the citation, the surrogate must hear the allegations and proofs of the parties. If it appears that there is a contest, respecting the heirship of a party, or respecting the share to which a party is entitled, as an heir of the decedent, the surrogate must dismiss the proceedings. If there is no such contest, he must inquire into the facts and circum- stances of the case. The petitioner must establish, by satisfactory evidence, the fact of the decedent's death ; the place of his resi- dence at the time of his death ; his intestacy, either generally, or as to the real property in question ; the number of heirs entitled to inherit the property in question ; the name, age, residence, and relationship to the decedent, of each ; and the interest or share of each in the property. The surrogate, where these facts are estab- lished, must make a decree, describing the property, and declaring that the right of inheritance thereto has been established to his satisfaction, in accordance with the facts, which must be recited in the decree. The proceeding is a novel one, but there can be no difficulty in conducting it, or in determining the rules of evidence as to the facts to be proved. The most important rule would seem to be, that the facts are to be proved by the best evidenca The decree establishing the rights of inheritance may be in this form. DECEEB. At a surrogate's court, held in the county of Eensselaer, at the surrogate's office in the city of Troy, on the day of — , 1880. Present — Hon. MoSES Wabren, Surrogate. In the Matter of the Eeal Estate / OF A B., Deceased. I B. B., having heretofore presented his petition to this court, 160 Decree May be Modified. •duly verified, praying that the rights of inheritance of the parties therein named may be declared as to certain real estate in said petition described, the surrogate thereupon issued a citation to B. B., C. B., A. X. and E. L., requiring them to attend the probate of such rights on this day. And now it appears that all the parties named m said citation were duly served therewith, and the said B. B. and C. B., appearing in person, and by A. L., their attorney, and it further appearing that said E. L. is a minor, J. B., of the city of Troy, was appointed his special guardian, and ap- peared for him ; J. D., claiming to be an heir at law of the said deceased, also appeared in the proceeding, and the surrogate pro- ceeded to hear the proofs and allegations of the parties upon the matter: It is adjudged and decreed that B. B., at the time of his death, was an inhabitant of the county of Eensselaer, and that he resided in the town of Nassau, in said county ; that he died on the day of ■ ■ , 1880, intestate, seized in fee of the following described real estate, to wit : All that parcel of land situate, etc (describing same as in the petition), and the following persons, his heirs at law, to wit: B. B., C. B. and J. D., his chil- .aren, who reside in said town of Nassau, and who are each entitled to and seized of an undivided one-fourth part of said real estate, and E. L. and J. S., his grand-children, residing in the city of Troy, who are each entitled to and seized of an undivided one- eighth of said real estata Witness, Moses Warren, surrogate, and the seal of the {l. S.J court, the day and year first above written. , Surrogate. § 2657. Decree to he recorded, and effect thereof. — An exemplified oopy of a decree, made as prescribed in the last section, and of the proofs taken thereupon, may be recorded in the office of the clerk, or of the register, as the case requires, of each county in which the real property is situated, as prescribed by law for re- cording a deed, and, from the time when the exemplifications are so recorded, the decree, or the record thereof, is presumptive evi- dence of the facts so declared to be established thereby. But notwithstanding the decree, it may be opened and modified or vacated. § 2658. Petition to vacate or modify decree. — Any person, other than a party to a special proceeding, instituted as prescribed in this article, or the heir, devisee, or assignee of such a party may, at any time within ten years after a decree establishing the right of inheritance is made therein, present to the court a written peti- tion, duly verified, showing that he has a right, title or interest in the real property, or a part thereof, which is injuriously affected Deckee May be Vacated. 161 by the decree ; stating that the decree is erroneous in some material particular specified therein ; and praying that the decree may be set aside or modified in that particular, and that all the persons whose heirship was established by the decree may be cited to show cause why the prayer of the petition should not be granted. If an heir has since died, or has conveyed the share or interest so established, by a deed duly recorded in the county, the petition must state that fact, and must pray that the persons who have succeeded to his interest may be also cited. Upon the presenta- tion of such a petition, the surrogate must issue a citation accord- ingly- § 2659. Decree, when modified or vacated. — Where a petition is presented as prescribed in the last section, and it appears, upon the hearing, that, if the petitioner, or his ancestor, testator, or grantor, had been a party to the special proceeding, the decree, or a part thereof, could not have been legally made, as prescribed in this article, the surrogate must vacate or modify the decree accord- ingly. An exemplified copy of the decree or order, so vacating or modifying the original decree, may be recorded in the office of any clerk or register, where a copy of the original decree was recorded. CHAPTER X. Administration. Administration is the legal right to settle and control the estate of deceased persons, and also the exercise of that right Letters of administration are the warrant under the seal of the court giving the legal right Letters of administration are of three kinds ; first, upon the goods, chattels and credits of a person who shall have died intes- tate ; that is, without having made his last will and testament ; second, special letters of administration authorizing the adminis- trator to collect and preserve the estate, either of a testator, in certain cases, or of an intestate or an absentee ; and third, letters of administration authorizing the person appointed to execute the powers given by the will of the deceased, called letters of adminis- tration with the will annexed, or cum testamento annexo. Neither the legislature nor the courts have power to confer jurisdiction on surrogates, over the estates of living persona The court only obtains jurisdiction to grant administration in the event 21 , 162 Issue of Lettehs. of the actual death of the person whose estate is to be administered on. {Boderigas v. JEasi River Savings Bank, 48 How, 166.) The rights of the next of kin and the extent of their rights are secured only by statute. At the common law, upon the death of the person dying intestate, the whole of his personal property belonged to the ordinary, or bishop, to be disposed of by him, according to his conscience to pious uses. So neither his wife, children nor any kindred had any claim or right to any part of it. Occasionally they might be among the number who were appointed to receive, but this depended entirely upon the will and pleasure of the ordinary, for he had the right by law to the absolute dispo- sition of it, and he was not even bound to pay the debts of 'the intestate out of his estate, until the statute of "Westminster, 2 13 Edw. I, cap. 19, imposed that obligation upon him so far as he had assets, and gave an action of debt against him if he had dis- posed of the goods, and neglected or refused to pay the debts. Next came the statute of 31 Edw. Ill, cap. 11, by which the ordi- nary was required to depute the next and most loyal friends of the person dying intestate, to administer his goods, and the persons so deputed were thereby authorized to recover by action, debts due to the deceased, in a similar manner as executors, and to ans- wer and account for the same, as also for all other debts of the deceased as executors. To this succeeded the statute of 22 Henry ■ VIII, cap. 5, by which the ordinary was directed, in case of per- sons dying intestate or of the executors refusing to prove the testa- ment, to grant administration to the widow or next of kin, or both, at their discretion, taking surety for their true administration. We here see the beginning of the statutes by which alone the widow and next of kin, as well as creditors of the intestate, are secured in their rights. {Potts v. Smith, 3 Eawle, 361; 24 Am. Dec, 359.) The jurisdiction of the court and the rights of parties inter- ested are controlled by the statute. § 2476. Mcclusive jurisdiction of court — The surrogate's court of each county has jurisdiction, exclusive of every other surro- gate's court, to take the proof of a will, and to grant letters testa- mentary thereupon, or to grant letters of administration, as the case requires, in either of the following cases : 1. Where the decedent was, at the time of his death, a resident of that county, whether his death happened there or elsewhere. 2. Where the decedent, not being a resident of the State, died DoMiciL OF Intestate. 163 ■witliin tliat county, leaving personal property witliin the State, or leaving personal property which has, since his death, come into the State, and remains unadministered. 3. Where the decedent, not being a resident of the State, died without the State, leaving personal property within that county, and no other ; or leaving personal property which has, since his death, come into that county, and no other, and remains unad- ministered. 4. Where the decedent was not, at the time of his death, a resi- dent of the State, and a petition for probate of his will, or for a grant of letters of administration, under subdivision second or third of this section, has not been filed in any surrogate's court ; but real property of the decedent, to which the will relates, or which is subject to disposition under title fifth of this chapter, is situated within that county, and no other. The above fourth subdivision supplies an important omission in the previous law pointed out (Bolton v. Jacks, 6 Bob., 166; and Vreeland v. McClelland, 1 Bradf., 393.) Where Jetters of administration have been granted upon the estate of one dying intestate in the county of the surrogate, the onus is upon one disputing the title and authority of the adminis- trator, to show a want of jurisdiction in the surrogate to grant the letters. {Welch y. K T. C. R R Co., 53 K Y., 610. Under the provisions of this section, the inquiry by the surro- gate as to the death of the person upon whose estate administra- tion is applied for, is judicial in its nature, the surrogate has juris- diction to determine it upon sufficient evidence, and letters issued by him upon due proof, are conclusive evidence of the authority of the administrator to act, until the order granting them is re- versed on appeal, or the letters are revoked or vacated, so far at least, as to protect innocent persons acting upon the faith of them. This was so held, reversing the ruling in the lower courts, where a savings bank had, on presentation of the letters paid the deposit of the sup|)osed deceased to the administrator, or when, m fact, the depositor was not dead, and afterwards suit was brought by his representatives against the bank to recover the money so paid by it. {Rodrigues v. East River Savings Ins., 63 N. Y., 460.) As the domicile of the father is the domicile of minor children, where a father had lived seven months in New York, and his child was injured ' and died at quarantine before landing in this country, it was held that the child was domiciled in New York. {Kennedy v. Ryall, 67 K Y., 379.) 164 To Whom Letters Issue. § 2477. Concurrent jurisdiction of surrogates court. — Where per- sonal property of the decedent is withii), or comes into, two or more counties under the circumstances specified in subdivision third of the last section ; or real property of the decedent is situ- ated in two or more counties, under the circumstances specified in subdivision fourth of the last section ; the surrogate's courts of those counties have concurrent jurisdiction, exclusive of every other surrogate's court, to take the proof of the wills and grant letters testamentary thereupon, or to grant letters of administra- tion, as the case requires. But where a petition for probate of a will or for letters of administration, has been duly filed in either of the courts so possessing concurrent jurisdiction, the jurisdiction of that court excludes that of the other. Under the first provision of this section, which is identical with the former provisions, it was held that a life insurance policy, by which the loss was payable to a third party, constitutes assets of the decedent, and gives jurisdiction to the surrogate of the county in which the policy is to issue letters. {Johnstone v. Smith, 25 Hun, 171.) § 2478. Jurisdiction how conferred. — For the purpose of confer- ring jurisdiction upon a surrogate's court, a debt, owing to a de- cedent by a resident of the State, is regarded as personal property, situated within the county where the debtor, or either of two or more joint debtors, resides ; and a debt owing to him by a domes- tic corporation is regarded as personal property, situated within the county where the principal office of the corporation is situated. But the foregoing provision does not apply to a debt evidenced by a bond, promissory note, or other instrument, for the payment of money only, in terms negotiable, or payable to the bearer or holder. Such a debt, whether the debtor is a resident or a non- resident of the State, or a foreign or a domestic government, State, county, public officer, association or corporation, is for the purpose of so conferring jurisdiction, regarded as personal property, at the place where the bond, note, or other instrument is, either within or without the State. (See Sulivan v. Fosdick, 10 Hun, 173, svp.; Fletcher's AdmWs v. Sanders, 7 Dana, 345 ; 32 Am Dec, 96, and notes.) The former provisions in relation to the jurisdictions to grant and the grant of administration, may be found 2 E. S., 73, et seq. The rights of persons interested in the estate of an intestate, to general administration, are also regulated by the statue as follows : " § 27. Administration, in cases of intestacy, shall be granted to the relatives of the deceased, who would be entitled to succeed "Who Has Priority. 165 in his personal estate, if they or any of them will accept the same, in the following order : First. To the widow ; Second. To the children ; Third. To the father ; Fourth. To the' mother ; Fifth. To the brothers; Sixth. To the sisters ; Seventh. To the grand-children ; Mghth. To any other of the next of kin who would be entitled to share in the distribution of the estate. "If any of the persons so entitled be minors, administration shall be granted to their guardians ; if none of the said relatives or guardians will accept the same, then to the creditors of the deceased, and the creditor first applying, if otherwise competent, will be entitled to a preference; if no creditor apply, then to any other person or persons legally competent. But in the city of New York the public administrator shall have preference, after the next of kin, over creditors and all other persons ; and in the other counties the county treasurer shall have preference next after creditors over all other persons. And in the case of a married woman dying intestate, her husband shall be entitled to administration in preference to all other persons. * * * This section shall not be construed to authorize the granting of letters to any relative not entitled to succeed to the personal estate of the deceased as his next of kin at the time of his decease." (2 E. S., 74, as amended by chap. 782, Lawfe of 1867." "Where an infant would be entitled but for his infancy, the, sur- rogate is required, and he has no discretion, to issue them to his guardian, if not otherwise disqualified. {Blanck v. Morrison, 4 Dem., 297.) In a contest under the statute, between relatives whose priority is not settled by the statute, the surrogate will appoint the one having the greatest interest in the personal estate. {Seewzy V. Willis, 1 Bradf., 495.) It is the policy of the law to grant administration directly to those most interested in the estate ; another appointment of rep- resentatives of persons entitled is purposely preferred to strangers only. {Cottle v. Vanderheyden, 11 Abb. N. S., 17.) Administra- tion may be granted to any one of the next of kin to the exclusion of others in equal degree, and to a woman to the exclusion of a man. {Taylor v. Delancey, 2 Ca. Gas., 143.) Male relatives out of the State, who are under age, are not entitled to administer in preference to adult females of the same degree of kin, and living in this State. {Wickwirey. Chapman, 15 Barb., 802.) 166 When Several Claim. If one possessed of personal property die intestate, without wife or decedents, parent, brother or sister, the nearest of kin, is en- titled to letters. {Oooseberrys Estate, 52 How., 310.) The guar- dian of a minor son of intestate is not entitled to administration in preference to an adult daughter in any case. {Cottle v. Vander- heyden, 11 Abb. K S., 17.) Letters of administration issue upon the estate of an illegitimate in the following order : First, to the widow ; second, to the children or other descendants; third, to the mother; sinA, fourth, to the relatives on the part of the mother, in the order of their nearness of kindred to him through the mother. (S. L. 1845, chap. 236.) "Where the intestate was illegitimate and unmarried, and died domiciled in a country by the laws of which he could have no legal kindred except lineal descendants, a lawful son of the mother of the intestate having no right to a distributive share of the estate of the decedent, is not entitled to letters of administration here. {Pub. AdmW v. Hughes, 1 Bradf., 125.) " § 28. Where there shall be several persons of the same degree of kindred to the intestate, entitled to administration, they shall be preferred in the following order : First, males to females ; second, relatives of the whole blood, to those of the half blood ; third, unmarried women to such as are married {In re Ourser, 89 N. Y., 401) ; and where there are several persons equally entitled to administration, the surrogate may, in his discretion, grant letters to one or more of such persons. (2 R S., 74.) When administration is claimed by son of deceased, and his legitimacy is denied by the public administrator, no kindred inter- vening, proofs must be taken and the question of interest deter- mined. {Farrie v. Puhlic Administrator, 3 Bradf., 151.) '' § 29. A husband, as such, if otherwise competent according to law, shall be solely entitled to administration on the estate of his wife, and shall give bonds as other persons, but shall be liable, as administrator, for the debts of his wife, only to the extent of the assets received by him." * * * (Id., 75.) The husband of a married woman who dies intestate leaving no descendants, is entitled to administration upon her estate, and her assets after the payment of debts belong to him absolutely. {Barnes v. Underwood, 47 N. Y., 351.) For the purpose of establishing a right to administer by a wife, marriage with the deceased may be proved by evidence of cohab- Disqualifications. 167 itation, declarations and repute. {Renholm v. Public AdmW, 2 Eedf. S. Kep., 456.) Although no form, rite or ceremony is essential in this State to the validity of a marriage, it does not follow that any cohabita- tion, with whatever motive begun, may, by false acknowledgment of the marital relation, kept up for a time, grow into a lawful state of matrimony. To raise a presumption of the fact of marriage from that of cohabitation, the latter must be matrimonial, not illicit, in its inception. (Byrnes v. Dibble, 5 Eedf., 383.) A divorced wife, whether the divorce was granted because of the misconduct of herself or her husband, is not entitled, if he die intestate, to administration, or to a distributive share of his personal estate. {In re Ensign, 103 K. Y., 284) The statute secures administration to the persons having the greatest interest in the distribution of the personal property of the intestate in the order of their interest. {Sweezy v. Willis, 1 Bradf., 495.) But this right to administration is a personal right, and one en- titled cannot nominate a third party to take the letters without himself. He can only exclude others by takmg letters himself. {Matter of Boot, 5 N. Y. Leg. Obs., 449; Matter of Ward, 6 id., 111.) '' § 32. No letters of administration shall be granted to any person convicted of an infamous crime, nor to any one incapable by law of making a contract, nor to any person not a citizen of the United States (unless such person resides within this State), nor to any one who is under twenty-one years of age, nor to any per- son who shall be judged incompetent by the surrogate, to execute the duties of such trust by reason of drunkenness, improvidence, or want of understanding * * * . (Jd as amended by chap. 782, S. L., 1867 ; tSutton v. Pyhlio Adm'r, 4 Dem., 33.) Any surrogate may also, in his discretion, refuse the application for administration of any person unable to read and write the English language. (Section 5 S. L., 1867, chap, 782.) The surrogate can only exclude a person entitled to preference for causes specified in the statute. {Goope v Lowerre, 1 Barb, Oh., 45.) No degree of legal or moral guilt or delinquency will exclude a person from administration as next of kin m the cases of preference given by the statute, unless there has been actual conviction of an infamous crime, upon an indictment or other criminal proceeding (McMahon v Harrison, 6 5l. Y., 443 , l68 Letters to Another on Consent. Emerson v. Bowers, 14 id., 449.) Drunkenness will not exclude one entitled to administration, unless of such a character as would warrant adjudging him an habitual drunkard under the statute. (Kkcheles Estate, 1 Tuck., 52.) Indebtedness to the estate does not render a person incompetent to administer nor impair his pri- ority. {Churchill v. Prescott, 2 Bradf., 304.) " § 33. If any person who would otherwise be entitled to letters of administration as next of kin, or to letters of administration with the will annexed, as residuary or specific legatee, shall be a minor, such letters shall be granted to his guardian, being in all respects competent, in preference to creditors or other persons. (2R S.,.75.) " § 34. Administration may be granted to one or more compe- tent persons not entitled to the same, with the consent of the person entitled to be joined with such person ; which consent shall be in wntmg, and be filed in the office of the surrogate." (Id.) This consent, once acted on, and letters issued in accord- ance with it, cannot be revoked. {Estate of Williams, 1 Tuck., 8.) One not entitled to administration cannot be joined with one who is, on the suggestion of the surrogate, and without the con- sent of the person entitled. {Peters v Pvhlic Administrator, 1 Bradf., 200.) § 2660- Who may apply for Inters. — A person entitled, abso- lutely or contingently, to administration upon the estate of an intestate, may present to the surrogate's court having jurisdiction a wntten petition, duly verified, praying for a decree awarding letters of administra.tion either to him or to such other person or persons having a prior right as may be entitled thereto, or m the alternative, as the petitioner elects, and, if necessary, that the persons required to be cited, as prescribed m the next section but one, may be cited to show cause why such a decree should not be made. The petition must set forth the petitioner's title , the facts upon which the jurisdiction of the c6urt to grant letters of administration upon the estate depends , and the names of the husband or wife, if any, and of the next of kin of the decedent, as far as they are known to the petitioner, or can be ascertained by him with due diligence. It was teld not to give jurisdiction to allege the death of the supposed intestate, upon the best of the knowledge, information and belief of the petitioner, when there was no other proof of the facts, This was under the Revised Statutes, requiring proof When Letters Will Issue. 169 to be taken of the death of the intestate, and the applicant to be examined under oath upon the issue of letters, {Hoderigas v. Hast Riv Sav Inst., 76 N. Y., 316.) And letters will not issue in every case where the decedent was, at the time of his death, a resident of the county, where there had a long time elapsed since the death, and it appears that there are no assets, or from the lapse of time it is to be presumed that there are no assets in existence. ( Van Giessen v. Bridff/ord, 83 N. Y., 348.) § 2661. What to he shown upon application. — A citation shall not be issued and a decree shall not be made where a citation is not necessary, until the petitioner presumptively proves, by affi- davit or otherwise, to the satisfaction of the surrogate, the exist- ence of all the jurisdictional facts, and, particularly, that the decedent left no will. For the purpose of the inquiry touching any of these matters, the surrogate may issue a subpoena requir- ing any person to attend and be examined as a witness. There is no provision in the statute as to objections to the issue of letters to any person otherwise entitled, as there is in the case of an executor, and usually, if the applicant for letters is entitled in his own right, letters would immediately issue to him on his filing the proper bond, notwithstanding that he might be incompetent, or might be found incompetent on a hearing before the surrogate. But it is believed that the surrogate would enter- tain objections from any person interested in the estate as one of the next of kin, or as a creditor, and that an affidavit of intention to file objections might be filed with the same' effect, and to be followed by the same proceedings, as in the case of objections to an executor, and reference is made to the consideration of that subject. i^QQ ante.) PETITION FOR ADMINISTRATION. Surrogate's Court — Rensselaer CouNTy. In the Matter of the Estate of ( , Deceased. I To Moses Warren, Esq., Surrogate of the County of Bensselaer: The petition of -^^ — : , of the city of Troy, in said county, respectfully shows, upon information and belief : 22 170 Administration. That , late of said city, died on or about the 15th day of December, 1873, at the city of Troy, aforesaid, with- out leaving any last wiH and testament ; that said deceased, at the time of his death, was possessed of certain personal property within the State of New York, the value whereof does not exceed the sum of dollars, as your petitioner is informed and verily believes : and tha^ your petitioner is a creditor of +he said deceased. Your petitioner further shows, that the said deceased left him surviving his widow (your petitioner), and his childi-en and , of Troy, aforesaid (naming all who are interested in the personal estate as entitled to share therein), his only next of kin, and that he was at, or immediately previous to his death an inhabitant of the county of Eensselaer. Your petitioner prays that administration upon the estate of the said deceased may be granted to your petitioner, jointly with , of the city of Troy. Dated Troy, December 18, 1873. State of New York, Rensselaer County, , being duly sworn, says, that he is the peti- tioner named in the forgoing petition, and that said petition is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be true. Sworn, etc. CONSENT OF PERSON TO BE JOINED TO BE EN- DORSED UPON PETITION. I, ■ , named in the within petition, consent that administration upon the goods, 'etc., of — — ■ , deceased, be granted to me jointly with ■ , as asked for in said petition. Dated September 17, 1873. Where administration is claimed by a party whose right, through relationship is denied, proof must be taken as to the relationship, and interest of the petitioner. (Ferrie v. Pub. Adrn'r, 3 Bradf., 151.) It would seem to be good practice, in such a case, for the par- ties claiming administration, each to file the proper petition, and that the surrogate order that they be heard together. Who to be Cited. 171 § 2562. Citation to persons having prior right. — Every person, being a resident of the State, wlio has a right to administration, prior or equal to that of the petitioner, and who has not renounced must be cited upon a petition for letters of administratioa The surrogate may, in his discretion, issue a citation to non-residents, or those who have renounced, or to any or all other persons inter- ested in the estate, whom he thinks proper to cite. Where it is not necessary to cite any person, a decree, granting to the peti- tioner letters, may be made upon presentation of the petitioa The former practice was to cite only those who had a prior right. An administrator who has been just removed is entitled to cita- tion on an application of one having an inferior right {Barber v. Converse, 1 Eedf., 330.) One entitled to administration in prefer- ence to others, can only deprive them of that right by taking let- ters himself. He cannot nominate a third person. {Matter of Boot, 5 N. Y. Leg. Obs., 11.) A failure to cite the widow is an irregularity for which the letters might be revoked, but does not render them absolutely void. {Kelly V. West, 80 N. Y., 139.) But it seems that the letters would be void if the widow's name was left out of the petition fraudulently. (Id.) Married women are competent to act as executors, administra- tors or guardians, as if unmarried (chap. 782, Laws of 1867, § 2), but that provision does not put them in the same category with women who are unmarried. The latter still have preference. {In re Curser, 89 N. Y., 401.) It was held accordingly that when an unmarried sister applied for letters, her sister who was married need not be cited under the provisions of the section (2662) re- quiring every person having an equal right to be cited. § 2663. When attorney-general to he cited. — Where the surrogate is unable to ascertain, to his satisfaction, whether the decedent left, surviving him, any person entitled to succeed to his estate, a cita- tion must be issued, directed generally to all creditors of, and per- sons interested in, the estate, and also to the attorney-general, and the public administrator of the proper county, requiring them to show cause why administration should not be granted to the peti- tioner. § 2664. Renunciation, how made.' — Any person who has a right to administration, prior or equal to that of the petitioner, may re- nounce his right by a written instrument, acknowledged or proved, and certified, in like manner as a deed to be recorded in the 172 Eenunciation May be Eetracted. county, or otherwise proved to tlie satisfaction of the surrogate ; which must be filed in the surrogate's office. The renunciation may be retracted at any time before the actual issue of letters, as in the case of executors. {Casey v. Gardiner, 4 Bradf., 13 ; see § 2639, ante.) EENUNCIATION. Surrogate's Court — Ebnsselaer County. In the Matter of the Goods, etc., ( OF James Murphy, Deceased. f I, , of the city of Troy, in the county of Eensselaer, widow (or, one of the next of kin) of James Murphy, late of said city, deceased, intestate, do hereby renounce my right to administration of the goods, chattels and credits of said in- testate. Dated Troy, December 18, 1873. Signed in presence ot Wm. Lord. Eensselaer County, ss. : On this day of , 1880, before me personally came , to me known to be the same person described in and who executed the foregoing renunciation, and acknowledged that he executed the same. Wm. Lord, Notary Puhlic, JRensselaer County. But if a citation is necessary it is issued npon the order of the surrogate. OEDEE FOE CITATION. At a surrogate's court, held in and for the county of at the surrogate's office in the city of , on the day of , 1873. Present — Hon. , Surrogate. In the Matter of the Estate of / , Deceased. j On reading and filing the petition of , a creditor of the above named deceased, for administration upon the estate of said deceased, and it appearing that said deceased Parties May Intervene. 173 left Mm surviving , his widow, and , and , his next of kin . Ordered^ that a citation issue to said widow and next of kin of said deceased, requiring them personally to appea^ in this court on the day of next, at ten o'clock in the fore- noon, to show cause why administration of all and singular the goods, chattels and credits of the said deceased should not be granted to the said petitioner , Surrogate. CITATION The People oj the State of New York to , widow, and , and , [l. S.J next of Jan of , late of the city of Troy, deceased, intestate, greetings You and each of you are hereby cited personally to be and appear before our surrogate of the county of Eensselaer, at his office in the city of Troy, on the day of next, at ten o clock in the forenoon of that day, to show cause why ad- ministration of the goods, chattels and credits of the said intestate should not be granted to , a creditor of said intestate. "Witness, Moses Warren, surrogate, and the seal of said court, this day of , 1-873. MOSES WAREEN, Surrogate. The time for the return of the citation is necessanly governed by the time to be taken for the service, as to which and the manner of service which is applicable to all citations. (See ante, p. , — . etc.) § 2665 Persons not cited may appear. — ^Where a citation is issued any creditor of the decedent, or any person interested in the per- sonal estate, although not cited, may appear and make himself a party to the special proceeding, in like manner and with like effect as a devisee or legatee who is not cited upon an application for probate yhe parties cited may come into court and intervene, even before the return day of the citation, and petition for the issue of letters to themselves, and if the petitioners have the pnor right, or produce the renunciation of those entitled to letters in prefer- ence to them, letters will undoubtedly issue forthwith upon the filing of the proper bond and oath of office 174 "When- Persons Equally Entitled. §2666. Hearing, decree. — Upon the return of a citation, issued as prescribed m this article, the surrogate must make such a decree in the premises as justice requires. The decree may award ad- ministration to any party to the special proceeding who appears to be entitled thereto The surrogate may, in his discretion, award administration without a personal examination of the person to whom it IS awarded. But, upon the return day of the citation, if there shall be no legal objections made to the person applying for letters, and no one having a pnor nght shall apply, the surrogate will order the issue of letters to the applicant And notwithstanding parties entitled may have renounced, they may retract such renunciation .at any time before letters shaU actu- ally be issued to another. ( Casey v Qardmer^ 4 Bradf , 13 ) There may be a case in which several parties equally entitled shall apply for letters, and there is no provision in the statute as to which shall be preferred, except males to females, relatives of the whole blood to those of the half blood, etc. If, therefore, several sons of the intestate should apply, it would seem that the surrogate may exercise his discretion as to whom he will issue the letters (Taylor v Delancey, 2 Gaines' Cases, 143), and he would undoubtedly be governed in the exercise of his discretion by the wishes of the parties interested m the distribution as next of km, who, for the purpose of expressing their preference, might ei:>her unite m the petition of one, or petition independently for the ap- pointment of any one It is error to grant letters unless all the persons having nght to them in preference to the applicant shall, have renounced, or shall have been deemed to have renounced after citation Thus it was held, that where one died intestate, leaving a father and brothers, it was error to grant letters to a creditor, upon the renunciation of the father only {Lathrop v Smith, 35 Barb , 64, and 24 N Y., 417.) If several claim letters, and their petitions set forth that the de- ceased died intestate, leaving personal estate m this State, oral proof of these facts is not essential. {Gooseberry s Estate, 52 How , 310 ) If it be alleged there is a will, the proceedings may be stayed to afford opportunity to prove the will. {Isham v- Gibbons, 1 Bradf., 69) After an instrument has been propounded for proof as a will, and rejected as null and void, an appeal is taken, it is Letters May be Limited. 175 erroneous to grant administration before decision on tlie appeal, as all proceedings are stayed. {Hicks v. Hicks, 12 Barb., 322.) The question as to priority having been disposed of, the surro- gate enters a decree for the issue of the letters. DECREE FOR LETTERS. At a surrogate's court, held in and for the county of , at the surogate's office in the of ^ — , on the day of , 1880. Present — Hon. , Surrogate. In the Matter of the Estate of I ■, Deceased. f On reading and filing proof of the due service of the citation in this matter on and , and on motion of , who has petitioned for the issue of letters of administration of the goods, chattels and credits of the above named deceased intestate, no one opposing : It is adjudged that letters of administration of the goods, chat- tels and credits of the said deceased, issue to the said -, upon his filing the oath of ofiice as such administrator, and a bond as required by law in the penalty of (ten thousand) dollars, with two or more sureties approved by the surrogate. Witness, ■ , surrogate, and the seal of [l. S.] this court the day and year first above written. , Surrogate. A surrogate has authority, and it is within his discretion, to limit the powers conferred upon an administrator. His conduct was approved in a case where he inserted, " these letters are issued with limited authority to prosecute only, andj not with power to collect or compromise." {Martin v. The D. D. E. B. andB. R. R. Co., 92 K y., 70.) The jurisdiction of the surrogate to grant letters of administra- tion, depends upon the surrogate's judicial determination, made in a judicial inquiry before him, that death has occurred. (Rodrig- ner v. East R. Savings Inst, 43 N. Y., Supr. C. Rep., 217.) But a petition in which is alleged the death of the intestate upon the best of the knowledge, information and belief of the petitioner, there being no other proof of death, is not due proof of the death so as to give the surrogate jurisdiction. (Id., 76 IST. Y., 316.) The oath of administrator may be taken before any officer authorized to administer oaths. 176 Bond of Administeatok. OATH OV ADMINISTEATOE. State of New Yoke, County, ss. : ], , do solemnly swear that I ■will honestly and faithfully discharge the duties of administrator of the goods, chattels and credits of , deceased, according to law. Sworn before me, this 24th day ] of December, 1880. ) , Justice of (he Peace. § 2667. Administrator's bond, how reduced. — A person appointed an administrator must, before letters are issued to him, besides filing his official oath, execute to the people of the State, and file with the surrogate, the joint and several bond of himself, and two or more sureties, in a penalty, fixed by the surrogate, not less than twice the value of the personal property of which the decedent died possessed, and of the probable amount to be recovered by reason of any right of action, granted to an executor or adminis- trator, by special provision of law. The sum, to be fixed as the amount of the penalty, must be ascertained by the surrogate, by the examination, upon oath, of the applicant or any other person, or otherwise, as the -surrogate ■thinks proper. The bond must be conditioned, that the administrator will faithfully discharge the trust reposed in him as such, and obey all lawful decrees and orders of the surrogate's court, touchmg the administration of the estate committed to him. But where a right of action is granted to an executor or administrator by special provision of law, if it appears to be impracticable to give a bond sufficient to cover the probable amount to be recovered, the surrogate may, in his discre- tion, iiccept modified security and issue letters limited to the prose- cution of such action, restraining the executor or administrator from a compromise of the action, and the enforcing of any judg- ment recovered therein, until the further order of the surrogate, or additional further satisfactory security. In cases where all the next of kin to the intest'ate consent thereto, the penalty of the bond required to be given shall not exceed twice the amount of the claims of creditors against the estate presented to the surro- gate, pursuant to a notice to be published twice a week for four weeks in the State paper, and in two newspapers published in tha city of New York, and once a week for four weeks in two news- papers published in the county where the intestate usually re- sided, and in the county where he died, reciting an intention to apply for letters under this provision, and notifying creditors to present their claims to the surrogate on or before a day to be fixed in such notice, which shall be at least thirty days after the first publication thereof ; but no bonds so given shall be for a less sum than five thousand dollars ; and such bond may be increased by Amount of Bond, How Eeduced. 177 order of tlie surrogate, for cause stown. Pending sucK applica- tion no temporary administrator shall be appointed, except on petition of such next of kin. The section does not authorize the surrogate to accept less security than double the value of the personal property of the deceased. Nor does it authorize the surrogate to issue letters limited in any way as to the authority of the administrator over any of said property, except as limited by the statute. {Estate of Molhy, 1 Dem., 421.) The provisions of section 812 of the Code, apply to all bonds executed under the Code. It provides that the sureties, if only two in number, shall justify each in the penalty of the bond- Where the penalty of the bond is twenty thousand dollars or up- wards, more than two sureties may make up the amount required,, but no surety in such a case shall justify in a less sum than ten thousand dollars. (See, also, Estate of Burdetie, 5 Law Bui , 32.) But this is modified by another general provision in relation to bonds, providing for a deposit of securities and a proportional re- duction of the amount of the bond. § 2595. Deposit of securities to reduce bond. — In a case where a bond, or new sureties to a bond, may be required by a surrogate from an executor, administrator, guardian, or other trustee, if the value of the estate or fund is so great, that the surrogate deems it inexpedient to require security in the full amount prescribed by law, he may direc^ that any securities for the payment of money, belonging to the estate or fund, be deposited with him to be de- livered to the county treasurer, or be deposited, subject to the order of the trustee, countersigned by the surrogate, with a trust company duly authorized by law to receive the same. After such a deposi'j has been made, the surrogate may fix the amount of the bond, with respect to the value of the remainder only of the estate or fund. A security thus deposited shall not be withdrawn from the custody of the county treasurer or trust company, and no per- son other than the county treasurer or the proper officer of the trust company, shall receive or collect any of the principal or in- terest secured thereby, without the special order of the surrogate, entered in the appropriate book. Such an order can be made in favor of the trustee appointed, only where an additional bond has been given by him, or ujDon proof that the estate or fund has been so reduced, by payments or otherwise, that the penalty of the bond originally given, will be sufficient in amount, to satisfy the pro- visions of law relating to the penalty thereof, if the security so withdrawn is also reckoned in the estate or fund. 23 178 Agreement as to Bond, Void. Where it appeared that the sureties for an administratrix were obtained by her agreement that the moneys of the estate should be passed into their possession, it was held, that the agreement was void and inoperative, being against the policy of the law requiring the admistratrix to keep the property and funds of the estate under her control. {DeohoU v. Opperman, 42 Hun, 659; 4 N, Y. St Eep., 514.) When there are several administrators, the statute requiring the surrogate to take from every abmiaistrator a bond with sureties, as above provided, is complied with by taking one joint and sev- eral bond from all the administrators, with competent approved sureties. {Kirby v. Turner, Hopk., 309.) Per contra, it would be proper to take from each of several administrators, a separate bond with sureties. BOND OF ADMINISTRATOR Know all men by these presents, that we, John Doe, Richard Roe and Thomas Nokes, of the city of Troy, are held and firmly bound unto the people of the State of New York, in the sum of two thousand dollars, lawful money of the United States, to be paid to the said people, to which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly by the presents. Sealed with our seals, and dated this 22d day of February, 1862. The condition of this obligation is such, that if the abeve boun- den John Doe, administrator of all and singular the goods, chattels and credits of Richard Roe, late of the city of Troy, deceased, shall faithfully discharge the trust imposed in him as such, and obey all lawful decrees and orders of the surrngate's court of the county of Rensselaer, touching the administration of the estate committed to him, then this obhgation to be void, otherwise to re- main in full forca (Signed), JOHN DOE, [l. s.] RICHARD ROE, [l. &] THOMAS NOKES. [l. a] Sealed and delivered in ] the presence of | Moses Waeeen. State of New Yoek, ) Rensselaer County, j ' " On this 22d day of February, 1880, before me personally ap- peared John Doe, Richard Roe and Thomas Nokes, to me known Liability of Sureties. 179 to be the same persons descnbed in and who executed the fore- going bond, and severally acknowledged that they executed the same for the uses and purposes therem mentioned. GEORGE SCOTT, Commissioner of Deeds, Troy, N. Y. Eensselaer County, ss. : Richard Roe and Thomas Nokes, of the city of Troy, in said county, being each duly sworn, do depose and say, and each for himself says, that he is a resident and freeholder (or householder) within this State, and is worth the sum of two thousand dollars over and above all debts and liabilities which he owes or has in- curred, and exclusive of property exempt by law, from levy and sale under an execution. RICHARD ROE. THOMAS NOKES. Sworn before me, this 22d day ) of February, 1880. j Geo. Scott, ComW of Deeds, Troy, N. Y. The justification of the sureties is necessary, under section 812 of the Code, and should be exacted by the surrogate as a condi- tion of his approval of them. His approval may either be endor- sed at the time of filing, or it would seem that when the surrogate himself files the bond his approval would be presumed. li a question should be raised, the surrogate might at any time endorse his approval, nunc pro tunc. The error of the surrogate in taking on administrator's bond with only one surety, does not affect his jurisdiction or avoid the letters. {Bloom v. Burdick, 1 Hill, 130.) Inasmuch as the letters relate back to the decease of the intes- tate, the sureties are liable for moneys received by the adminis- trator before his appointment ( Gotlsberger v. Taylor, 19 N. Y.,. 150; Scojield y. Churchill, 72 id., 565.) § 2596. Sureties how liable. — A person to whom letters are issued is liable for money or other personal property of the estate which was in his hands, or under his control when his letters were issued ; in whatever capacity it was received by him or came under his control. Where it was received by him or came under his control by virtue of letters previously issued to him in the same or another capacity- an action to recover the money, or damages for failure to deliver the property, may be maintained upon both ofiicial bonds ; but, as between the sureties upon the official bond given upon the prior letters, and those upon the official bond given upon the subsequent letters, the latter are liable over to the former. 180 Liability on Bond In a special case, where the bond given on the appointment of an administratrix and administrator seemed to run against the de- fault of the administratrix only, it was held that the sureties were, notwithstanding, liable for a devastavit of the administrator as well {Brewster v. Balch, 9 J. & Spencer, 63.) A refusal to obey a certain order to make a certain payment is a breach of the bond, though there has been no accounting by a co-administrator. Suit may be brought at once. (Id.) After the breach of the bond, and upon suit against the prin- cipal and sureties, none of them can show that the surrogate did not have jurisdiction to grant administration, or to take the bond. {Field V. Van Cott, 5 Daly, 308; Johnston v. Smith, 25 Hun, 171.) Neither the validity of the vrill on which letters cum test an. were issued, nor the authority of the surrogate, can be attacked by one against whom an action is brought to recover a debt due the deceased. {Sullivan v. Fosdick, 10 Hun, 173.) The liability ot sureties on a bond is not limited to deficiencies or defaults of the executor or administrator, occurring after the making of the bond. The liability exteiids to moneys lost or dis- posed of before the bond was executed. {Scojield v. Churchill, 72 N. Y , 565.) And in the absence of collusion, the decree of the surrogate as to deficiencies is conclusive. (Id. ; see, also, Oerould v. Wilson, 16 Hun, 580.) A misnomer of the county of the surrogate in the bond, when the surety knew in what county it was intended to be used, was held to be immaterial {OerouM v. Wilson, sup.{ A surety may buy claims against the estate at a discount. {Halstead v. Hyman, 3 Bradf., 426.) Executors or administrators joining with their sureties in the same bond, are sureties for each other. Should they wish to avoid this responsibility, they may execute several bonda {Clarice v. State, 26 Am. Dec, 576; 6 Gill & Johns., 228.) The letters of administration issued under the seal of the sur- rogate's court WQ prima facie evidence of the appointment {Bel- den V. Meeker, 47 N. Y., 307 ; Parham v. Moran, 4 Hun, 717.) And such letters cannot be attacked collaterally, nor in any pro- ceeding except one specially instituted to revoke them. {Flinn V. Chase, 4 Den., 85 ; Kelly v. West, 80 K Y, 139.) But tlfe letters must issue upon the judicial determination of Letters Eelate Back. 181 the surrogate himself, and he caanot delegate the power: Thus, wheie a surrogate signed letters in blank, and the same were issued by a clerk, upon proper petition, but which was not pre- sented to the surrogate for his judicial determination, the letters so issued are void, and a payment made by a creditor on the faith of such letters is.not good, and they will not protect the party so paying against an action brought by the alleged deceased, he being in fact alive. {Rodrignez v. K R. Sav. Inst, 43 Sup. 0. Rep., 217 ; affirmed 76 N. Y., 316.) The persons named in such letters cannot be regarded as de facto administrators, and executors and administrators are not public officers so as to protect those dealing with them. (76 K Y., 316.) In a proceeding in which the letters are drawn in question col- laterally, the presumption is that the statutory directions were complied with. {Farley v. McGonnell, 52 KY., 630 ; 7 Lans., 428.) Where administration has been granted upon the estate of one dying in the county of the surrogate, the onus is upon one dis- puting the title and authority of the administrator, to show a want of jurisdiction in the surrogate to grant the letters. ( Welch Y. K T. a R R. Co., 53 T^. Y., 610.) The seal may be attached at any time. It is sufficient if it ap- pear affixed when offered in evidence. {Maloney v. Wbodin, 11 Hun, 202.) The authority of an administrator appointed in this State, upon the goods of a deceased non-resident, to receive and satisfy the debts due here, is exclusive of that of any foreign executor or ad- ministrator. Therefore it was held, that a satisfaction of a mort- gage by an administrator in New Hampshire was no defense to an action by a resident administrator to foreclose. {Stone v. /Scrip- ture, 4 Lans., 186.) The letters relate back to the time of the decease of the intes- tate. ( Vroom V. Van Home, 10 Paige, 549.) It was accordingly held, that an agreement made by a person afterwards appointed administrator in regard to the collection of certain notes, assets of the deceased, was binding. {Allen v. Eighme, 9 Hun, 201.) The letters, when issued, make valid a satisfaction of a mort- gage executed by one who long afterwards was appointed admin- istrator. {Smith V. Robinson, 30 Hun, 269.) § 2596. Requisites of Utters. — Letters testamentary, letters of ad- ministration, and letters of guardianship must be in the name of the people of the State. "Where they are granted by a surrogate. 182 Letters Must be Signed. or by aa- officer or person appointed by the board of supervisors, temporarily acting as surrogate, they must be tested in the name of the officer granting them, signed by him, or by the clerk of the surrogate's court, and sealed with the seal of the surrogate's court. Where they are issued out of another court, they must be tested in the name of the judge holding the court, signed by the clerk thereof, and sealed with its seal. The letters must be signed by the officer issuing them, and are void if issued on a blank signed by him. (76 N. Y., 316.) The seal may be added on a trial in which they are put in evi- evidence. (11 Hun, 202.) § 2591. Effect of letters. — Subject to the provisions of the next section, regulating the priority among difierent letters, letters testa- mentary, letters of administration, and letters of guardianship, granted by a court or officer having jurisdiction to grant them, as prescribed in this chapter, are conclusive evidence of the authority of the persons to whom they are granted, until the decree grant- ing them is reversed upon appeal, or the letters are revoked, as prescribed in this chapter. Where letters are put in evidence, only the jurisdiction of the surrogate to issue them can be, attacked collaterally. {Crosier v. Steamboat Co., 27 Hun, 215.) And where letters of administration show on their face that the intestate died leaving assets in the county of their issue, jurisdiction must be presumed. § 2592. Priority among different letters. — The person or persons to whom letters testamentary, or letters of administration are first issued, from a surrogate's court having jurisdiction to issue them, as prescribed in article first of title first of this chapter, have sole and exclusive authority as executors or administrators, pursuant to the letters, until the letters are revoked, as prescribed by law ; and they are entitled to demand and recover from any person to whom letters upon the same estate are afterwards issued, by any other surrogate's court, the decedent's property in his hands. But the acts of a person to whom letters were afterwards issued, done in good faith, before notice of the letters first issued, are valid ; and an action or special proceeding, commenced by him, may be continued by and in the name of the person or persons to whom the letters were first issued. The distinction formerly kept up between letters issued in the first instance, and those issued upon the decease of a former ad- ministrator, or the revocation of letters, while some part of the estate remains unadministered, is not recognized in the statutes Administration De Bonis Non. 183 HOW in force, but tbe distinction is a convenient one notwith- standing. These subsequent letters were called letters de bonis non administratis, or de bonis non , cum testamento annexo. For, upon the death of an administrator, the goods of the in- testate do not pass to the executor of the administrator,, but to the personal representatives of the intestate, who shall be appointed. And the rule is the same on the decease of an executor ; the goods of the testator do not pass to the personal representatives of the executor, but to them who shall be appointed, with the wUl annexed. (See reporter's note, 24 Am. Dec, 379.) Administration of the goods, chattels and credits of an intestate, not administered upon by a former administrator, issue, of course, when the ofiSce of such former administrator becomes vacant, by death, or revocation of his letters, for any cause specified in the statute. The rules as to priority are the same a,s in the^st issue, and the same proceedings would be taken in regard to citation of all persons having such prior right to letters. The petition for such letters should, however, state the fact of the issue of such former letters, and the death of the former ad- ministrator, or revocation of the former letters, and that such former administrator "left unadministered, certain assets and per- sonal property of the intestate, of the value of about $ , as the petitioner is informed and verily believes." For if the estate has been fully administered, no new administrator should be ap- pointed. {Fowler v. Walter, 1 Dem., 240.) In such a case also the petitioner could have any proper person loined with him in the administration, as in the case of the first issue. The bond would be the same, and the administrator should, m all respects, pursue the same course as if appointed in the first instance. PETITION FOE ADMINISTRATION, DB BONIS NON Surrogate's Court — Eensselaer County. In the Matter of the Estate of/ William Smith, Deceased. T To Hon. Moses "Warren, /Surrogate of the County of Rensselaer: The petition of John Smith, of the city of Troy in said county, respectfully shows upon information and belief as follows : 184 Administration With Will Annexed. William Smith, late of said city, died on or about the 15th day of December, 1878, at the city of Troy aforesaid, without leaving any last will or testament, and thereupon Mary Smith, widow of the said deceased, was appointed by this court administratrix of the goods, chattels and credits of the said deceased, and duly qualified as such administratrix. But said Mary Smith has, since the said appointment, died, and has left unadministered certain assets and personal property of the intestate, of the value of about two thousand dollars, as your petitioner is informed and verily believes, and your petitioner is a creditor of the said deceased. Your petitioner further shows that the said deceased, William Smith, left him surviving his widow, Mary Smith, as aforesaid,, and his children James Smith and Sarah Jones, of Troy aforesaid, his only next of kin, and that he was at the time, or immediately previous to his death, a resident of the said county of Eensselaer. Your petitioner prays that the administration upon the goods, chattels and the credits of the deceased may be granted to your petitioner jointly with James W. Smith, of Troy. Dated Tboy, June 3, 1881. Rensselaer County, ss. : William Smith, being duly sworn, says that he is the petitioner named in the foregoing petition, and knows the contents thereof, and that the same ia true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be true. Sworn before me, etc.. ADMINISTRATION WITH THE WILL ANNEXED. The provisions in force in relation to administration with the will annexed before the late amendments may be found in 2 R. S., 71, et seq. The provisions now in force are as follows . § 2643. When and to whom isszied. — If no person is named as executor in the will, or selected by -vnrtue of a power contained therein ; or if, at any time, by reason of death, incompetency ad- judged by the surrogate, renunciation in either of the methods prescribed in sections 2639 and 2642 of this act, or revocation of letters, there is no executor or administrator with the will annexed, qualified to act ; the surrogate must, upon the application of a creditor of the decedent, or a person interested in the estate, and upon such notice to the other creditors and persons interested in the estate, as the surrogate deems proper, issue letters of adminis- tration with the will annexed, as follows : There Must be Assets. 185 1. To one or more of the residuary legatees who are qualified to act as administrators. {Bradley v. Bradley, 3 Eedf., 512 ; Matter of Place, 42 Hun, 658.) 2. If there is no such residuary legatee, or none who will ac- cept, then to one or more of the principal or specific legatees, so qualified. 3. If there is no such legatee, or none who will accept, then to the husband or wife, or to one or more of the next of kin, or to one or more of the heirs or devisees, so qualified. {Kirsheise v. Scheig, 3 Eedl, 277.) 4. If there is no qualified person entitled under the foregoing subdivisions, who will accept, then to one or more of the creditors who are so qualified, except that in the counties of New York and Kings the public administrator shall have preference, after the next of kin, over creditors and all other persons. 5. If there is no qualified creditor who will acept then to any proper person designated by. the surrogate. But where upon the application for letters of administration with the will annexed, it appears that there are no assets, or the presump- tion arises, from lapse of time, that there are no assets of the tes- tator in existence which can be identified or reached by the ad- ministrator, if appointed, and there is no claim in respect to them which can be enforced, and no other reason appears, the granting of letters cannot be claimed as a matter of right, and the application may be properly refused. ( Van Giessen v. Bridgford, 83 IST.Y., 348.) The provision of the Revised Statutes that a competent person, although not entitled to letters, may be joined with the person so entitled, upon the latter's consent, applies to administration with the will annexed. {Quintard v. Morgan, 4 Dem., 168.) But a guardian of an infant, who is not a residuary or specific legatee, is not entitled to letters with the will annexed, in prefer- ence to the widow of the testator. ( Clueit v. Matties, 43 Barb., 417.) The word "principal," in subdivision 2 of the above section, has the force and effect of the word "general," and is meant to be descriptive of all legatees who are neither specific or residuary. {Quintard v. Morgan, 4 Dem. 168.) "Where a number of persons are applicants for such letters, all other things being equal, the one having the largest interest will be appointed (Id.) Where, upbn the death of a sole or surviving executor, applica- tion is made for letters of administration with the will annexed, of the assets unadministered, prima facie evidence that there are such assets is sufficient {Pumpelly v. Tinkham, 23 Barb., 321.) 24 186 Administration. PETITION" FOE ADMHSTISTEATIOISI WITH WILL ANNEXED. Sukeogate's Court — ^Eensselaee Oounty. In the Matter of the Will of ( . ^ Deceased. [ To the Son. Moses Warren, /Surrogate of the County of Retis^laer : The petition of — , of the citj of Troy, and said county, respectfully shows, as follows • , of the city of Troy, in said county, died on or about the day of , 1880, and his last will and testament, dated on the ■ ■ day of , 1878, was duly proved in this court, and thereupon letters testamentary on said will were duly granted and issued on the ■ day of , 1880, to , the executor named in said will, who duly qualified, and took upon himself the execu- tion of the trust thereby created. And your petitioner further shows, that on or about the day of , 1880, the said . executor as aforesaid, died, leaving unadministered certain assets and property of the testator, the value of which, at the date hereof, will not exceed the sum of dollars, as your petitioner is informed and verily believes. That your petitioner is one of the creditors of the said de- ceased. That the residuary legatees, named in said will, are ^ , of the city of Troy, and — • , of the city of Albany, and the specific legatees are as follows, to wit : That the deceased left him surviving his widow. -, of the city of Troy, and , as only next of kin and heir at law, who is also devisee of the real estate devised in said will, and who resides in the city of Troy. That the said • ■ ■ , executor as aforesaid, was the sole executor named in the said wiU. Wherefore your petitioner asks that administration of the goods, chattels and credits of the deceased unadministered, with the will annexed of the said deceased, be issued and granted to your peti- tioner. And to that end, that a citation issue in due form, return- able upon such a day as the surrogate shall designate, to the per- sons having the prior right to such administration as aforesaid. And your petitioner will ever pray, etc. Dated Troy, June 3, 1881. STATE OF NEW YOEK, Eenssblaer County. > ss. : being duly sworn, says, that he is the peti- What Petition Should Show. 187 tioner in the foregoing petition named, and that said petition is trae of his own Jinowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be true. Sworn before me this day of June 1884. § 20. Such letters of administration, or letters testamentary, shall supersede all former letters, and shall deprive the former executor or administrator of all power, authority and control over the personal estate of the deceased, and shall entitle the person appointed, by such letters, to take, demand, and receive the goods, chattels and effects of the deceased wherever the same may be found. (2 E. S., 85.) The authority of an administrator, with the will annexed, is not confined to the property disposed of by the will, but it is his duty to collect and administer the entire personal property within his jurisdiction. {Sullivan v. Fosdick, 10 Hun, 173.) The petition for administration with the will annexed, should show the death of the testator ; the proof of his will ; the issue of the former letters ; the death, removal or other disability of the person to whom letters testamentary were formerly granted, if such be the fact, and the amount and value of the personal estate of the testator, and the relation of the petitioner to the estate. If the petitioner be a residuary legatee, then he has prior right to administration, and it will not be necessary to state the relation of other parties, unless they are also residuary legatees, and letters will issue to the petitioner on giving same bond {Ux parte Brown, 2 Bradf., 22), as an administrator, and taking the same oath of office. A claim regarding which an action is pending in the name of a removed executor, is an unadministered asset, which will give the surrogate jurisdiction to appoint an administrator with the wUl annexed. {Hay ward v. Place, 4 Dem., 487.) The fact that the husband of the applicant for letters is the defendant in the pend- ing action which claim is the only asset, will not defeat her right to letters. (Id.) The bond may be given in the ordinary form required of gene- ral administrators and it wUl be valid and proper. And the ignorance of the sureties on such a bond as to the real nature of the administration, is no defense in an action on the bond, nor is 188 POWEB OF AilMINISTBATOK. it a defense that they were deceived by their principala {Casoni V. Jerome, 58 N. Y., 315.) § 2644. Persons to he cited or to renounce. — But where a person applies for letters of administration with the will annexed, as pre- scribed in the last section, and another person has the right to the administration, prior to that of the petitioner, the application must be made by petition, unless a written renunciation of every person having such a prior right is filed with the surrogate, and the exe- cution thereof is proved to his satisfaction. The petition must pray that aU the persons having a prior right, who have not re- nounced, be cited to show cause why administration should not be granted to the petitioner. The proceedings thereupon are the same as upon an application for administration upon the estate of an intestate. § 22. In all cases where letters of administration with the will annexed shall be granted, the will of the deceased shall be ob- served and performed ; and the administrators with such wills shall have the rights and powers and be subject to the same duties, as if they had been named executors in such will." (2 E. S., 72.) But they cannot sell and dispose of the real estate for the pur- pose of division among legatees, or do any other act about the real estate, without further authority from the supreme court. {Conk- lin V. Egerton, 21 "Wend., 430 and 25 id., 224 ; DominickY. Michael 4 Sand. Sup. Ci R, 374; Eoome v. Phillips 27 N. Y., 357 ; Cooke V. Piatt, 9^ K Y, 35.) An administrator with the will annexed takes in all respects the powers of a remaining or deceased executor, unless a personal confidence in the discretion of the person named as executor in the wUl is plainly expressed or to be implied, in which case the powers do not pass. {Bain v. Mastfeson, 54 N. Y., 663.) But where the power of sale is given for the purpose of paying debts and legacies, and especially where there is an equitable con- version of land into money for the purpose of such payment, and for distribution, and the power is imperative and does not grow out of a personal discretion confided to the individual, such power belongs to the office and may be exercised by the administrator with the will annexed. {Moit v. Ackerman, 92 N. Y., 539 ; Gooke V. Piatt, 98 N. Y, 35.) But where the will expressly gives to administrators such power, if they shall be appointed, they may exercise it {Fish v. Coster, 28 Hun, 64 ; Matter of Baker, 26 id., 626.) The tendency of the courts seems to be towards a more liberal and more correct interpretation as to the power of the administra- When Cannot Sell Eeal Estate. 189 tor with the will annexed. It was held in a case where the will gave power to the executor named to sell, and the power was essential to the discharge, and not discretionary but imperative, that the same power vested in the administrator with the will annexed. {Bingham v. Jones, 25 Hun, 6.) But if the adminis- trator with the will annexed, assumes to act as trustee as to real estate, in place of an executor appointed, who declined to act, those interested might consider him as trustee instead of a wrong doer and have him removed for neglect of the duties proper to the trustee. The surrogate has no jurisdiction to compel an administrator, with the wUl annexed, to pay over to the devisee rents from real estate devised to the latter for life, or to restrain the further collec- tion of such rents by the administrator The power of the surro- gate to control the conduct of executors and administrators (2 R. S., 220) does not extend to property which, as executors or ad- ministrators, they had no right to take possession of. {Calyer v. Calyer, 4 Redf., 305.) Where a will contained a devise to an executor, in trust, the trust duty is not annexed to the office of executor, but to the person, and an administrator with the will annexed, does not succeed to any rights concerning the trust estate, unless it is ordered sold, for the payment of the testator's debts. {Dunning V. Ocean Nat. Bank, 61 N. Y., 497 ) In Gilchrist v. Hae (9 Paige, 66), the court held that it being doubtful whether the administrator with the will annexed wag authorized to execute a trust power given to the executor named, and who declined to act, the administrator would be appointed trustee, and directed him to execute the conveyance of the real estate, both as administrator and trustee. {Bunn v. Yaughan, 1 Abb. Ct of App. Dec. 253.) But now, it is presumed, the court of appeals having defini- tively decided in Boome v. Phillips {supra), that the administrator with the wiU annexed has no power over the real estate, that the proper course would be to petition the supreme court for an ap- pointment as trustee to execute a power of sale, and that when appomted, he would execute the power solely as trustee. The administrator with the will annexed, may enforce a decree made on an accounting against the executor in whose place he was appointed. {Clapp v. Meserole, 1 Abb. Ct of App. Dea, 362.) 190 Temporary Administration. So, also, the surrogate may enforce against Mni a decree against the executor removed, directing him to pay a legacy. {Bower v. Mnerson, 14 Barb., 652.) But such a decree would not be en- forced until after an accounting, which would show that the ad- ministrator had funds belonging to the estate with which to pay the legacy. Temporary administration. Letters of administration were formerly issued in the discretion of the surrogate, pending some other proceeding or a delay in proving a will, and were called letters of collection. The same are now termed letters of temporary administration. The former law may be found in section 88, et seq., of chapter 460, of Laws of 1837. The law as now in force embodies the extensive amendments made by chapter 71 of Laws of 1874. § 2668. Temporary administration, when allowed. — Upon the application of a creditor, or a person interested in the estate, the surrogate may, in his discretion, issue to one or more persons, competent and qualified to serve as executor, letters of temporary adininistration, in either of the following cases : 1. Where delay necessarily occurs in the granting of letters testamentary or letters of administration, in consequence of a con- test arising upon an application therefor, or for probate of a will ; or in consequence of the absence from the State of an executor named in the will, or for any other cause. 2. Where a person, of whose estate the surrogate would have jurisdiction, if he was shown to be dead, disappears or is missing, so that after diligent search his abode cannot be ascertained, and under circumstances which afford reasonable ground to believe either that he is dead, or that he has become a lunatic, or that he has been secreted, confined, or otherwise unlawfully made away with, and the appointment of a temporary administrator is neces- sary for the protection of his property, and the rights of creditors, or of those who will be interested in the estate, if it is found that he is dead. § 2669. How made. — An appointment of a temporary adminis- trator in a case specified in subdivision first of the last section, must be made by an order. At least ten days' notice of the appli- cation for such an order must be given to each party to the special proceeding who has appeared, unless the surrogate is satisfied by proof that the safety of the estate requires the notice to be shortened, in which case he may shorten the time of service to not less than two days. Who Appohstted Collector 191 The appointment is usually made whenever there is a proba- bility of a long delay in the granting of administration in chief, whether resulting from an appeal or otherwise. {Mootrie v. Hunt, 4 Bradf., 173.) When duly admitted contestants of a will claim- ing as heirs of testator, file objections insisting that it has not been executed according to law, or if so, that it has been revoked, and the issue so raised, and the question whether the contestants are heirs of the testator, is likely to occupy considerable time, it pre- sents a case for the surrogate, in his discretion, to issue special letters of collection. {Lawrence v. Parsons, 27 How., 26.) An executor should not be appointed collector pending a contest of the will against the objections of the contestants, especially if his interest is hostile to the estate in any degree. {Howard v. Dough- erty, 3 Eedf., 535.) One named as an executor and who is charged in the contest to have unduly influenced the testator, should not be appointed. {Gornwell v. Cornwell, 1 Dem., 1.) Nor should an executor named be appointed whose interest is hostUe in any degree to the estate. {Howard v. Dougherty, 3 Eedf., 535.) It may well be questioned whether these decisions can be sus- tained. The policy of the law is to appoint as personal repre- sentatives those who have the most interest, and whose interest may be hostile to that of others, as guardians, those nearest of kin, and interested even in the death of the infants. The question of hostility may well be dismissed in an appointment of an adminis- trator, governed as to his conduct by the terms of the law. This view seems to have been finally adopted by the surrogate's court of New York, holding that, while one named as an executor has no priority of claim to the appointment, other things being equal, it is advisable to appoint him temporary administrator, to save the estate from the expense which would result from the ap- pointment of any other person. {Estate of Hammersly, 24 Daily Eeg., No. 24 ; Haas v. Ghilds, "4 Dem., 137.) A contest being pending, the special guardian of infant parties is a proper person to be appointed. The surrogate's discretion is not reviewable. {Matter of Chase, 30 Hun, 320.) The surrogate's refusal to issue such letters is not reviewable by appeal; the remedy, if any, is by mandamus. {McGregor v. Bud, 24 N. y., 166.) 192 Letters on Estate of Absentee. NOTICE OP APPLICATION FOE ORDER Surrogate's Court. In the Matter op the Estate of ( , Deceased. f Please take notice, that by reason of the delay occurring in the granting of letters testamentary to act in this matter, the under- signed will apply to the surrogate of the county of Rensselaer, at his office in the city of Troy, on the ■. — day of — , 1880, at ten o'clock in the forenoon, for an appointment of a tem- porary administrator in this matter. JOHN" RAY. Dated February 19, 1880. To , , . § 2670. How made upon estate of an absentee. — Application for such an appointment, in a case specified in subdivision second of the last section but one, must be made by petition, in like nianner as where an application is made for administration, in a case of intestacy ; and the proceedings are the same as prescribed in article fourth of this title, relating to such last-mentioned application. Such an application for the appointment of a temporary adminis- trator may also be made, with like effect, and in like manner, as if it was made by a creditor, by the county treasurer of the county -where the person, whose estate is in question, last resided ; or, u he was not a resident of the State, of the county where any of his property, real or personal, is situated. That is to say, the proceeding must be conducted, and the rules for administration and priority of next of kin, are the same as if the missing person were actually proved to be dead. Reference is therefore made to the discussion of letters upon the estate of intestates, ante. PETITION FOR ADMINISTRATION IN CASE OF ABSENTEE. Surrogate's Court— County of Rensselaer. In the Matter op the Estate op / , deceased. i To Hon. MoSES Warren, Surrogate of the County of Bensselaer : The petition of '■ , of the city of Troy in eaid county, respectfully shows that ^ being a resident of this city, and the husband of your petitioner on or Administrator Must Give Bond. 193 about the day of June, 1881, left his residence in said city, and your petitioner has made diligent search, and has been unable to ascertain his present abode. That at the time he left his residence as aforesaid, the said was in ill health, and for some time previous thereto had been .in low spirits, and complained to your petitioner that certain persons were endeavoring to injure him or to destroy his property. And your petitioner verily believes that said has become a lunatic, and being such a lunatic has departed from said county. And your petitioner further says that she is the wife of said , and resides in the said city of Troy, and that and , also of the said city of Troy, are the next of kin of the -said , and for the protection of his property and the rights of creditors, or of those who will be interested in his estate if it is found that he is dead, it is necessary that some person be appointed a temporary administrator of his goods, chattels and credits. Your petitioner, therefore, prays that she may be appointed jointly with , of said city of Troy, as tem- porary administratrix, and administrator of the goods, chattels and credits of the said , according to law. And your petitioner will ever pray, etc. Dated Troy, June 3, 1881. State of New York, ) Hensselaer County^ \ , being duly sworn, says, that she is the peti- tioner named in the foregoing petition, and that said petition is true of her own knowledge, except as to those matters which are therein stated to be alleged on information and belief, and as to those matters she believes it to be true. Sworn before me, this day ) of June, 1884. ) § 2671. Administrator to qualify. — A temporary administrator must qualify, as prescribed in article fourth of this title, with respect to an administrator in chief. Which is to say, that the administrator must give the required bond and take the oath of office as administrator, as in case of the estate of an intestate. The sureties of a special administrator are liable for money be- longing to the estate received by him, before his appointment, and as the agent of a previous administrator to whom he succeeded. 25 194 Powers of Administeatob. {Goitshurger v. Taylor, 19 K Y., 150; 5 Duer, 566; 72 K Y., 565.) The public administrator to whom a special administrator's bond has been assigned, may maintain suit upon it {Dayton v. Johnson, 69 K Y., 419.) § 2672. General powers. — A temporary administrator, appointed as prescribed in this article, has authority to take into his posses- sion personal property ; to secure and preserve it ; and to collect choses in action ; and, for either of those purposes, he may main- tain any action or special proceeding. An action may be main- tained against him, by leave of the surrogate, upon a debt of the decedent, or of the, absentee whom he represents, in like manner, and with like effect, as if he was' an administrator in chief. The surrogate may, by an order, made upon at least ten days' notice to all the parties who have appeared in the special proceeding, authorize the temporary administrator to sell, after appraisal, such, personal property, specifying it, of the decedent, or of the absentee whom he represents, as it appears to be necessary to sell, for the benefit of the estate. Or if it appears that the safety of the estate requires the notice to be shortened, the surrogate may shorten the notice to not less than two days. The surrogate may, also, by order, authorise him to pay funeral expenses, or any expenses of the administration of his trust, or stenographer's or referee's fees on contest of a will or administration ; and he may also direct the payment of a legacy or other pecuniary provision, under a will, or a distributive share or just proportionate part thereof, according to section two thousand seven hundred and nineteen of this act, as though he were an executor or administrator. (4 Bradf. ; 2 Law BuL, 56.) § 2673. May publish notice to creditors. — After six months have elapsed since letters were issued to a temporary administrator, ap- pointed upon the estate of either a decedent or an absentee, he has the same power as an administrator in chief to publish a notice re- quiring creditors of the decedent or absentee to exhibit their de- mands to him. The publication thereof has the same effect, with respect to the temporary administrator, and also an executor or administrator subsequently appointed upon the same estate, as if the temporary administrator was the executor or an administrator in chief, and the person to whom the subsequent letters are issued was his successor. § 2674. Power as to paying debts. — After a year has elapsed since letters were issued to a temporary administrator appointed upon the estate of either a decedent or an absentee, the surrogate may, upon the application of the temporary administrator, and upon proof to his satisfaction that the assets exceed the debts, make an order permitting the applicant to pay the whole or any Estate of Absentee. 195 part of a debt due to a creditor of the decedent or absentee ; or, ■upon tlie petition of such a creditor he may issue a citation to the temporary administrator requiring him to show cause why he should not pay the petitioner's debt When such a petition is presented the proceedings are, in all respects, the same as where a creditor presents a petition praying for a decree directmg an exe- cutor or administrator to pay his debt, as prescribed in article first ■of title fourth of this chapter. (See jiost) § 2675. Power as to real property. — "Where a temporary admin- istrator is appointed, in consequence of a contest respecting a will of real property, the order appointing him may confer upon him authority to take possession of real property, in the same or an- other county, which is affected by the will, and to receive the rents and profits thereof The surrogate may, by an order, confer upon him authority to lease any or all of the real property, for a term not exceeding one year ; or to do any other act with respect thereto, except to sell it, which is, in the surrogate's opinion, necessary for the execution of the will, or the preservation or benefit of the real property. For either of these purposes, he may maintain or defend any action or special proceeding. § 2676. Power as to real estate of absentee. — A temporary ad- ministrator, appointed upon the estate of an absentee, has all the powers and authority enumerated in the last section, with respect to the real property of the absentee. His acts, done in pursuance of that authority, bmd the absentee, if he is living, or his heir or devisee, if he is dead, in the same manner as the acts of an executor or administrator bind his successor. § 2677. May provide for family of absentee. — Upon proof, satis- factory to the surrogate, that the wife or any infant child of an absentee, upon whose estate a temporary administrator has been appointed, is in such circumstances as to require provision to be made out of the estate for his or her maintenance, clothing or education, the surrogate may make an order directing the tempo- rary administrator to make such provision therefor, as the surro- gate deems proper, out of any personal property in his hands not needed for the payment of debts. § 2678. Deposit of money by temporary administrator. — A tem- porary administrator, appointed as prescribed in this article, must, within ten days after any money belonging to the estate comes into his hands, deposit it as prescribed in this section. Where he ■was appointed by the surrogate's court of any county except New York, it must be deposited with a person, or with a bank, or in a domestic, incorporated trust company, designated by the surro- gate; but a natural person, so designated as depositary, must first 196 Administrator to Deposit. file in the surrogate's office a bon,d to the surrogate, in a penaltj fixed by him, executed by the depositary and two sureties, and conditioned to render a faithful account, and pay over all money received by him, upon the direction of any court of competent jurisdiction. Where the temporary administrator was appointed by the surrogate of the county of New York, the money must be deposited in a domestic incorporated trust company, having its principal office or place of business in the city of New York, and either specially approved by the surrogate, or designated, in the general rules of practice, as a depositary of funds paid into court His power and duty are fixed by the statute as to moneys in his hands. He cannot make any other disposition than that au- thorized by the law. He cannot make investments. {Barkin v. Barhin, 4 Laws, 90.) He should, if possible, obtain interest, but he may keep in hand a reasonable sum to pay current expenses. {Harrington v. Lihhy, 6 Daly, 259.) Where a collector deposits the fund first with his own firm and then in a bank in his own name, he should be charged with in- terest at the highest rate from the time the funds were deposited. His action was a misappropriation of the funds. {Matter of Mairs^ 4 Eedf., 160.) § 2679. Proceedings if lie neglects to deposit. — If a temporary ad- ministrator neglects to make a deposit, as described in the last sec- tion, within the time therein limited, the surrogate must, upon the application of a creditor or person interested in the estate, accom- panied with satisfactory proof of the neglect, make an order, directing him to do so forthwith, or to show cause why a war- rant of attachment should not issue against him. In the county of New York, the order must be made returnable three days after issuing it ; and it must be served upon the temporary adminis- trator, at least two days before the return day thereof, either per- sonally or by leaving a copy thereof within the State, at his dwell- ing place, or his office for the regular transaction of business in person ; or, if it cannot be served in either of those methods, by serving it in such other manner, as the surrogate directs. In any other county, it must be made returnable within a reasonable time, not exceeding fifteen days after issuing it ; and it must be served, in like manner, at least ten days before the return thereof. § 2680. How deposits withdrawn. — Money deposited by a tem- Sorary administrator, as prescribed in this article, cannot be with- rawn, except upon the order of the surrogate, a certified copy of which must be presented to the depositary. Such an order may be made upon two days' notice of the application therefor, given Collector to Account. 197 to all the parties to the special proceeding, in whicli the temporary administrator was appointed, who appeared therein ; but not other- wise. § 2681. Notices, how served. — A notice required to be given, as prescribed in this article, to a party other than the temporary ad- ministrator, must be served upon the attorney of the party to whom notice is to be given ; or, if he has not appeared by an attorney, upon the party, in like manner as a notice may be served ■ upon an attorney in a civil action, brought in the supreme court. But where the attorney or party to be served does not reside in the surrogate's county ; or where the attorney for a party has died, and no other appearance for that party has been filed in the surro- gate's office ; the surrogate may, by order, dispense with notice to that party ; or may require notice to be given to him in any man- ner which he thinks proper. § 2682. When time to sue for or against estate. — Section 2593 of this act does not affect any proceeding in favor of or against an executor, or an administrator in chief, where a temporary admin- istrator of the same estate has been appointed, except as other- wise prescribed in section 2673 and section 2674 of this act. § 2683. Application of law to collectors heretofore appointed. — Bach provision of this chapter, imposing a duty or liability upon a temporary administrator, appointed upon the estate of a dece- dent, or his sureties, or conferring upon the surrogate power or authority with respect to such a temporary administrator, or his sureties, applies to a collector or special administrator appointed before this chapter takes effect, and his sureties ; except so far as it is repugnant to the provisions of law in force, when the collector or special administrator was appointed, or to the letters issued to him. When the necessity for the special administration shall have ceased, he may be compelled to account and to deliver the assets to his successor, by citation to him, or may ask for a settlement of his account ; but a temporary administrator has not an absolute right to demand a judicial settlement of his accounts, and one will not, in general, be permitted until letters testamentary have been issued, and the executors brought in as parties to the proceeding. {Bible Society v. Oakley, 4 Dem., 450 ; Estate of Voorhis, 1 N. Y. St Eep., 306.) When decree has been made against him obedience to it may be enforced by attachment, as in other cases of administration. In regard to the liability of his sureties, it was held that they are liable for moneys in his hands received before his appointment 198 Letters Are Local. as special administrator. {Goitsberger v Taylor, 19 N. Y,, 150; see, also, Scojield v. Taylor, 72 K Y., 565.) A temporary administrator is entitled to the same commissions as an executor. They are to be calculated on the whole estate received and passed over. {Green v. Sanders, 18 Hun, 308 ; Be Duncan, 3 Eedt, 153.) CHAPTER XL General Provisions in Regard to Letters Testamentary AND OF Administration. — For what Reasons Letters ARE Revoked, etc. Upon the decease of one leaving assets the title to them becomes vested, not in those ultimately entitled as distributees, the widow and children or next of kin, but in the personal representatives to be appointed, whose letters and authority relate back to the death of decedent This is clearly the law, and the Revised Statutes expressly provide. (2 R. S., 81, § 60.) Every person who shall take into his possession any of the assets of any testator or mtes- tate, without being thereto duly authorized as executor, adminis- trator or collector, shall be liable to account for the full value of such assets, to every person entitled thereto, and shall not be allowed to retain or deduct from such assets, for any debt due to him. This was also the law previous to the R. S., but it was held {Hyde v. Stone, 7 Wend, 354) that trover would lie by a son entitled to succeed to the possession of personal estate on the de- cease of his father, where it is not shown that administration has been granted to any one. The court begged the question. To the contrary it has been held {Wormulh v. Hale, 17 Week. Dig., 180), that where a widow took possession of the assets of her husband and traded with them, an administrator afterwards ap- pointed could not replevin them from the person to whom she had sold. Letters testamentary and of administration are territorial in their scope, so that a foreign executor or administrator cannot act as such in this State under his letters. {Johnson v. Wallis, 3 N. Y. St. Rep., 140.) But a foreign executor may be sued here on a When an Executor Dies. 199 contract made by Mmself, and wliich relates to property in this State, and specific performance may be enforced against _him. {Johnston v. Wallis, 3 K Y. St. Eep., 140 ; Stewart v. ODonnell, 2 Dem., 17.) And where a foreign executor passed his accounts in another State, and whose liability was so fixed, he can be sued in this State to account for interest due to the legatees. {Brown v. Knapp, 17 Hun, 160.) Letters of administration and letters testamentary, except where the will expressly authorizes the executor to meddle with the real estate, give no power to the administrator or executor over the real estate belonging to the heirs at law or devisees, and they can be evicted only through a sale under the decree of the court for the payment of the debts of the decedent {Hillman v. Stephens, 16 K Y., 278 ; Brevoort v. McJimseij, 1 Edw., 551 ; Griffith v. Beecher, 10 Barb., 438.) But if such an administrator or executor interfere with the real estate, unless it is wanted to pay debts, those interested may treat him as a trustee de son tort, and make him account. {Le Fort v. Delafield, 3 Edw., 32.) § 2692 Remaining eqiecutors or administrators to aci!.— Where one of two or more executors or administrators dies, or becomes a lunatic, or is convicted of an infamous offense, or becomes other- wise incapable of discharging the trust reposed in him ; or where letters are revoked with respect to one of them, a successor to the person whose letters are revoked shall not be appointed, except where such an appointment is necessary, m order to comply with the express terms of a will ; but the others may proceed and com- plete the administration of the estate, pursuant to the letters, and may continue any action or special proceeding brought by or against all. (See 2 E. S., 78, § 44, for former law.) § 2693. Successor to be appointed, when. — Where all the execu- tors or all the administrators, to whom letters have been issued, die, or become incapable, as prescribed in the last section, or the letters are revoked as to all of them, the surrogate must grant letters of administration to one or more persons as their succes- sors, in like manner as if the former letters had not been issued ; and the proceedings to procure the grant of such letters are the same as in a case of intestacy. (See 2 K. S., 78, § 45, for law before revision.) The provisions of the above section, that in case of the death, incapacity or removal of " aU the executors or all the administra- tors, to whom letters have been issued, the surrogate may grant 200 Law as to Devises. letters of administration to their successors, in like manner as if the former letters had not been issued,' means, that for ascertain- ing rights of preference resort must be had, in cases of testacy, to section 2643 of the Code, and in cases of. intestacy to section 27 of Revised Statutes. {Hayward v. Place, 4 Dem., 487.) The petition under this section for the appointment, with the will annexed, must comply with section 2660, and name the person or persons having a right prior to the petitioner to letters. {Pop- ham V Spencer, 4 Red£, 399.) § 2694. What law governs testamentary dispositions. — The validity and effect of a testamentary disposition of real property, situated within the State, or of an interest in real property so situated, which would descend to the heir of an intestate, and in the manner in which such property or such an interest descends, where it is not disposed of by will, are regulated by the laws of the State, without regard to the residence of the decedent Except where special provision is otherwise made by law, the validity and effect of a testamentary disposition of any other property situated within the State, and the ownership and disposition of such property, where it is not disposed of by will, are regulated by the laws of the State or country, of which the decedent was a resident, at the time of his death. Sherwood v. Jvdd (3 Bradf., 419); Lawrence v. JElmendorph (5 Barb., 73), Churchill v. Prescott (3 Bradf., 233), Suarez v. Mayer (2 Sandf. Ch., 173), While v. Howard {5^ Barb., 294; 46 N Y., 144), Chamberlain v. Chamberlain (43 id., 424), Bascom v. Alhert- son (34 id., 584), Caulfield v. Sullivan (85 id., 153). § 2684. Lellers revoked on revocation of probate, etc. — Where after letters of administration, on the ground of intestacy, have been granted, a will is admitted to probate, and letters are issued thereupon ; or where, after letters have been issued upon a will, the probate thereof is revoked, or a subsequent will is admitted to probate, and letters are issued thereupon ; the decree granting or revoking probate, must revoke the former lettera (See Holland v. Ferris, 2 Bradf., 334; 2 R. S., 78, § 46.) § 2697 When new bond may be required. — Any person, inter- ested in the estate or fund, may present to the surrogate's court a written petition, duly verified, setting forth that a surety in a bond, taken as prescribed in this chapter, is insufficient, or has removed, or is about to remove, from the State, or that the boiid is inade- quate m amount ; and praying that the principal in the bond may New Sueeties May be Had. 201 "be required to give a new bond, in a larger penalty, or new or ad- ditional sureties, as the case requires ; or, m default thereof, that he may be removed from his of&ce, and that letters issued to him may be revoked. Where the bond so taken is that of a guardian, the petition may also be presented by any relative of the infant When the bond is that of an executor or administrator, the peti- tion may also be presented by any creditor of the decedent If it appears to the surrogate, that there is reason to believe that the allegations of the petition are true, he must cite the principal in the bond to show cause, why the prayer of the petition should not be granted. PETITION WHEN SUEETIES AEE INSUFFICIENT. Subbogate's Coukt. In the Matter of the Estate of ( , Deceased. f To Son. , Surrogate of County: The petition of , one of the next of kin of , late of the town of , in the county of , respectfully shows upon information and behef : That heretofore, in the surrogate's court of said county, admin- istration upon the goods, chattels g,nd credits of the said deceased were duly granted and issued to , of the town of , and A. B. and C. D. were the sureties for the said ■ , upon the bond filed by him prior to the issue of such letters. And your petitioner further shows : That the said C. D., one of the said sureties, is becoming insol- vent (or is about to remove, or has removed from the State). Wherefore your petitioner prays that the said , administrator as aforesaid, rnay be cited to give further sureties, or be superseded in the administration, or for such other or further relief as may be proper in the premises. Dated December 31, 1887. (Signed) . County, ss. : , being duly sworn, says, that he is the peti- tioner named in the foregoing petition, and that the same is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be true. (Signed) . Sworn, etc. •*) For time and manner of service of the citation, either uersonally or by publication, see ante. 26 202 New Sureties Eequired. § 2598. Bond when required. — Upon the return of a citation, issued as prescribed in the last section, the surrogate must hear the allegations and proofs of the parties ; and if the objections, or any of them, are found to be valid, he must make an order requir- ing the principal in the bond to give new or additional sure- ties, or a new bond in a larger penalty, as the case requires, within such a reasonable time, not exceeding five days, as the surrogate fixes, and directing that in default thereof his letters be revoked. It was held in such a case that the amount of the penalty of the bond was discretionary with the surrogate. {Matter of Hart, 2 Eedf., 156.) OKDEE EEQUIEING FUETHBE SUEETIES. At a surrogate's court, held in the county of — -. , at the surrogate's office in the ■ of , on the day of , 187—. Presenlr—'KoTX. ■ , Surrogate. In the Matter of the Estate of | '- ., Deceased. I E. F. having heretofore presented his petition praying that -, the administrator of the estate of the above named deceased, be required to give further sureties, and a citation having been duly issued therein, and the same having been re- turned with proof of the due service thereof, and the said having appeared, and the surrogate having heard the proofs and allegations of the parties, and being satisfied that 0. D., one of the sureties of said administrator, is about to remove from the State : Ordered, that , said administrator, give further surety by at least one person,, in a bond in the usual form in the penalty of dollars, within five days from the making of this order. , Surrogate. The sureties in a bond given by an executor in pursuance of a surrogate's order, upon complaint made because of his removal from the State, or from other cause specified, cannot limit the liability to deficiencies or defalcations of the executor occuring after the giving of the bond. The object of the statute was to provide against any improper use of the funds belonging to the estate without regard to the time of its occurence, and the condi- tion of the bond providing that the executor shall obey all orders of the surrogate touching the administration of the estate, by its express terms bind the obligors for a failure of the executor to "When Letters Eevoked. 203 obey an order as to the payment of moneys whicli came to the hands of the executor, although lost or disposed of before the bond was executed. Therefore, in an action on such a bond to recover a legacy ordered to be paid in final settlement, evidence tending to show the condition of the assets of the estate at and prior 1o the time of the execution of the bond, was held incompetent, and in the absence of fraud or collusion, the decree of the surrogate was conclusive upon the sureties. {/Scofieldv. Churchill, 72 N. Y., 565.) § 2599. Decree revohing letters. — If a bond with new or addi- tional sureties, or in a larger penalty, is approved and filed in the surrogate's office, as required by such an order, the surrogate must make a decree dismissing the proceedings upon such terms, as to costs, as justice requires ; otherwise he must make a decree re- moving the delinquent from office, and revoking the letters issued to him. DEOEEB FOE EBVOCATION OF LETTEES. At a surrogate's court, held in the county of , at the surrogate's office, in the of , on the day of , 188 . Present — Hon. , Surrogate. In the Matter of the Estate of / ■ ; Deceased. f R F., one of the next of kin of the above named deceased, having presented his petition praying that, , administrator of the goods, chattels and credits of said deceased, be ordered to give further sureties, and such proceedings having been thereupon had, that on the day of , 1880, an order was duly entered in this court directing that said give further sureties in the penalty of dollars, within five days from the entry of said order, as by ref- erence thereto will more fully appear; and it now appearing that the said ■ has not given such bond, as required by said order, notwithstanding the lapse of the time in said order limited : It is ordered and adjudged, that the letters of admmistration issued to the said , out of this court, on the day of , 1873, be and the same are thereby revoked. "Witness, — , surrogate of said county, [l. aj and the seal of the court, the day and year first above written. , Surrogate. 20i Sureties May be Eeleased. "Where an administrator is removed by an order of the surrogate having jurisdiction of the estate and of the administrator, the order of removal cannot be assailed in an action brought by his successor on his official bond, because of irregularity in the pro- ceedings for removal, assented to by him. The order is valid as to him ; and if so, is valid as to all others, including his sureties. {Kelly V. West, 80 K Y., 139.) So the sureties of an executor or administrator may apply to be released. § 2600. Sureties may apply to he released. — Any or all of the sureties in a bond, taken as prescribed in this chapter, may present a petition to the surrogate's court praying to be released from re- sponsibihty, on account of any future breach of the condition of the bond; and that the principal in the bond may be cited to show cause why he should not give new sureties. The surrogate must thereupon issue a citation accordingly. It does not seem that the surety desiring to be released need give any reason for his application, but that it is the duty of the surrogate to entertain the proceeding upon his arbitrary wisL {Lewis V. Watson, 3 Eedf., 43 ; Stevens v. Stevens, id., 507.) PETITION OF SURETY FOR RELIEF. Sukrogate's Court. In the Matter of the Estate of / , Deceased. f To Hon. , Surrogate of the County of The petition of . of town of , in said county, respectfully shows : ^ That .your petitioner is one of the sureties of to whom administration on the goods, chattels and credits of , late of the town of , were on the day of last, granted out of this court ; and your petitioner desires to be released from responsibility on account of the future acts or defaults of such administrator. Your petitioner therefore prays that the said may be required to give new sureties. And your petitioner will ever pray, etc. Dated February 20, 1880. Rensselaer CouNTy, ss. : , being duly sworn, says that he is the peti- Sureties to be Eeleased. 305 tioner named in the foregoing petition, and that the same is true of his own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters he believes it to be true. (Signed) Sworn, etc. OKDBR FOR CITATION ON APPLICATION OF SURETY. At a surrogate's oourt, held in the county of , at the surrogate's office, in the of , on the day of , 1880. Present -. , Surrogate. In the Matter of the Estate of ( , Deceased. i A B., one of the sureties for C. D., the administrator of the goods, chattels and credits of the above named deceased, having presented his petition, praying to be released from further respon- sibility for the future acts or defaults of the said administrator : Ordered, that a citation issue to said C. D., to appear m this court on the — day , 1880, at ten o clock m the forenoon, to show cause why be should not give new sureties. , Surrogate. § 2601. On giving of bond, former sureties released. — Upon the return of a citation, issued as prescribed in the last section, if the principal in the bond files in the surrogate's office a bond m the usual form, with new sureties to the satisfaction of the surrogate, then or within such a reasonable time, not exceeding five days, as the surrogate fixes, the surrogate must make a decree releasing the petitioner from liability upon the bond for any subsequent act or default of the principal, otherwise he must make a decree re- voking the delinquent's letters. DECREE RELEASING SURETY. At a surrogate's court, held in the county of , at the surrogate's office in the of , on the day of , 1880. Present — Hon. ; ■ , Surrogate. In the Matter of the Estate of / , Deceased. j A. B., one of the sureties of C. D., the administrator of the goods, chattels and credits of the above named deceased, having 206 Letters May be Eevoked. applied to this court for relief, and an order having been made that said administrator give further sureties in place of said A. B., and the said 0. D. having given further sureties to the satisfaction of the surrogate, and a bond which is filed this day : Ordered and adjudged that the said A. B. shall not be liable on the bond signed by him as surety for the said C. D., for any sub- sequent act or default of said C. D. Witness , surrogate, and the seal of [l. a] the court, the day and year first above written. , Surrogate. But if the administrator shall fail to give new sureties within the time allowed by the surrogate, a decree must be made revok- ing his letters. DECEEE EBVOKING LETTERS. At a surrogate's court, held in the county of , at the surrogate's office in the of on the day of , 1880. Present — Hon. , Surrogate. In the Matter of the Estate of / ■ , Deceased. t 0. D., the administrator of the goods, chattels and credits of the above named deceased, havmg been ordered by the court to give a bond in the usual form with new sureties in place of A B., one of his sureties, who petitioned for relief, and .having neglected to give such bond, and the time limited therefor having expired : It is ordered and adjudged, that the letters of administration granted in this court to said C. D., on the day of , 1873, on the estate of the above named deceased, be and they are revoked and annulled, and the authority and rights of said C D., as such administrator, shall cease. Witness , surrogate, and the seal of the [l. a] court, the day and year first above written. , Surrogate. The new revision introduces a new provision for a method of settling disagreements between co-executors, or co-administrators. It may be very useful. § 2602. Surrogate may direct as to custody, when executors or ad' ministrators disagree — Where two or more co-executors or co-ad- ministrators disagree, respecting the custody of money or other property of the estate ; or two or more testamentary trustees or Proceedings on Disagreement. 207 property of the estate ; or two or more testamentary trustees or guardians of the property disagree, respecting the custody of money or other property, belonging to a fund or an estate which is committed to their joint charge ; the surrogate may, upon the appUcation of either of them, or of a creditor or person interested in the estate, and proof, by affidavit, of the facts, make an order, requiring them to show cause, why the surrogate should not give directions in the premises. Upon the return of the order, the sur- rogate may, in his discretion, make an order, directing that any property of the estate or fund be deposited in a safe place, in the joint custody of the executors, administrators, guardians, or testa- mentary trustees, as the case requires, or subject to their joint order ; or that the money of the estate be deposited in a specified safe, bank or trust company, to their joint credit, and to be drawn out upon their joint order. Disobedience to such a direction may be punished as a contempt of the court. The provisions of this section are new, not only in form, but are of a novel character, and in the absence of any judicial inter- pretation we cannot pronounce authoritatively as to the scope of the section. It cannot be presumed that the surrogate will effec- tively interfere because executors disagree as to the custody of securities, for the securities may be in perfectly safe hands, and in the possession of one of the executors. Nor does it follow that because one executor has deposited the funds of the trust, subject to his sole control as executor, the sur- rogate should direct a different disposition. For the funds may be in the best possible custody. And it must be remembered that each executor or administrator represents the whole estate, and, so to speak, may bmd or loose. Nor does it seem that the fact simply that the executors do not agree will warrant the interference of the surrogate, for they would agree no better after he should have made an order. {Brennan v. Lane, 4 Dem., 322.) It would seem, then, that the surrogate should exercise his dis- cretionary power under this section only when by reason of the disagreement of the executors or administrators the interests of the estate are in jeopardy, and that he can, by his order, reason- ably expect to benefit the estate. {Burt v. Burt, 41 N. Y., 46.) Where there is a disagreement, such as is contemplated in the section, the fact that one executor qualified for office at an earlier date than his associate, and came into certain funds of the estate, gave him no superior right to the custody of the same. It is the right of each duly appointed executor to render services to the 208 PEocEEniNGs ON Disagreement. estate in order to entitle himself to commissiona In case, then, of the disagreement of executors with regard to the management of the estate committed to their charge, there being no circum- stances justifying a distrust of either, a deposit of the property should be ordered, subject to their joint control {Estate of Dela- phine, 8 N. Y. St Eep., 776.) "Where an executor claimed title to the entire property and had begun an action to establish his right, he was ordered to deposit the property in a trust company, to the joint order, and subject to the joint control of the executor and executrix until further order, each being enjoined from any interference therewith in the mean- time, except that the executrix should have exclusive enjoyment of the income. {Hassey v. Keller, 1 Dem., 577.) PETITION OF EXECUTOR FOR ORDER Surrogate's Court. In the Matter of the Estate of / , Deceased. f To Hon. ■ , Surrogate of the County of .* The petition of C. D., one of the executors of the will of A. B.^ late of the of , respectfully shows : That letters testamentary upon the will of said A. B., deceased, were, on the day of , 1886, issued and granted in this court to your petitioner and E. F., who were named as executors in said will. That before the issue of said letters, the papers and assets of the said deceased were in the possession and under the control of the said E. F. (or immediately after the completion of the inventory made by said executors of the goods and estate of the said de- ceased, the said E. F. took possession of all the papers and effects belonging to the said estate), and he still retains them and refuses to permit your petitioner to see and examine the said papers or to control any of the moneys which make part of the estate of the said deceased. And your petitioner further says that inquiries have been made by some of the debtors of the decedent, in relation to the terms of their habilities, which your petitioner was not able to satisfy because he could not have access to said papers. And he further says, that acting in good faith as such executor, your petitioner has assumed certain obligations in relation to the payment of the funeral expenses of the decedent and of certain expenses of administration, and by reason of the custody which the said E. P. retains of the money belonging to the estate, your Revocation of Letters. 209 petitioner is unable to pay sucli sums except from hia own re- sources. Your petitioner therefore prays that the surrogate shall give direction in the premises. And your petitioner will ever pray, etc. Dated June 1, 1880. (Signed) 0. D. County, ss. : \ 0. D. being duly sworn, says that he is the petitioner named in the foregoing petition, and that the same is true of his own knowl- edge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he be- lieves it to be trua (Signed) C. D. Sworn, etc. The practice in this case requires the making of an order, in- stead of the issue of a citation as is usual In such a case, there- fore, the time may be fixed for the return, as the surrogate may think proper. We apprehend that the difficulties which may exist between executors will not be much smoothed by the proceeding. The following provisions are not new, in the main, but the various statutes are grouped in one section. They are found principally in chap. 460 of Laws of 1837. § 2685. Revocation of letters for disqualification, etc. — In either of the following cases, a creditor, or person interested in the estate of a decedent, may present to the surrogate's court from which letters were issued to an executor or administrator, a written peti- tion, duly verified, praying for a decree revoking those letters ; and that the executor or administrator may be cited to show cause why a decree should not be made accordingly : 1. Where the executor or administrator was, when letters were issued to him, or has since become, incompetent, or disqualified by law to act as such ; and the grounds of the objection did not exist, or the objection was not taken by the petitioner, or a per- son whom he represents, upon the hearing of the application for letters. 2. Where, by reason of his having wasted or improperly ap- plied the money or other assets in his hands, or invested money in securities unauthorized by law, or otherwise improvidently managed or injured the property committed to his charge ; or by reason of other misconduct in the execution of his office, or dis- honesty, drunkenness, improvidence, of want of understanding; he is unfit for the due execution of his office. {Matter of West, 4() 27 210 Eevocation for Incompetency. Hun, 291 ; Mailer of Cady, 36 id., 122 ; Estate of Cady, 103 N. Y., 678 ; Matter of Hart, 43 Hun, 636 ; 6 K Y. St Eep., 535 ; Matter ■of Place, 4 id., 533.) 3. Where he has wimully refused, or, without good cause, neg- lected, to obey any lawful direction of the surrogate, contained in a decree or order ; or any provision of law, relating to the dis- charge of his duty. 4. Where the grant of his letters was obtained by a false sug- gestion of a material fact (Matter of West, 40 Hun, 291.) 5. In the case of an executor, where his circumstances are such, that they do not afford adequate security to the creditors or per- sons interested, for the due administration of the estata 6. In the case of an executor, where he has removed or is about to remove from the State, and the case is not one where a non- resident executor would be entitled to letters without giving a bond. 7. In the case of an executor, where, by the terms of the will, his office was to cease upon a contingency, which has happened. 8. In the case of a temporary administrator, appointed iipon the «state of an absentee, where it is shown that the absentee has re- turned ; or that he is living, and capable of returning and resum- ing the management of his affairs ; or that an executor, or an ad- ministrator in chief, has been appointed upon his estate ; or that a committee of his property has been appointed by a competent court of the State. The fact that executors are "men of inconsiderable means, not transacting business, or having any place of business," does not show that their "circumstances are such that they do not afford adequate security for the due administration of the estate," within the foregoing fifth subdivision. {Postly v. Cheyne, 4 Dem., 492) 494.) Where letters testamentary have been issued to one not a resi- dent of the State, they cannot be revoked because of his con- tinued non-residence, nor can an official bond be required on that ground. (Id.) Where letters have been revoked for disqualification (sub. 1), as where letters testamentary have been revoked because the ex- ecutor was adjudged insane, there is no provision for his reappoint- ment when he has become competent and been discharged from bis committee (Matter of Deanng, 4 Dem., 81.) An executor wiU not be removed on account of the fact that he has mvested moneys of the estate in the purchase of real estate situated in another State, in fulfilment of his testator's agreement for such purchase made in his life-time, although by reason of a Improvidence. 211 defect in title a loss is sustained to the estate, where, at the time of the purchase, the land was apparently worth the amount paid, and the title apparently good. The taking title to such land in the individual names of the executors will not justify their re- moval, when it was done as an act of prudence, and the land was held for the benefit of the estate. {Denton v. Sanford, 39 Hun, 487.) Where an executor is empowered and directed by the will to sell real estate, in case of gross negligence or bad faith on his part in faihng to perform this duty, the surrogate has power to remove him therefor because of the misconduct (subd. 2, sup.), to compel him to account, and, upon such accounting, to charge him with any loss resulting from such negUgence or bad faith. Until a de- fault in this respect is established before the surrogate, an action to recover the damages resulting therefrom may not be maintained against the sureties upon a bond given by the executor or trustee. {Haight v. BrisUn, 100 N? Y., 219.) Where executors intentionally omitted assets from their first account, falsely represented the sum for which testator's business was sold, neglected to make any effort to make collections, and surrendered the entire assets to the widow's control, knowing that she was about to convert them to her own use, shows improvident management and misconduct on the part of executors to justify a revocation of their letters. {Fernhacker v. FernbacJcer, 4 Dem., 227.) §2686. Petition; citation. — A petition, presented as prescribed in the last section, must set forth the facts and circumstances, showLug that the case is one of those therein specified. Upon proof, by affidavit or oral testimony, satisfactory to the surrogate, of the truth of the allegations contained in the petition, a citation must be issued according to the prayer thereof; except that, where the case is within subdivision fifth of the last section, and the executor has given a bond as prescribed in article first of this title, the surrogate may, in his discretion, entertain or decline ta entertain the application. Creditors of decedent may petition. {Hartnett v. Wandell, 60 N. Y., 346.) An executor interested may petition for a removal of his co-executor. {Hassey v. Keller, 1 Dem, 577.) The executor of an executor cannot petition for revocation of letters granted to a substituted executor. {Fosdick v. Delajield, 2 Eedf., 392.) 212 Petition for Eevocation". A debtor cannot petition. {Dreocel v. Berney, 1 Dem., 163.) The power to remove executors and adiiiinistrators is wholly independent of any other power conferred upon the surrogate, and in order to give him jurisdiction of such a proceeding, it must ap- pear not only that application was made in conformity to law, and a citation issued thereon, but also that such citation was served in the manner provided by statute. {People v. Hartmann, 2 Sweeney, 576.) Service of the citation is properly made on an administrator, by leaving it at his former residence, where he had left the State, and his residence cannot be ascertained. Where, by a will, trust duties are imposed upon the executor as to a portion of the estate, but there is no provision which ex- pressly, or by implication, separates the two functions of executor and trustee, at least until there is a severance of the trust fund of the executor, or by a proper judicial decree, he may, even after a lapse of fifteen years after his final settlement as executor, be held liable as executor for wasting the estate, and be removed effectually as executor for mismanagement. {Matter o/JHbod, 98 N. Y., 863; 2 Dem., 583.) On proceedings taken under subdivision 2, the surrogate has jurisdiction to determine whether the petitioner is a creditor. {Estate of Oillingham, 10 K. Y. St Eep., 864.) The petition should state, where the citation is asked for on the ground that the executor's circumstances are such that they do not afford adequate security for the due administration of the estate, not merely that fact, but the facts and circumstances show- ing it to be true, warrant a removal {Martin v. Duke, 5 Eed£, 597 ; Gruhh v. Hamilton, 2 Dem., 414 ; Matter of Van Rensselaer, N. Y. Daily Eeg., vol. 8, 1884.) The truth of the allegation must be proved by oral testimony, or by ajfidavits. {Moorhouse v. Hutchinson, 2 Dem., 429.) PETITION WHEEE CIRCUMSTANCES OF EXECUTOR AEE PRECAEIOUS. Surrogate's Court. In the Matter of the Estate of ( , Deceased. I To Hon. , Surrogate of the County of - The petition of , of the of How Petition to Allege. 21S in said county, respectfully sbows, on information and belief, as follows : Your petitioner is one of the legatees named in the will of -, late of the of , in said county, which wUl was duly proved in this court on the day of — , 1880, and upon which letters testamentary were, on the same day, issued to , an executor named in said will, who gave no bond for the faithful performance' of his duties as such executor. And your petitioner charges and states as a fact, that the cir- cumstance of the said , said executor, are such that .they do not afford adequate security to your petitioner, and the other persons interested, for the due administration of the estate committed to him. And your petitioner states, as ground for such allegation, that a judgment has been entered and docketed in the county where the said resides, and an execution thereon has been returned wholly unsatisfied, whereas, in fact, at the time of his appointment and before that, he was apparently the owner of, and in possession of, considerable personal estate. And your petitioner prays for a decree revoking the letters issued as aforesaid to the said , and that he may be cited to show cause why a decree should not. be made accordingly. And your petitioner will ever pray, etc. Dated February 20, 1880. (Signed) . Rensselaer Countt, ss. : , being duly sworn, says, that he is the pe- titioner named in the foregoing petition, and that said petition is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters, that he believes it to be true. Sworn, eta A petitioner, to remove an administrator in this proceeding, where charges are stated upon information and belief, should state the sources thereof. {Atkinson v. Striker, 2 Dem., 261.) The petition itself, though verified, cannot be deemed sufficient proof of the charges. The proof must be made by affidavit or oral testimony. (Mborhouse v. Hutchinson, 2 Dem., 429.) The citation, when issued, must be served on the executor at least eight days, if he reside in the same or an adjoining county to the surrogate, and fifteen days in any other county in the State. 214 When Letters are Eevoked. It is believed tliat the surrogate may, by virtue of his power of general control, as formerly by S. L. 1837. chap. 360, enjoin the executor from further action until the matter in controversy shall be settled. § 2687. Hearing ; decree. — Upon the return of a citation, issued as prescribed in the last section, if the objections, or any of them, are established to the surrogate's satisfaction, he must make a decree revoking the letters issued to the person complained ol But the surrogate may, in his discretion, dismiss the proceedings upon such terms as to costs, as justice requires, and may allow the letters to remain unrevoked, in either of the following cases : 1. Where the case is within subdivision third of the last section but one, if the direction of the surrogate or the provision of law is obeyed and suitable amends made to each person injured by the neglect or refusal to obey it. 2. Where the case is within subdivision fourth of that section, if the person cited is entitled to letters, notwithstanding the false suggestion. 3. Where the case is within subdivision fifth of that section, if the executor gives, within a reasonable time, not exceeding five days, a bond, as prescribed in article first of this title. Where an executor has no property except an unliquidated demand, and was about to remove from the State, held that he should be required to give security, ( Wood v. Wood, 4 Paige, 299 ; Holmes v. Coch, 2 Bjirb. Ch., 426.) An executor should not be required to give security, merely because he does not own property to the full value of the estate, and when there is no ground for supposing that the trust fund is in danger. ' {Mandeville v. Mandevilh, 8 Paige, 475.) The main point is, whether, the circumstances being considered, it is doubtful whether the trust fund is safe in his hands, to be administered as directed. {Cottrell v. Brock, 1 Bradf., 148.) The term " improvidence " refers to such habits of mind and conduct generally as render a man generally and under all circuna- stances unfit to serve. {Emerson v. Bowers, 14 N". Y., 449.) It is the want of ordinary care and forethought in the acquisition and preservation of property. {Coggshall v. Green, 9 Hun, 471.) That a man is a professional gambler, is presumptive evidence of improvidence under the statute. {McMahon v. Harrison, 6 IST. Y., 443.) The circumstances of an executor are precarious within the statute, only when his character and conduct present such evidence When Letters aee Eetoked. 215 of improvidence or recklessness in the management oi tiie trust estate, or of his own, as in the opinions of prudent and discreet men, endangers its security. Though bankruptcy might furnish a reason for superseding an executor, poverty does not {Shields V. Shields, 60 Barb., 56; but see 4 Redf., 218.) Where all the adult beneficiaries and the general guardian of in- fant beneficiaries, with knowledge of the insolvent condition of the executors, consented to their appointment and to their acting as such, without security, it was held that all parties except the general guardian, who had no- power to enter into such an agree- ment, thereby waived the right to require executors to give se- curity because of their insolvency, and that the executor would be required to give security only for the shares of the infant bene- ficiaries. {Freeman v. Kellogg, 4 Eedf., 218.) The right to require security on the ground of precarious cir- cumstances is not affected by the fact that the decedent knew of the executor's pecuniary condition when he appointed him. {Free- Tnan v. Kellogg, sup.) A surrogate has power to revoke letters granted to a person claiming to be the wife of intestate, when the fact that she was not hi^ wife was brought judicially to his notice, though the woman's claica was made in good faith. {Kerr v. Kerr, 41 N. Y., 272; OramY. Oram, 3 Redf., 300.) Letters obtained upon a false suggestion of a matter of fact, and without due notice to the party rightfully entitled to administration, may be revoked. {Proctor v. Wanamaker, 1 Barb. Ch., 802.) Although the jurisdiction to revoke letters of administration is defined and limited by statute, if it has been exercised by the surrogate after jurisdiction of the person of the administrator sought to be removed has been acquired by proper service of the citation, where the facts of the particular case do not bring it within the statute, or without pursuing the particular mode pointed out, it is notwithstanding a " lawful order," within the meaning of the act of 1870, chap. 359, section 1, and the only remedy is by appeal, or by motion before the surrogate ; his order or decree can- not be attacked for want of jurisdiction in an action by the new administrator upon the bond of his predecessor. {Harrison v. Clark, 87 K Y., 572; 20 Hun, 404.) The bond, if given, is similar to that of administrators, mutatis -mutandis. But if the executor gives a bond, his sureties will be liable thereon, not only for all sums received by the executor after 216 Bond, When Given. the giving of the bond, bat also for all moneys misappropriated be- fore that time. {Schofield v. Hustis, 9 Hun, 157 ; see, also, Ootts- berger v. Taylor, 19 N. Y., 150.) "Where the estate consisted wholly of realty with an annual rental of $20,000, held by the executor in trust under the will ; on an order that the executor give a bond with sureties ; Held, that the amount of the penalty of the bond was discretionary with the surrogate, ffeld, further, that the bond having been fixed with a penalty of $50,000, the sureties would not be required to justify in twice the amount of the penalty. {Matter of Hart, 2 Eedf. Sur. R, 156.) But in certain cases letters testamentary or of administration may be revoked, peremptorily by the surrogate, and without notice to the party. § 2691. Letters may he revoked without citation in certain cases. — In either of the following cases the surrogate must make a decree revoking letters testamentary or letters of administration issued from his court, without a petition or the issuing of a citation : 1. Where the person to whom the letters were issued is not a resident of the State, or is absent therefrom ; and upon being duly cited to account neglects to appear upon the return of the citation, without showing a satisfactory excuse therefor, and the surrogate has not sufficient reason to believe that such an excuse can be made. 2. Where a citation, issued to such a person, in a case prescribed by law, cannot be personally served upon him by reason of his having absconded or concealed himselL 3. Where by reason of his default in returning an inventory, such a person has remained for thirty days committed to jail, under the surrogate's order, granted in proceedings taken as pre- scribed in section 2715 of this act 4. In a case of temporary administrator, where an order has been made and served, as prescribed in section 2679 of this act, directing him to deposit money or show cause why a warrant of attachment should not issue against him ; and a warrant of attach- ment;, issued thereupon, has been returned not served upon him. The cases provided for in this section seem not to be original proceedings ; that is, they do not proceed upon a petition for a revocation, but they seem to come in the course of other proceed- ings as remedial or punitive. The decree revoking the letters then will issue in the course of the proceedings already entertained and will recite (1), the neglect of the party to appear (2), that he cannot be served because he has absconded or conceals himself Powers of Successor. 217 (3), that he continues contumacious in relation to the order that he return an inventory, or (4) that he cannot be served with a warrant of attachment for contempt. § 2603. Effect and contents of decree revoking letters. — Upon the entry of a decree made as prescribed in this chapter, revoking letters issued 'hj a surrogate's court to an executor, administrator or guardian, his powers cease. The decree may, in the discretion of the surrogate, require him to account for all money and other property received by him ; and to pay and deliver over all money and other property in his hands into the surrogate's court, or to his successor in office, or to such other person as is authorized by law to receive the same ; or it may be made without prejudice to an action or special proceeding for that purpose, then pending or thereafter to be brought The revocation does not affect the valid- ity of any act within the powers conferred by law upon the execu- tor, administrator or guardian, done by him before the service of the citation, where the other party acted in good faith ; or done after the service of the citation and before entry of the decree, where his powers with respect thereto were not suspended by service of the citation, or where the surrogate, in a case prescribed by law, permitted him to do the same, notwithstanding the pend- ancy of the special proceeding against him ; and he is not liable for such an act done by him in good faith. It is doubtful whether, under any circumstances, payment to a legatee can be decreed under this section. {Peck v. Sherwood, 5 Eedl, 416.) It seems only to provide for payment to a personal representative or his legal substitute. § 2604. The last section qualified. — The last section does not affect the liability of a person, to whom money or other property has been paid or delivered, as husband, wife, next of kin or lega- tee, to respond to the person lawfully entitled thereto, where letters are revoked, because a supposed decedent is living ; or because a will is discovered, after administration has been granted m a case of supposed intestacy, or revoking a prior will, upon which letters were granted. § 2605. Successor may be appointed and may compel an account- ing. — "Where letters have been revoked by a decree of the surro- gate's court, that court has, except in a case where it is otherwise specially prescribed by law, the same power to appoint a successor to the person whose powers have ceased, as if the letters had not been issued. The successor may complete the execution of the trust committed to his predecessor; he may continue, in his own name, a civil action or special proceeding, pending in favor of hia 28 218 An Executor of an Executok to Accoukt. , predecessor; and lie may enforce a jadgment, order, or decree, in favor of the latter. The surrogate's court has the same jurisdic- tion, upon the petition of the successor, or of a remaining execu- tor, administrator, guardian or trustee, to compel the person whose letters have been revoked, to account for, or deliver over inoney or other property, and to settle his account, which it would have upon the petition of a creditor or person interested in the estate, if the term of office, conferred by the letters, had expired by its own limitation. {Gerould v. Wilson, 81 N. Y., 573; Haight v. Brishin, 100 id., 219.) The subject and the manner of compelling an account, is treated of fully hereafter. § 2606. Accounting hy an execuwr of a deceased eoixcutor. — Where an executor, administrator, guardian, or testamentary trustee dies, the surrogate's court has the same jurisdiction, upon the petition of his successor, or of a surviving executor, administrator or guard- ian, or of a creditor, or person interested in the estate, or of the guardian's ward, to compel the executor or administrator of the decedent to account for and deliver over any of the trust prop- erty which has come to his possession, or is under his control, ;which it would have as against the decedent, if his letters had been revoked by a surrogate's decree. With respect to the lia- bility of the sureties in, and for the purpose of maintaining an action upon the decedent's official bond, a decree against his ex- ecutor or administrator, rendered upon such an accounting, has the same effect as if an execution, issued upon a surrogate's decree against the property of decedent, had been returned unsatisfied during decedent's life-time. So far as concerns the executor or administrator of decedent, such a decree is not within the pro- visions of section two thousand five hundred and fifty-two of this act. {That is, it is not evidence of assets.) The surrogate's court has also jurisdiction to compel the executor or administrator at any time, to deliver over any of the trust property which has come to his possession or under his control, and if the same is de- livered over after a decree, the court must allow such credit upon the decree as justice requires. A proceeding under the above section (2606) is not terminated by a verified denial that property has come into the possession or under the control of the cited representative. The applicant has a right to examine the respondent according to section 2735, pro- viding for the examination of an accounting party. {Wood v. Crook, 5 Eedf., 381. See contra, Peck v. Sherwood, id., 416.) The representative of a deceased executor may be compelled to- render successive accounts at the instance of each of the persons Accounting by Representative. 219 interested in having a right to demand an account The decree, in any case, is not for the delivery of the trust property to the legatee's petitioners, but only to a successor in office, or such other person as is authorized by law to receive it, in order to properly administer the same. {Spencer v.- Popham, 5 Redf., 425.) The accounting under this section does not extend to all of the property of the first decedent which came into the possession or under the control of the deceased executor or administrator, but only to such of the trust property as came into the possession or under the control of the accounting party. Accordingly, the in- debtedness of the deceased executor to his testator cannot be inquired into in this proceeding. {Le Court v. Le Court, 1 Dem., 29.) As one cannot sue himself, an executor of an executor, who is a legatee . of the executor's testator, cannot, under this section (2660), in his latter capacity, cite himself, as such executor, to account {Popham v. Spencer, sup.) PETITION THAT ADMESTISTRATORS OF AN EXECU- TOR ACCOUNT, ETC. Surrogate's Court. In the Matter of the Estate of / , Deceased. t To Hon. ■ , Surrogate of the County of .• The petition of R. R., of the town of , in said county, respectfully shows: That heretofore, ; , of the town of , in said county, having died, his will was duly proved in this court, and letters testamentary therein were duly issued to your petitioner and A. B., of the city of . That both your petitioner and the said A B, took upon them the discharge of the duties incumbent upon them as executors, and a considerable portion of the estate came to the hands of the said A. B. That said A B. has died, and as your petitioner is informed and believes, he was intestate, and letters of administration of his goods, chattels and estate have been granted by the surrogate of the said county of to C. D. and E. F., of the city of That as your petitioner is informed and believes, some of the assets and property which were in the possession of the said A. B., as executor as aforesaid, have come into the possession or 220 Successor May Sue Bond. under the control of the said C. D. and B. F. as administrators, as follows : One promissory note, made by — , for $500. And your petitioner verily believes that other trust property belonging to the estate of said John Doe, deceased, is in their possession, but he is unable to state what in detail. "Wherefore, your petitioner prays that the said 0. D. and E. F. may be cited to account for and deliver up to your petitioner any of the trust property which has come to their possession or control, or the possession or control of either of them, and for such other or further relief as to the court shall seem proper. And your petitioner will ever pray, etc. Dated September 22, 1885. JOHN DOB. County, ss. : John Doe, being duly sworn, says, that the foregoing petition by him subscribed, is true of his own knowledge, except as to the matters which were therein stated to be alleged on information and belief, and as to those matters he beheves it to be true. Sworn, etc» It was held that the executrix of an executor was compelled to account not only for such assets as came to her hands, but for the entire administration of the estate by her testator. But the au- thority of the surrogate to compel the executrix of a deceased executor to deliver over trust property, was confined to such as had come to her possession or under her control, and that it' con- templates a delivery into court, or to a newly appointed repre- sentative, but not to a legatee, next of Mn, or a creditor. {Estate of Fiihian, 5 K Y. St Eep., 375.) § 2608. Successor may prosecute official bond. — Where letters have been revoked by a decree of the surrogate's court, the suc- cessor of the executor, administrator or guardian whose letters are so revoked may maintain an action upon his predecessor's official bond, in which he may recover any money or the full value of any other property received by the principal in the bond and not duly administered by him ; and to the f uU extent of any injury sustained by the estate of the decedent or of the infant, as the case may be, by any act or omission of the principal. The money re- covered in such an action is regarded as part of the estate in the hands of the plaintiff, and must be distributed or otherwise dis- posed of accordingly; except that a recovery for an act or omission respecting a right of action or other property appropriated by law for the benefit of the husband, wife, family, or next of kin of a decedent, or disposed of by a will for the benefit of any person, is Action on Bond. 221 for the oenefit of tlie person or persons so entitled thereto. {Hood V. Hood, 85 K Y., 561.) This section is based upon 2 E. S., 85, section 2 ; the last pro- vision only being new. As to suits generally on bond of executors or administrators, see post in relation to collection of decree. The action on the bond after the removal of one administrator may be brought by the remaining administrator even though lie was a party to the bond, as is usually the case, and he may re- cover from the sureties the fuU amount which the removed admin- istrator had been directed to pay. Any individual liability of the plaintiff upon the bond must be enforced by the sureties in an action for contribution, {Boyle v. St John, 28 Hun, 454.) § 2609. Action on hand when no successor appointed. — ^Where the letters of an executor or administrator have been so revoked, and no successor is appointed, any person aggrieved may, upon obtain- ing an order from the surrogate, granting him leave so to do, main- tain an action upon the official bond of the executor or adminis- trator, in behalf of himself and all others interested ; in which the plaintiff may recover any mohy, or the full value of any other property, received by the principal in the bond, and not duly ad- ministered by him, and to the full extent of any injury, sustained by the estate of the decedent, by any act or omission of the prin- cipal. The money recovered in such an action must be paid, by the sheriff or other officer who collects it, into the surrogate's court ; and the surrogate must distribute it to the creditors or other persons entitled thereto. The proceedings for such a distri- bution are the same as prescribed in title fifth of this chapter, for the distribution of the proceeds of a sale of real property. § 2610. Application of this article, — The provisions of this arti- cle apply to an executor, administrator, or guardian, to whom let- ters have been issued, and to a testamentary trustee whose trust has been created, before this chapter takes effect ; except that it does not affect, in any manner, the liability of the sureties in a bond, executed before this chapter takes effect § 2688. Decree revohing letters not to affect trtists. — Where an ex- ecutor or administrator is also a testamentary trustee, a decree revoking his letters does not affect his power or authority as tes- tamentary trustee, except in the case specially prescribed for that purpose, in title sixth of this chapter. Title sixth referred to contains the provisions in relation to a testamentary trustee (section 2802, etc.), and will be fully quoted and elaborated hereafter. 222 Eevocation on Petition of Executor. § 2689. Application hy executor or administrator for revocation cf letters.~A.n executor or administrator may, at any time, present to the surrogate's court a written petition, duly verified, praying that his account may be judicially settled ; that a decree may thereupon be made revoking his letters and discharging him accordingly; and that the same persons may be cited to show cause why such a decree should not be made, who must be cited upon a petition for a judicial settlement of his account, as pre- scribed in article second of title fourth of this chapter. The petition must set forth the facts upon which the application is founded ; and it must, in all other respects, conform to a petition praying for a judicial settlement of the account of an executor or administrator. The surrogate may, in his discretion, entertain or decline to entertain the application. This is the inauguration of a new proceeding in the surrogate's court, and is the conferring on the court the same power in rela- tion to executors and administrators which the supreme court has held in relation' to trustees. There has been a similar provision, however, in force in relation to the removal of guardians on their own application. A surrogate's court will not revoke an executor's letters at his own request, under the above and succeeding sections, upon alle- gations that he has interests, as surviving partner of the decedent, antagonistic to his duties as executor, necessitating the resort to another tribunal, where the estate should be represented by a dis- interested person — ^the court having ample power to adjust the equities of the case. {Becker v. Lawton, 4 Dem., 841, citing many authorities.) As the petition is addressed to the discretion of the surrogate, the reasons stated why the petition should be granted must appear and must be such as are- especially important to the estate, rather than to the person who petitions. It is presumed that if an ex- ■ecutor or administrator is about to remove to such a distance as that his attendance upon his duties would be expensive, or that by reason of age or failing health, the executor or administrator cannot longer attend well to his duties, a case would be made in which the decree removing him would be granted. Executor's Petition for Eevocation. 223 PETITION BY EXECUTOR FOR SETTLEMENT AND REVOCATION. Surrogate's Court. Jit the Matter of the Estate of 1 , Deceased. f To Hon. , Surrogate of the County of .• The petition of C. D., of tlie town of , in said county, respectfully shows, as follows : That letters testamentary upon the will of the above named de- ceased, were granted and issued in this court to your petitioner on the day of • last, and your petitioner has duly filed an inventory of said estate, and faithfully discharged his duties as executor of said will, up to this time. But your petitioner has made such arrangements as to his future business, that it will be necessary hereafter for him to re- side in the State of Iowa, whither he now intends to remove, on or about the first day of March next, and such removal will render it very inconvenient and very expensive for your petitioner to attend to his duties as such executor. And your petitioner further says that A. B., E. F. and G. H. are the legatees named in said will, and reside within the county of , and that R. L. is your petitioner's co-executor, and that your petitioner is unable to state who are the creditors of the decedent, for the reason that the time for the expiration of the notice to creditors to present claims published according to the order of this court has not yet expired. Wherefore your petitioner prays that his account may be judicially settled ; that a decree may be made revoking his letters and discnarging him ; and that the persons above named interested may be cited to show cause why such decree should not be made. And your petitioner will ever pray, etc. Dated Troy, February 25, 1888. Rensselaer County, ss. : ■ ■ , being duly sworn, says that he is the peti- tioner named in the foregoing petition, which is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be true. (Signed) . Sworn before me, etc. § 2600. Proceedings thereupon. — If the surrogate entertains an application, made as prescribed in the last section, the proceedings thereupon must be in all respects the same as upon a petition lor a judicial settlement of the petitioner's account; except that, upon 224 Accou^'TiisG ox Eevocation. tlie hearing, the surrogate must first determine wliether sufficient reasons exist for granting the prayer of the petition. If he de- termines that they exist he must make an order accordingly, and allowing the petitioner to account for the purpose of being dis- charged. Upon his fully accounting and paying over all money which is found to be due from him to the estate, and delivering over all books, papers, and other property of the estate in his hands, either into the surrogate's court or in such a manner as the surrogate directs, a decree may be made revoking the petitioner's letters and discharging him accordingly. The citation having been returned, and the surrogate deciding that sufficient reasons exist for granting the application, he makes an order that petitioner account. OEDEE THAT PETITIONEE ACCOUNT. At a surrogate's court, held in the county of , at the surrogate's office, in the of , on the day of , 1888. Present — Hon. , Surrogate. In the Matter of the Estate of / , Deceased. j G. D., the executor of the will of the above named deceased, having petitioned that his letters testamentary may be revoked, and a citation having been issued to A. B., 0. D. and E. F., the legatees named in said will, and to E. L., the co-executor of the said C. D., and the surrogate having examined the matter and de- termined that the said C. D., executor, is about to remove from this State, and that such contemplated removal is a sufficient reason for granting the prayer of the petition. Ordered, that the said 0. D. be allowed to account for his pro- ceedings as such executor for the purpose of being discharged. — ' , Surrogate. The executor or administrator, the parties being all either be- fore the court or cited, will file his account, made in all respects as far as possible like the final account of an executor or adminis- trator As the form and manner of preparing and rendering an account will be treated at large in the chapter on accounting here- after, the reader is referred to that chapter. If the executor or administrator shall then fully account and pay over all money which shall be found due from him to the estate, and shall deliver over all books, papers and other property of the Discovery of Assets. 225 •estate in liis hands, either into the surrogate's court or to his co- ■executor, if the surrogate shall so direct, a decree will be made. DECREE EEVOKING LETTERS. At a surrogate's court held in the county of , at the sur- rogate's office in the of , on the day of , 1888. Present — Hon. , Surrogate, In the Matter of the Estate of , Deceased. C. D., one of the executors of the will of the above named de- ■ceased, having petitioned this court that his account be judicially settled and that his letters be revoked, and he discharged, and that the legatees named in said will and R. L., his co-executor, be cited to show cause why a decree should not be made accordingly, and a citation having been issued to A. B., E. R and Gr. H., said legatees, and to R. L., said executor, accordingly, and said' citation having been duly served, and the said A. B. and R. L. having ap- peared, and the surrogate having determined that a sufficient reason exists for granting the prayer of the petitioner, and the said petitioner having rendered his account, and there having been found due from him to the estate of said deceased the sum of dollars, and the said C. D. having paid over said sum to R. L., his co-executor as directed by the surrogate, and having further delivered to said R. L. all books, papers and other prop- erty of the estate in his hands : It is ordered, adjudged and decreed, that the letters testamentary heretofore issued by this court to the said C. D., as an executor of the will of said , deceased, on the day of , 1879, be and the same are revoked. And it is further adjudged that the said C. D. is discharged from liability or responsibility as such executor. Witness, , surrogate, and the seal of £l. s.] the court the day and year first above written. , Surrogate. CHAPTER XTL Discovery ajptd Recovery of Assets. The legislature, by chapter 394 of Laws of 1870, have pro- vided for a summary process, to discover assets belonging to a de- 29 226 Proceedings for Discovert. ceased person, or to which he was entitled at the time of his de- cease, when they are improperly concealed or withheld by any person, by a subpoena, and an examination of persons designated, by the executor or administrator. These provisions, much amended, appear in the revision as follows : § 2706. Proceedings to discover property. — An executor or ad- ministrator may present to the surrogate's court, from which let- ters were issued to him, a written petition, duly verified, setting forth, upon knowledge, or information and belief, any facts, tend- ing to show that money or other personal property, which ought to be delivered to the petitioner, or which ought to be included in an inventory or appraisal, is in the possession or under the con- trol of a person, who withholds the same from him ; or, who re- fuses to impart any knowledge or information he may have con- cerning the same, or to disclose any other fact which will, in any way, aid such executor or administrator in making discovery of such property, so that it cannot be inventoried and appraised ; and praying an inquiry respecting it, and that the person complained of may be cited to attend the inquiry, and to be examined accord- ingly. The petition may be accompanied with an affidavit or other evidence, written or oral, tending to support the allegations thereol If the surrogate is satisfied, upon the papers so pre- sented, that there are reasonable grounds for the inquiry, he must issue a citation accordingly, which may be made returnable forth- with, or at a future time fixed by the surrogate, and may be served at any time before the hearing. Where there is more than one executor or administrator, all should be cited in this proceeding, even though an examination of one only is desired. {Matter of Slingerland, 36 Hun, 675.) The surviving partners of a decedent having a right to settle up the business of the firm cannot be required in these pro- ceedings to turn over the decedent's interest therein to his per- sonal representative. {Camp y. Frazier, 4 Dem., 312.) § 2707. Where persons to be cited reside in another county. — Where the person or any of the persons, to be cited, does not reside, or is not within the county of the surrogate, the citation may, in the surrogate's discretion, require him to appear at a specified time, at a place within the county where he resides or is served, before a judge, a justice of the peace, or a referee, desig- nated in the citation, or before the surrogate of that county. It will be observed that the time of the return of the citation is in the discretion of the surrogate. Proceedings to Recover Assets. 227 PETITION FOR CITATION. Surrogate's Court — Rensselaer County. In the Matter of the Goods, etc., ( of J. D., Deceased. t To Hon. Moses Warren, Surrogate of said Oounty: The petition of A, B., of the town of < , respectfully shows to the court that your petitioner is the executor of the last will and testament of J. D., late of said town, deceased (or the administrator of the goods, chattels and costs of J. D., deceased), and that letters testamentary (or of administration) were issued to deponent by this court on the day of — ; last past. That your petitioner has made search and inquiiy for the goods, chattels and credits of said deceased, and from such inquiry he believes that some of such chattels, to wit : one bay horse, one watch, and one diamond ring (or such other property as the ex- ecutor may have learned of), which were in possession of the said deceased at the time of his death (or which were in the possession of the deceased within two years prior to his decease), are with- held (or concealed) by A. B. and C. D., who were about the per- son of the deceased, prior to his decease (or into whose hands the said effects of the deceased have fallen). That your petitioner has demanded such articles from the said A. B. and C. D., who have refused to deliver the same. And he further says, that the reasons and grounds for his belief that such property belongs to the estate of the deceased are his personal knowledge that the said deceased owned them (or infor- mation derived from A. B. and B. C, whose affidavits are here- unto annexed), and your petitioner prays the aid of this court for the recovery and discovery of such property, and that a citation issue out of this court to (naming the persons), requiring them to appear at a time and place therein to be specified, for the purpose of being examined touching the estate and effects of the said deceased. And your petitioner will ever pray, etc. Dated New York, February , 1888. (Signed) . Rensselaer County, ss. : , being duly sworn, says that he is the peti- tioner named in the foregoing petition, which is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and beUef, and as to those matters he believes it to be true. Sworn, etc. (Signed) . 228 Citation, How Served. OEDEK FOE CITATION. At a surrogate's court, held in the county of , at the surrogate's office, in the of , on the day of , 1880. Present — Hon. , Surrogate. In the Matter of the\ Goods of ( • , Deceased. j , having presented his petition to this court, duly verified, accompanied by affidavits, and it appearing to the surrogate that there are reasonable grounds for inquiring whether certain assets of the estate of the above named deceased are in the possession or under the control of , who with- holds them from said , the executor of the will of said deceased. Ordered, that a citation issue to the said requiring to appear in this court on the day of , 1880, at ten o'clock in the forenoon (or forthwith), to be examined in relation to such assets. , /Surrogate. The proof presented to the surrogate by the petition and other proof oral, or by affidavit, must make it appear to the satisfaction of such officer that there are reasonable grounds for believing that the effects sought to be recovered are concealed or withheld. In analogy to the practice in the supreme court, in warranting an order for arrest, it is presumed that the circumstances, from which a reasonable presumption may be drawn, that such effects are concealed or withheld, should be verified by the affidavit or affi- davits used. It will not be sufficient to move upon papers simply declaring that there are reasonable grounds for the belief that the effects are concealed or withheld, § 2608. Citation how srrved. — The surrogate must annex to, or endorse upon the citation, an order, requiring the party cited to attend personally at the time and place therein specified. The citation and order must be personally served ; and service thereof is ineffectual unless it is accompanied with payment, or tender of the sum required by law to be paid or tendered to a witness, who IS subpoenaed to attend a trial in the supreme court A failure to attend as required by a citation and order personally served, may be punished as a contempt of the court The sum required to be paid is four cents for each mile neces- sarily traveled by the party cited, in going to and returning from the court Answek in Pkoceedings. 229 § 2709. Certain other officers may entertain proceeding. — If the surrogate is absent the petition may be presented to the county judge, the special county judge, or the special surrogate, or to a justice of the supreme court, or a judge of a superior city court within his city, or, except in New York or Kings county, to the mayor or recorder of a city within the surrogate's county. The officer to whom it is so presented has the same power as the surro- gate with respect to all the proceedings, and must issue a citation and an order, returnable before him, or as prescribed in the last two sections. He may, at any stage of the proceedings, make an order transferring them to the surrogate, who must thereupon complete them, in like manner as if he had issued the citation. § 2710. Examination of persons cited. — Upon the attendance of a person to whom a citation is issued, as prescribed in this article, he must be sworn to answer truly all questions put to him touch- ing the inquiry prayed for in the petition ; and he may be exa- mined fully and at large respecting any money or other property of the decedent, or of which the decedent had possession at the time of, or within two years before, his death. A refusal to be sworn or to answer any question which the officer conducting the examination determines to be proper, is punishable by the officer or referee conducting the examination, in the manner as a like refusal by a witness subpoenaed to attend a hearing before the surrogata In case the person so cited shall interpose a written answer duly verified that he is the owner of said property, or is entitled to the possession thereof, by virtue of any lien thereon, or special property therein, the surrogate shall dismiss the proceeding as to such property so claimed. {Public Administrator v. Ward, 3 Bradt, 244; Metropolitan Trmt Co. v, Bogers, 1 Dem, 365.) A respondent who claims to be entitled to possession of the property by virtue of a lien thereon, must allege the facts neces- sary to sustain the claim, and to make out at least a prima facie casa {De Lamater v. McCaskie, i Denx, 549.) An answer setting up title to a part only of tne property re- ferred to in the moving affidavit and denying possession of the balance, does not interpose a plea of title which will oust the sur- rogate of jurisdiction as to such balance, nor will a statement that the respondent returned such property to the decedent in his life- time have that effect {Fub. Adm'r v. Mias, 4 Dem., '139.) An answer alleged that the respondent had held the property in ques- tion under an agreement with the decedent that he should hold the same as security for certain advances which had been made, and that the respondent, as by agreement it was provided he might, had disposed of the property in the life-time of the de- 230 Decree foe Possession. ceased and applied the proceeds to his reimbursement, and it was held that the proceedings were properly dismissed thereon. {Matter of Wing, 41 Hun, 452.) § 2711. Additional evidence. — After the examination of all the parties cited is completed, unless one or more of them give secu- rity, as prescribed in the next section but one, either party may produce further evidence, in like manner and with like effect as upon a trial, in the absence of the answer provided for in the last section. The proceeding is a judicial one, and the testimony reviewpble therein is subject to-the restrictions of section 399 (829) of the Code, prohibiting the admission of evidence given by parties in- terested in the proceeding as to personal transactions had with the deceased. {Tillon v. Ormsby, 10 Hun, 7 ; 70 K Y., 609.) § 2712. Decree awarding possession to petitioner. — Where it ap- pears to the surrogate or other officer who issued the citation, from the examination and other testimony, if any, that there is reason to suspect that money or other property of the decedent is withheld or concealed by the person cited, he must, unless that person gives security, as prescribed in the next section, make a decree, reciting the ground of making it, and requiring the person cited to deliver possession of the money or other property to the petitioner. The decree must specify the sum of money or de- scribe the other property. Where it is made by an oflBicer other than the surrogate or temporary surrogate, it must be entered, and may be enforced as a decree of the surrogate's court , In order to justify an order requiring the delivery, the surrogate must find as a fact, that the property belongs to the estate ; it is not enough that he should determine that there is probable cause to believe that it belongs to it {Tilton v. Ormshy, sup. ; Matter of Ourry, 25 Hun, 321 ; Summerfleld v. Howie, 2 Redf., 149 : Gaff- ney v. Public Admr., 4 Dem., 223.) An order or decree for the delivery of property is defective, where it fails to specify and particularize property which it directs to be transferred to the administrator ; and such a defect may be considered as a ground for refusing to enforce its performance in proceedings for contempt {Camp v. Frazier, 4 Dem., 212.) As the surrogate's jurisdiction in such cases extends only to a determination of the respondent's possession, in case no sufficient right to withhold such possession is asserted, he has no jurisdic- Deckee May be Avoided. 231 tion in sucli case to decide whether the respondent should surren- der the property. {Matter of Wing, 41 Hun, 452.) In these proceedings, the surrogate has no power to try the title to the property in dispute. The court will not therefore, on the examination of the person withholding the property, hear testi- mony as the ownership by him, {Matter of Gates, 2 Eedf., 144 ; Summerfield v. Howie, id., 149.) The order should specify distinctly the property, delivery of which is required, and an order which, after specifying certain articles, proceeds, " and all other property, goods, etc., of the said deceased, in her possession or under her control, at her place of residence," is too broad and must be reversed. {Tilton v. Ormsby, 10 Hun, 7.) DEOEEE. At a surrogate's court, held in and for the county of Eensselaer, at the surogate's office in the city of Troy, on the day of , 1880. Present — Hon. MoSES Warreit, Surrogate. In the Matter of the Goods, etc., / OP J. D., Deceased. j It appearing from the testimony in this matter, that certain effects of the above named deceased, to wit : one bay horse, one gold watch (naming and describing the articles), are concealed (or withheld) by Gr. B., of the town of Nassau, in said county; It is ordered and adjudged that the said G. B. deliver posses- sion of said property to E. F., executor of the will of said de- ceased. "Witness, , surrogate, and the seal of the [l. S.] court, the day and year first above written. , Surrogate. § 2713. Security to prevent decree. — The security to be given, as prescribed in the last section, must be a bond to the petitioner, executed by the person cited, with such sureties and in such a penalty as the surrogate approves; describing the property or specifying the sum of money, and conditioned that the principal in the bond will pay to the obligee, or his successor, the money ; or that he will deliver to him the property, or, in default thereof, pay to the obligee the full value of the property, and, in either case, that he will pay all damages awarded against hira for with- holding the property, whenever it is determined, in an action or special proceeding to be brought by the obligee or his successor, 232 Warkant to Take Assets. that it belongs to the estate of the decedent. Upon the presenta- tion of such a bond, and the payment of the costs, if any, which the surrogate or other officer awards to the petitioner, within such a time as the surrogate or other officer fixes for that purpose, an order must be made, dismissing the proceedings. § 2714. Warrant to wswe.— Where the decree requires the per- son cited to deliver money, disobedience thereto may be punished as a contempt of the court. Where it requires him to deliver possession of other property, a warrant must be issued, upon the application of the petitioner, directed to the sheriff, or, generally, to any constable of the county, or any marshal of the city, where the property may be found ; commanding him to search for it ; to seize it, if it is found in the possession of the person cited, or his agent, or a person deriving title from him since the presentation of the petition, and for that purpose, if necessary, to break open any house in the day-time; to deliver the property so seized, to the petitioner ; and to return the warrant within sixty days there- after. If the decree was made by the surrogate or temporary sur- rogate, the warrant must, be under the seal of the surrogate's court ; if by any other officer, it must be under his hand, and re- turnable before him. The issuing of such a warrant does not affect the power of the court to enforce the decree, or any part thereof, by punishing a disobedience thereto. WAEEANT. The People of the State of New York to the Sheriff of the County of [l. S.] Rensselaer, or any Constable of said county, greeting : We command you, that upon the receipt hereof you do forth- with search for and seize one bay horse, one gold watch (enumer- ating the articles), supposed to be in the possession of Gr. B., in your bailiwick, and for that purpose, if necessary, to break open any house in the day-time, and that you deliver said property to J. D., the executor of the will of A. B., deceased, and that you make return thereof with this writ to our surrogate of the county of Eensselaer. Witness, Moses Warren, surrogate of our county of Esns- selaes, and the seal of our said court, this day of — , 1880. MOSES WAEEEN, Surrogate. Those provisions were first enacted in 1870, and it was supposed that the provisions of the act of 1870 were substantially the same as those of the Code noticed above. The supreme court, third department, decided, after the passage of the Code, that the act of 1870 was unconstitutional. {Matter of Beebe, 20 Hun, 46.) It The Inventory. 233 has since been held in the first department that, as in these pro- ceedings, the question of possession only, and not that of title, can be examined, and the sections authorizing the proceedings are not in conflict with the provisions of the constitution declaring that no person shall be deprived of life, liberty or property with- out due process of law. The law is constitutional. The court held that the decision in Matter of Beebe {sup.) did not apply to the provisions as now incorporated in the Code. {Estate of Ourry, 25 Hun, 321.) CHAPTER Xm. Appointment of Appraisers ajstd the Inventory. The duty of taking an inventory is too often neglected, while in fact the omission to make and file it, accordmg to the statute, is a strong circumstance in support of the charge of improper conduct in an administrator. {Hart v. Ten Eyck, 2 Johns. Ch, 62.) " The second duty and care must be to make an inventory, i. e., a schedule containing a true and perfect description of all the goods and chattels of the deceased at the time of his death ; as of his wares, merchandises, emblements and the like, with their appraisement and value, and of none else, and of all debts due to him and from him." (Shep. Touch, 476.) One of several administrators who fails to return an inventory cannot release a debt. {Jeroms v. Jeroms, 18 Barb., 24.) A proper inventory must contain an appraisal by appraisers, but no appraisal can be made unless the assets are m existence. Wherefore, an administratrix, without making an inventory, had disposed of all the assets of the estate in payment of debts and personal expenses, it was held that she could be required to make a statement under oath of the property which came to her hands, its value and the disposition of it, and what became of the pro- ceeds ; but she could not be required to make a statutory inven- tory. {Estate of Bobbins, 4 Red£, 144.) " Upon the application of any executor or administrator, the surrogate who granted letters testamentary or of administration, 30 234 Fees of Appraisers. shall bj writing appoint two disinterested appraisers- as often as occasion may require, to estimate and appraise the property of the deceased person." (2 E. S., 82, § 1.) § 2565. Fees of an appraiser. — An appraiser is entitled, in ad- dition to his actual expenses, to a sum to be fixed by the surro- gate, not exceeding five dollars for each day actually and neces- sarily occupied by him in making the appraisal or inventory. The number of days' service, and the expenses, if any, must be proved by the affidavit of the appraiser ; and the sum payable therefor taxed by the surrogate, and paid by the executor or administrator. § 2511. Clerk not to be appraiser. — A clerk or other person employed in any capacity in a surrogate's office shall not act as appraiser. * * * The law would seem to require a warrant of appointment of the appraisers, and such in fact is the practice, to issue the warrant upon the order of the court OEDBR FOR APPRAISEES. At a surrogate's court, held in and for the county of ) at the surrogate's office m the of , on the ■ day of , 1874. Present — Hon. , Surrogate. Its the Matter of the Estate of / , Deceased. j On the application of , executor of the last will and testament of , deceased : Ordered, that , of the city of , and I — , of the town of , be appointed ap- praisers of the personal estate of the said deceased, and Jhat their appointment issue under the seal of this court. : ; Surrogate. WARRANT OF APPOINTMENT. The People of the State of New York, by the gra/x of Ood free and independent, to and ^ [l. a] of the town of ^, in the county of , send greeting: Whereas, , the executor ot the will of -, late of , in said county, deceased, has this day applied to the surrogate of the county of for the appointment of two disinterested appraisers of the personal Notice of Appraisement. 235 estate of said deceased, with a view of making an inventory thereof : Now, therefore, said surrogate hath appointed, and by these presents does appoint you, the said and -, to estimate and appraise the personal property of the deceased, and to aid the said executor in making a true and per feet inventory of the goods, chattels and credits of said deceased. Witness , surrogate, and the seal of this [l. a] court, this day of , 1880. , Surrogate. The duty of the appraisers being to fix a value to charge the executor or administrator as between him and the next of kin, lega- tees, eta, it would seem to be a very proper rule to appoint only such as could act as jurors in a trial at law, in which any of these parties might be interested. " § 2. The executors and administrators of any testator or intes- tate, within a reasonable time after quaHying, and after giving the notice in the next section required, with the aid of appraisers so appointed by the surrogate, shall make a true and perfect inven- tory of all the goods, chattels and credits of such testator or intes- tate, and where the same shall be in two different and distant places, two or more such inventories as may be necessary." (2 R k, 82.) " § 3. A notice of such appraisement shall be served, five days previous thereto, on the legatees and next of kin residing in the county where such property shall be ; and it shall also be posted in three of the most public places of the town. In every such notice, the time and place at which such appraisement will be made, shall be specified." (Id.) NOTICE OF APPRAISEMENT. To the legatees {or next ofhin) of , deceased: Rensselaee County, ss. : Take notice, that the subscribers, with the appraisers duly ap- pointed, will attend at the late dwelling house of deceased, in the of , in the said county, on the day of , 188 — , at ten o'clock in the forenoon of that day, to estimate and appraise the personal property of the said deceased, and with the aid of appraisers take an inventory thereof. Dated , 188—. Executors. 236 How Appraisers Shall Act. It is not required, but it is believed to be good practice, to annex to the inventory, when filed, proof, by avidavit, of the ser- vice and posting of the notice of the appraisement. An appraisement made without the previous notice required by the law is invalid, and the appraisers are entitled to no fees, {Salomon v. Heichel, 4 Dem., 176.) " § 4. Before proceeding to the execution of this duty, the ap- praisers shall take and subscribe an oath to be inserted in the inventory made by them, before any ofiEicer authorized to admin- ister oaths, that they will truly, honestly, and impartially appraise the personal property which shall be exhibited to them, according to the best of their knowledge and ability." " § 5. The appraisers shall, in the presence of such of the next of kin, legatees or creditors of the testator or intestate as shall attend, proceed to estimate and appraise the property which shall be exhibited to them, and shall set down each article separately, with the value thereof, in dollars and cents distinctly in figures, opposite to the articles respectively." (Id.) ESrVElSTTOEY. We, whose names are hereunder signed, appraisers, appointed by the surrogate of the county of Eensselaer, having first taken and subscribed the oath hereinafter inserted, do certify that we have estimated and appraised the property in the annexed inven- tory contained, exhibited to us, according to the best of our knowledge and ability, and we have signed duplicate inventories thereof. Dated this day of , 1888. ~ ' >■ Appraisers. State of New Yoek, ) Rensselaer County^ j "' I, , do solemnly swear that I will truly? honestly and impartially appraise the personal property of • , deceased, which shall be exhibited to me, according to the best of my knowledge and ability. Subscribed and sworn this day ) of , 18 — , before me. j State of New York, ) Rensselaer Gov/nty, j " I, , do solemnly swear that I will truly. Inventory. 237 honestly and impaxtially appraise the personal property of , deceased, which shall be exhibited to me, according to the best of my knowledge and ability. cribed and sworn this of , 18 — , before me. Subscribed and sworn this day ) A true and perfect inventory of all and singular the goods, chattels and credits of , deceased, made by , etc., of the deceased, with the aid of appraisers, appointed by the surrogate of the county of Rensselaer, duly qualified, and after service of notice, as the law direct?, on the day of , one thousand eight hundred and seventy . The following articles are stated but not appraised, being set apart, according to law, for the widow (and minor children), to wit: One spinning wheel. One weaving loom. One knitting machine. One sewing machina Three stoves kept for the use of the famUy. [And so on to property exempt from appraisal] The following articles are appraised and set apart for the use of the widow (and minor children), in addition to those enumerated above, in pursuance of the statute, to wit : One mahogany bureau $15 00 Ten mahogany chairs ; 37 50 One parlor carpet 37 50 One secretary 10 00 Four chamber carpets 40 00 Two Paintings 10 00 $150 00 We have further set apart for said widow and minor children the following articles of personal property in addition to the above : One pair sorrel horses $100 00 Cash. 50 00 $150 00 The following are enumerated as assets in addition to the above : i!38 "What Shall be Inventoried. Forty sheep $100 00 One sorrel horse 60 00 One black horse 75 00 [And thus through like axticles.] The following accounts and notes are considered good and col- lectable : Note, John Myers, dated February 10, 1860, for $100, interest endorsed for two, years, now worth. $100 00 Account against James Jones. 15 00 [And thus through the good items.] The following are considered doubtful : Note Thomas Nokes, dated August 1, 1872, no endorse- ment $16 00 [And so through the doubtful.] The following are considered bad : [State items in detaU.] Dated June 5, 1874 (Signed) ' !• Appraii aisers. The inventory is made m duplicate, one copy for filing and one to be preserved by the executors or administrators. " Assets in this case is said to be where one dieth indebted and maketh his executor, or dieth intestate, and the executor or ad- ministrator hath sufficient in goods or chattels, or other profits, to pay the debts or some part thereof ; this is said to be assets in his hands, and for so much he shall be charged. " All these goods and chattels, actions and commodities which were the deceased's in right of action or possession as his own, and so continued to the time of his death, and which after hi» death, the executor or administrator doth get into his hands as duly belonging to him in right of his executorship and adminis- tration, and all such things as do come to the executor and ad- ministrator in lieu or by reason of that, and nothing else, shall be said to be assets in the hands of the executor or administrator, ta make him chargeable to a creditor or legatee." (Shep. Touch, -6.) What is Assets. 239 ^'§6. The following property shall be deemed assets, and shall go to the executors or administrators, to be applied and distrib- uted as part of the personal estate of their testator or intestate, and shall be included in the inventory thereof : " " 1. Leases for years ; lands held by the deceased from year to year, and estates held by him for the life of another person." {Reynolds v. Collier, 3 HiU, 441 ; Despard v Churchill, 53 N. Y., 192.) " 2. The interest which may remain in the deceased at the time of his death, in a term for years, after the expiration of any estate for years therein, granted by him or any other person. " 3. The interest in lands devised to an executor for a term of years, for the payment of debts. " 4. Things annexed to 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" Hop poles used on the land are a part of the realty. {Bishop V Bishop, 11 N. Y., 123.) Cotton machinery is personal property. ( Van Derpoel v. Van Allen, 10 Barb., 157 ) Looms in a woolen mill are personal estate {Murdoch v. Clifford, 18 N. Y., 28), while the water wheel, gearing, millstones and bolting apparatus are part of the realty. {Murdoch v. Gifford, sup., and House v. House, 10 Paige, 158.) Manure, the produce of a farm, passes with the realty. {Mid- dlebrooh v. Corvuin, 15 Wend., 169; Goodrich v. Jomes, 2 HUl, 142; see, also, Fen] v. Muzzy, 13 Gray, 53.) On the other hand, by parity of reasoning, and without doubt, the accumulations of a liveiy stable or scavenger are personal property. {Daniels v. Pond, 21 Pick., 367.) "5. The crops growing on the land of the deceased, at the time of his death." Meaning, as qualified in the next subdivision, crops which are produced annually, by cultivation. {Banh of Lansingbwrgh v. Orary, 1 Barb., 542; Xain v. Fisher, 6 N. Y, 597.) But the case of Bradner v. Faulkner (34 N. Y, 347), in construing this fifth subdivision, declares that crops growing upon the land devised, do not pass to the executor, except they be necessary to pay debts 240 What is Assets. or legacies. Tlie court undertakes to explain and limit the plain and imperative language of the statuta They overlook the pro- vision in the same statute, in relation to estates of intestates, that, the crops shall go "to the administrator and be distributed as part of the personal estate." There can be no broader language than this, fixing upon growing crops the character of assets in th& hands of the executor or administrator for all purposes. We have another decision of the court of appeals, in the case of Stall V. Wilbur (77 N. Y., 158), holding that " under this provision, the executor takes possession of the growing crops, as he does all other personal property. But he takes possession only for the purpose of administration according to law. He may sell it, if necessary, for the payment of debts and legacies. But when the land upon which the crop is growing has been devised in such form as to convey it to the devisee, then the crop, in my opinion, is to be put upon the footing of a chattel specifically bequeathed ; and it cannot be sold for the payment of debts, only after the other assets, not specifically bequeathed, have been applied:" We must yield to the decision of the court, for there is no method of securing a review. Under this decision, where the land on which, the crops grow, is devised, the crops are to be considered as spe- cifically bequeathed to the devisee ; where the land is not devised, or the decedent is intestate, the crops are assets in the hands of the executor or administrator. (See, also. Kinsman v. Kinsman, 1 Am. Dec, 37, to same efiEect.) ' Every kind of produce, raised annually by labor and cultiva- tion, excepting grass growing and fruits not gathered. " 7. Eent reserved to the deceased, which had accrued at the time of his death." Rent accrued and collected after the decease of the testator or intestate, go as to the heir, as incident to the reversion, and the executor is not responsible for it, and can maintain no action to recover it Kohkr v. Knapp, 1 Bradf.. 241 ; Fay v. Halhran, 35 Barb., 295 ; Marshall v. Moseley, 21 N. Y., 280 ; Wadsworth v. AkoU, 6 id., 64.) But by chapter 542 of Laws of 1875, " rents, annuities, divid- ends and other payments payable or becoming due at fixed periods under any instrument executed after the passage of this act (June 7, 1875), or, being a last will and testament, that shall take effect Rent is Assets. 241 after the passing of this act, shall be apportioned so that the sum accrued at the death of the person entitled shall pass to his ex- ecutors, administrators or assigns, who may have proper remedies to collect the same. The ' sum so apportioned shall include all that shall have accrued up to and including the day of the death of such person. (See Estate of Hughey, 7 K Y. St. Rep., 732.) This revision is in the spirit of the R. S., in relation to rents due to a tenant for life. Where a lease ended in April, and the tenant had the privilege to gather winter crops, and to pay the rent in wheat in August, and the landlord died in June : Held, that the rent due in August, went to the executors. {Wadsworth v. Ahott, 6 N. Y., 64.) Where a tenant for life, having demised premises, dies, on or after the day the rent becomes due, his executors or administra- tors may recover the rent But if he dies before the rent becomes due, the rent shall be apportioned between the executors or ad- ministrators and the reversioners. (2 R. S., 747, § 22.) " 8. Debts secured by mortgage, bonds, notes or bills, accounts,, money and bank bills, or other circulating medium, things in ac- tion and stock in any company, whether incorporated or not. " 9. Goods, wares, merchandise, utensils, furniture, cattle, provis- ions and every other species of personal property and effects, not hereinafter excepted." Moneys which become due by reason of a policy on the life of the decedent, are assets when the sum is collectable by the per- sonal representatives. While an executor or administrator, as such, has no interest m. the real estate of his decedent, it would appear that where an in- testate had agreed, in his life-time, to convey real estate, the pur- chase money agreed to be paid goes to the administrator. This is founded upon the agreement which shows that the deceased in- tended to convert his interest in the land into personal property, and also because there having been a part performance, and no subsequent default, a specific execution of the agreement may be had. ( White v. Beard, 5 Porter, 94 ; 30 Am. Dec, 552.) A right under a license from a patentee, to make and sell a patent ^.rticle, is assets. {Pitts v. Jameson, 15 Barb., 310.) Pri- vate letters go to the executor to be 'distributed to the widow and 31 242 iNSURAis'CE ON LiFE. next of kin ; thej are not assets. {Eyre v. Highee, 35 Barb., 502.) Claims for damage to real estate of decedent are assets. {Ebichhin T. Aub. and Boch. B. B. Co., 36 Barb., 600.) A mortgage interest before foreclosure is a chattel, and belongs to the executor. {Demarest v. Wynhoop, 3 Johns. CL, 129, 145.) Surplus moneys ~ arising on a foreclosure sale, had before intestate's death, are assets. {Bofjert V. Furman, 10 Paige, 496 ; SweezyY. Willis, 1 Bradf., 495.) Otherwise if the sale is after his death ; the surplus moneys then go to the heirs at law. {Moses v. Murgatroyd, 1 Johns. Ch. 119 ; Cox V. McBurney, 2 Sandf., 561.) The obligations of a purchaser to pay on a contract made with decedent is personal assets, and may be recovered by the administrator. {/Smith v. Cage, 41 Barb., 60 ; Schroeppel v. Hopper, 40 id., 425.) But a testator or intestate has a legal right to provide insurance for the benefit of his f amUy, and to designate the beneficiaries who are to receive the proceeds thereof after his decease, and such pro- ceeds are not assets for the payment of debts. {Mailer of Wendell, 3 How. Pr. [K S.], 68.) Dividends declared previous to decedent's death, although not payable until after he had actually died, belong to the executors^ where the stocks, on which dividends had been declared were be- queathed. {In re Kemochan, 104 N. Y., 618.) So, also, if the dividend was declared after the decedent's death, they passed with the stock to the legatee, although made from net earnings accumu- lated before that time. They were not profits until so declared. (Id.) Options or the value of them would belong to the execu- tors, and be inventoried as a part of the capital of the estate. (Id.) Money deposited in a savings bank to the joint credit of deced- ent and his wife, on the decease of the husband becomes the prop- erty of the wife. {Estaie of Brooks, 5 Dem., 326; 5 N. Y. St Eep., 381.) A surplus arising out of a sale under a mortgage on lands held by the deceased, is not assets, and is not to be paid to the execu- tor or administrator even though the mortgage so provided. The surplus belongs to the heirs or devisees. {Dunning v. Ocean Nat. Bank, 61 N. Y., 497.) Otherwise, when sale was made before decedent's deatL {Bogart v. Furman, 10 Paige, 496 ; Sweeny v. Willis, 1 Bradf., 495.) Where one interested in lands dies intestate, after a sale and conveyance thereof, his interest in the money to be realized by Partnership Estate. 24S the sale is personal estate and goes to the administrators, npt to the heirs at law. {Denham v. Cornell^ 67 N. Y., 556.) The inventory must include all the personal property of the de- cedent whereever situated, whether in this State or in some other State, which has come to the hands or knowledge of the executor or administrator. {Matter of Butler, 38 N. Y., 397.) See, also, WiUia'ms v. Williams (79 N. C, 417 ; 2 Am. Eep., 380), holding an executor liable for not collecting in an adjoining county of another State. But, where the will appoints an execu- tor in the other State, or, where it appears that administration is actually granted there, the representative in this State is not bound to include those assets in his inventory, or, to account for them on the settlement {Sherman v. Paige, 85 N. Y., 123.) Some difficulty has been experienced in inventorying the inter- est of the decedent in a partnership, but it seems to be well settled now by the opinion of Mr. Surrogate Bradford in Thompson v. Thompson (1 Bradf., 24). He there holds that inasmuch as the surviving partner is a trustee as to the interest of the decedent, the assets are not to be inventoried. That as the executor or ad- ministrator is only entitled to a balance on an accounting, it is sufficient as to the partnership interest to state it in the inventory as an interest in an unascertainable balance. {Camp v. Frazier^ 4 Dem, 212 ; Jones v. Eardesty, 10 Gil. & Johns., 404 ; 32 Am. Dec, 180.) The surviving partner must account to the representatives of a deceased partner for the property of the firm at the time of the deceased partner's deatL They are entitled to this accounting absolutely, without showing that something would be due to them. If the surviving partners carry on the business, they do so at their own risk as to the future. {Cheeseman v. Wiggins, 1 T. & C, 595.) The surviving partner may recover possession of partnership assets by suit against the executor of the will of the deceased partner. The question has not infrequently arisen how deposits in sav- ings banks, made by the decedent, in trust for some other person, shall be treated. Fathers often make such deposits for children. It seems that whUe the character of the deposit in creating a trust is not conclusively established by the mere fact of the deposit, contemporaneous facts and circumstances may be proved to show .that the real motive of the depositor was or was not to create a 244 What Are Fixtures. trust If, however, tlie evidence establishes a trust, then the title to the deposit does not vest in the personal representatives, as the decedent himself had parted with his right when he constituted the trust {Mahie v. Bailey, 95 K Y., 206 ; Martin v. Funk, 75 id, 134; Matter of Collyer, 4 Dem., 24.) In case the personal representatives have withdrawn the fund which was in fact a trust, they may be sued in their individual capacity for the recovery of it, because it is no part of the decedent's estate. " § 7. Things annexed to the freehold, or to any building, shall not go to the executor, but shall descend with the freehold, to the heirs or devisees, except such fixtures as are mentioned in the fourth subdivision of the last section. " § 8. The right of an heir to any property not enumerated in the preceding sixth section, which by the common law would de- scend to him, shall not be impaired by the terms of that section." (Id.) Fixtures have been well defined to be " chattels so annexed to the land that the owner of the chattels has no right to remove them, as a general rule, except when he is the owner of the land." (Bingham on Eeal Estate, 453. See, also, Tifft v. Sbrton, 53 K Y., 377 ; Murdoch v. Gifford, 18 id., 28 ; Buckley v. Buck- ley, 11 Barb., 43 ; Downing v. Marshall, 1 Abb. Ct App., 525.) Besides the allowances of personal property, the widow is en- titled to tarry in the chief house of her husband for forty days ^fter his death, and in the meantime is entitled to her reasonable sustenance out of the estate of her husband (1 E. S., 742, § 17). This is called the widow's quarantine. But it is held {Voehkmer v. Hudson, 1 Sand£, sup.), that the provision for the widow's quarantine applies only to lands in ■which the widow has a right or claim of dower. The dictum is not supported by any authorities, and we are disposed to doubt the authority of it The right to the sustenance for the forty days out of the per- sonal estate of her husband, is not affected by the fact that the estate is insolvent, but it is confined to the sustenance of the widow herself, and she is not allowed, by virtue of the statute, to provide out of the estate for the sustenance of her children {Johnson v. Corbett, 11 Paige, 265.) She is entitled to the use of the supplies left on hand in the house, during her quarantine, and the reasonable cost of her board Akticles Set Off to Widow. 245 during that period. {Matter of Miller, 1 Law. BuL, 48.) An ad- ministrator, and, by parity of reasoning, an executor, has no legal right to furnish supphes for the family of the decedent, beyond his widow, at the expense of the estate. {Hyland v. Baxter, 42 Hun, 9 ; 5 N. Y. St Eep., 219.) " § 9. (As amended, chapter 782, Laws of 1867, and Laws of 1874.) When a man having a family shall die, leaving a widow, or a minor child or children,- or a widow shall die leaving a minor child or children, the following articles shall not be deemed assets i^for the purpose of distribution, the payment of debts or legacies), but shall be included and stated in the inventory of the estate without being appraised. L AU spinning wheels, weaving looms, one knitting machine, one sewing machine and stoves put up or kept for use by his family. IL The family Bible, famdy pictures and school books used by or in the family of such deceased person, and books not exceeding in value fifty dollars, which were kept and used as part of the family library before the decease of such person. IIL All sheep to the number of ten, with their fleeces, and the yarn and cloth manufactured from the same ; one cow, two swine, and the pork of such swine, and necessary food for such swine, sheep or cow for sixty days ; and all necessary provisions and fuel for such widow, or child or children, for sixty days after the death of such deceased person. IV. All necessary wearing apparel, beds, bedsteads and bed- ding ; necessary cooking utensils ; the clothing of the family ; the clothes of the widow, and her ornaments proper for her station ; one table, six chairs, twelve knives and forks, twelve plates, twelve teacups and saucers, one sugar dish, one milk pot, one teapot and twelve spoons,' and also other household furniture which shall not exceed one hundred and fifty dollars in value. The cow must be a milch cow, if there be any such in the estate. {Brigham v. Bush, 33 Barb. 596.) The provisions as to setting off the articles only applies where the decedent had such an ownership, and possession of them, at the time of making the inventory, as will permit of their dehvery to the widow. So when he had only an half interest in the sheep and swine they cannot be delivered to her, nor can allowance be made to her therefor. {Baucus v. Stover, 24 Hun, 109.) 246 Additional to Widow. § 13. When a married -woman or widow shall die, leaving her surviving a husband or a minor child or children, the same articles and personal property shall be set apart by the appraisers for the benefit of such husband or minor child or children, as is now pro- vided by law in the case of a man dying and leaving a widow or minor children ; and all articles and property set apart, in accord- ance with law for the benefit of a widow or widower and. a minor or minors, shall be and remain the sole personal property of such widow or widower after such minor or minors shall have arrived at aga But notwithstanding, the widow is not entitled to the possession of these articles, until they are inventoried and set apart by the appraisers {Volckner v. Hudson, 1 Sandf., 215.) These provis- ions for the widow and minor child or children, apply whether the decedent was a householder or not, and even if the deceased, or his widow or children, are non-residents. {Knapp v. Public Ad- ministrator, 2 BradL, 258.) The provision that the articles set apart shall remain in the pos- session of the widow, is explained in Scofield v. Scofield (6 Hill, 642), to mean that she is entitled to hold the articles during the minority of the (Children, notwithstanding their voluntarily leav- ing her, without her fault, and even if she is their step-mother. A husband cannot divest his widow of these articles by his will. {Vedder v. Saxton, 46 Barb., 188.) § 2. (S. L., 1842, chap. 157, as amended by chap. 782 of Laws of 1867.) Where a man having a family shall die, leaving a widow or minor child or childred ; or a widow shall die leaving a minor child or children, there shall be inventoried and set apart for the use of the widow, or for the use of such window and child or children, or for the use of such child or children, in the manner now prescribed by the ninth section, necessary household furni- ture, provisions or other personal property, in the discretion of said appraisers, to the value of not exceeding one hundred and fifty dollars, m addition to the personal property now exempt from appraisal by said section. The appraisers then under this section shall set apart to the widow or children " necessary household furniture, provisions or other personal property " to the value of one hundred and fifty dollars, and this in addition to the same amount before set apart, in household furniture. {Matter of Frazer, 92 N. Y., 239; Lyen- decker v. Ekemari 3 Dem., 72.) The right of the widow to the articles to be set apart is absolute, "Widow to Have Allowance. 247 and subject to the right of the executor to keep them in his pos- sessiou to state them in the inventory, she could sell them. Her right is absolute against creditors, next of kin or the legatees of the deceased. (^Fox v. Burns, 12 Barb., 677 ; Vedder v- Saxton, 46 Barb., 188.) These decisions overrule the case of YolcJcner v. Hudson (1 Sand£, sup.\ which holds that the widow has no right in any specific chattel until it has been inventoried and set apart by the appraisers for her use. Thus it seems that the appraisers shall use their discretion as to what articles they shall set apart, not as to whether they shall set apart any or not. § 2720. Property may he set off on petition or paid for. — Where an executor or administrator has failed to set apart property for a surviving husband, wife or child, as prescribed by law, the person aggrieved may present a petition to the surrogate's court, setting forth the failure and praying for a decree, requiring such executor or administrator to set apart the property accordingly ; or, if it has been lost, injured or disposed of, to pay the value thereof, or the amount of the injury thereto ; and that he may be cited to show cause why such a decree should not be made. If the surrogate is of the opinion that sufficient cause is shown, he must issue a citation accordingly. Upon the return of the citation the surro- gate must make such a decree in the premises as justice requires. In a proper case the decree may require the executor personally to pay the value of the property, or the amount of the injury thereto. {Scofield v. Scojield, 6 Hill, 642.) § 2721. Allowance may he made on settlement. — The decree made ■upon a judicial settlement of the account of an executor or ad- ministrator may award to a surviving husband, wife or child, the same relief which may be awarded in his or her favor, upon a petition presented as prescribed in the last section. {Sheldon v. £liss, 8 K Y., 31 ; Clayton v. Wardell, 2 Bradf., 1.) But this would seem to be in the just discretion of the surrogate on the facts of the case. So, in a case partially reported, where after the testator's death the widow remained in the dwelling house enjoying the use of the personal property, and received $188 from the money of the estate, it was held that she was not entitled to an allowance for forty days' sustenance, nor to $150 for household furniture not set off. {Peck v. Sherwood, 56 N. Y., 615.) It was also held in Cornwall v. Deck. (2 Eedf. Rep., 87), that a 248 Money to be Inventoried. widow who was also administratrix, cannot on the accounting for the first time claim the $150 which should have been set off "to her by the appraisers. (But queer e.) But the appraisers' estimate of value is not judicial as to articles set apart, and errors may be corrected by the surrogate. {Apple- gate v. Cameron, 2 Bradf., 119.) If the appraisers' memorandum of articles set apart shows that they exceed $150 in value, the allotment is void. (Id.) § 11. (2 E. S., 84.) The inventory shall contain a particular statement of all bonds, mortgages, notes or other secunties for the payment of money belonging to the deceased, which are known to such executor or administrator, specifying the names of the debtor in such security, the date the sum originally payable, the indorsements thereon, if any, with their dates, and the sum which, in the judgment of the appraisers, may be collectable on such security. § 12. The inventory shall also contain an account of all moneys, whether in specie or bank bills, or other circulating medium, be- longing to the deceased, which shall have come into the hands of the executor or administrator ; and if none shall come into his hands, the fact shall be so stated in such inventory. There is no authority for the surrogate to make an order upon the application of the next of kin, directing administrators to produce papers on the appraisal The proper practice m pre- paring the inventory is to postpone all disputed questions respect- ing the existence or valuation of the assets to the accounting. {Yogel V. Arbogasi, 4 Dem., 899.) It may oftentimes occur that, before the appraisal, the executor or administrator may have paid out some of the moneys which came into his hands, for funeral expenses, or other necessary charges; notwithstanding he should state in the inventory the amount which came originally into his possession, and charge in his account what he shall have paid out § 13. The naming of any person executor in a wUl, shall not operate as a discharge or bequest of any just claims which the testator had against such executor, but such claims shall be in- cluded among the credits and effects of the deceased, in the inventory, and such executor shall be liable for the same, or for so much money in his hands, at the time such debt or demand becomes due ; and he shall apply and distribute the same in the payment of debts and legacies, and among the next of kin as part of the personal estate of the deceased. Claim Against Executor. 249 (See, also, Decker v. Miller, 2 Paige, 149 ; Adair v. Brimmer, 74 N Y., 539; Freeman v. Freeman. 4 Kedf., 211; Baiictcs v. Stover, 24 Hun, 109 ; 89 N. Y., 1 ; Burlchalter v. Norton, 3 Dem., 610.) The above provision of tiae statute does not discliarge a lien upon real estate by which the executor's debt is secured, or so effect it as to give subsequent incumbrances priority of hen ; it merely adds to the original obligation a liability to account as ex- ecutor for the debt ; and until the executor, in the performance of his trust, shall have paid the amount of the debt, and thus discharged it, all liens by which it is secured remains in force. {Soverhill V. Suydam, 59 K Y., 140.) A judgment in favor of the testator, against the executor, is not discharged, but is assets in the hand of the executor, and by the statute, converted into money, and the executor is bound to dispose of it as such. {Soverhill v. Suydam, 2 Th. & 0., 460.) The including in the inventory of notes made by the executor and barred by the statute of limitations, in the life-time of the testator, is, when the inventory is sworn to, sufficient to revive them as a new promise. {Morrow v. Morrow, 12 Hun, 386.) So stating them in a copy of the inventory furnished by the ■executor, is sufficient {Clark v. Van Amhurgh, 7 Week. Dig., 102.) At common law, the naming of the debtor to be executor of the will of the creditor, extinguished the debt, on the ground that, as the executor could not maintain an action against himself, the remedy was gone, and, where the remedy is gone, the debt is gona {2 Williams on Ex'rs, 1139.) But equity construes the debtor to be a trustee, and the creditors, legatees, or next of kin, may en- force the debt of compelling the executor to account for the amount of the debt due from him to the testator. (11 Ves., 90 ,■ 13 id., 264.) And an executor cannot compromise his own debt to the estate, nor can several co-executors make such a compromise as to the debt of another. {Be Cordova v. Be Cordova, 41 L. T. Eep. [N. S.], 43 Alb. Law J., 20, p. 357.) Notwithstanding the duty of the executor to state a claim of the deceased against himself in the inventory, on the hearing on final settlement, it is competent to show any legal defense which lie may have to the claim. {Everts v. Everts, 62 Barb., 577.) An administrator who is also a debtor of the estate, and has 82 250 Claim Against Executor assigned to his decedent a mortgage, to be held by him as collat- eral security for his debt, does not, by foreclosing such mortgage as administrator and purchasing the mortgaged property, foreclose himseK of the right to pay the debt due from him to the estate, and redeem the land. {Matter of Gilbert, 39 Hun, 61.) It is no defense before the surrogate, upon the accounting, to the claims of creditors that the executor should account for the debt due from him, that he is insolvent and was so at the time letters were issued to him, and is wholly unable to pay the debt. He is bound to account for the debt, and should be charged there- with on the settlement of his accounts as for so much money in his hands. The fact that the appraisers appraised the debt against the executors as doubtful, does not change the above rule. {Baucus V. Stover, 89 K Y 1.) The appraisers, in that case probably had no right to pass upon the claim, except to state it as money. An entry by an administrator in his account book, under the head of an inventory of the effects of the estate, of money de- posited in bank by the intestate, and withdrawn under authority of his letters, does not preclude him from claiming the money as his own ; nor is he concluded by a declaration of the intestate, made in his life-time, in his absence, inconsistent with his title. {Crowe V. Brady, 5 Eedf., 1.) § 14. The discharge or btequest in a will of any debt or demand of the testator against any executor named in his will, or against any other person, shaU not be valid as against the creditors of the deceased, but shall be construed only as a specific bequest of such debt or demand, and the amount thereof shall be included in the inventory of the credits and effects of the deceased, and shall, if necessary, be applied in the payment of his debts ; and if not necessary for that purpose, shall be paid in the same manner and proportions as other specific legacies. {Soverhill v. Suydam, 2. Th. & C, 460.) Where assets have been erroneously stated in the inventory as assets of the deceased, as the crop on land assigned to a widow for her dower, the executor or administrator is not concluded by the statement in the inventory, but he may show the error, and having accounted to the widow, he will be protected in a claim made by the next of kin. {Clark v. Battorf, 1 Th. & C, 58.) If a bank deposit be inventoried as cash, this does not absolu- How Inventory Certified. 251 tely conclude the administrator on a subsequent failure of the bank. {Sheerin v. Pub. Administrator, 2 Eedf., 421.) An order of the surrogate requiring an administrator to inven- tory certain bonds as part of the decedent's estate, and made in a proceeding instituted by one of the next of kin, cannot preclude or estop the administrator from claiming the bond as his own property. {Young y. Town^', 5 Week. Dig., 109.) § 15. Upon the completion of the inventory, duplicates tnereof shall be made aiid signed by the appraisers ; one of which shall be retained by the executor or administrator, and the other shall be returned to the surrogate within three months from the date of euch letters. § 16. Upon returning such inventory the executor or adminis- trator shall take and subscribe an oath, * * * stating that such inventory is in all respects just and true, that it contains a true statement of all the personal property of the deceased which has come to the knowledge of such executor or administrator, and particularly of all money, bank bills and other circulating medium, belonging to the deceased, and of all just claims of the deceased against such executor or administrator, according to the best of his knowledge. Such oath shall be endorsed upon or annexed to the inventory. OATH TO INVENTOEY. SURROGATE'S COURT, ) State of New York, yss.: Rensselaer County, ) , of , deceased, being duly sworn, does depose and say that the annexed inventory is in all respects just and true ; that it contains a true statement of all the personal property of the said deceased which has come to the knowledge of ■this deponent, and particularly of all money, bank bills and other -circulating medium belonging to the said deceased, and of all just claims of the said deceased against this deponent • Subscribed and sworn this day ) of , 18 — , before m& j Return of Inventory. — Mow Compelled. It has been observed that one copy of the inventory, verified by the oath of the executor or administrator shall be filed with the surrogate within three months from the issue of letters testa- mentary, or of administration. (See § 15, supra.) 252 Eeturn of Inventory. The omission to file an inventory is a strong circumstance to show improper conduct {Hart v. Ten Mjch, 2 Johns. Ch., 62.) But the time for the filing of the inventory may be extended for cause shown, by the surrogate, not exceeding four months longer. This extension should be granted by order, upon a peti- tion stating the reasons fully why the inventory cannot be com- pleted within the three months' time allowed by the statute, and if the application, which is made ex parte, shall seem reasonable, the surrogate will grant an order, thus : OEDER EXTENDING- TIME FOR FILING INVENTORY. At a surrogate's court, held in and for the county of Rensselaer, at the surrogate's ofiice; in the city of Troy, on the day of , 1888. Present — -Hon. ■ , Surrogate. In the Matter of the Estate of / — , Deceased. T On reading and filing the petion of ■ , the executor of the will of the above named deceased, praying for further time in which to file the inventory of the personal estate of said deceased, and said application seeming reasonable : Ordered, that said executor have until the day of next, to make and file such inventory. — , Surrogate. § 2715. Return of inventory, how compelled. — A creditor, or person interested in the estate, may present to the surrogate's court proof, by aifidavit, that an executor or administrator has failed to return an inventory or a sufficient inventory, within the time pre- scribed by law therefor. Thereupon, if the surrogate is satisfied that the executor or administrator is in default, he must make an order requiring the delinquent to return the inventory, or a further inventory ; or, in default thereof, to show cause, at a time and place therein specified, why he should not be attached. Upon the return of the order, if the delinquent has not filed a sufficient inventory, the surrogate must issue a warrant of attachment against him, upon which the proceedings are the same, as upon a warrant issued for disobedience to an order, as prescribed in title twelfth of chapter seventeenth of this act This section confers no new power on the surrogate, but is merely declaratory of the law as already adjudged. {Matter of Mclntyre, 4 Redf., 489.) Under the R. S., no mode was provided for impeaching an inventory before the accounting. {Thomson v. Return Compelled. 25S Thurber, 1 Bradf., 24.) But it miglit be shown on tlie accounting that the assets were improperly stated, that they were undervalued,, or that there were omissions in the inventory. {Montgomery v. Dunning, 2 Bradf., 220.) The same rules hold under the Code. The surrogate cannot, in an application made under this section, determine the ownership of property, the title to which is disputed. Therefore, where the apphcant seeks to have included in an in- ventory filed, property which the executor or administrator claims under oath as belonging to himself, the motion should be denied. {Greenhough v. Greenhough, 5 Eedf., 191.) The section makes special provision for what had been adjudged to be the authority of the surrogate, by necessary implication. If an administrator denies (under oath) the existence of assets not inventoried, there is no power to require him to make a further inventory, or to re- quire the examination of parties and witnesses to test the correct- ness of the inventory filed. Errors must be corrected on the accounting. {Matter of Mclntyre, 4 Eedf., 489 ; WMie v. Lewisy 3 Dem., 170.) It is no answer to an application to compel the filing of an in- ventory, that the executor has assets largely in excess of the debts of the estate and agrees to give security for payment of any debts ; or to allege that the applicant is actuated by animosity and a de- sign to abuse the process of the court. {Forsyth v- Burr, 3 Barb., 540.) Nor is it a sufiicient answer to allege that the property is in another State, and beyond the jurisdiction of the court {Mat- ter of Butler, 38 N. Y., 397), unless it also appears that ancillary administration has been granted in the foreign jurisdiction. {Sher- man V. Page, 85 K Y., 123.) Where, also, the will provided that the executors and trustees should not be obliged or compelled to file with the surrogate any inventory of his estate, it was held that it is against public pohcy to permit such interference with the forms of procedure established by law, and the clause was invalid and of no effect {Potter v- McAlpine, 3 Dem., 108.) So, also, where a testatrix provided that her executor should make an inventory of all her real and per- sonal estate, and of all debts and outstanding liens, and then ap- praise the net value of the estate, which should be conclusive against her heirs, it was held that this was not a statutory inven- tory, and the surrogate would not enforce compliance with the provision. {Brainerd v. Birdsall, 2 Dem., 331.) The surrogate may issue a summons on his own motion {Thomp- 25-i Proceedings to Compel Eetubn. son V. Thompson, 1 Bradf., 24), and the applicatioB for the sum- mons may be made by any one, even a creditor, interested in the estate. (Forsyth v. Burr, sup.) A mere appearance of interest is sufficient on the part of the petitioner, and the surrogate will not try the issue as to his in. terest. (See Morrison v. Morrison, sup. ; Grotacap v. Phyfe, 1 Barb. CL, 485; Creamer v. Waller, 2 Dem., 351; Schmidt v. Heusner, 4 id., 275.) AFFIDAVIT. Surrogate's Court — Eensselaeb County, In the Matter of the Estate of | , Deceased. I Eensselaeb Countt, ss. : C. D., of the town of , in said county, being duly sworn, says that he is a creditor (or one of the next of km of, or a legatee named in the will) of the above named deceased. That letters testamentary upon the will (or letters of admmistration upon the estate) of the above named deceased were, on the 1st day of June, 1879, duly granted and issued to J. D., of the town of Brunswick, and that notwithstanding more than three months have elapsed since the issue of such letters, the said J D. has not filed an inventory of the personal estate of the said deceased, in the office of said surrogate, as he was by law required to do. (Signed) 0. D. Sworn before me this j day of , 1888. j The surrogate thereupon enters the order for the return of the inventory and fixing the time for the return thereof. It would seem that ordinarily the order should give at least five days to the executor or administrator, to enable him to serve notices for .the taking of the inventory, and make the same. OEDER At a surrogate's court, held in and for the county of ) at the surrogate's office in the city of , on the day of , 1888. Present — Hon. ■ , Surrogate. In the Matter of the Estate of | , Deceased. I On reading and filing the affidavit of C D., showing that he is Penalty For Not Returning. 255 a creditor of , late of the town of , in said county, deceased ; that J. D. is the executor of the will of said deceased, and that more than three months have elapsed smce the granting of letters to the said J. D., and that he has hitherto neglected to file an inventory of the personal estate of the said deceased : Ordered, that the said J. D. appear before the surrogate, at his office in the city of Troy, on the day of next, then and there to return an inventory of the personal property, goods, chattels and credits of the said deceased, according to law, or show cause why an attachment should not issue against him. ^ , Surrogate. It would seem, as the proceeding is punitory in case of disobe- dience to the order, that the proper manner of serving the order is by delivering to the executor or administrator a copy thereof, at the same time showing to him the original with the signature of the surrogate, or a certified copy may be served. If the executor or administrator should fail to return the inven- tory, an attachment would issua The attachment may be executed in any county where the exe- cutor or administrator may be. {People v. Pelham, 14 "Wend., 48.) It is issued upon an order as follows : ORDER FOR ATTAUHMBNT. At a surrogate's court, held in and for the county of at the surrogate's office, in the city of Troy, on the day of , 1888. Present — Hon. ^ — , Surrogate. In the Matter of the Estate of ( , Deceased. I An order having been issued out of this court returnable this day, to J. D., executor of the will of the above named deceased, requiring him to appear and file an inventory of the goods, chat- tels and credits of the said deceased, or show cause why an attach- ment should not issue against him, and said order having been duly and personally served, and the said J. D. not having appeared ' (or, having appeared and not filing an inventory as required), and no cause being shown why an attachment should not issue against him: It is ordered and adjudged, that an attachment issue against the said J. D., directed to the sheriff of the county of , and that he be committed to the common jail of the county of , there to remain until he shall return such inventory, 256 Executor Committed. or be thence discharged according to law : and that said sheriff make return of sucli attachment on the day of next And thereupon issues the -, Surrogate. ATTACHMENT. The People of the State of New Yorh to the Sheriff of the County £l. &] of , greeting: Whereas, on the day of , 1880, by a certain order made in our surrogate's court of the county of , before our surrogate of said county, at the surrogate's office, in the village of , in said county, in a certain proceeding pend- ing in our said court in the matter of the estate of , deceased, it was ordered that an attachment issue •against said J. D., executor of the will of said deceased, and that he be committed to the common jail of the county of : — , until he shall return to our surrogate's court of said county, an inventory of the goods, chattels and credits of the said deceased, or be thence discharged according to law, as by the said order re- maining of record in our said surrogate's court more fully appears, the said J. D. having refused (or neglected) to return such inven- tory, although required so to do by an order and summons of our said court . Now, therefore, we command you, that you take the body of the said J. D., if he shall be found in your bailiwick, and hiTn .safely keep in your custody, until he shall return such inventory, or until he shall be thence discharged by due course of law ; and you are to make and return to our surrogate's court, on the day of , 1880, a certificate under your hand, of the manner in which you shaU have executed this writ, and have you then and there this writ In testimony whereof, we have caused this writ to be sub- £SEAii. J scribed by our said surrogate, and the seal of the court to be affixed, this day of , 1888. , Surrogate. Title, Indorsed. Attachment against J. D., executor, eta, of , deceased, for not returning an inventory of the goods, etc., of said deceased- , Surrogate. § 2716. How executor or administrator discharged from commit- ment. — A person committed to jaU, upon the return of a warrant Supplementary Inventory 257 of attacliment, issued as prescribed in the last section, may be dis- charged by the surrogate, or a justice of the supreme court, upon his paying and deUvering, under oath, all the money and other property of the decedent, and all papers relating to the estate, under his control, to the surrogate, or to a person authorized by the surrogate to receive the same. Under subdivision 3 of section 2685, providing that letters may be revoked, where an executor or administrator " has wilfully re- fused, or, without good cause, neglected to obey any lawful direction of the surrogate, contained in a decree or order; or any provision of law relating to the discharge of his duty," a revoca- tion may issue as provided for by that section. As to the forms which may be used, see ante. (Index, Tit Be vocation.) The surrogate may, even upon the return of the citation to show cause why the letters should not be revoked, dismiss the proceedings, in his discretion, upon the filing of the inventory (See section 2687.) § 23. (2 R S., 86.) Any one or more of the executors or ad m^inistrators named in any letters, on the neglect of the others, may return an inventory ; and those neglecting shall not there- after interfere with the administration, or have any powtr over the personal estate of the deceased , but the executor or adminis- trator so returning an inventory, shall have the whole administra- tion, until the delinquent return and verify an mventory, agreeably to the provisions of this article. (Jeroms v. Jeroms, 18 Barb., 24.) After an inventory shall have been made it may often happen that new assets are discovered, and then it becomes the duty of the executor or administrator to make a supplementary inventory. § 24. (2 R S., 86.) Whenever personal property or assets of any kind, not mentioned in any inventory that shall have been made, shall come to the possession or knowledge of an executor, or administrator, he shall cause the same to be appraised in manner aforesaid, and an inventory thereof to be returned, within two months after the discovery thereof ; and the making of such in- ventory and return may be enforced in the same manner as in the case of the first inventory. The affidavit of any person interested, in case of default show- ing discovery of the property, former inventory and neglect to re- turn inventory of the property discovered, wUl be ground for the 33 ■ 258 General Care of Estate. entry of an order and for proceedings as above detailed. The forms before given can be readily adapted to the case here pre- presented. (See § 2715.) When, upon an application to compel an administrator to file a further inventory, he denies, under oath, the existence of further assets, the application must be refused. {Matter of Mclntyre, 4 Eedf., 489., CHAPTER XIY. Of the Collection and Care of the Estate ; Compromising. Debts due the Estate. Several co-executors or co-administrators are, in law, but one person, and the act of one in reference to the sale, delivery, release or gift of the decedent's goods is deemed the act of all {Gardner V. Miller, 19 Johns., 188 ; Wheeler v. Wheekr, 9 Cow., 34 ; Bogart V. Hertdl, 4 Hill, 492 ; Murray v. Blatchford, 1 "Wend., 583 ; Jack- son V. Robinson, 4 id., 436 ; Stuyvesant v. Hall, 2 Barb. Ch., 151 ; Douglass v. Saiierlee, 11 Johns., 16 ; Bx parte Bigby, 19 Ves., 463;. Laddy. Wiggin, 35 N. H, 421; Brennan v. Lane, 4 Dem., 322; Barry v. Lambert, 98 K Y., 300.) One, without the concurrence of his co-executors or adminis- trators, may release a portion of mortgaged premises from the lien, or give a satisfaction piece {Stuyvesant v. Sail, 2 Barb. Ch., 151),, and either executor or administrator, as against his associates, may retain possession of the assets. {Burt v. Burt, 41 IT. Y., 46.) The whole personal estate vests in the executor or administra- tor, and the title relates back to the time of the decedent In the case of an executor, it is his duty to care for and protect the estate before probate, and for that purpose he may enter, without fault, on premises descended or devised, and remove the goods of the deceased, if he can do so peaceably. He is not entitled to an action before probate for the recovery of the goods, but, after probate, he may maintain replevin or trover. The administrator has no power or duty as such before the grant of letters to him. The title to a testator's personalty vests in the executors as such, by operation of law, and although they are also appointed trustees, their title as executors is paramount to that of trustees ; in the Each Has Full Power. 259 latter capacity they take only as legatees. {Lochman v. Reilly, 95 N. Y., 64.) Their power is so strictly joint that they must sue and be sued jointly, and no several judgment can be taken against them. Such a judgment is wholly void. {Dick&rson v. Robinson^ 10 Am. Dec, 396, and note 412.) But the mere admission or decla- ration of one of two executors, is inadmissible to charge the estate. {Finnern v. Hinz, 88 Hun, 465.) So also what an executor or administrator may do in his own person, he may authorize some one else to do and may make a valid power of attorney. It is undoubtedly the better practice to sign as executor or administrator, as the case may be, to affix the designation to the signature, but where the party executing the power is described in it as executor, even though he signed it without any designation, it was held a good execution as executor. So, two executors, against the will of a third, may compromise and release a mortgage or other debt of the estate. {Murray v. Blatchford, 1 Wend., 583.) One executor also may assign a note as security for a judgment against the estate. ( Wheeler v. Wheeler 9 Cow., 34.) An administrator has no legal power or right to borrow money and pledge the property of the estate in security. If he borrow money he is indeed personally liable, but whether it is to be re- paid to him from the estate, is a question for the court on the settlement of the accounts. {Merchants' National Bank v. Weeks, ^3 Vt, 115.) It follows from the absolute ownership of the executor or ad- ministrator that he has the absolute control of the personal estate and in the absence of collusion, his transfers for any purpose would be protected. {Sutherland v. Brush, 7 Johns. Oh., 17.) A purchaser from a guardian or other personal representative, -who deals fairly, has the right to presume that such representative in selling the assets acts for the benefit of his trust, and is not bound to inquire into the state of it, nor is he responsible for the faithful apphcation of the money, unless he knew or had sufficient information at the time, that the guardian contemplated a breach of trust, and intended to misapply the money, or was in fact by the very transaction applying it to his own private purposes. {Field V. Schieffelin, id., 150.) The rule as above laid down in Field v. Schieffelin has been adopted not only in this State but in the other States of the union. 260 All Must Joust in Suit. {Ldtch V. Wells, 48 N. Y., 585 , Dillaye v. Com. Bank, 51 id., 345 j Hutchins v. Cosily, 52 Ala., 86 ; Van Goose v. Bush, 54 id., 353 \ Hough V. ^az'%, 32 Conn., 288 ; Walker v. Craig, 18 IlL, 116 ; Petrk V. CZar/c, 11 Serg. & R, 377 ; Zt'w^ v. King, 37 Ga., 205 ; Bogert v. Hertell, 4 Hill, 492 ; Ferrer v. Jones, 16 How., 57 ; Davis V. Christian, 15 Gratt, 11.) The title of the transferee of choses in action from a personal representative is good against the debtors. Thus where an ad- ministrator transferred promissory notes belonging to the estate to the sureties upon his official bond, as security against their liability, it was held that the pledgees had such title as enabled them to recover thereon against the maker; that while they must be deemed to have known that the notes were assets of the estate, and took them at their peril, if the transfer was in any respect a misappropria,tion, the debtor, defending solely in that character, could not raise the question. {Rogers v. Squires, 98 N, Y., 49.) It was further held m the same case that as the notes were also pledged as security for any advances the assignees might make in payment of a judgment against the estate, upon which the sureties were liable, whatever may have been the right of the sureties pre- vious thereto, upon making the advances their title as pledgees became good. (Id.) All the executors who have taken out letters here, must join in suits to recover debts due to the estate. {Scranton v. Farm, and Mech. Bank, 24 1>J. Y., 424.) It is not necessary to join executors who have not taken out letters. {Moore v. Willett, 2 Hilt, 522.) One executor cannot waive the just claim of the estate against a creditor or other person. Thus, one administrator directed a debtor to retain the money due from him, and not to pay it to the other administrator, "and the debtor comphed. The other ad- ministrator, therefore, brought an action to recover the debt and the co-administrator refusing to join as plaintiff, was made defend, ant Held, that the debtor could not set up the direction not to pay, as a bar to the action. The administrator who gave it, did so in violation of his duty, and the administrator suing was enti- tled to bring the action. {Strever v. Feltman, 1 TL & C, 277.) I^either can one executor make any admission binding upon his co-executor, or against an heir at law. An admission by one ex- ecutor that a mortgage Was, in fact, paid by a counter-claim, was held not a good defense on foreclosure by both executors. {Fin- nern v. Hinz, 38 Hun, 465; Church v. Howard, 79 N. Y., 415.) Caee as to Expenditures. 261 But an executor has no power to bind the estate by a new con- tract, nor to revive a demand which has once expired ; and neither his contracts or admissions can have the effect of creating the one or reviving the other. {Barry v. Lambert^ 98 N. Y., 300.) The whole personal estate vests in the executor or administrator, {Patchin v. Wilson, 4 Hill, 57.) But notwithstanding the absolute ownership of the personal representatives, property held jointly by the decedent with another person, who survives, is excepted from the rule as to right of pos- session, the survivor in such a case is entitled to possess and dis- pose of the property, and is liable to account to the personal rep- resentative only for the proceeds or value. The most familiar example of this rule is partnership ; the property which remains is to remain in possession of the survivor, who becomes trustee for the creditors and all other parties inter- ested. Creditors also, in certain cases, are subrogated to a charge upon property purchased from funds of a deceased debtor. Thus where a widow, before the appointment of an administrator, took the assets of her deceased husband and used them in making a partial payment for land which she purchased, giving her notes for the remainder of the purchase money with a surety, and the surety afterwards paid the note and took a deed of the land for his indemnity, it was decided that this surety held the title to the land in trust for the creditors and distributees of the deceased, subject, however, to his own prior hen for what he had been com- pelled to pay as surety upon the note. {Miller v. Birdsong, 7 Baxter [Tenn.J, 531.) In such a case, it would be the duty of the executor or administrator of the deceased husband, to enforce the claim against the surety. The executor cannot be allowed for expenditures in carrying on and stocking a farm, in absence of clear proof that they were beneficial to the estata But charges for thrashing grain and pre- paring the crops for market are proper. {Larrour v. Larrour, 2 Eedf., 69.) The personal representatives must take care as to expenditures for improvement or care of the property of the decedent, that it shall be beneficial to the estate. It would seem that, however great the care in the expenditures, if they do not prove beneficial, the sums will be disallowed. Thus, the personal representatives are not bound to protect the 262 Executor's Debt. interest of the deceased, as part owners of a vessel, by incurring liability for repairs, etc., after the vessel has become too old for use. They may abandon it {Lunt v. Lunt, 8 Abb. N. C, 83.) So the executor or administrator of- a deceased trustee of per- sonalty succeeds to the trust, and in the absence of an assertion of claim by the beneficiary, may take possession of the fund, and a depositary, e. g., a savings bank, will be exonerated by the pay- ment or delivery to him, on production of the pass-book. {Boone V Citizens' Savings Bank, 9 Abb. K C, 146.) The taking of the assets of the estate by the creditor of the executor, in satisfaction of security for the private debt of the latter, charges the creditor with the participation in the misappli- cation by the executor. It is a disposition of the trust fund, and is manifestly inconsistent with the object of the trust, and the purchaser is bound to notice. Such transfer may be declared void in behalf of the estate. {Bogert v. Hertell, 4 Hill, 492 ; 11 Am. Dec, 388 ; note by Mr. Profiatt.) Executors have power to compromise a debt due to the estate, but may not compromise a debt due from one of themselves. This seems to be the rule at common law. In England, where there seems to be no statute reqijiring an executor to inventory and account for a claim of the testator against him, it is held that an executor cannot compromise a debt due from himself to the estate. Such a transaction will be treated as a breach of trust, without inquiring whether or not it is beneficial to the estate. It seems the same doctrine applies to a case in which several execu- tors compromise a debt due from one of^ them. In Be Cordova y. Be Cordma (41 L. T. Rep. [N. S.], 43 ; Alb. Law J., 20, p. 357), the court remark: The case {Cook v. Colingridge, 1 Jac, 607), seems to be decisive upon the question that an executor cannot compromise a debt due from himself to the estate. In that case. Lord Eldon said : " One of the most firmly established rules is, that persons dealing as trustees and executors must put their own interest entirely out of the question, and this is so difficult m a transaction in which they are dealing with themselves, that the court will not inquire whether it has been done or not, but at once say that such a transaction cannot stand." It is treated as a breach of trust without inquiring whether the transaction was beneficial or not The case of Ex parte Lacey (6 Yes., 625) is also in point Where two executors take an obligation to themselves, jointly Executor Assignikg Assets. 263 as representatives of a testator, for a debt belonging to the estate, one of them can receive payment and lawfully discharge the obli- gation ; and the obligation in this case being a bond and mort- gage, it was held that one could execute a proper satisfaction piece. So, a hona fide purchaser from one executor, of a bond and mortgage given to two executors, for the purchase money on their sale of lands, under a power in the will, will be protected in his purchase, even though the executor divert and waste the purchase money. {Bogert v. Beriell, 4 Hill, 492.) Notwithstanding the control of the executor or administrator is so absolute, where one takes an assignment of assets from him, knowing that he is guilty of a devastavit, and is using the pro- ceeds for his own purposes, he will not be protected. Thus, when an administrator assigned asserts of the decedent to a stockbroker as a margin for the purchase of stock for his own account, the broker having a full knowledge of the character of the security assigned, and that it did not belong to the administrator individu- ally, the property, or the value of it, could be recovered from the purchaser. {Randel v Dyett, 88 Hun, 347; White v. Price, 39 id., 394.) If the administrator, on request of one of the next of kin, refuse to commence a suit for the recovery of the assigned assets, any one .beneficially interested as one of the next of kin may commence such an action. (Id) But a discretionary power to executors to withhold payments from certain children ot the testator must be exercised by a ma- jority of the executors. {Oilman v. Oilman, 4 Hun, 68.) A discretionary power to executors is beyond the control of the surrogate, unless upon proof that the executors have abused their discretion. It is true that the Code has conferred all the powers upon the surrogate in the control of an executor which were for- merly had only by a court of equity, but the surrogate is pow- erless to override the exercise of discretion by an executor and trustee of the testator's selection, except upon proof that he h^s abused his discretion, or that his conduct has been inconsistent with the honest and faithful discharge of his duties ; the surrogate cannot control the action of the trustee on the ground that he has reached an erroneous conclusion. {Banning v. Ounn, 4 Dem., 337.) An executor is not exonerated from the duty of vigilance in protecting funds belonging to the estate, simply by the fact that 264 Duty as to Moneys. they were paid to or came into the hands of a co-executor, in due course of administration. So, then, while he is merely passive, and does not obstruct the collection or receipt of assets by his associate, he is not liable for the latter's waste ; where he knows and assents to a misappropriation, or negligently sufiEers his co- executor to receive and waste the estate, when he has the means of preventing it, he becomes liable for a resulting loss. ( Wilmerd- ing V. McKesson, 103 K Y-, 329.) But trustees cannot act separately, all must join in their action. {Ridgley v. Johnson, 11 Barb., 527.) Thus executors are so far trustees,- where by a will the title to real estate is vested in two executors in trust, with power to sell, that one of the executors cannot, without the assent of the other, enter into a contract to convey which will be valid and binding on the other. ( Wilder v. Ranney, 95 N. Y., 7.) While the rule is otherwise as to personalty, the fact that by the will there is an equitable conversion of real estate into personalty, does not change the rule as to it , until actual conversion, it may be conveyed only as real estate. (Id.) They should keep the estate funds separate from other funds ; if they mingle them with their own, they are liable for losses {Kelleit v. Rathbone, 4 Paige 102 ; Raskin v. Raskin, 4 Lans., 90); and they may be required by the surrogate to deposit the funds of the estate with a savings bank or trust company, so as to be earning interest while the estate is in process of settlement {Lock- hart V. Public Administrator, 4 Bradf., 21.) It was made the duty of the surrogate to direct and control the conduct of the executors (2 E. S., 220, § 1), and under that pro- vision it was held that where securities of an estate are not safe or free from risk while they remain in the possession of the executors, the surrogate has power to order them deposited in a place of safety named by him, there to remain until the further order of the surrogate's court. Where the rights and interests of infants demand protection, that is sufficient to render it the duty of the surrogate to make any order necessary concerning the disposition and safety of an estate. It is his duty to guard against the proba- bility as well as the possibility of loss. {Matter of Oilman, 3 N. Y. St. Eep., 342.) This decision is equally applicable under the Code, which gives to the surrogate power (§ 2472, subd, 3) " to direct and control the conduct and settle the accounts of execu- tors, administrators and testamentary trustees." To Control Trust Estate. • 265 A cestui que trust, who is also executor, is not entitled to the possession or control of the estate as to which he is interested- {Bundy v, Bundy, 38 N. Y., 410.) It follows, then, that the other executors should have exclusive control of the trust fund. One of several executors or administrators cannot avoid hability for the loss of a fund through the misconduct of an agent, on the ground that the others were mainly active in the administration of estate, and mainly instrumental in passing the fund into the hands of such agent, if he tacitly assented thereto when he had opportunity and reasonable cause to object. For a trustee is him- self responsible for the faithful conduct and competency of all his subordinates and assistants, whether strangers, attorneys or con" tractors. {Browns Accounting, 16 Abb. [N S ], 457 ; Earle v* Earle, 93 K Y., 104: Adair v. Brimmer, 74 id., 539.) "Where a will shows an intention on the part of the testator to intrust to a life beneficiary the full possessidn and control of his estate, the executors are warranted, unless there are special circum- stances rendering such a case hazardous, in surrendering the prin- cipal of the estate to the care of the life-tenant, without requiring security for the protection of the remaindermen. But they would be grossly remiss in turning over the principal to the life-tenant without security, with the knowledge of the latter's purpose to appropriate it to her own use, and thereby destroy the interests of the remaindermen. {Fembacher v. Fernhacher, 4 Dem., 227.) Liability of Co-Executors or Administrators. It is the rule that each of several co-executors is only liable for his own acts, and cannot be made responsible for the negligence or waste of another, unless he in some way aided or concurred therein. So where the assets of an estate pass into the posses- sion of one of the executors and trustees, and, upon his death, the surviving executor found that the deceased had mingled the assets with his own and had partly converted them to his own use and partly lost them by unsafe investments, and as the best possi- ble arrangement to "save the fund, the surviving executor took from the estate of the deceased a mortgage on real estate in Ohio, which was guaranteed by the widow, who was sole legatee and at that time solvent, and who took further collaterals for greater safety, the securities being at that time perfectly good ; it was held, that it was the right and duty of the survivor to accept the 34 266 Liable Only Fob Negligence. securities, and that he could not be made personally liable for so doing. {Ormiston v. OlcoU, 84 K Y., 339.) The rule as to trustees is, that the office is a joint one, and the acts to be done by virtue of the trust must be done by all the trustees in their joint capacity. At common law, all appointed must act, and if one refuse to accept the trust, application must be made to the court to fill the vacancy. (Perry on Trustees, § 411.) Speaking generally, then, trustees are jointly liable, be- cause their duties are joint. But the duties of executors and administrators, except in the performance of a trust, are not joint. Each severally has full power and control over the personal estate. (Chap. 10, ante, and cases cited.) One co-executor, then, is not liable for the devastavit of another, unless it happened through some fault of his own. It is his duty to prevent his co-executor from receiving and wasting the estate, if he have any reason to suppose it will be unsafe in his hands. {Clark v. Clark, 8 Paige, 153.) In this case it was held, that an executor was liable for the loss of the principal of the estate, which he paid over to his co- executor, who was only entitled to the income of it. He lost it or disposed of it, and the executor was held liable. (See, also, Whitney v. Phcenix, 4 Eedf., 180.) But where there were three executors, and one of them was entrusted with securities to a large amount by the agent appointed by all the executors upoii his, promise to pay the proceeds in to the agent which he failed to do, it was held that his co-executors were not liable for his act ; that permitting him to act in effecting the sale of the securities, and trusting to his promise to pay the proceeds into the office, was not, under the circumstances, such negligence or improvidence as shoald render them liable for his default {Adair v. Brim/mer, 74 N. Y., 539.) But where an executor, by his negligence, suffers his co-execu- tor to receive and waste the estate when he has the means of pre- venting it, by proper care, he is liable to the beneficiaries under the will for the estate thus wasted. {Clark v. Clark, sup.; Adair V. Brimmer, sup.; Whitney v. Phoenix, 4 Eedf., 180.) Thus, where executors who are ordered by the surrogate to have certain securities of the estate registered in their joint names, re- peiatedly request their co-executor to have them so registered, but on his failure to do so neglect to enforce observance of the order by legal proceedings, or to brmg the matter to the notice of the surrogate, such executors will be liable for their co-executor's mis- Oases "When Liablk 267 appropriation of the securities. {Matter of McDonald, 4 Eedf., 321.) But where two executors sold real estate, and the purchaser mak- ing a payment, laid the money on a table, and one of the execu. tors picked up the money and put it in his pocket, and the other executor signed a receipt for the money indorsed on the back of the contract The executor who had the money did not sign the receipt and was insolvent, which fact was known to his co-execu- tors. The executors who signed the i-eceipt were held not re- sponsible for the money. {Craft v. Williams, 23 Hun, 102 ; modified, 88 K Y., 384; McKim v. Aulhach, 180 Mass., 481.) If one executor lends money to his insolvent co-executor, relying on the statement of the latter that he intends to pay with it debts of the testator, the former is liable unless he can show that it was actually applied to the debts. {Craft v. Williams, sup.) Again, where an executrix joins with an executor in rendermg an account, under oath, which includes an unauthorized invest- ment, and a statement that the investments of the funds of the estate were made by the executors, the burden rests upon the ex- ecutrix, if she claims to be exempt from liability on any of the investments, to prove the facts on which she founded her claims for immunity. By including her illegal investment in her account, the executrix declares her knowledge of its existence, and if there is no evidence that she made an effort to collect it, or that it could not be collected, she is liable as for a devastavit. {Lacey v. Davis, 4 Eedf., 402 ; Monell v. Monell, 5 Johns. Ch., 283 ; 3 Williams on Exrs., 1820, note.) The rule as stated in Ames v. Armstrong (106 Mass., 18), is as follows : " Under ordinary circumstances, one of two or more ex- ecutors was not to be held accountable for waste or misconduct on the part of an associate. The misplaced confidence of the tes' tator in the integrity or capacity of one of the number was not allowed to operate to the prejudice of another." Where one ex' ecutor merely permits liis co-executor to take possession of the assets without going further, and concurring in the misapplication of them, he does not render himself responsible for the receipts of his co-executor. {Clark v. Clark, sup. ; Mesick v. Mesick, 7 Barb., 120 ; White v. Bullock, 20 id., 91 ; Banks v. Wilkes, 3 Sandf., 99 ; Sutherland y. Brush, 7 Johns. Ch., 17 ; Wood v. Brown, 34 N. Y., 337 ; and see cases cited in 3 Williams on Exrs., 1820, marginal paging.) But both executors and administrators may become liable for 268 Cases When Liable. each other bj uniting in the same bond as principals, for they thus become sureties for each other. This they may avoid by giving separate official bonds. It is well established as the nile of courts of equity, that it is the duty of all executors to watch over, and, if necessary, to cor- rect the conduct of each other ; and that an executor, as well as a trustee, who stands by and sees a breach of trust committed by his co-trustee, becomes responsible for that breach of duty. ( Wood v. Brown, 34 IT. Y., 337 ; Clark v. Clark, sup. ; Johnson v. Cor- lett, 11 Paige, 265.) Where an executor receives funds of the estate and delivers them to his co-executor, or does any act by which the funds come into the hands of the latter, and but for which he would not have received them, and the latter diverts or wastes them, the former executor is liable for the loss. {Croft v Williams, 88 K. Y., 384 ; Matter of Storm, 28 Hun, 499 ; Dixon v Storm, 5 Eedf., 419.) But where an executor is merely passive, not obstructing the col- lection or receipt of assets by his associate, he is not liable for the latter's waste, unless he assented to it, or<|iad knowlege of a mis- application, intended or in progress, and, having the means of pre- venting it by proper care, neglected to do so. {Croft v. Williams, sup.) An inventory and account, filed by co-executors, though evi- dence of joint possession of securities and receipt of moneys by them, is not conclusive so as to preclude proof that the same were, in fact, held and received exclusively by one of their num- ber. {Taylor v. Shuit, 4 Dem., 528.) Where it appeared that an executor qualified and acted as such, and rendered a joint account with his co-executor without making any clainiS that he never had any part of the assets of the estate in his possession, it was such an admission of his liability that the surrogate, in a subsequent proceeding, was justified in holding him for the estate. {Paulding v. Sharkey, 88 N. Y., 432.) An executor who allows his co-executor to deposit the funds o* the estate with a firm of which the latter is a member, is person- ally liable to those interested in the estate for any loss they may sustain, where the former executor is aware of the misuse, and failed in any manner to interpose for the purpose of correcting it ( Wilmerding v. McKesson, 28 Hun, 184.) But an executor who allows his co-executor to receive and re- tain in his possession all the securities belonging to the estate is Subrogate May Direct. 269 not liable for the wrongful acts of the latter in misappropriating the securities, and converting them to his own use, when he had no reason to suspect that he contemplated so doing, and when it ■appeared that the executor so betraying his trust was a son of the testator, and had, during his father's life-time, acquired a faultless reputation as a competent, intelligent, reliable and faithful busi- ness man, and preserved that reputation in the community up to the time when his conversion of the securities became known. ( Wilmerding v. McKesson, sup.) The fact that the will required the executors to set apart from the estate the shares bequeathed and devised in trust for the tes- tator's daughters and infant sons, and that such separation was, in fact, never made, would not render an executor liable for the con- version of ' the securities by his co-executor, when it appears that the loss did not follow as a consequence of the omission. Nor is an executor, who joins with his co-executor in satisfying a mort- gage, in order to render the mortgage more formal, but who re- ceives no portion of the moneys arising therefrom, liable for the conversion of the moneys by his co-executor. The fact that a clerk selected by the executors jointly to keep the account, dis- covers that one of the executors is converting the securities to his own use, will not render his co-executor liable for the loss where the knowledge so acquired by the clerk is not communicated to him. (Id.) For a valuable collection of authorities on the joint liability of executors, see Lacey v. Davis (5 Eedf., 301). Where an estate has been settled, except as to a fund to be in- vested, and one executor believes that sufficient securities are in the hands of his co-executor to meet the investment, and the latter defaults, the former was not held liable. {Taylor v. Shuit, 4 Dem., 628.) It would seem, that an executor may, from time to time, peti- tion the surrogate for direction. (Section 2478, sub. 6.) In a case {Oilman v. Oilman, 63 N. Y., 41), the executor peti- tioned the surrogate for leave to carry out an agreement, among other thingsj to pay counsel fees, and the leave was granted. A party interested, but not a party to the agreement, appealed from the order, which was confirmed by the supreme court and court of appeals. One of several executors has no power to charge either the estate or his co-executor, by indorsing a note in the name of the 270 Letters Good Only in State. estate, even though it be given in renewal of one indorsed by the testator in his life-tima {Bailey v Spofford, 14 Hun, 86 ; Glenn Y. Burrows, 37 id, 602.) Letters testamentary, or of administration, axe local in their character, and the authority given by them is co-extensive only with the limits of the State where issued. (2 Kent's Cora, 430, note; Goodwin v. Jones, 3 Mass., 514.) But an executor who has obtained probate and letters in another State, can (without action) dispose of his testator's personal property in this State, without taking out ancillary letters here. For the title of an executor arises from the will, and not the probate, or letters, and conse- quently the executor is vested with all the personal estate of his testator wherever situated. {Middlehrooh v. Merchants^ Bank, 27 How., 474 ; Peterson v. Chemical Bank, 29 id., 240 ; 72 K Y., 1.) He may settle a suit brought by decedent in his life-time, without being substituted in it {Auken v. Kiener, 9 K. Y. St. Eep., 669.) So, ail executor appointed in another State, may, on recording an exemplified copy of the will appointing him, under chapter 311, Laws of 1864, execute a power in this State to convey lands here, without taking out ancillary letters here. {Bromley v. Miller, 2 Th. & C, 575.) But a foreign executor or administrator cannot prosecute or de- fend an action in this State. {Matter of Webb, 11 Hun, 124.) But assets in another State, e. g., a policy of life insurance assigned to a testator, pass to the ancillary administrator appointed in that State, so that an executor of a will in this State, cannot re- cover on such a policy. {Holyoke v. Union Mutual Ins. Co., 22 Hun, 75.) So a power of sale contained in a mortgage of land in this State, when the mortgagee resides and dies in another State, may be executed by an administrator appointed in that State. The exercise of the power is a matter of contract and not of jurisdic- tion, so while the foreign administrator might sell by advertise- ment, under the statute, he could not foreclose by action. {Boo- little V. Lewis, 7 Johns. Ch., 45.) It is the duty of an executor as a prudent man, to keep the assets of the estate insured, and premiums paid for such insur- ance will be allowed to him. {Gomwell v. Deck, 2 Eedf., 87.) The duty of the executor or administrator in regard to collec- tions and investment of the estate, is clear, and he must proceed to convert the property which may not be producing interest into In "What Courts Sued. 271 money, and deposit it, so as that the moneys may draw interest He must also collect the money loaned on personal security, for if lie neglects to do so and a loss accrue through his neglect, which would have been avoided by an early collection, he will be charge- able for the loss. ("Williams on Exrs., 15, 43 ; Leggett v. Leggett, 24 Hun, 333.) "Where a testator had a judgment, a lien on real estate, and died January, 1860, and his will was then soon proved and his execu- trix qualified, and the prior liens, not being renewed, cxpired,'so that February, 1865, to October, 1865, the judgment of the estate was a prior lien. The executrix could have collected but did not Seld, she was liable for it {Hollister v. Burritt, 14 Hun, 291.) He is amply empowered in making collections, and may bring suit in all the courts of this State. He cannot be sued m the jus- tice's court or in the marine court of the city of New York, but when, after the court had acquired jurisdiction of an action, the defendant, in the marine court, died, the action did not abate, but could be continued against his personal representatives. {Egan v. Justices of Marine Court, 81 N. Y., 500.) His title to the assets is so perfect, that he can bring a suit on a promissory note held by the testator, and indorsed by him in blank, in his own name ; or, in a suit against him, he may set up such a note as a counter-claim. {Barlow v. Myers, 24 Hun, 286.) § 1829. He may collect a judgment recovered hy his predecessor. — An execution may be issued in the name of an executor or ad- ministrator in his representative capacity, upon a judgment re- covered by any person who preceded him in the administration of the same estate, in any case where it might have been issued in favor of the original plaintiff, and without a substitution. The distinction between contracts of the decedent and of the executor must be kept m mind. So in an action brought by an executor or administrator a claim arising from acts of the plaintiff subsequent to the death of the decedent, is not a subject ot set off. • Nor is a counter-claim resting upon the alleged misconduct of the plaintiff in withholding and converting defendant's stock subse- quent to the death of decedent ( Wdkeman v. JEvereti, 2 N. Y. St Eep., 643.) "While the practice admits of any proper defence, it is no defence to an action brought by an executor as such, to recover assets of the estate in the hands of the defendant, or for the conversion 272 Fraudulent Transfer of Decedent. thereof, ttat the plaintiff in his individual capacity acted in col- lusion with the defendant in despoiling the estate. ( Wetmore v. Porter, 92 N. Y., 76.) It is the duty also of an executor to collect moneys wrongfully used by a former executor. Thus where an executor alone quali- fied and wrongfully paid $2,000 to a legatee who was entitled to receive the income only, and after her death the executor qualified but failed to collect from her estate the moneys so wrongfully paid, he was liable. ( Wise v. Murphy, 5 Eedf., 365.) A debtor to the estate, when sued by one of the administrators, cannot plead the consent of the other administrator to his with-, holding payment m bar of the action. {Sirever v. Feltman, 1 Th. & C, 277.) He may arbitrate disputed claims, notwithstanding the provi- sions m regard to the reference of a disputed claim. ( Wood v. Tunnicliff, 74 N. Y., 38.) It is the duty of an executor or administrator to treat all trans- fers made by his testator or intestate in fraud of the rights of creditors, as void, and he may recover of any person who shall have received the property of the deceased, the full value thereof. (S. L., 1858, chap. 314 ; Barton v. Eosmer, 24 Hun, 467.) It seems also that when the executor or administrator brings such an action, and it appears that the property had passed from the hands of the fraudulent grantee or transferred to a Sow a _/icfe purchaser, a recovery may be had against such fraudulent grantee or transferree for the damages sustained by the estate. {Barton v. Hosmer, sup.) So also if the executor colludes with the fraudu- lent grantee or transferree, and refuses to bring suit, the creditors or a creditor may, by actions against the personal representative and grantee or transferree, have the transfer set aside and the property applied as assets. {Bate v. Graham, 11 IT. Y., 237 ; see also Fotts V. Hart, 99 N. Y., 168.) It seems that a conveyance, claimed to have been made in fraud of creditors by a decedent, can be set aside only on suit by the executor or administrator. An action based on a judgment ren- dered against executors in their representative capacity, is not maintainable to set aside as fraudulent, against creditors, such a, conveyance. The judgment is not a lien upon the land, and so- it may not be sold under any execution issued thereon. (Code, § 1823.) The conveyance is, therefore, no obstruction to any lien the judgment creditor has, or to the enforcement of any exe- Empowered to Sue. 273 cution issued upon his judgment It would seem that it is the duty of the executors in case of such a fraudulent conveyance, where there are not assets sufficient to pay the debts, to reclaim the land for the benefit of all the creditors, under the foregoing^ statutory provision, and no one creditor can appropriate it for his own benefit. If the executors refuse to commence an action for such purpose, at the request of the creditors, or some of them, they may be compelled to do so by the order of the surrogate. (Code, § 2481.) The fact that one of the executors is the fraudu- lent grantee, furnishes no obstacle to such reliei If he refuses to restore the land to the estate he may be removed from office, and the remaining executors may proceed, or the others may com- mence the action, making him defendant {Lichienherg v. Herdt- felder, 103 K Y.. 302.) Where the plaintiff in his complaint, as executor, alleged that the defendant had received certain money which belonged to the testator, and the defendant alleged a gift of it, and gave proof to that effect, the executor then had a right to show, by way of avoidance of the gift, that it was in fraud of his rights as execu- tor, as well as of himself as creditor, under the above quoted statute. {Jones v. Jones, 41 Hun, 563 ; 4 K Y. St Eep., 141.) " § 2. (2 E. S., 113.) Actions of account, and all other actions upon contract, may be maintained by and against executors in all cases, in which the same may have been maintained against their respective testators * * * " They may have an action of account against the surviving part- ner of their testator or intestate, and need not show that anything^ will be due them. The account must be stated as of the time of the testator's death. {Cheeseman v. Wiggins, 1 Th. & C, 595.) " § 3. Administrators shall have actions to demand and recover the debts due to their intestate, and the personal property and effects of their intestate ; and shall answer and be accountable to others, to whom the intestate was holden, or bound, in the same manner as executors." § 4 Executors and administrators shall have actions of trespass against any person who shall have wasted, destroyed, taken or carried away, or converted to his own use, the goods of their tes- tator or intestate, in his life-time. They may also maintain ac- tions for trespass committed on the real estate of the deceased iin his life-time. 85 274 What Not Actionable. § 5. Any person, or Jiis personal representatives, sHall have ac- tions of trespass against the executor of administrator of any tes- tator or intestate, who, in his life-time, shall have wasted, destroyed, taken, or carried away, or converted to his own use, the goods or chattels of any such person, or committed any trespass on the real estate of any such person. § 6. The executors and administrators of every person, who, as executor, either of right, or in his own wrong, or as administrator, shall have wasted or converted to his own use any goods, chattels or estate of any deceased person, shall be chargeable in the same manner as their testator or intestate would have been if living." § 1, (2 R. S., 447.) For wrongs done to the property, rights or interest of another, for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or, after his death, by his executor or administrator against such wrong-doer ; and, after his death, against his executors or admin- istrators, in the same manner, and with the like effect, in all re- spects, as actions founded upon contracts. § 2. But the preceding section shall not extend to actions for slander, for libel, or to actions of assault and battery, or false im» - prisonment, nor to actions on the case, for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator. Neither does it extend to an action for breach of promise of marriage. This is not an action on a contract This is within the category of personal injury. {Wade v. Kalbfleisch, 58 N. Y., 282.) Under this statute an action may be brought by the personal representatives of a citizen of this State against a foreign corpora- tion for injury in another State, where the same right to sue is given by a statute of the State where the injury occurred. So held in an action in New York, for an injury to plaintiff's intestate in New Jersey. {Stallknechi v. The Penn. S. B. Co., 6 Week. Dig., 75 ; Leonard y Col. S. Nav. Co., 84 N. Y, 48.) An action to recover damages for alleged fraud on the part of defendant, in inducing the plaintiff to marry and cohabit with him, •does not survive the death of the defendant {Price v. Price, 75 N. Y., 244.) But an action by a husband against a carrier of passengers, to recover for the loss of the services of his wife, and for expenses paid in consequence of injuries resulting from defendant's careless- Fob Killing Decedent. 275 ness, although it is grounded in tort, it does not abate upon the death of the plaintiff. It may be revived by his personal repre- sentatives. {Oregin v. Brooklyn R. R Co., 75 K Y., 192.) § 1. (S. L., 1847, chap. 450, as amended 1849, chap. 256.) Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party mjured to main- tain an action and recover damages in respect thereof ; then, and in any such case, the person who or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured ; and although the death shall have been caused under such circum- stances as amount in law to felony. § 2. Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the propor- tion provided by law in relation to the distribution of personal property left by persons dying intestate, and in every such action the jury may give such damages as they shall deem .a fair and just compensation, not exceedmg five thousand dollars, with refer- ence to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person, provided that eveiy such action shall be commenced within two years after the death of such person. * * * § 402. When person entitled dies hefore limitation expires. — If a person entitled to maintain an action, dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his representa- tives after the expiration of that time and within one year after his death. § 403. lAmilation extended. — The term of eighteen months after the death, within the State, of a person against whom the cause of action exists, is not a part of the time limited for the commence ment of an action against his executor or administrator. If letters testamentary or letters of administration upon his estate are not issued within the State, at least six months before the expiration of the time to bring the action, as extended by the foregoing pro- vision of this section, the term of one year after such letters are issued, is not a part of the time limited for the commencement of such an action. § 405. Provision where judgment has been reversed. — If an action is commenced within the time limited therefor, and a judgment 276 Security foe Costs May be Kequired. therein is reversed on appeal, without awarding a new trial, or the action is terminated in any other manner than by a voluntary dis- continuance, a dismissal of the complaint for neglect to prosecute the action, in a final judgment upon the merits ; the plaintiff, or, if he dies^ and the cause of action survives, his representative, may commence a new action for the same cause, after the expiration of the time so limited, and withm one year after such a reversal or termination. In an action brought by or against an executor or administrator •in his representative capacity, the court may, in its discretion, re- ■quire the plaintift to give security lor costs. (Code, § 3271, et seq.) But these provisions do not apply to an action originally brought by the deceased, and simply rcAaved in favor of his personal rep- resentative. {Sullivan v. Semingtnn Sewing Mach. Co., 27 Hun, 270.) The court may require security for costs of an executor or ad- ministrator, without evidence of mismanagement or bad faith on his part. {Tallman v. Syr., etc., R. R. Co., 92 K Y., 353.) And m an action brought by or against an executor or admin- istrator, the court may direct the costs to be paid personally by him, for mismanagement or bad faith in the prosecution or defense of the action. Otherwise the costs are to be paid out of the estate or fund represented. (Code, § 3246.) An action does not abate, if the cause of action survives or •continues. (Code, § 755.) The court may, in its discretion, allow the action to be continued (Section 757). "Where one of several parties to an action dies, the action will continue by or against the survivors. (Section 758.) Or the court may direct or permit the survivor to be brought in. (Section 759.) Or the court may, on notice, order an action to abate unless con- tinued by proper parties within not less than six months, nor more than one year. (Section 761.) Where the executor contmued the action, and there was no alle- gation in the pleadings of the testator's death, and this objection was raised, held, that the fact that the court had, on suggestion of the plaintifE's death, ordered the action to be revived in the name of the plaintiff, as executrix, was an answer to the objection. {Isham V. Davison, 3 Th. & C, 745.) But the successor cannot be compelled to continue an action brought by his predecessor. {Bain v. Pine, 1 Hill, 615 ; Camp- hell V. Bowne, 5 Paige, 34.) How TO Plead. 277 The statute also protects both executors and administrators and creditors, and enables them to set up their demands in suits by or against them. § 505. Counter-claim, when defendant is sued in a representaiive capacity. — In an action against an executor or administrator, or other person sued in a representative capacity, the defendant may set forth, as a counter-claim, a demand belonging to the decedent, or other person whom he represents, where the person so repre- sented would have been entitled to set forth the same, in an action against him. § 506. Counter -claim, when plaintiff is an executor or adminis- trator. — In an action brought by an executor or administrator, in his representative capacity, a demand against the decedent, belong- ing, at the time of his death to the defendant, may be set forth by the defendant as a counter-claim as if the action had been brought by the decedent in his lifetime ; and, if a balance is found to be due to the defendant, judgment must be rendered therefor against the plaintiff, in his representative capacity. Execution can be issued upon such a judgment in a case where it could be issued upon a judgment, in an action against the executor or adminis- trator. Where one indebted to an estate in the hands of an executor is employed by him to render services for the benefit and protec" tion of the estate, the value of his services is. a proper counter- claim in an action to recover the debt in favor of the estate. iDavis Y. Stover, 58 K Y., 473.) But in a suit by an administrator upon a cause of action which •arose after the death of the intestate, the defendant cannot set off a debt due to him from the intestate. {Fry v. Evans, 8 Wend., -530; Hills v. Tollman's adm'rs, 21 Wend., 674 ; Mercein v. Smith's adm'rs, 2 Hill. 210 ; Merritt v. Seaman, 6 Barb., 330.) Nor in such a suit brought can the defendant set off a demand which was not due at the death of the decedent; e. g., a, note given by liim and which fell due after his decease. {Jordan v, Nat. S & Jj. Bank, 12 Hun, 512 ; Ketchum v. Milne, Selden's notes, 56 ; Patterson v. Patterson, 59 N. Y., 574.) In pleading by an executor or administrator, the complaint should set forth the cause of action, then allege the death of the testator, or intestate, and that on a certain day letters testamentary or of administration were issued by a certain surrogate. {Beach -V. King, 17 Wend., 197; Sheldmi v Eoy, 11 How, 11; White \ Joy, 13 N. Y, 83.) 278 Can Buy on Foreclosure. They are bound to endeavor to make collections from solvent persons in other States, and, if necessary, to procure some proper person to be appointed administrator there, and where such debt is lost by reason of their neglect, they are liable. {Shullz v Pulver, 11 Wend., 361.) Where an administrator in a foreign State recovers a judgment, he can collect it in this State, in an action brought therein, but in such action brought in this State, he must bring it in his own name and not as administrator. {Nichols v. Smith, 7 Hun, 580; Lawrence v. Lawrence, 3 Barb. CL, 71 ; Bright v. Ourrie, 5 Sandf., 437 ; Tdlmage v. Chapel, 16 Mass., 66.) So an administrator in another State can assign a mortgage upon lands in this State, so that the assignee can collect it by a fore- closure. {Smith V. Tiffany, 16 Hun, 552.) Upon a foreclosure executors and administrators can purchase and take title as such, and can convey in the same capacity. {Cook V. Ryan, 29 Hun, 249.) For the purposes of the payment of legacies, debts and distribution, the land so purchased remains personal estate. Services of legal counsel rendered to executors or administrators in the administration of the estate, are subject to the same rule as all other contracts of the personal representatives ; they bind them but not the estate. It follows, therefore, that all payments made by such a personal representative to counsel for services, are made subject to the risk of disallowance upon the final accounting. {Estate of Delaplaine, 8 JST. Y. St. Eep., 776.) They may adjust and settle the partnership affairs with a sur- viving partner, and in the absence of fraud or mistake, the settle, ment is conclusive upon the parties to the settlement, and all parties claiming under them, including the creditors of the de- ceased partner. {Sage v. Woodin, 66 N. Y., 578.) The death of one partner works a dissolution of the partnership, and it is the duty of the surviving partner to close the business, sell the property, and collect claims due to the partnership, and, after payment of the partnership debts, to account to the executor or administrator of the deceased partner. As a general rule, an administrator of a deceased partner who permits the surviving partner to contmue business for the joint benefit of himself and the estate, is personally liable for any debts contracted by the sur- vivoi in the course of it, and if he puts assets of the estate into the hands of the surviving partner, he is liable for loss incurred. Partnership Property. 279 {Thompson v. Brown, 4 Jolins. Ch., 619.) But executors of a de- ceased partner will not be held liable as co-partners, for transac- tions subsequent to the death of the decedent, on the ground that they consented that the business might proceed under the direc- tions of the surviving partner for a time, and that a debt for necessary goods, either previously furnished or subsequently fur- nished, to meet the necessities of the business, should be paid, as far as the executors were concerned, in the due course of admin- istration. Such an undertaking does not constitute the executors joint debtors with the surviving partners. {Richter v. Poppen- hausen, 42 K Y., 373.) Where a surviving partner, who is executor of the will of the deceased partner, has retained the stock of the firm and traded with it, he is chargeable with the prices actually realized, or with its fair market value, and is not entitled to commissions as surviv- ing partner for collecting the assets of the firm. {Ames v. Down- ing, 1 Bradt, 321.) An administrator who conducted the mercantile business in the store, and with the stock of the intestate, at retail, for about one year, during which time he purchased new goods, from time to time, mixed in, and sold them with the old stock, and did busi- ness and kept his accounts so that the actual profits could not be ascertained, is properly charged by the surrogate, on settling his accounts, with the inventoried price of the stock on hand, and interest thereon, until his account was rendered. {Smith v. Weld, 15 Week. Dig., 369.) The expenses incurred and paid by the ad- ministrator in re-carrying on the business in the store, are not chargeable to the estate. (Id.) They may insist that the partnership stock on hand be sold for cash, so as to pay the debts of the partnership and close the busi- ness as soon as possible. {Evans v. Evans, 9 Paige, 178.) They may also submit to arbitration disputed claims in favor of or against the estate of this decedent. The right to arbitrate by executors or administrators is included in the language of the statute in reference to arbitrations. (Code, § 2366.) The provisions in regard to the reference of disputed claims do not take away the common law right to arbitrate. ( Wood v. Tun- nidiff, 74 N. Y., 38.) But they are liable only for gross or collusive negligence in making collections. {Buggies v. Sherman, 14 Johns., 446.) But an executor having notice that there is a debt due the 280 Claim Against Legatee, etc. estate, is bound to active diligence for its collection ; lie may not wait for a request from the distributees. In case the debt is lost through his negligence, he becomes liable as for a devastavit. {Har- rington V. Keteltas, 92 N. Y., 40.) It seems that if the case is one of such doubt that an indemnity is proper, he must at least ask for it ; and at any rate he takes the risk of showing that the debt was not lost through his negligence. (Id.) The same case hold* that the statute of limitations does not begin to run in favor of an executor, or against a claim for damages occasioned by his negli- gence in collecting a debt due from the estate, from the time of the probate of the will, but at best only from the time of the loss. They may collect of a legatee or distributee for a debt due the estate, by retaining or setting off a legacy or distributive share in whole or in part. The legatee or distributee is not entitled to his share so long as he retains in his own hands a part of the funds out of which payment is to be made. {Smith v. Kearney, 2 Barb. Ch. R., 533; Rogers v. Squires, 98 N. Y., 49; Ferris v. Burrows, 34 Hun, 104.) The claim may be set off against the claim for a legacy made by an assignee of the legatee. But where the legatee or distributee disputes the debt claimed by the executor to exist against him, the surrogate's court will not adjudicate as to the existence or amount of the indebtedness, {Budd V. Rudd, 4 Dem., 335.) The executor has a lien upon the legacy and distributive share of the person indebted to the estate for the payment of the claims against him, and should pay on the legacy or distributive share on the sums beyond the indebtedness. The right to retain is not affected by the fact that the legal remedy on the debts was barred by the statute of limitations. ( Qucere, Rogers v. Murdock, 9 N. Y. St. Rep., 660.) Where the son of testator, being also his legatee and debtor^ dies leaving children, the legacy to him vesting in his children by ■ force of the statute (2 R. S., 66, § 52) immediately upon the death of the testator, the executor cannot deduct therefrom the amount of his sons debt to testator. {Tuttle v. Tuttle, 2 Dem., 48.) The surrogate has no jurisdiction however to try the question whether the debt had been cancelled by an agreement between the distributee and the decedent. {Kiniz v. Friday, 4 Dem., 540.)' An executor or administrator cannot sue his co-executor or co- administrator, to recover a debt due to the estate; but on the final settlement, the executor or administrator, debtor to the estate,. LiiiiTATioN OF Actions. 281 may be charged with his indebtedness. {Decker v. Miller, 2 Paige, 149.) Or his indebtedness may be settled in a court of equity, on the appHcation of his co-executor or co-administrator, and such disposition of the fund as justice and equity may require, may be directed by the court {Smith v. Lawrence, 11 Paige, 206 ; Wurts V Jenkins, 11 Barb., 546; McGregor v. McGregor, 35 N. Y., 218.) The statute gives one year extension of the statute of limita- tions, in favor of the estate of a deceased person, against debtors, or seven years in all, upon simple contract debts which were not barred at the decedent's death ; while the time is extended eighteen months, and, in a certain case, two years and a half, in favor of creditors and against the estate. (Code, § 403.) The fact of an outstanding decree of idiocy against a person at the time of his death, held not to prevent the statute of limita- tions running after that time. Six years after the death of an intestate, administration was granted. Two years thereafter, plaintiff brought, an action, for services to intestate and funeral expenses. Held, that the action was barred by the statute. {San- ford V Sanford, 4 Th. & C, 686.) Where a claim was referred under the statute, and the defense of the statute of limitations was interposed, the action was deemed to have commenced at the time of the entry of the order by the clerk of the court (Id.) The including of a note made by the executor in the inventory of the estate as the property of the estate, is a sufficient promise or new contract to take the claim on the note, out of the statute of limitations. {Morrow v. Morrow, 12 Hun, 386.) But the con- clusion in this case can be better upheld by reference to the statute (2 E. S., 84, § 13), providing that claims against an executor should be included in the inventory, and he shall be liable for the same as so much money in his hands. It is doubtful whether, as an acknowledgment to take them out of the statute, the including of the notes in the inventory is sufficient (See, also, Glark v. Van Amburgh, 6 Week. Dig., 102.) An executor cannot take an assignment of a claim against another party owing to himself individually, so as to unite such assigned claim to others held by himself as executor. An assign- ment by him to himself as executor is void. {Schryver v. Hoi- borrow, 26 Hun, 468.) 36 282 BxEcaTOR May Sell Assets. In regard to the disposition of the assets of the estate the lol- lowing statutory provision is to be noted : " § 25. If an executor or administrator shall discover that the debts against any deceased person, and the legacies bequeathed by him, cannot be paid and satisfied without a sale of the personal property of the deceased, the same, as far as may be necessary for the payment of such debts and legacies, shall be sold. The sale may be public or private, and, except in the city of New York, may be on credit, not exceeding one year with approved security- Such executor or administrator shall not be responsible for any loss happening by such sale, when made in good faith and with ordinary prudence." " § 26. In making such sales, such articles as are not necessary for the support and subsistence of the family of the deceased, or as are not specifically bequeathed, shall be first sold, and articles so bequeathed shall not be sold until the residue of the personal estate has been applied to the payment of debts." (2 K. S., 87.) Notwithstanding the apparent restriction of the power to sell in section 25, as above quoted, it was held {Sherman v. Willett, 42 N. Y., 146) that executors and administrators have the right to sell the personal property of the deceased, and that right is not limited by that section, which provides that they may sell if neces- sary They have the right to sell for the payment of debts and legacies and for the purpose of distribution ; and to sustain a sale it need not be proved that the sale was necessary for the payment of debts, etc. {Leitch v. ~Wells^ 48 N. Y., 585 ; see also, Nichols v. Chapman, 9 Wend., 452 ; Bogers v. Squires, 26 Hun, 388.) Nor does the statute prevent an executor from uniting with a surviving partner in an assignment for the benefit of the creditors of the partnership. {Beste v. Burger, 17 Abb. N. C, 162.) An executor or administrator who has sold property of the estate on credit may bring an action in his own name to recover the price, and in such an action a claim against the decedent can- not be made the subject of a counter-claim. The rule in this re- spect has not been changed by §§ 449 and 1814 of the Code of Civil Procedure. But in the class of cases in which the action could have been maintained by the plaintiff, either individually or in his representative capacity, or where, upon a contract made with the testator, the cause of action accrued after his death, or where upon a debt or obligation due to the deceased the executor or administrator has taken a new security in these cases, before Title of Purchaser. 283 the Code, the action might be in the individual or representative name, but now must be in the latter. (Thompson v. Whitmarsh, 100 N. y., 35.) The title of a purchaser in good faith from an executor, of per- sonal property belonging to the estate of his decedent, e. g., bank stock, is not affected by the fact that the sale was made by the executor in violation of his duty. {Leitch v. Wells. 48 N. Y., 585 ; see, also, Sutherland v. Brmh, 7 Johns. Ch., 17 ; Colt v. Las- mer, 9 Cow., 319 ; Bogert v. Herlell, 4 Hill, 492.) But if the purchaser knows or has notice, that the sale by the executor or administrator is fraudulent, or collusive, or is a devas- tavit, or is for the purpose of misapplication of the assets, his title will not be ' allowed to prevail against the beneficial interests of creditors or other persons interested in the estate. {Field v. Schieffe- lin, 7 Johns. Ch., 150; Soda v. Berthoud, 17 Barb., 15.) But knowledge on the part of the purchaser, that the exegutor or ad- mmistrator is dealing m a fiduciary capacity, is not enough to raise a suspicion, for it is the duty of the executor or administrator to dispose of the assets. {Dillaye v. Com. Bank, 51 N. Y., 345.) So it is a devastavit by an executor, if he deliver a one thou- sand dollar U. S. bond, worth, at the time of delivery, twelve hundred dollars, to each of three legatees in payment of a legacy of one thousand dollars to each, and he is liable for the loss, {Spaulding v. WdJceJield's Estate, 53 Vt, 660.) It is presumed the rule would be otherwise, in case of such a delivery to resi- duary legatees, if the like delivery were made to all of them. In King v. King (3 Johns. Ch., 652), it was held, that when an administrator sold leasehold property on credit, without security, whereby purchase money was lost, he was was liable to the next of kin. But if the sale is made in good faith and with ordinary prudence as to security, he would not be responsible for any loss that might happen. ( Orcutt v. Arms, 3 Paige, 459.) In regard to a partnership, of which the deceased was a mem- ber, the executor of the deceased partner may insist that the stock on hand be sold for cash, so as to pay the debts of the partner- ship, and close the business as soon as possible. {Evans v. Evans, 9 Paige, 178.) The business connections of a partnersnip are terminated by the death of one of the members without any action upon the part of his representatives, and can be continued only by virtue of some agreement on the part of the testator, that the business conneo- 284 Cannot Buy at His Own Sale. tions should continue after his death. The right to continue can- not be built upon a right to terminate. The duty to terminate is so instant, that where an executor, who is also testamentary trustee, wrongfully continues the business of the testator, this constitutes a valid ground for his removal. {Matter of Hutchinson, 10 N. Y. St. Eep., 10 ; Estate oj Sharp, id., 206.) In making sales of property of his decedent, the executor or administrator is a trustee of the parties interested in the estate, and as such he cannot be allowed, either openly or by means of another person, to become the purchaser of any part of the assets. If he make such purchase he may be held to account for the utmost value of the articles so purchased, without regard to the price paid for them. (Williams on Executors, 1842 ; Campbell v. Johnson, 1 Sand. Ch., 148 ; Van Epps v. Van Epps, 9 Paige, 237 : Ames V. Downing, 1 Bradf., 821 ; 4 Kent Com., 438 ; Powers v. Powers, 48 How., 389 ; Smith v. Lansing, 22 N. Y., 520.) This is the rule in relation to purchases by an executor, even in a case where no fraud is shown, and where the sale was in an action the decree in which provided that any party might become a purchaser. {Fulton v. Whitney, 66 N". Y., 548.) The last case holds that even a iinal settlement before the surro- gate is not a bar to an action by the persons interested to compel the trustee to account for the full value of the property purchased. (See also Davoue v. Fanning, 2 Johns. Ch., 252 ; Ward v. Smith, 3 Sandf. Ch., 592; Rogers v. Rogers, 3 Wend., 503; Bostwick v. Atkins, 3 N. Y, 53 ; Michoud v. Girod, 4 How., 504.) But the inhibition against purchases by an executor, only applies to those who have actually taken out letters. One who has renouncedj has no relations to the estate which will prevent his safely pur- chasing. {Valentine v. Duryea, 44 Hun, 427.) If at the sale a person purchasing announces that he is purchasing for the benefit of the children or heirs, or any other person inte- rested in the estate, and thus prevents competition, the purchaser will be held to be a trustee for the benefit of the parties interested in the property, and for whom he professedly purchased. For if any one gets an advantage by professing to act in behalf of another person, he will be held to be a trustee for the person for whom he professed to act. "When Interest Begins. 285 Of Investments. An executor or administrator, pending the final settlement of his accounts, should not sufEer any considerable balance to lie unproductive. A reasonable time to invest money must be allowed, and this may vary. In ordinary cases six months may be considered ample time for this purpose. {Halstead v. Hyman, 3 Bradf., 426 ; Dunscomb v. Dunscomb, 1 Johns. Ch., 508; Gilman v. Gilman, 2 Lans., 1.) When a legacy is made payable at a future day, out of the personal estate, the money should be set apart and invested until it becomes payable ; and the interest, if not payable with the legacy, belongs to the residuary legatees or next of kin. {Hone V. Van SchaicJc, 7 Paige, 221 ; 20 Wend., 564) Where the fund is too small to invest in a bond and mortgage to advantage, it may be deposited in a savings bank. {Collyery. Collyer^ 43 Hun, 638; 6 K Y. St. Eep., 693.) When real securities are not to be had he should obtain the approval of the surrogate as to the investment Pending the final settlement he may be required by the surrogate to deposit the funds with a trust company, so as to be earning interest. {Loch- hart V. Public Administrators, 4 Bradf., 21 ; see also, Harrington v. Idbby, 6 Daly, 259.) This being the case, it follows that on a representation by peti- tion, that the executor or administrator is allowing considerable sums to he unproductive, the surrogate wUl issue a citation to him to show in what manner he has the estate invested, and if the case seem a proper one, he will order an investment in a trust company or a savings bank. Interest is not ordinarily chargeable against an executor or ad- ministrator for the period of a year from the issuing of his letters, especially if the funds of the estate have been kept separate and not mixed with his own. For during that time he may properly be caUed upon for the payment of expenses and debta But at all times, if he has employed the funds, he will be charged with interest on the ground of the use of the assets for his own benefit, {Ogilviey. Ogilvie, 1 Bradf., 856.) The executor should always exercise the care which a prudent man would use about his own affairs as to title, when real estate is in question, or as to the security offered by a bank if a deposit 286 Investments Out of the State. is made of the fund. {Bogart v. Van Velsor, 4 Edwd. Ch., 722 ; see this rule applied in Boosevelt v. Roosevelt, 6 Abb. N. C, 447.) An executor having improperly loaned the funds of the estate on a third mortgage, is not justified in paying off prior liens with a view of better securing the mortgage, and was and he is liable for any loss occasioned thereby. {Lacey v. Dorris, 4 Redf., 402.) An executor who makes loans on second mortgages without due diligence or inquiry as to the value above the first mortgage, becomes liable. {Savage v. Gould, 60 How., 217.) And where executors have loaned, upon a third mortgage, supposing it to be a first, and, under advice of counsel, they paid off the prior loans and took one mortgage for the amount of the three, they are liable for any loss, as their original loan was an improper one. {Dacey v Davis, 4 Eedf., 402.) But where the will directs the investment in real estate securities, if they cannot be procured the executor may, in good faith, deposit in a savings bank, without seeking the directions of the surrogate. {Lansing v. Lansing, 45 Barb., 182.) As a general rule, mvestments by executors or testamentary trustees, of funds in their hands, which take these funds beyond the jurisdiction of the court, will not be sustained, and the trus- tee who so invests does so at the peril of being' held respon" Bible for the safety of the investments. This rule, however, is not so rigid as to admit of no possible exceptions, although a case must be very rare, and the circumstances very unusual and peculiar, to make it an exception. {Ormision v. Olcott, 84 N. Y., 839.) But where a trustee finds the estate in another State in jeopardy, it is his duty, as well as his right, to take the best secu- rity he can obtain for it. (Id) Where an executor loans money belonging to the estate, not in his representative but in his individual capacity, and takes a bond and mortgage to secure the loan payable to himself individu- ally, in case of default the cause of action accrues to him person- ally, and, upon his death, his personal representatives can enforce the security. {Caulkins v. Bolton, 98 N. Y., 511.) In making permanent investments as trustees, executors can only loan on real estate or on State or United States bonds. {King V. Talbot, 40 N. Y., 76.) An investment by a trustee in a mortgage on lands in Wiscon- sin, is a glaring breach of trust, but the trustee may be discharged from the consequences, by a release from the cestui que trust. {Cocks V. Barlow, 5 Redf., 406 ; Ormision v. Olcott, 84 N. Y., 339.) Authority to Invest in Will. 287 The court says of this : " While, therefore, we are not disposed to say that an investment by a trustee in another State can never be consistent with the prudence and diHgence required of him by the law, we still feel bound to say that such an investment, which takes the trust fiind beyond our own jurisdiction, subjects it to other laws, and the risk and inconvenience of distance and of for- eign tribunals, will not be upheld by us as a general rule, and never unless in the presence of a clear and strong necessity, or a very pressing emergency." {Ormiston v. Olcoit, sup.) But this rule relates only to voluntary investments by the trustee having the funds in his hands, and full opportunity and freedom of choice. Where, therefore, an executor finds that investments have been made by his predecessor, or obligations incurred by the de- cedent, he may, in the former case, take security in property with- out the State, and in the latter he may make payments on real estate without the State contracted for by the decedent. (Id. ; Benton v. Savford, 39 Hun, 487; 103 K Y., 607.) Owing latterly to the high price and low rates of interest of government bonds, testators frequently endeavor to give discre- tionary power to the executors as to the kind of securities in which investments are to be made. The language which will change the rule must be explicit and clear beyond a doubt, as to the testa- tor's intentions. Where the testator directed that the executor shall invest the funds that may come to his hands " in such suita- ble manner as may be for the best interests of my estate, to be determined by my said executor," it was held that the ordinary power of executors in selecting investments for estate funds, was not in the least enlarged. {Estate of Cant, 3 IST. Y. St Eep., 230.) The surrogate says : " How can this language be fairly construed, as giving any broader discretionary authority than was conferred upon the executors of Mr. King, whose will was under considera- tion in King v. Talbot (40 N. Y., 76). That testator gave his estate to his executors, ' entrusting to their discretion its invest- ment for the benefit of my heirs.' It was held by the court of appeals, that the ordinary power of executors in selecting invest- ments for estate funds, was not in the least enlarged by the lan- guage quoted." (See, also, Adair v. Brimmer, 74 N. Y., 639.) The rule is established in equity that if the executor make a loan on personal security and a loss accrue, he shall bear the loss. {Bogari v. Van Velsor, sup.) 288 Unauthorized Stocks to be Sold. As to the diligence required of a trustee, see'Boosevelt v. Roose- mlt (6 Abb. N. C, 447). If trustees, exercising a general power to make investments, go fceyond the limits prescribed by law in selecting a mode of invest- ment, neither good faith, nor care, nor diHgence will protect them in the event of an actual loss. In such cases they assume the risk and are responsible accordingly. {Ackerman v. Mnott, 4 Barb., 626.) In this case it was held that a trustee would not be protected against loss arising from the depreciation of trust funds invested by him, except when the loan was made on real security ■or in some fund approved by the court. Accordingly, when the vcxecutor invested the legacy of an infant in stock of a bank which, at the time of settlement, had greatly depreciated in value, lie was held liable to account to the infant on her arriving at age, for the whole legacy and interest. The possession by the testator, at the time of his death, of shares of the capital stock of a corporation, does not authorize the executors, upon an increase of the capital stock of a corporation, 4o subscribe for the new stock. {Lacey v. Davis, 4 Eedf., 402.) Executors being also testamentary trustees should sell the stocks of private corporations if any belong to the estate, and invest the fund in a manner authorized within the eighteen months allowed for settling the estate. If they neglect to do so, and a deprecia- tion happens, they are personally liable for the loss. While if a loss occur as to some stocks and an appreciation occur as to others, the persons interested may claim the benefit of the enhanced value ■of those which are appreciated, and throw the loss on those which have fallen on the executors. ( Gillespie v. Brooks, 2 Eedf. Sur. K, 349.) But executors are clothed with a reasonable discretion as for the proper time for the sale of the decedent's irregular securities. "While there is no fixed period within which they must exercise their discretion to sell, the seasonableness of any delay must be determined by the circumstances in each case. ( Weston v. Ward, 4 Eedf., 415.) Notwithstanding the rule in equity as to collection of the estate invested on personal security, where the will directs the manner of investment, as by loan to a certain party without security, the executor will be authorized to loan with conformity with the wilL {Denike v. Rarris, 84 N. Y., 89.) In relation to unauthorized stocks, the supreme court of Massa- When to Convert Into Money. 289 chusetts says : " It not unfrequently happens that the most im- portant and valuable part of an estate of a deceased person con- sists of stocks and shares in incorporated companies, and in this respect there is no distinction between manufacturing and other corporations. Such shares may be of great value, and yet liable to a small assessment. The share is in the same condition with any other pledged property. If it is of more value than the amount of the assessment, it is the duty of the administrator to pay the assessment and redeem the share for the benefit of the •estate. The duty of the administrator in such case is directed by the interest of the estate with which he is intiinsted. And even if the share should faU in value on his hands, after such redemp- tion, if he shall have appeared to have acted in good faith and with ■a just regard to the best interests of the estate, he would un- doubtedly be protected. But where the shares are confessed to be of no value, and will be of no value after the assessment may have been paid, an administrator is not at liberty to take money ■out of the general assets of the estate to pay over assessments." {Ripley v. Sampson^ 10 Pike, 373.) An executor who is directed by the will to convert the estate into money, is bound to do so within a reasonable time. But there is no rigid or arbitrary standard by which to measure the reasonable time, beyond which he may not delay in complying with the direction ; what is a reasonable time must depend upon the circumstances of each particular case. Therefore where no special modifying facts are shown to shorten or lengthen the reasonable time, the period allowed before an executor can be ■compelled to account may serve as a just standard. {In re Weston,, 91 N y., 502.) That is eighteen months. This is the rule notwithstanding the executors acted in good faith. (See, also. Mills v. Hoffman, 26 Hun, 694, Hughes v. Mnpson, 22 Beav., 181 ; Matter of Gray, 27 Hun, 455.) Executors are trustees for all the persons interested in the ■estate, and the whole law of trusts and trustees, so far as appli- cable, may be studied in regard to them. In collecting moneys loaned by the decedent, or themselves, on mortgage security, executors or administrators may be obliged to foreclose, and if bidders do not appear to run up the property to a sufficient amount to pay the debts, and the property seems to be about to sell below its actual value, it becomes their duty to pur- 37 290 Laot) Botjght on Foreclostjee. chase for the estate which they represent They will take a deed to themselves, in their representative capacity, and hold the estate until they can sell at a fair price. And where the property remains in their hands unsold, at the time of accounting, the sur- rogate may direct a sale thereof, and a distribution of the proceeds, as a part of the estate. {Olark v. Clark, 8 Paige, 152 ; Bogart v. Van Velsor, sup. , Matter of Gilbert, 39 Hun, 61.) The land purchased by them is to be treated as personalty and may be sold by the executors. The beneficiaries, under the will, take no direct interest in the property, and while they may require the executors to account therefor, they cannot dispute the title of a purchaser from the executors. {Lockman v Beilly, 95 N. Y., 64.) While it is the undoubted duty of the executor to collect what of the estate may have been loaned by his testator on personal security, as we have heretofore seen, still it was held {McBae y. McHae, 3 Brad., 199), that a fall in the market value of certain railroad stocks purchased by the decedent is not, of itself, enough to charge the executor with the loss occasioned by the deprecia- tion; but to have that effect, the circumstances should show affirmatively that he acted unreasonably in retaining the stock, and that the failure to sell was unjustifiable. (Compare Gillespie, V. Brooks, 2 Eedf. Sur. R, 379.) An executor is always a trustee of 'the personal estate of the testator, and can be called to account therefor as such in a court of equity, although no express trust be created. Therefore, any person claiming an interest in the personalty, either as lega- tee under the will or as next of kin, may, when the executor claims such interest in his own right, brmg suit against him to settle the construction of the will and ascertain the validity of its provisions, so far as the plamtiff's interest is concerned, and to enable him to obtain from the executor such portion of the estate as he is either legally or equitably entitled to. But where com- plete relief can be obtained in a surrogate's court, a court of equity, while it has jurisdiction, may, in its discretion, decline to entertain an action for an accounting or other relief against ex- ecutors. {Wager v. Wager, 89 N. Y., 161.) It is no part of an executor's duty to resort to devices to evade the lawful assessment and taxation of the estate in his hands ; and if in doing so he incurs liabilities, or borrows money to buy secu- rities exempt from taxation, and if such actions result in a loss Cannot Profit by Eise. 291 to the funds in his hands, he will be compelled to make such loss good, however clearly it may be shown that he intended to benefit the estate. So, on the. other hand, if a profit be gained by the transaction, besides the immunity from taxation, the estate could not take the profits without adopting the incidents attendant upon the reahzation, and the executors should not be charged per- sonally with the interest paid by them on the loan. ( Wheelright V. Rhoades, 28 Hun, 67 ; 11 Abb. N. C, 882.) STATE TAX ON LEGACIES AND INHEEITANCES. In 1885 the legislature of this State passed an act entitled " An act to tax gifts, legacies and collateral inheritances in certain cases," which was amended in very important particulars by chapter 713 of Laws of 1887. We propose to consider the law so far as it affects legacies, in- heritances and the duties of executors in relation thereto. By the first section of the act, it is provided that all property which shall pass by will or by the intestate laws of this State from any person who may die seized or possessed of the same while a resident of this State, or when the property, or any part thereof, shaU be within the State at the time of the death of the former owner, if not a resident, to any person other than to or for the use of the father, mother, husband, wife, child, brother, sister, wife or widow of a son, or the husband of a daughter, or any ■child adopted under the laws of this State, or any person to whom the deceased, for not less than ten years prior to his or her death, stood in the 'mutually acknowledged relation of parent, and any lineal descendant of said decedent bom in lawful wedlock, and the societies exempted by law from taxation, shall be subject to a tax of five dollars on every hundred dollars of the clear market value of the property, and at the same rate for any less amount. And all executors, administrators and trustees shall be liable for the tax so imposed until it shall be paid ; providing that an estate valued at less than five hundred dollars shall not be subject to the tax. Where the legacy or gift is an estate or interest for a term of years or for Ufe, or shall be a remainder, reversion or other expec- tancy, the entire property shall be appraised immediately after the death of the decedent; and the surrogate shall assess and •determine the value of the estate, income or interest subject to the tax. The tax prescribed shall be immediately due to the treasurer 292 When Tax Payable. of the county, and in the city of New York to the comptroller, and with the interest on it shall be and remain a lien on the prop- erty until it is paid. But the person, or persons, beneficially in- terested in the property may elect not to pay it until they come into actual possession of the property, and they may give a bond to the people of the State in the penalty of three times the amount of the tax arising upon the personal estate, with, sureties approved by the surrogate, conditioned for the payment when they shall come into actual possession ; and they shall in such case make a verified return of the property to the surrogate, and file it within one year from the death of the decedent, and make the security within that time, and renew it every five years. (Section 2.) "Where the bequest is a gift to the executors m lieu of commis- sions, the excess beyoud what would be their reasonable compen- sation shall be liable to the tax, and the surrogate's court shall fix the compensation. (Section 3.) All the taxes payable by this act shall be due and payable at the death of the decedent, but if the same are paid within eighteen months no interest shall be charged thereon ; but, if not so paid, interest shall be charged at the rate of ten per cent per annum from the time of the death of the decedent But if the tax is paid within six months of the decedent's deat&, a discount of five per cent shall be allowed and deducted. In all cases where the tax is not paid within eighteen months, the executors or adminis- trators shall be required to give a bond as above provided for beneficiaries, conditioned for the payment of the tax and interest (Section 4.) But if the settlement of the estate shall be delayed by reason of claims made upon the estate, litigation, or other unavoidable causes of delay, so that it cannot be settled at the end of eighteen months from the death of decedent, in such cases only six per cent per annum shall be charged upon the tax from the expiration of the eighteen months, until the cause of the delay is removed. (Section 5.) Any executor, administrator or trustee, having in charge any legacies or property for distribution which is subject to the tax, shall deduct the tax therefrom. But if the property be in money, he shall collect the tax upon the appraised value thereof from the legacy or personal estate of the distributea He shall not deliver or be compelled to deliver any specific legacy, until he shall have collected the tax. If the legacy be charged upon real estate, the Tax May be Eefunded. 293 teir or devisee, before paying it, shall deduct the tax therefrom, and pay the same to the executor, administrator or trustee, and it shall remain a charge upon such real estate until it is paid, or may be enforced by the executor, administrator or trustee, in the same manner as a payment of the legacy may be enforced. If the legacy be for a limited period, he shall apply to the court for an apportionment of the tax. (Section 6.) For the purpose of collecting- the tax, executors and adminis- trators have full power to sell so much of the property of the de- cedent as will enable them to pay it. (Section 7.) The tax shall be paid to the county treasurer within thirty days after retention, or, in the city of New York, to the comptroller. The of3ficer receiving the tax shall give, in each case, duplicate re- ceipts, one of which receipts the executor or administrator shall send to the comptroller of the State, and the other receipt shall be retained as a voucher on the settlement of the estate. (Sec- tion 8.) These provisions shall apply to any real estate subject to the tax ; and it is the 'duty of executors and administrators to give information, in writing, to the treasurer or comptroller of the county, within six months after they undertake the performance of their respective duties, or within one month after knowledge that real estate has passed, subject to the tax. (Section 9.) If by reason of debts proved against the estate after the pay- ment of legacies or distribution of property which has paid the tax, and a refund is made by the legatee, devisee, heir or next of kin, a proper proportion of the tax so paid shall be refunded to him. (Section 10.) Stocks or liens in this State transferred by any foreign executor or administrator shall be liable to the tax, which shall be paid to the treasurer or comptroller of the proper county on the transfer thereof. If the tax is not so paid, the corporation permitting such transfer shall become liable to pay the tax, provided that such corporation had knowleege that such stocks or liens were liable to the tax. (Section 11.) The state treasurer shall refund on proper proof to any execu- tor or other person who has paid any tax in error, the amount so paid, provided that the application for the refunding shall be made within five years from the date of payment (Section 12.) The surrogate, upon the application of any interested party, or upon his own motion, shall appoint an appraiser as often as, and 294 Eeal Estate of Non-resident Taxed. whenever occasion may require, who shall forthwith give notice by mail to all persons known to have any interest in the property, and to such other persons as the surrogate may direct, and the time and place that he will appraise such property. He shall then appraise the property at its fair market value and make a report to the surrogate, together with such other facts in relation thereto as the surrogate may by order require. From this report the surrogate shall assign and fix the then cash value of all assets, annuities and life estates or terms of years accruing out of the said estate, and the tax to which the same is liable. He shall imme- diately give notice thereof by mail to all parties known to be interested therein, and the value of every future or contingent or limited estate, income or interest shall be determined by the rule-, method and standard of mortality and of value which are em- ployed by the superintendent of the insurance department in ascer- taining the value of policies of life insurance, except that the rate of interest to be used in computing the present value of all future interests and contingencies shall be five per cent per annum. The superintendent of the insurance department shall, on the applica- tion of any surrogate, determine the value of future, contingent, or limited estates, and his certificate shall be conclusive evidence that the method of computation is correct. An appeal may be made from the appraisement within sixty days after the making and filing of the assessment, oh giving security approved by the surrogate to pay the costs, together with the tax which will be fixed by the court. The appraiser shall be paid by the county treasurer or comptroller, as the case may be, at the rate of three dollars a day, together with actual and necessary traveling ex- penses. (Section 13.) Any appraiser taking fees or compensation from any other per- son than as above provided, shall be guilty of a misdemeanor. (Section 14.) The surrogate's court of the county in which the real property is situated of a decedent who is not a resident of the State, or in the county in which he was a resident at the time of his death, shall have jurisdiction to hear and determine the questions in rela- tion to the tax, and the surrogate first acquiring jurisdiction shall retain the same to the exclusion of every other. (Section 15.) If it shall appear to the surrogate's court that any tax accruing has not been paid, it shall issue a citation to the persons interested in the property liable to the tax to appear before the court on a Proceedings to Collect Tax. 295 day certain not more than three months after date of such cita- tion, and show cause why such tax should not be paid. The ser- vice of the citation, and proof thereof and fees therefor, shall be the same as in other cases of citation and service in the surrogate's court. Where a decree has been made, the surrogate shall fur- nish without fee to the district attorney, treasurer of the county, or comptroller of New York one or more transcripts of said decree ; and the same may be docketed and filed by the county clerk of any county like any other transcript of a decree of the surrogate. (Section 16.) The county treasurer or comptroller of the county shall give notice to the district attorney of the county, if he have reason to believe that any tax is due and unpaid, and the district attorney, if he have cause to believe a tax is due and unpaid, shall prosecute the proceeding in the surrogate's court, as provided in section 16 of this act for the enforcement and collection of the lax. All costs awarded by said decree that may be collected after the col- lection and payment of the tax to the treasurer or comptroller, may be retained by the district attorney for his own use. (Section 17.) The surrogate and county clerk of each county shall make a statement, in writing, to the county treasurer or comptroller of his county every three months of the property or party liable for the tax due and unpaid. (Section 18.) If the surrogate of any county shall certify that there was probable cause for issuing a citation and taking the proceedings specified in section 17 of this act, the State treasurer shall pay or allow to the treasurer or comptroller of any county all the ex- penses incurred for services of citations and his other lawful dis- bursements that have not otherwise been paid (Section 19.) The comptroller of the State shall furnish to each surrogate a book for the returns made by appraisers, in which shall be kept the accounts of the tax. (Section 20.) The treasurer of each county and the comptroller of the city of New York shall collect and pay the State treasurer all taxes payable under this act , and he shall make report under oath to the comptroller on the first Monday of March and of September in each year, stating for what esta,te paid, in such form and contain- ing such particulars as the comptroller may prescribe ; and for all such taxes collected by him and not paid to the State treasurer by the first day of October and April of each year, he shall pay interest at the rate of ten per cent (Section 21.) 296 Duty of Executor to Pay. The fee oi tlie treasurer of each county and of the comptroller of the city of New York, in addition to his salaries or fees allowed by law, is five per cent on the first fifty thousand dollars so paid and accounted for by him ; three per cent on the next fifty thousand dollars ; and one per cent on all additional sums paid and accounted for by him. (Section 22.) Any person shall be entitled to a receipt from the county treas- urer or comptroller on payments of fifty cents ; and where the tax was paid upon real estate, the receipt may be recorded m the county clerk's office in a book to be kept by him for such purposcj which shall be labeled "collateral tax." (Section 23.) All taxes so levied and collected shall be applicable to the gen- eral purposes of the State government and such other purposes as the legislature may by law direct. (Section 24.) ■ It would seem to be clearly the duty of the executor or administrator to attend to the valuation of the legacy or property subject to the tax as it is to collect it. It would seem in nearly all cases necessary that an appraiser should be appointed under section 13, and it would be proper for the executor or adminis- trator to petition for such appointment It will be observed that the tax is made payable upon the death of the decedent, and interest runs from that date at ten per cent for subsequent time, unless it shall be paid within eighteen months. But in some cases of specific or definite money legacies, the value may be accurately appraised at any time, while a residuary legacy or a distributive share of an estate to one of the next of kin cannot be ascertained with certainty until after the notice to creditors to present claims, and at least one year after the issue of letters. There is an inducement to pay the tax before the expiration of six months from the death of the decedent in a rebate of five per cent, which is claimed for the prompt payment PETITION OF AN EXECUTOR FOR APPOINTMENT OF AN APPRAISER— SECTION 13. Surrogate's Court — Rensselaer County In the Matter of the Estate of I , Deceased. ( To Hon. William Lord, Surrogate of the County of Bensselaer : • The petition of , of the city of Troy, in said county, respectfully shows, on information and belief, as fol- lows : Petition for Appraisal. 297 That the said died on or about the 12th day of August, 1885, at the said city of Troy, and his will, dated November 10th, 1882, has been duly proved in this court, and letters testamentary thereon have been duly issued and granted to the petitioner, sole executor named in said will. That said will, by its terms, devises and bequeathes property to persons and asso- ciations other than those entitled to receive tlw same free from the payment of the tax imposed by chapter 483 of Laws of 1885, as follows • To is bequeathed a certain picture, and by the terms of the bequest the legatee is entitled to the legacy at the the time limited by law, which your petitioner is informed is one year from the issue of letters testamentary. The following devises and bequests are to take effect, only upon the death of the widow of the testator, to whom the whole estate of the testator, except the aforesaid picture, is devised and bequeathed, for the term of her life : To is devised the house and premises known as No. 5 Sixth street To is bequeathed five hundred dollars. To and each one-half of the rest, residue and remainder of the testator's estate. Besides the legacies above stated certain sums are bequeathed to the Troy Orphan Asylum, they Day Home and the Troy Cemetery Association, but your petitioner is advised and believes that said last mentioned legacies are not subject to the aforesaid tax, for the reason that the legatees and their property are exempt by law from taxation. Wherefore, your petitioner prays that the surrogate appoint some competent person as appraiser to appraise such devise and legacies, and make report thereupon, and of such other facts in relation thereto as the surrogate may by order require ; or for such other or further order as the surrogate shall think proper in the premises. And your petitioner will ever pray etc. Dated Troy, November 30, 1885. Eensselaer County, ss. : , of the city of Troy, in said county, being duly sworn, says that the foregoing petition by him subscribed is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be trua Sworn, etc. The surrogate thereupon, by order, appoints the appraiser, and directs him as to whom he shall notify of his action. 38 298 Appraisal Directed. OEDEE FOE APPEAISEE, Etc. At a surrogate's court, held in and for the county of Eensselaer, at the surrogate's oflBce in the city of Troy, on the 2d day of December, 1885. Present — Hon. William Lord, Surrogate. In the Matter of the Estate of / ^^ , Deceased. I On reading and filing the petition of , ex- ecutor, named in the will of the above named deceased, duly veri- fied : and it appearing therefrom that, by the will of said deceased, certain property is devised and certain legacies given which, by chapter 983 of Laws of 1885, are subject to the tax imposed by said law , and on motion of McCIellan & McClellan, attorneys for the petitioner : Ordered, that , of the city of Troy, in said county, be and he is hereby appointed appraiser of the property and estates devised and bequeathed by said will, and said appraiser shall forthwith give notice by mail to the devisee of the real estate, and each of the legatees, named in said will, other than the widow of the decedent, of the time and place of such appraisal. The said appraiser shall appraise the' said property and estates at their fair market value, and make a report, in writing, to the surrogate, together with a statement as to the age of , widow, aforesaid. (Signed) WM. LOED, Surrogate. The notice by mail should fix a reasonable time, after the notice, on which the appraiser will proceed. It is suggested that as the appraiser is, in effect, a referee, he should take an oath as a referee .would in a similar case. OATH OF APPEAISER Surrogate's Court. In the Matter of the Estate of / , Deceased. j I. , appraiser, appointed in this matter do solemnly swear that I will faithfully and fairly appraise the prop- erty and interests as required by the order of this court, and make report thereof, and of such other acts as shall be required of me Notice to Present Claims. 299 hj the order of the surrogate, according to the best of my under- standing. Sworn before me, this day of , 1885. NOTICE TO DEVISEES AND LEGATEES. Surrogate's Court — County of . In the Matter of the Estate of / J. B. P., Deceased. j Take notice, that having been appointed appraiser by the sur- rogate of the county of , in pursuance of chapter 483 of Laws of 1885, as amended in 1887, entitled "An act to tax gifts, legacies and collateral inheritances in certain cases," I shall pro- ceed to appraise the legacy or devise by the will of the above named decedent, given or bequeathed to you, at my office No. — street, in the city of , on the day of , 1886, at ten o'clock in the forenoon of that day. Dated January 19, 1886. — , Appraiser. CHAPTER XV. Advertising for Claims and Reference of Disputed Claims. An executor paying debts before the total of them shall have been ascertamed, does so at a risk that the estate may be insuffi- cient, and that he may lose. {Nichols v. Chapman, 9 Wend., 452 ; Clayton v Wardell, 2 Bradf., 1.) Six months notice to creditors duly given, by executors, ex- empts them from all liability to creditors, where claims are not presented, for any assets paid over, in good faith, by them, m sat- isfaction of claims of an inf enor degree, or of legacies, or in making distributions to next of kin. {Ewin v. Loper, 43 N Y,, 521.) But the notice must be according to the statute. Publication commenced before the expiration of the six months and continued for six months, is of no avail for protection of executors who pay out the whole estate after the notice, and relying on it ( Veeder v. 300 Notice Protects Executors. Mudgett, 95 N. Y., 295.) It must follow, also, that a notice pub- lished in some paper, not designated by the surrogate, would not be sufficient The statutory provisions in regard to the publication of notice to present claim against the decedent, are as follows : § 34. (2 E. S., 88.) Any executor or administrator, at any time, at least six months after the granting of the letters testa- mentary, or of administration, may insert a notice once in each week for six months, in a newspaper printed in the county, and in such other newspapers as the surrogate may deem most likely to give notice to the creditors of the deceased, requiring all per- sons having claims against the deceased to exhibit the same with the vouchers thereof, to such executor or administrator, at the place of his residence or transaction of business, to be specified in such notice, at or before the day therein named, which shall be at least six months from the day of the first publication of such notice. The notice is for the protection of the executors or administra- tors, and there is no absolute legal obligation to give it at all. {Bullock V. Bogardus, 1 Den., 276 , Fliess v. Buckley, 90 N. Y., 286.) It is suggested in Murray v. Smith (9 Bosw., 689) that there is room for considerable doubt whether a mere order for publication is sufficient without a formal adjudication that a publication in such newspaper alone is deemed most likely to give notice to credi- tors as required by statute. But it is believed that if such an adjudication is to be deemed necessary, the order designating the paper will be considered one. The case of Murray v. Smith was disapproved by the supreme court m Soyi v. Bennett (58 Barb., 529.) The paper or papers in which the notice is to be published must be designated by the surrogate, which he does in an order made on the application of the executor or administrator. It may be noted that every order of the surrogate is presumed to be issued or granted upon the petition of some party. Each proceeding terminating in an order or decree is a special proceed- ing, and founded upon a petition actual or presumed. It is not believed to be necessary that a formal petition should be made for an order for publication of notice to creditors, but that the order would be made upon mere suggestion. The following may serve as a draft of an order; What Immaterial. 301 ORDER TO ADVERTISE FOR CLAIMS. At a surrogate's court, held in the county of , at the surrogate's office in the of on the day of , 1887. Present — Hoa , Surrogate. In the Matter of the Estate of ( A B , Deceased, j It appearing that more than six months have elapsed since the issue of letters of administration upon the goods, chattels and credits of A. B., late of the of , deceased. Now on the application of C. D,, administrator: Ordered, that said administrator publish a notice once a week, for six months, in the , requuing all persons having claims against said deceased to present the same, with the vouch- ers thereof, to the said administrator, on or before the day of , next. -, Surrogate. NOTICE. In pursuance of an order of -. ■ , Esq., surrogate of the county of , notice is hereby given to all persons. having claims against A B., late of the of = , deceased, that they are required to exhibit the same with the vouchers thereof, to the subscriber, executor of the will of said deceased, at his residence in the town of , on or before the 15th day of May next. Dated November 11, 1887. (Signed) A D., Executor. The notice to present claims must be for their presentation to the executor or administrator personally, not to an attorney, for the power to accept or reject cannot be delegated. {Hardy v. J.mes, 47 Barb. 413) A publication in one newspaper printed in the county, pur- suant to the order of the surrogate, is sufficient, unless he directs ,a publication in some other paper also. {Dolbeer v. Casey, 19 Barb., 149.) An omission of a middle initial letter in the name of the testator in the notice published, is immaterial ; and this is so although there is a person living of the same name as that published, as the S02 Effect of Publication. law requires but one christian name, and it did not mislead, {Games v. Wilkins, 14 Hun, 428 ; 79 K Y., 129.) The executors may select a place for presentation of claims, and their designation' of it in the notice makes it their place of busi" ness or residence for the purpose of the statuta {Sbyt v. Bennett, 58 Barb., 529; reversed on another point, 50 K. Y., 538; Whit- lock's Estate, 1 Tuck, 491.) But Murray v. Smith, decided in special term of the superior court (9 Bosw.,.689), holds to the contrary of Hoyt v. Bennett. It is also held in Hoyt v. Bennett that claims not yet due may be pre- sented under this notice. This was confirmed by the court of appeals (50 N. Y., 538) holding that the liability of a deceased partner for partnership debts, although contingent, might be pre- sented under the notice. But where executors or administrators are substituted for a deceased defendant in a pending action, they are not entitled to a presentation of the claim in suit, nor are they to be exempted from costs if the plaintiff recovers judgment. The representatives in such case come into the place of the decedent and the action must proceed against them as it would have done against him. {Tindall v Jones, 11 Abb., 258, and 19 How., 469.) It seems that the only effect of the publication of notice to creditors is that (1), if a creditor choose to present his claim and it is rejected, he must, unless it is referred, commence an action thereon within six months, or absolutely forfeit his right to re- covery ; while (2) if he does not choose to present his claim at all, he may nevertheless seek his remedy by action at any time before it is barred by the statute of limitations, though in that event he can have no costs, and can ordinarily recover from the executor or administrator only such sum as was in his hands applicable to the claim at the commencement of the action. ( Qreene v. Bay 1 Dem., 45.) § 35. (2 R S., 88.) Upon any claim being presented against the estate of any deceased person, the executor or administrator may require satisfactory vouchers in support thereof, and also the affidavit of the claimant that such claim is justly due, that no pay- ments have been made thereon, and that there are no offsets against the same to the knowledge of such claimants, which oath may be taken before any justice of the peace, or other officer authorized to administer oaths. The affidavit may be in the following form : Claim Once Pbesented. 303 AFFIDAVIT TO CLAIM. Eensselaer County, ss.: A. B., of the city of , being duly sworn, doth depose and say, that the foregoing claim against the estate of ■ , deceased, is justly due and owing to this deponent ; that no payments have been made thereon (other than those stated therein), and that there are no offsets against the same to the knowledge of deponent. (Signed) A B. Sworn before me, this day ) ■ of , 1880. f C. D., Notary Public. The claims may be presented by letter, or in any way which deals fairly with the executor or administrator, and the estate which he represents, and the claimant need not produce vouchers, or make an af&davit, unless requested. ( Gansevoort v. Nelson, 6 Hill, 389.) The claim need not be presented to each of several executors. {Qenet v. Binsse, 3 Daly, 239.) So, also, where a claim has been virtually presented and ac- knowledged by the executor or administrator, before notice to creditors to present claims, it is not necessary to present it again for allowance under the statute. And where the executor or ad- ministrator admits the validity of the claim by paying interest on it from time to time, it is tantamount to a formal admission of its justice upon presentation under notice. {Johnson v. Corheit, 11 Paige, 265 ; Field v. Field, 77 N. Y., 294) So, also, if the debt be established by judgment, or otherwise, before the commencement of the six month's publication, is of the same force as if presented within the six months. {Matter of Phyfe, 5 K Y. Leg. Obs., 331.) Admission of a claim hy an executor or administrator conclusive. While the surrogate cannot try the issues raised by a claim pre- sented, he has authority to try the question, whether the adminis- trator has admitted the claim. {Browne v. Large, 4 Dem., 350.) If such admission has been made, it is as effectual, for all practi- cal purposes, as if the debt had been established by judgment, and if such admission has once been made, it cannot be retracted. {Matter of Phyfe, 5 K Y. Leg. Obs., 331.) And where the claim "wras duly recognized and allowed by the administrator, neither the 304 Claim Disputed Outlawed. administrator or the next of kin could require its rejection by tlie, surrogate on the final settlement {Wilcox y. Smith, 26 Barb.,' 316, 334) If a creditor presents a claim to an executor or administrator during the period of six months that he is advertising for the pre- sentation of claims against the estate, and he disputes or rejects a claim so presented, and the creditor does not, within six months thereafter, commence a suit for its recovery, by reference or other- wise, he is forever barred from recovering such claim, under the short statute of limitations. (2 E. S., 89, § 38 ; Code, § 1S22, to same efiEect) The executor acts in a quasi-judicial capacity, and his judg- ment of rejection becomes final after six months have expired. His admission of the debt as between him and the claimant, is also quasi-judicial, and being a determination in the propriety of which both parties acquiesce, it is immediately final between them. The executor, therefore, at any time before he shall have made a distribution to claimants, who have presented claims, may make such an admission of the validity of the debt as will bind him and all the parties interested in the estate. {Matter of Phyfe, 5 N. Y. Leg. Obs., 331.) This is consonant with the decisions of the courts. That the executor may keep a claim alive so as to- prevent the running of the statute of limitations against it by pay- ing interest thereon. {Wihox v. Smith, 26 Barb., 331, 334.) If he can so far admit a claim by paying interest on it as to prevent the running of the statute ; if he can conclude the estate and the next of kin, surely he can conclude the estate and himself and the next of kin by an admission of the validity of the claim when presented. It must also be held, that the executor, by retaining the claims presented for a long time, without disputing it or offering to refer it, admits it ; and this admission may be implied from circum- stances, as between parties acting each in his own right, the pre- sentation of an account, and its retention by the debtor without disputing it, for a reasonable time, will conclude the debtor as an account stated. {Lockwood v. Thome, 11 N. Y., 170.) There is no reason in law, or arising out of the relation of the parties, why an executor, representing a debtor estate, should not be concluded in the same manner. This becomes the more apparent on considering the fact that^ Claim Not Disputed is Admitted. 305 ■while the personal estate is still in the hands of the executor, nO' one else can dispute a claim or set up the statute of limitations, (2 R. S., 88, §§ 35, 36- Wtkox v. Smith, 26 Barb., 316, 335.) But the supreme court has held that if an executor neither admits or rejects a claim when presented, he must be regarded as disputing it (Cooper v. Felter, 6 Lans., 485.) This decision is based upon Tucker v. Tucker (4 Keyes, 136), which hardly war- rants the inference drawn by the learned justice who wrote the- opinion. , The rule is carefully and clearly stated by Surrogate Calvin in Underhill v. Newhurgher (4 Eedf., 449), that when a duly verified claim is presented to the representative of an estate,. he must either admit or reject the claim within a reasonable time. In the absence of any act on his nart indicating his rejection or dispute of the claim, it will be presumed to have been admitted. (See, also. Brown y. Lunge, 4 Dem., 350.) The law is now settled by the court of appeals m accordance- with the decision of Surrogate Calvin above quoted. {Lambert v. Craft, 98 N. Y., 342.) In respect to creditors of the estate, the executor or adminis- trator is a trustee and not a debtor. ( Wager v. Wager, 89 N Y., 161). And like all trustees, where the names of the cestui que trusts are not given in the deed, he is bound to exercise the utmost care before he accepts a claim as entitled to payment, and the law will afford him all reasonable means of so doing. He cannot be coerced to pay debts short of a year from the time of granting letters. The remedies of the creditors, in the meantime,, however, are not absolutely suspended ; he may prosecute an ac- tion, but he must do so at his own cost and expense, and not at the cost and expense of the estate, unless he can show that the executor or administrator has been guilty of some laches or illegal act in regard to the adjustment of the claim, {Bu^k- hurst V. Hunt, 16 How., 407.) Reference of disputed The statute provides for a summary method of determining claims against the estate of a decedent by a reference. § 36. (2 R. S., 88, amended chapter 261, Laws of 1859.) If the executor or administrator doubt the justice of any claim so presented, he may enter into an agreement, in writing with the 39 S06 What is Not Disputing Claim. claimant, to refer the matter in controversy to one or three disin- terested persons, to be apprbved by the surrogate ; and on filing such agreement and approval in the office of the clerk of the supreme court * * * a rule shall be entered by such clerk, either in vacation or in term, referring the matter in controversy to the person, or persons, selected. The omission of the executor or administrator to offer to refer a claim, when presented, is not necessarily an admission of it, which precludes him from contesting it, and thus preventing its allowance by the surrogate or an accounting. {Tucker v. Tucker, 4 Abb. Ct. of App. Dec, 428.) Delay of an executor to make objections to a claim will not preclude him from setting up the statute of limitations on the reference. (^wcyfcZmv. CAopm, 1 Lans., 443.) But this authority must be considered in connection with a decision of the court of appeals, that the retention of the claim for a long time is tanta- mount to an admission of it. {Lambert v. Craft, 98 N. Y., 342.) The filing of the stipulation is to be deemed the commencement of the action, for the purpose of stopping the running of the statute of limitations. {Sandford v. Sandford, 4 N. C. , 686 ; Busklin V. Chapin, 1 Lans., 443 ; Tracy v. Suydam, 30 Barb., 110.) The mere neglect to pay, or even a refusal by an executor to pay, upon any other ground than that the debt claimed, or some part thereof is not legally or equitably due, is not such a disputing or rejecting of the claim as to start the limitation. {Kiddv. Chap- man, 2 Barb. Ch., 414.) In Elliott v. Crank's adrrHr (13 "Wend., 35), the administrator told the agent who presented the claim that he had not yet investigated the affairs of the estate, and that he would consult counsel and let the agent know his determina- tion. He failed to do so. It was held that this was not a dis- puting and rejection. So, if when the claim is presented the executor ask time to inquire into it, it will not be such a rejection or disputing. {Reynolds v. Collins, 3 Hill, 36.) If the supposed rejection be apparently deliberative and not definative, and the claim be subsequently treated by the parties as under considera- tion, the statute will not begin to run until a final rejection has been notified to the claimant IBarsalou v. Wright, 4 Bradf., 164) These cases, which are approved in Hoyt v. Bennett (50 IT. Y., 538), and where it is held that the act of' the administrator in disputing or rejecting the claim, which is to put the claimant to Ground of Objection to be Stated. 307 an action within tlie brief period prescribed, upon pain of forfeit- ing hia claim, should not be ambiguous or equivocal, capable of two interpretations, but decided, unequivocal and absolute ; such an act or declaration as will admit of no reasonable doubt that the claim i3 disputed or rejected, so that the claimant will be with- out excuse for not resorting to this action within the time required to save his claim ; and that to construe and apply the ■ statute in a manner more liberal to the representatives of estates, would make it a trap and a snare to claimants, must be held to decisively overrula Cooper v. Felter (6 Lans., 485), which holds that if the executor does not admit or reject the claim, nor ofier to refer it, it makes it a disputed claim. (See, also, Lambert y. Graft, sup.) The rejection must be communicated to the creditor himself. Notice of rejection to the attorney employed to make out and present the claim, is not sufficient {Van Saunv. Fales, 4 Daly, 165.) But it is not a valid objection to the notice of rejection of the claim that it was signed by the attorney for the personal repre- sentations, where it appeared that the signature was made at this request and by this authority. {Sehver v. Coe, 63 N. Y., 438.) The rejection of the claim should be made upon the ground that it, or some part of it, is not legally due. {Kid v. Chapman, 2 Barb. Ch., 414.) To protect the executor or administrator from costs, he should accompany his rejection with an offer to refer it But the offer to refer need not be in writing. {Lansing v. Swartz, 9 How., 434.) In one case {Gorham v. Ripley, 16 How., 313) where a credit tor's demand having been rejected he offered to refer to referees to be approved by the surrogate, not naming them. The execu- tors instead of accepting this offer, offered to refer to three refe- rees named by themselves, to be approved by the surrogate ; it was held at special term that this was a refusal by the executors to refer, which rendered them liable for costs m an action on the demand. Only those claims are referable which accrued during the de- cedent's life, or which would have occurred against hun if he had lived. {Gooding v. Porter, 17 Abb., 374.) AGREEMENT TO REFER CLAIM. Whereas, A. B. has lately presented a claim to the executor of the will of C. D., late of , deceased, for $ a 308 What is an Agreement. copy whereof is attached hereto, the justice of which claim is doubted by the said executor ; it is thereupon agreed that the matter in controversy be referred to , a referee, "to hear and determine the same. Dated November 14, 1874. (Signed) A. B., C. D., Mcecutor. I hereby approve of the referee named in the foregoing agree- ment Dated November 14, 1874. E. P Surrogate. ORDEE ENDORSED. On reading and filing the within agreement and approval of the ■surrogate of Rensselaer county : Ordered, that — — •, Esq., be and" he is appointed referee to hear and determine the matter in controversy mentioned in said agreement Dated November 16, 1874. WM. LAPE, Clerh of Supreme Court. The agreement to refer should present substantially the issue between the parties. It is a substitute for the pleadings in an ordinary action. {Woodin v. Baghy, 13 "Wend., 453.) It is not essential that the agreement and approval be so formaL In BmMin v. Ghapin (53 Barb., 488 and 35 How., 155) an order was signed by the surrogate reciting the presentation of the claim, and that the parties had agreed to a reference, ajid a consent to the order signed by the attorneys on behalf of the parties, was held to amount to an agreement in writing to refer, which is suffi- cient under the statute To confer jurisdiction under the statute, a substantial compliance with its terms is enough. The naming of the referees in the order of the surrogate is sufficient evidence also that they were approved by him. Respondent made this offer: " I hereby offer to refer my claim against the estate of deceased, as provided by law. Will you consent to such reference?" The executor's counsel consented. An order of reference was signed by the surrogate, who inserted the name of the referea The surrogate afterward revoked the order, holding it to have been improvi- dently entered, because (1) the statute confers upon the surrogate BO power to make any order in the premises ; and (2) the parties Effect of Ageeement to Eefer. 309 having neither agreed to abide by the nomination of the surrogate, nor united in presenting to him any name or names for his ap- proval, his designation was invaUd. He also held that the surro- gate is not empowered to decide whether one person or three per- sons should be chosen to pass upon the disputed claim. {Tilney V. Clendenning, 1 Dem., 212.) The reference is not an ordinary action, and is not applicable to claims by the executor against other parties except by way of set-off. {Akely v. Akely, 17 How., 21.) The proceedmg is sui generis. The agreement to refer relates to a particular claim presented, the justice of which is doubted. The agreement to refer recites this fact, and on the approval thereof by the surrogate and filing of the same in the office of the county clerk, becomes operative as a voluntary submission to its jurisdiction for the purpose of adjudicating upon the claims pre- sented. The account presented is in effect the plaintiff's com- plaint, and there being no pleadings and no provision in the statute for pleadings, the defendant is limited to no particular defense, and consequently any and every legal defense against the claim must necessarily be available. {Robert v. Ditmas, 7 Wend., 522 ; Woodin v. Bagley, 13 id., 453; Tracy v. Suydam, 30 Barb., 110.) Within this rule a set off may be proved, or payment in whole or in part ; or proof given to reduce the amount The executor may make any defense which the intestate could have made when alive, if properly pleaded by him in an action on such claim. They may therefore insist on the statute of limitations, and if that defense is sustained, it is a complete answer to the whole cause of action. {Tracy v. Suydam, sup. ; Converse v. Miner, 21 Hun, 367.) The order of reference must be entered. When the agreement to refer is not filed, and no order entered, the supreme court does not get jurisdiction of the cause. {Comstock v. Olmsted, 6 How., 77.) In this proceeding the reference stands in the place of an action, and the entry of the order, to refer must be deemed the commence- ment of the action for the purpose of determining whether the action has been brought within the time limited by statute. (JSultslander v. Thompson, 5 Hun, 348, citing Bucklin v. Chapin, 1 Lans., 443 ; Reynolds v. Collins, 8 Hill, 36 ; Comstock v. Olmsted, 6 How., 77.) 310 What May be Eefekked. Nearly every class of claims, both legal and equitable, may be so presented and referred. ( White v. Story, 43 Barb., 124.) Un- liquidated claims by surviving parties against the decedent, may be so referred. {Francisco v. Fitch, 25 Barb., 130.) A claim for a tort committed by the decedent, also is referable. (Brochett v. Bush, 18 Abb., 337.) An agreement by testator to support the claimant and his family, is a claim proper for payment when the agreement was for the consideration that the claimant would do the testator's business. {Gilman v. Gilman, 2 Lans., 1.) A claim by an executor against the deceased is not a proper claim for reference, but where a claim was made by one executor against the estate, which was rejected by his co-executor, and re- ferred under the statute, it is too late to set up, after judgment against the estate, that the claim of an executor is not referable, but must be heard by the surrogate in person, ( Weller v. WeZfer, 4 Hun, 195.) Contingent liabilities may be presented, but it seems they can- not be barred by rejection. {Sbyt v. Bennett, 50 N. Y., 538 ; re- versing 58 Barb., 529.) But a claim against the decea-sed as an executor, for assets held by him as such, is not so to be treated. The statute cannot be applied to trust moneys or property in the hands of an executor at the time of his deatL It contemplates an ordinary debt, for which the deceased was liable in his life-time, upon a promise, ex- press or implied ; a debt which may be siipported by the oath of the creditor, which is justly due, which may be the subject of an offset, and which was cognizable by the common-law courts. {Sands v. Craft, 10 Abb., 216 ; 18 How., 438.) Where the referee reports to the court that the claim is wholly unfounded, the court may, upon the application of the executor, direct the referee to report upon any claim in favor of the estate and against the claimant {Hendrickson v. Dickson, 19 N". Y., 290.) The powers and duties of the referees are regulated by the same statute. § 37. (2 E. S., 89.) The referees shall thereupon proceed to hear and determine the matter, and make their report thereon to the court in which the rule for their appointment shall have been entered. The same proceedings shall be had in all respects, the referees shall have the same powers, be entitled to the same com- pensation, and subject to the same control, as if the reference Legatees Not Necessarily Notified. 311 liad been made in an action in wliich such court miglit by law, direct a reference; and the court may set aside the report of the referees, or appoint others in their place, and may confirm such report, and adjudge costs, as in actions against ex- ecutors ; and the judgment of the court thereupon shall be valid and effectual, in all respects, as if the same had been rendered in a suit commenced by the ordinary process. The provision in this section, that " the same proceedings shall be had, in all respects, * * * as if the reference had been made in an action," authorizes the issuing of a commission to take testimony out of the State. {Paddock v. Kirhham, 102 N. Y. 697.) It is not incumbent on the representatives of the decedent to give notice of the proceedings to the legatees or next of kin. The action of the representatives is conclusive, unless fraud or breach of duty, or collusion with the claimant, is proved (Meyer v. Gilligan, 2 N. Y. S. Eep., 702.) Upon the reference, no proof is necessary that the testator left a will, or that the defendant was an executor, and the defendant was estopped from denying those facts, by stipulating to refer. {Bamfidd v. Rainsey, 4 Th. & C.) Where a claim was presented to an executor which was rejected by him, and a reference was made by mutual consent, it was held that it was not necessary on the reference to prove a formal de- mand of payment before the beginning of the action. The report, of the referee finding facts taking the claim out of the influence of the statute of limitations, was sustained in the absence of a preponderance of evidence on that point in favor of the defend- ant {Parker v. Wait, 7 Week. Dig., 179.) The court may, on motion, order other necessary parties to be brought in before the referee, having obtained by the submission to the reference juris- diction of the subject matter. {Mowry v. Peet, 7 Abb. N. G. 195.) The referee may, or may not, order a bill of particulars furnished on the trial. His discretion in such a case was held not to be reviewable, as it did not appear to have been abused, and that the executor, when the claim was presented, could have re- quired it to be made more precise and particular before accepting or rejecting it {Matter of Weller, -i Hun, 195.) After a contested claim has been submitted, and the parties have separated, it is too late for one of them to withdraw his claim. {Clowes V. Van Antwerp, 6 N. Y., 466.) 312 What Judgment Can be Entered. The reference of a disputed claim in this proceeding, under the statute, is not an action but a special proceeding. The provision of section 1002, relating to motions for a new trial, have no ap- plication to such a proceeding. {Denise v. Denise, 41 Hun, 9.) The report is a verdict under 2 R S., 387, § 4, allowing judgment to be entered by leave on the death of a party, within two terms after verdict {Burhans v. Burhans, 10 Wend., 601.) Neither the referee nor the court has power to render an affirm- ative judgment against the claimant upon a counterclaim in favor of the personal representatives ; they can only avail themselves of a set-ofE counterclaim to the extent necessary to extinguish the demand of the claimant Such a reference is not an action, but a special proceeding. In view of the fact that no affirmative judg- ment can be rendered on such a counterclaim, the proper course of the personal representatives, where they hold a counterclaim larger than the demand of the claimant, is either to bring suit on their claim, or put the claimant to a suit which they can do by disputing the claim. {Mowry v. Peet, 88 N. Y., 453.) For it is doubtful whether the personal representatives can divide their claim, by setting oS a part and bringing an action for the residue ; and, also, what would be the effect given to a judg- ment in favor of the claimant if the counterclaim is withheld ro withdrawn, and afterwards an action is brought thereon. (Id.) After report an application must be made to the court for con- firmation and for judgment before a judgment can be entered. NOTICE OP MOTION TO CONFIRM EEPORT. Supreme Court. Agnes B. Arnott, ag't John Ackley and others, as executors. Please take notice, that upon the report of James Gibson, Esq., referee herein, filed in Washington county clerk's office January 15, 1888, a copy whereof is herewith served, and the proceedings heretofore had in this case, the court will be moved at the next special term thereof, to be held at the City Hall, in the city of Albany, on the last Tuesday of January, 1888, at the opening of court on that day, or as soon thereafter as counsel can be heard, for an order confirming said referee's report and for judgment thereon. And that upon all of the aforesaid papers the opinion Proceedings After Eeport. 313 of tlie said referee, and his certificate copies whereof are herewith served, and the evidence, taken on the trial before said referee, an application will be made for an order charging the defendants with the plaintifi's costs. Dated January 20, 1888. Yours, etc., M. & M., PVffs Atiys. To W. & W., JDefts Attys. OEDER OF CONFIRMATION AND FOR COSTS. At a special term ot the supreme court, held at the city haU in the city of Albany, on the 31st day of January, 1888. Present — Hon. Samuel Edwards, Justice. Agnes E. Arnott agH John Ackley and others, as executors of th e will of , deceased. On reading and filing the report of the referee herein, dated January 15, 1888, and filed in the office of the county clerk of the county of Washington, together with the opinion and certificate of said referee, and aU the papers and proceedings had in the matter, and after hearing Mr. for the motion, and Mr. in opposition : Ordered, that the report of the referee herein be and the same is hereby confirmed, and that judgment be entered for the plaintiff herein, and that the plaintifE recover his taxable costs in the pro- ceeding before said referee, as in an action. If it is deemed best to move to set aside the confirmation of the report of the referee as a proceeding on the appeal, the following may serve as a notice. NOTICE OF MOTION TO SET ASIDE REPORT, Era Supreme Court. Agnes E. Arnott ag't John Aoklet and others, executors, etc., of , deceased. Please take notice that, on the referee's repoji; and accompany- ing papers, and all proceedings heretofore had in this cause, and 40 314 How TO Eeview Judgment. on the case and exceptions herewith served, this court will be moved at a special term thereot, to be held at the of , in the city of , 1888, for an order setting aside and vacating the said report of said referee and the order confirm- ing the same, or for such other or further order as to the court may seem just Dated January 19, 1888. Yours, etc., M. & M., Attysfor Defts. To W. & W., Attysfor PTff. Where the claim was unreasonably contested, as m particular the claim was recognized by the decedent and referred to in her will, the claimant was held entitled to costs and an allowance. {Darling v. Halsey^ 2 Abb. N". C, 105.) As to costs, see post. But where the claim was not unnecessarily resisted, as where the amount was reduced nearly one-half in amount, the claimant was allowed only disbursements. (Pinkernelli v. Bischoff, 2 Abb. K C, 107.) Where no motion was made at special term to set aside the re- port and the report was confirmed, and judgment entered on con- sent, it was held not to be appealable. {Frane v. Hockett, 16 Hun, 528.) A motion -to set aside the report must be made at special term, and IS in time even if made after judgment. {Schryver v. Molbor- row, 26 Hun, 468.) If the executor or administrator wishes to do so, he may move at special term to set aside the report, and an order to that effect may. be appealed from to the supreme court and court of appeals. {Fredenhurgh v. Biddhcom, 85 N. Y., 196 ; Raynor v. Laux, 28 Hun, 35.) The practice on the part of executors and administrators to secure a review of the determination of the refei-ee, is not by an appeal from the judgment m the first instance, for it would seem that where the report of the referee is complete on its face, it should be confirmed without question. {Somerville v. Crooks, 9 Hun, 664.) A judgment follows, of course, upon the confirma- tion of the report A judgment, contrary to the report, could not be rendered. {Coev. Coe, 37 Barb., 232.) An appeal from the judgment, without a case, would be ineffectual to review the rulings or findings of the referee. The first section of the laws of 1854, provides for appeals from any judgment from any order or final determination in special proceedings made at a special Proceedings on Case, etc. 315 term. Under that statute it was held that a motion to set aside the referee's report was necessary, before an appeal could be taken from the judgment. {Somerville v. Crook, sup.) But that neces- sity, if it ever existed, ceased, when the section was repealed by Laws 1877, chapter, 417, section 28. To obtain a review of the report, therefore, a case containing exceptions, made conformably to the Code (§§ 994, 995), is necessary. An appeal may now be taken from the judgment ^Code, § 1346), and the case, on being annexed to the judgment roll, would be brought up by such ap- peal. {Young v. Cuddy, 23 Hun, 249.) The court holds, that still the power to set aside the report, given by 2 E. S., 90, § 37, remains, and, as an incident thereof, the power to vacate the judg- ment exists, but that parties should be required to pursue the practice of making a case. Counsel desiring to review the find- ing of the referee against executors or administrators, should, within eight days after notice of filing the referee's report, file and serve exceptions (rule 30, 1884) within ten days after decision and notice of entry of judgment, make and serve a case. (Eule 32.) The attorney for the plaintiff has then ten days to serve amend- ments, and the case will be settled according to rule 32. This annexed to the judgment roll and notice of appeal, forms the ap- peal book directly to the supreme court. ( Young v. Cuddy, sup. ; Kellogg v. Clarh, 23 Hun, 393 ; Eaynor v. Laux, 28 id., 36.) Where, on appeal, the report shall be set aside, the supreme court, at special term, has power to direct a compulsory reference, to a new referee. {Masten v. Budingion, 18 Hun, 105.) The provisions for the reference of disputed claims must be fully and strictly complied with. If any of the proceedings re- quired be not taken, the judgment entered upon the report of the referee will be void. {Burnett v. Gould, 27 Hun, 366.) An appeal does not lie to the court of appeals from an order of general term, granting a new trial on a judgment entered upon the report of a referee in such proceedings. {Boe v. Boyle, 81 N. Y., 305.) § 1822. Short statute of limitations as to refected claims. — Where an executor or administrator disputes or rejects a claim against the estate of the decedent, exhibited to him either before or after the commencement of the publication of a notice requiring the pre- sentation of claims, as prescribed by law, unless the claim is re- ferred, as prescribed by law, the claimant must commence an action, for the recovery thereof, against the executor or adminis- 316 What is Eejection. trator, within six months after the dispute or rejection, or, if no part of the debt is then due, within six months after a part thereof becomes due ; in default whereof, he, and all persons ' claiming under him, are forever barred from maintaining such an action thereupon, and from every other remedy to enforce payment thereof, out of the decedent's property. This section was amended in 1882, so as to apply to the pre- sentation of a claim to an executor or administrator, which had been before that restricted to the time of the publication of the legal notice to creditors, so as to apply to such presentation^ whether the executor or administrator makes legal publication or not A surrogate's court has held that the limitation does not apply in favor of a decedent's representative, who has omitted to pub- lish the notice to creditors to present claims. It only applies to- claims presented before notice or after notice. A notice, then, is necessary. {Solomon v. Heichel, 4 Dem., 176.) When a representative of an estate has a claim duly verified, presented to him, it is incumbent upon him either to admit it or reject it ; or, in case he shall not be possessed of the facts justify- ing a determination, he should take the matter under considera- tion, and, when he reaches a conclusion, advise the claimant, other- wise the latter would seem to be in doubt whether he should offer ' to refer or commence an action to enforce it. {Estate of Hecht, S Law Bull., 32.) If he does or says nothing, he will be presumed to have admitted it. {Underhill\. Newhurgher, 4 Eedf., 499^ Lambert v. Craft, 98 N. Y., 342.) The defense is good not only made by the personal representa- tives, but by the heirs at law or next of kin. The failure to com- mence suit within six months, is an absolute bar, as absolute as the lapse of six years. {Selover v. Cbe, 63 N. Y., 438.) But due notice must be given of the rejection to the creditor himself, in order to set this short statute in motion. A notice to an attorney employed by the creditor to make out the claim and present it, is not notice to the creditor. ( Van Saun v. Farhy, 4 Daly, 165.) The statute being penal in its character, it must, in all essen- tials, be complied with. The act of the executor in disputing or rejecting the claim, must be decided unequivocal and absolute. Whatever may be the language or declaration, if, in the same notice or declaration, or at the same time, he does or says any- What is Not Disputing. 317 thing from wticli the claimant may reasonably infer that the de- termination to dispute or reject is not final, the claim is not dis- puted or rejected within the meaning of the statuta {Elliott v. Oronk, 13 Wend., 35; Reynolds v. Collins, 3 Hill, 36; Hoyt v. Bennett, 50 K Y.. 539.) Where the claim presented was contingent, and was rejected on presentation, the statute commenced to run on rejection. {Comes V. Wilkins, 79 K Y., 129.) The short statute is only applicable where the presentment and rejection take place after pubhcation of notice to creditors, where lettters were 'issued before July 1, 1882. {Tucker v Tucker, 4 Abb. Dea, 428 ; WMtmore v. Foose, 1 Dea, 159 ) Where an executor or adminstrator relies upon this statute as a defense, he must make it appear that all the requirements of the statute have been complied with and its terms implicitly obeyed,, and he must establish a full compliance with the statute in respect to pubhcation of notice to creditors. {Broderick v. Smith, 3 Lans., 26.) In the case last quoted, the executor having failed to prove an order of the surrogate for notice to creditors and a publication under it, judgment in his favor was reversed. But under the statute as amended in 1882, it would not seem to be necessary to show order for publication or actual publication of notice to cred- itors. A mere offer to refer after an unquaHfied refusal to pay, does not waive the statute. But where an agreement, in writing, to re- fer is made, the claim will be regarded as referred for the purpose of avoiding this statute, although no referee has been chosen. {Nhi. Bank v. Speight, 47 K Y., 668.) But where the executor wrote to the claimant's attorney in May, 1874, offering to submit the matters in controversy, and the attor- ney replied in March, 1876, accepting the proposition, to which the executors made no reply, it was held to be no waiver of the statute, that to constitute a waiver the offer should have been ac- cepted within the six months, and this followed by actual submis- ■ sion. {Comes v. Wilkins, 79 N. Y, 129.) Mere neglect to pay an honest debt upon demand, or even a refusal to pay it, if put upon any other ground than that the debt or some part of it is not legally or equitably due, is not a disput- ing or rejection of the debt, so that the creditor must sue within six months or be barred. {Kidd v. Chapman, 2 Barb. Ch., 414) The presentation and rejection, and consequent bar of the statute 818 Collection From Heirs, etc. applies in the case of a claim which matured after the death of the testator as well as where it accrued in his lifetima {Cormes v. WilUn, 14 Hun, 428.) The rejection of the claim may be waived. Thus, where the •executor, when the claim was presented rejected it, but afterwards entertained negotiations in reference to a settlement, it was held that his previous rejection was waived, and the statutory bar to an action could not be interposed. {Galanan v. McClure, 47 Barb., 206.) There is no absolute legal obhgation on the part of executors ■or administrators to advertise for claims against the estate ; the notice is for their protection only. {Fliess v. Buckley, 90 N. Y., 286.) But six months' notice duly given exempts them from all liability to creditors whose claims are not presented, for any assets paid over ' in good faith by them, in satisfaction of claims of an inferior degree, or of legacies, or in making distribution to next of kin. {Erwin v. Loper, 43 IST. Y., 521.) It would seem that knowledge of the claim by the executor does not avoid the neces- sity of its due presentation, or, if it be rejected, its presentation or reference within the time limited by the statuta {Livingston v. Gardner, 4 Eed£, 516.) The effect of not presenting the claim at all within the six months of advertising in a subsequent suit on it, is only to deprive the claimant of costs. The right of action is not barred when the claim was not presented at all, but only when it was presented and disputed, and not referred or prosecuted. {Baggott v. Boulger, 2 Duer, 160 ; Erwin v. Loper, sup.) But it may occur that the claim was not presented to the per- sonal representatives at all, and the estate shall be settled and dis- tributed. In such a case equity will enable creditors to follow the fund liable for their debts, into the hands of the persons to whom it has come, and treat them as constructive trustees, as they are not entitled to anything out of the estate until the debts are satisfied. (2 Story's Eq, Juris., §§ 1250, 1251.) The action by a creditor against his debtor's next of kin, lega- tee, heir or devisee, and the extent of their respective liability, are regulated by the Code. (Section 1837, et seg_ ) Funeral Expenses and Debts. 319 CHAPTER XVI. Funeral Expenses and Debts. Reasonable funeral expenses are to be paid in preference to any debts, and are charged as expenses of administration. « * * * rpj^g gj.g^ duty and care of an executor or adminis- trator, when he hath taken upon him the charge of the administra- tion of the goods and chattels of the deceased, after the goods are laid up, is to see the body of the deceased lawfully interred, ac- cording to his rank and quality ; wherein let the executor or ad- ministrator take this caution by the way, not to exceed in funeral pomp, especially if it be so that the estate wiU scarcely reach to pay the debts ; for let his expenses be what they will, the judges (who in this are to determine what shall be allowed) will allow what they please, and they are pleased in such cases to allow but a small matter ; and whatsoever the executor or administrator doth lay out more, he must bear it out of his own estate, if he have not enough besides to pay the debts." (Shep. Touch., 476.) Only such funeral expenses as cannot be properly postponed until an administrator shall be appointed are chargeable, or should be incurred by an unauthorized person. Tombstones and memo- rials should await the appointment of the personal representatives. {/Samuels v. Estate of Thomas, 61 Wis. 549.) The supreme court, first district, decided that where a husband, executor surviving, paid the funeral expense^ of his deceased wife, he should be allowed it out of the estate, on the settlement of his account The surrogate disallowed the item, but the court on appeal reversed the decree. {Qucere, McOue v. Garvey, 7 Week. Dig., 125 ; 14 Hun, 562.) But the question in each case is, what are reasonable expenses ? The erection of a headstone at the decedent's own grave may be considered a part of his funeral expenses, where the rights of creditors cannot be defeated thereby. ( Wood v. Vandenburgh, 6 Paige, 277.) And the same charge was allowed in a case where the estate was insolvent {Cornwell v Deck, 2 Redf. Rep., 87.) But where the estate of the deceased did not exceed $10,000 a monument was erected by the widow, who was also administra- trix, at an expense of $500. It was held to be excessive, and the 320 "What abe Eeasonable Expenses. claim for it was not allowed. {Owens v. Bloomer, 6 Week. Dig., 330.) It is certainly the duty of the executor to pay the funeral ex- penses of the deceased from the estate, and it has been well held Ihat suitable gravestones are a part of such expenses. {Ferrin v. Myrick, 41 N. Y., 815-325 ; Laird v. Arnold, 26 Hun, 4, Matter ■of Laird, 3 N. Y, St Eep., 376.) When the value of the personal estate was $11,096, and the executor, who was directed by the will to erect a monument, the style and expense of which was left entirely discretionary with himi ^nd he contracted for one at a cost of $1,455, the surrogate of JSTew York held that he should not have exceeded $700. Matter of JEstate of Luclcey, 4 Eedf., 95.) As against next of kin an expenditure of $357 for a burial lot is not unreasonable, where the estate amounts to $13,000, especially ■when most of the next of kin consent to it. As against creditors, this expenditure would not be allowed. ( Valentine v. Vdkrdme, 4 Eedf., 265.) "Tombstones were allowed as part of the funeral expenses in ■Connecticut, even where the estate was insolvent {FairmarJs Appeal, 30 Conn., 205.) But a charge for a monument was not allowed to executors in Springsteed v. Samson (32 IST. Y., 703). When the decedent dies away from home, the necessary ex- pense of notifying his family and removing his body to his late home, are proper funeral expenses. {Hauler v. Hosier, 1 Brad., 248.) And moderate expenses for mourning for the widow and family, may be allowed as part of the funeral expenses. ( Wood^s Estate, 1 Ashmead, 314.) Funeral expenses comprise the outlay or charge incurred for the interment, and the compensation of the person or undertaker who provides what is necessary, and attends to the funeral for hire or reward. All other services for the dead, which are not acts of necessity, are necessarily gratuitous. {Hewitt v. Bronson, b Daly, 1 ; Matter of Miller, 4 Eedf., 302.) The rule that an executor, if he have sufficient assets, is liable to a third person who, as an act of duty or necessity, has provided for the interment of the deceased, applies equally m the case of an administrator ; and a person who defrays the necessary funeral expenses of an intestate, though before letters of administration are granted, is entitled to be reimbursed out of the assets which Executor Not Always Liable. 321 ■come into tlie hands of the administrator. {Rappleyea v. Bussell, 1 Daly, 214; Hewitt v. Branson, 5 id., 1.) Accordingly, an undertaker, who superintends the funeral of an intestate, having no friends or relations in the city, may recover the charges there- ior from the administrator, who afterward took out letters, and having in his hands sufficient assets, refused to pay the bill. But a distant relative by marriage cannot recover a charge for services in looking up the deceased, who died suddenly away from home, for writing funeral notices, nor for the use of his house in which to hold the funeral services. {Hewitt v. Branson, ^up.) But it would seem that there may be some circumstances under which the executor may not be held liable. Thus, an executor was possessed of assets of the estate to pay the funeral expenses, but it appeared that the husband of the deceased ordered the necessaries for the funeral, and the plaintiff had collected part of his bill from him and obtained a judgment for the balance. The court held that the executor was not liable. {Lucas v. Hersen, 17 Abb. N. C, 271.) So, where upon the death of a married daughter, her mother officiously, and in the presence of the hus- band of the deceased, assumed entire control of the arrangements for the burial, and sent for the undertaker and told him to spare no expense, the surrogate held that she became personally liable, and relieved both the husband and the estate of the deceased from the obligations otherwise imposed by law. ( Quin v. Sill, 4 Dem., 69.) The administratrix having paid the funeral expenses of the de- ceased, and having subsequently received sums as " funeral benefits and" "funeral expenses" from benefit associations of which the deceased was a member, is not entitled to credit on account of the payments made, she must be considered reimbursed by the sums received. {Estate of Brooks, 5 Dem, 326; 5 N. Y. St Eep., 381.) It may be remarked that an executor contracting for funeral expenses or other services for the benefit of the estate of his in- testate, binds himself but not the estate. He cannot create a liability for the estate. {Austin v. Monroe, 47 N. Y., 360.) The duty of giving decent burial to a deceased testator, who leaves some estate, devolves upon his executor The necessary and reasonable expenses thereof are a charge against it as a part of the expenses of the trust ; and the law implies a promise on 41 322 Surrogate Cannot Direct Executor. the part of the executor to pay one wlio, in the absence or neglect of the executor, from the necessity of the case, incurs or pays out such expenses. {Patterson v. Patterson, 69 N". Y., 674.) The surrogate has no power to direct the payment of a claim created by the executor. The jurisdiction of the surrogate ex- tends only to claims against the deceased. {Bulkeley v. Staats, 4 Eedf., 624.) He will be allowed for reasonable funeral expenses repaid by him to a third party on his accounting. {Matter of Miller, 4 E,ed£, 302.) It is very doubtful, in view of the general principle that the jurisdiction of the surrogate extends only to claims against the decedent, whether the surrogate has power to direct payment by an executor of funeral expenses. Such an order was made, how- ever, on the petition of an undertaker, but the question of juris- diction does not appear to have been raised. The only question discussed was the amount allowable. {Matter of Rooney, 3 Eedf. 15-) The question as to who is liable for obligations contracted by the executor or administrator, was settled in Ferrin v. Myrick (41 K Y., 315 , see, also, Schmittler v. Simon, 101 K Y., 554). This last case holds that he does not make the estate liable by accept- ing a draft, adding to his signature his name of office. A judgment for such contracts must be de bonis propriis, and not against the estate in his hands ; and such causes of action^ cannot be joined in the same complaint, with a cause of action ansing upon the contracts of the deceased {Seip v. Drach, 14 Penn. St, 352 ) But the fact that a former action had been brought against the defendant as executor upon the same agreement, in which a judg- ment had been entered in his favor, on the ground that he was not liable thereon, m his capacity as executor, is not a bar to an ac- tion against him in his individual capacity. {Hall v. Richardson, 22 Hun, 444.) If the services are rendered for the administrator, without any agreement on the part of the claimant to look to the decedent's estate for the compensation, his claim can only be enforced- against the administrator, in his individual capacity. {Poland v. Dayton, 40 Hun, 568.) Where an executor loans money belonging to the estate, and takes the bond and mortgage to himself individually, in case of default, the action accrues to him individually, and can be enforced Executor Binds Himself Only, 323 Tdj his personal representatives only. {CauVcias v. JBoUon, 98 N. Y., 511.) Executors cannot, by their note as such, create a lia- bility of, or charge the estate. A note made by them with their title of executors added, can be treated as theirs, and they alone are liable on it But in an action against them on their note, given on account of a debt actually due from the estate, and upon no other consideration, the deficiency of assets would constitute a defense in their behalf, founded on the fact of want of consider- ation. {Glenn v. Burrows, 37 Hun, 602.) From the fact that the contract of an executor renders him only liable, it follows that he can only bring an action in his own name on a contract made by him, and never existing in favor of the decedent. {Eetileman v. Bradt, 1 N. Y. St. Eep., 618.) The rule in Ferriny. Myrick (sup.), was enforced in D., L. and W. B. B. Co. V. Gilbert (44 Hun, 201 ; S. C, 8 N. Y, St. Eep., 215). It is there held that contracts of executors, although made in the interest and for the benefit of the estate they represent, do not bind the estate. They cannot create a liability not founded •on the contract of the testator. Even a power conferred upon a testatrix to carry on a certain business after testator's death, did not authorize her to create debts in the execution of that trust, which could be collected out of the general assets. In such a case, nothmg but the most clear and unambiguous language de- monstratmg m the most positive manner that the testator intends to make his general assets liable for all debts contracted in con- tinuing a trade after his death, will justify a court in arriving at such a conclusion. We would say, positively, that a testator can- not, by any terms in his will, authorize his executor to carry on a business and contract liability against his estate, the payment of which would prejudice the decedent's creditors. At his death his estate becomes a trust which he cannot alter, as to the claims of creditors. See, also, Johnson v. Kellogg (44 Hun, 623 ; S. C, 8 N. Y. St. Bep., 413 ; but see Clapp v. Clapp, 44 Hun, 451 ; S. C, « N. Y. St Eep., 275). An action, however, by an executor upon a claim alleged to be due the estate, arising out of transactions between the testator and another, must be brought by the executor as such ; and it is not maintainable by him in his individual capacity, where, as if he was made defendant in such an action, it would be against him individually; {Hone v. Be Peysier, 106 N. Y, 645.) 324 CONTEACTS OF ESECUTORS BiND THEM ONLY. The contracts of executors, although made in the interest and for the benefit of the estate they represent, being made upon a new consideration moving between the promisee and the executors as promisors, are the personal contracts of the executors and do not bind the estate. {Gary v. Gregory, 38 Supr. Ct. Eep., 127 ; Blood- goody. Gregory, id., 182; IlallY. Richardson, 22 Hun, 444.) This is so expressly the rule that a contract made by executors in form as such in consideration of services to be rendered, in vindicating and asserting their claims to property in their representative capa- city, and for the benefit of the estate they represent, does not bind the estate or create a charge upon the assets in the hands of the executors. {Austin v. Munro, 47 N". Y , 360.) One of several executors has no authority to borrow money without the consent of the others, and his assent is not to be pre- sumed from the fact that the lien was for the benefit of the estate. {Bryan v. Stewart, 83 K Y., 270.) When, however, the complamt clearly sets forth the facts, and discloses a right of action in favor of the plaintiffs, who sue as ad- ministrators, when in fact in strictness they should have sued as individuals, and in their own right, it is not the practice to dismiss the action and require another more strictly and accurately formed to be brought. {Bingham v. Marine Bank, 42 Hun, 660 ; 4 N. Y. St. Rep., 528.) But where the complaint stated that the defendant was sole executor of the will of testatrix, who was his wife ; that her will directed expressly that a certain business be carried on by her executors for the benefit of her son ; that such business was carried on under the will by the defendant as such executor; that in that capacity he purchased goods necessary for said business and used in it ; that he is personally insolvent ; that the estate is solvent ; the action against the defendant m his representative capacity was sustained. ( Willis v. Sharp, 48 Hun, 434 ; 6 N. Y. St. Rep., 757.) It may be noted that this case does not show an exception to the general rule as to the liability of executors for contracts made by them, it is a case where the trustee acts in accordance with his trust, in which case he must bind the trust fund. Where, however, an executor in good faith defends an action brought against him individually for a liability incurred by him, and a judgment is rendered against him, he is entitled on his final accounting to be allowed the costs and disbursements included in the judgment, and a reasonable counsel fee paid to his own attor- Contract of Executor, When Yoid. 325 ney. {Matter of Grout, 15 Hun, 361 ; see also. Boss v. Harden, 12 J. & S., 26.) An executor cannot bind himself to pay the debts of his testa- tor unless the agreement therefor, or some memorandum or note ' therefor, be in writing, and signed by the executor or by some other person by him thereunto specially authorized. (2 E. S., 113.) His promise, except in the manner required by this statute is void, and he cannot bind his decedent's estate by such a void promise. (Schoonmaher v. Roosa, 17 Johns., 301.) Still if an executor or administrator makes legal disbursements out of his own funds, as for reasonable counsel fees, he will be entitled to be reimbursed out of the estate of his decedent. {Oil- man V. Oilman, 6 Th. & C, 211.) An administrator having given his note for a claim against the estate of his intestate, is entitled to have the same allowed to him on his accounting, although more than six years after the date of the payment So where a payment made before the appointment of the party making it as administrator, is a proper charge against the next of kin, the subsequent appointment relates back, and gives the payment the same effect as if it had been made after letters granted. {Boyer v. Marshall, 43 Hun, 634 ; SKY. St. Eep., 431.) Compromise of Claims. At common law executors or administrators could compromise claims due to the estate, and could, in a proper case, take less than the full amount of the claims. They might be held respons- ible for any serious error in so doing. Consequently the act, chap. 80, Laws of 1847, was passed, which enables them to obtain the sanction of the judgment of the surrogate, in addition to their own. {Chouteau v. Suydam, 21 N. Y., 179.) , The surrogate has power on cause shown to authorize an exe- cutor or administrator to compound claims due the estate, whether the debtor be solvent or insolvent. In the particular case adjudi- cated the debtor allowed the amount of the claim, but purposed to set up a counter-claim for damages. The surrogate authorized the administrator to allow the counter-claim in settlement and com- promise. {Berrien's Estate, 16 Abb. N. S., 23; see also Shepard V. Saltors, 4 Eedf., 232.) But an executor is bound to compromise and release a debt if the interest of the estate requires it ; he is obliged to act as a dis- 326 Compromise of Claims. creet and pruclunt man would do were the debt his own. {Leland V. Manning, 4 Hun, 7.) The act is as follows : § 1. Executors and administrators may be authorized by the surrogate, or the officer authorized to perform the duties of surro- gate, in the county where their letters testamentary or of adminis- tration were issued, on application, and good and sufficient cause shown therefor, and on such terms as said surrogate or officer shall approve, to compromise or compound any debt or claim belonging to the estate of their testator or intestate. § 2. Nothing in this act contained shall prevent any party inte- rested in the final settlement of said estate from showing, on the final settlement of the accounts of said executor or administrator, that such debt or claim was fraudulently or negligently compro- mised or compounded. For the purpose of procuring the judgment of the surrogate, the facts are to be embodied in a petition, fortified if possible by affidavits, and upon them the surrogate will make an order, un- doubtedly ex parte. PETITION. To Hon. , Surrogate of Rensselaer County : The petition of A. B., of the town of , in said county, respectfully shows : That your petitioner is the executorof the will of C. D., late of Troy, in said county, deceased, and that letters testamentary have been duly issued to. him. That among the assets comprising the estate of the said deceased is a claim against E. F., of the town of , amounting to the sum of $148. That your petitioner presented said claim to the appraisers duly appointed to appraise the estate of said deceased, and they did inventory and appraise the same as good (or bad, or doubtful). That since such appraisal your petitioner has made efforts to col- lect the said claim and has (state what efforts, if suit has been brought state result), but has been unable to collect the same or any part thereof. That your petitioner has learned, and verily believes, that the said E. F. is insolvent, and that there are numerous judgments against him, and that execution upon them, or some of them, have been returned wholly unsatisfied. That the said E. F. has offered to pay to your petitioner per cent of said claim, and for a release thereupon, and your peti- tioner verily believes no more can be collected than is offered. Debts, How Collected. 327 Whereupon your petitioner prays that he may be authorized to make a settlement and compromise, or compound the claim against the said E. R, on the terms above stated. Dated Troy, March 11, 1888. A. B. Eensselaer CouJSiTy, ss. : A. B., being duly sworn, says, that he is the petitioner named in the foregoing petition, which is true of his own knowledge, ex- cept as to the matters which are therein stated to be alleged on information and belief, and as to those matters, he believes it to be true. Sworn, eta i (Signed) A B. If the surrogate shall be satisfied that the compromise offered is favorable to the estate, and that the amount to be realized is ' probably as much as would be obtained upon a sale of the claim under his order, he will make an order authorizing the compro- mise. The following may be used as a precedent : At a surrogate's court held in and for the county of , at the surrogate's office in the of , on the day of , 1888. Present — -Hon. , Surrogate. In the Matter of the Estate op C D- ; Deceased. On reading and filing the petition of A. B., executor of the will of the above named deceased (and the affidavits annexed to said petition) ; And it appearing to the surrogate thereupon, that the terms stated in said petition, as proposed for the compromise of the claim held by said executor against 0. D., are favorable to the estate of said deceased : Ordered, that said executor may compromise the said claim, amounting to $148, and may accept in settlement the sum of $100. (Signed) , Surrogate. Payment of Debts, and how Enforced. The real and personal estate of a deceased person are liable for his debts, and this liability being fixed by the statute, it cannot be altered by the will of the deceased. A creditor, notwithstand- ing his debt may be charged upon a certain parcel of real estate, may demand payment from the personalty, which is in the first 328 Claims, How Collected. instance liable. So while the executors or administrators may be trustees for creditors as far as to define their liabilities, yet the creditors are not cestuis que trust, as to their relation to the ex- ecutor. So true is this, that a devise of lands in trust for credi- tors will not suspend the running of the statute of limitations as to their claims, notwithstanding the rule that the statute does not run in favor of a trustee against his cestuis que trust, so long as the relation exists. {Roosevelt v. Mark, 6 Johns. Ch., 266.) So it is of no consequence, as to creditors, what disposition of ' the estate is made by will, except as the will may give them an additional remedy. They depend upon the liability created by statute. But disposition made by will may affect the remedies to be pursued by a creditor and the consequence conduct of the executor in converting the estate into money for the payment of debts. The order of the marshalling of the assets for the payment of debts where there is no will is, first the personal estate, second the real estate. The order where there is a will is, first, the per- sonal property not specifically bequeathed ; second, articles speci- fically bequeathed , third, real estate, devised subject to payment of debts,. if any ; fourth, real estate not devised, if any; fifth, real estate devised. These are to be exhausted, each in full, before resorting to a subseequent class. {Bevana v. Cooper, 72 N. Y., 317.) At the expiration of one year from the issuing of letters, the executor or administrator, is presumed to know not only the assets in hand, but having advertised for claims, also the liabilities of the estate, and he may proceed to pay debts and legacies, and distribute to the next of kin. An executor who pays legacies and debts in full before ascer- taining in the manner prescribed by law, that is, by advertising, the whole amount of the claims of creditors, does so at his peril. {Olacius v. Fogel, 4 Eedf., 516 ; Cobb v. Mussey, 18 Gray, 58.) But an executor who has advanced money to the estate by paying the claims of creditors, will be entitled to stand in the place of such creditors, and be subrogated for them, in a suit in- stituted by creditors to have the real estate subjected to the pay- ments of their debts. [Kinney's JExecutors v. Harvey, 2 Leigh, 700 ; 21 Am. Dec, 597 ; Livingston v. Neivkirk, 8 Johns. Ch. 312.) So an . executor or administrator who has, in good faith and for the benefit of the estate, paid the debts of the decedent beyond the personal assets in his hands, may, in equity, be subro- When Claims, etc., to be Paid. 329 gated to the rights of the creditors, and recover from the heirs the amount so overpaid ; but if he knew that the estate was in- solvent, and voluntarily paid the debts, with the view of making the heirs his debtors, and removing from the proper forum the question of debt or no debt, he is not entitled to relief. ( Williams V. Williams, 22 Am. Dec, 729 ; also, 16 Ahl Dec, 103, and note, 105 ; also 13 id., 296, and note, 297.) An administrator cannot recover back money which he has paid to a creditor of the decedent on account of a just debt, where a deficiency subsequently appears. The assets are and ought to be better known to the administrator than to anybody else, and if he pays in full, he does so at his own risk. The creditor gets noth- ing wrongfully, or that he is not entitled to have in honesty and conscience. {Carson v. McFarland, 2 Eawle, 118; 19 Am. Dec, 627.) We have said that, at the expiration of a year from the issue of letters, the executor may proceed to pay legacies and distribute to the next of kin. Legacies, except residuary legacies, are, in- deed, due and payable at that time, if no other time is fixed by the will In making advances, however to distributees, either residuary legatees or next of kin, care should be taken not to dis- tribute to some to the prejudice of others. Distribution, if made, should be pro rata, equal sums to those equally entitled. If the distribution is unequal, there is no authority in the final adjust- ment to charge interest on the sums advanced to some in excess of those advanced to others, as no contract is made actuaUy or presumably between the parties. {Plait v Plati, 42 Hun, 697 - 4 N. Y. St Eep., 501.) The proper way in such a case would be to loan the money to the destributee preferred in excess of others, and take a note payable with interest. Debts are preferred to legacies, or the claims of the next of kin as such, and, as has been seen, the executors or administrators are trustees for the creditors. § 27. (2 R S., 87 ) Every executor or administrator shall pro- ceed with diligence to pay the debts of the deceased, and shall pay the same according to the following order of classes : 1. Debts entitled to a preference under the laws of the United States ; 2. Taxes assessed upon the estate of the deceased previous to his death ; 42 330 When Taxes are to be Paid. 3. Judgments docketed, and decrees enrolled against tlie de- ceased, according to the priority thereof respectively ; 4. All recognizances, bonds, sealed instruments, notes, bills and unliquidated demands and accounts. Each class above stated is entitled to payment in full, before any payment can be made upon a debt of a subsequent class. The taxes to be paid are those due at the death of the dece- dent, and there is no ratable apportionment of the taxes. Those falling due after the decease of the testator or intestate, are charge- able on the land. {Griswold v. Griswold, 4 Bradf., 216.) Where the executor has money in hand with which to pay taxes when they came due, and does not pay them, but afterwards pays them with the penalty added, he cannot claim on the ac- counting to be allowed the penalty paid. {Stuhbs v. Slicbbs, 4 Eedf., 170.) When the assessment roll was completed and the jurisdiction of the assessors in making the same was exhausted, prior to the de- cease of the testator or intestate, it wo aid ssem that, the tax after- ward laid, would be payable out of the personal estate, as the lia- bility of the deceased was fixed by the assessment. {Rundell v. Lahey, 40 N. Y., 513.) But it is now held by the same court (63' ISr. Y., 399), that the liability of the real estate is not fixed until the amount of the tax is ascertained and levied by the proper authorities, and the tax would not be payable out of the personal estate unless the decedent dies after the levying of the same. An estate in the hands of the personal representatives may, after assessment, procure exen.ption from the tax or a deduction, by an application to the assessors with proof of the existence of legal, valid and incontestible obligations against the estate. It is not enough that the affidavit presented to the assessors shows that there were unpaid claims against the estate exceeding the amount of the assets in the executor's hands, if the claims were contested and their validity had not been established. {People v. Comers of Taxes, 99 N. Y., 154.) The executors are liable to be assessed for all the personal estate of their testator, and the assessment should be made in the town in which the property is held by a resident thereof. {People v. Coleman, 42 Hun, 582 ; 4 K Y. St. Eep., 493.) The term taxes does not include assessments. An assessment confirmed at the decease of the testator is a debt, and should be Order of Payikg Claims. 331 paid out of the personal estate. It is entitled to no priority. {Sea- hury V. Bowen, 3 Bradf., 207 ; Hone v. Lochman, 4 Eedf., 61.) Judgments in a justice court are not debts of record {Sherwood V. Johnson, 1 Wend., 443), and are not entitled to preference until docketed in the county clerk's office. {Stevenson v. Weirser, 1 Bradt, 843.) But a money judgment entered against a decedent after his death, upon a verdict rendered during his lifetime, relates back to the time of tlie verdict, and is a judgment docketed against the deceased and entitled to priority of payment under subdivision 3 above. {Matter of Dunn, 5 Redf., 27.) Interest on a mortgage on land which descended to the heirs is not a debt to be paid by an administrator, and if paid by him cannot be allowed in his account {Cornwell v. Deck, 2 RedL Eep., 87.) The personal representative cannot be compelled to pay a por- tion of a judgment against the decedent and another surviving, until the judgment creditor has exhausted his remedies agajnst the survivor. {Hammond v. Hoffman, 2 Redf. Rep., 92.) Services rendered to an estate after the death of a testator, but in pursuance of a contract made with the latter during his life, is a claim of the last class and may be recovered for in an action against the executor. {Ross v. Harden, 10 J. & S., 427.) § 28. (2 R. S., 84.) Ko preference shall be given in the pay- ment of any debt over other debts of the same class, except those specified in the third class ; nor shall a debt due and payable be entitled to preference over debts not due ; nor shall the commence- ment of a suit for the recovery of any debt, or the obtaining a judgment thereon against the executor or administrator, entitle such debt to any preference over others of the same class. {Mount V. Mitchell, 31 N. Y., 356 ; see also, 1 Tucker, 126.) But it was held in the administration of the estate of a non- resident intestate, that a physician who had attended the intestate in his last illness at the place of his domicil, and was therefore, according to the laws of that domicil, entitled to a preference over general creditors, was entitled here to the extent of assets brought from such other State to a preference over a creditor in this State who had obtained a judgment against the intestate in his lifetime. The priority is not lost by the recovery of a judgment in this State against the administrator. -{Hardenberg v. Manning, 4 Dem., 437.) 332 Claims to be Preferred. § 29. Debts not due may be paid by an executor or administra- tor, according to tlie class to which they belong, after deducting a rebate of legal interest upon the sum paid, for the time unex- pired. § 30. Preference may be given by the surrogate to rents due or accruing, upon leases held by the testator or intestate at the time of his death, over debts of the fourth class, whenever it shall be made to appear to his satisfaction that such preference will benefit the estate of such testator or intestate. {Hovey v. Smith, 1 Barb., 372.) Rent is not, in the absence of proof of peculiar circumstances, a preferred demand. {Cooper v. Felter, 6 Lans., 485.) Rent on a pew in church is not a preferred debt unless it is due on a lease for years, which is an asset in the hands of the executor or "administrator. {Johnson v. Corhett, 11 Paige, 265.) Taxes assessed upon the real estate of the deceased in his life- time have priority over all other debts, except those entitled to a preference under the law of the United States, the only noticeable exam-pie of which is the bond given for payment of duties. But taxes assessed on real estate subsequently to the death of decedent are not to be paid by the executor or administrator. ( Wilcox v. Smith, 26 Barb., 316.) See also an assessment, confirmed at the time of the testator's decease, although a lien upon the real estate,' is also a debt to be paid out of the personal estate, but in the fourth class. {Seabary V. Bower, 3 Bradf., 207.) Th judgments docketed and decree enrolled which are to be paid in the third class before simple contract debts, according to the prionty in point of time of docketing or enrolling, and without reference to any supposed lien of the judgment or decree upon - real estate. (Ainslee v. Radcliff, 7 Paige.) It was accordingly held in the case last cited that some of the judgments having been docketed more than ten years, and some less, they were all to be paid according to the priority of their being docketed. So a judgment of a justices' court, or of the marine or other inferior court, when it has been docketed in the lifetime of the de- cedent, becomes entitled to this preference. But this preference does not extend to the judgments of courts in other States or of foreign countries. Neither at common law nor under the statute^ of this State have judgments recovered ia another State any title to priori tg of payment over simple contract Executor Not to Pay Mortgagk 833 debts. Creditors claiming on such j udgments must come in with the creditors of the deceased, described in the fourth class. {Brown T. Public Administrator, 3 Bradf., 212.) An award by arbitrator against the estate of a decedent, under & submission made by the personal representatives, gives no pri- ority to the claim as against other creditors, and it consequently would be in the last class. {Wood v. Tunnidiff, 74 N. Y., 38.) Mortgages which would come undet the fourth claas, can- not be paid out of the personal estate, unless such payment is provided for in the will. ( Waldron v. Waldron, 4 Bradf., 114.) Where a creditor has additional security, he should be compelled to exhaust that security, and only come in against the personal estate for the deficiency. {Halsey v. Heed, 9 Paige, 446.) So, also, it is enacted, that whenever any real estate, subject to a mortgage executed by an inventor or testator, should desceud to an heir or pass to a devisee, such heirs or devisee shall satisfy ^nd discharge such mortgage without resorting to the executor or administrator of his testator or ancestor, unless there be an ex- press direction in the will of such testator that such mortgage be otherwise paid. (1 R. S., 749, § 4.) The general formula in a will that the executor pay all testa- tor's just debts, is surplusage in any case, and is not sufficient to -authorize the payment of mortgages. To warrant such payment, there must be an express direction to make it {Taylor v. Wen- del, 4 Bradf., 324.) But where the real and personal estate are thrown into one iund, in which the same parties are interested equally, the execu- tor may, for the benefit of the estate, apply personal property to pay a mortgage on the realty. {Hepburn v. Hepburn 2 Bradf., 174.) Without dissenting from the opinion of Mr. Surrogate Bradford, we would remark, that only in a very special case, would the executor be authorized to apply the personal property in such a way. It would be an interference with the rights of the devisee, which would not be sanctioned under ordinary circum- stances. His right is to have the estate as it is devised to him^ the personal as such and the real as the executor finds it as near as may be, and, if he shall choose to pay mortgages, very well. Creditors of an insolvent co-partnership, in case of the death of one of the co-partners, cannot collect their debts against the separate estate of the decedent, until his individual liabilities «hali have been paid in full. {Wilder v. Keeler, 3 Paige, 167.) 334 Not to Pay Outlawed Debt. A balance due from a deceased partner to the surviving part- ner, arising out of their partnership collections, constitutes a debt of the last class. {Payne v. Matthews, 6 Paige, 19.) A voluntary bond of the testator, given in his lifetime, payable at or immediately after his death, is a valid debt, has preference over legacies, but is postponed to debts for valuable considera- tions. {Isenhart v. Brown, 2 Edwd., 341.) The claim of a son who had acted as agent for his aged mother, presented against her estate, upon a contract with her for board and on her promissory note in his favor, is presumptively invalid^ on account of the confidential relation ; and cannot be claimed unless there is actual proof rebutting the presumption. (Cbm- stock V. Comstock, 57 Barb., 458.) A claim of an administratrix, a sister of the intestate, for nurs- ing the deceased, cannot be allowed unless established by proof of service rendered, and a contract of promise to pay for the ser- vice. {Keller v. Stuck, 4 Eedf., 294.) The executor or administrator will not be protected in paying a debt or claim barred by the statute of limitations, nor will his promise revive such a claim. {Bloodgood v. Bruen, 8 N. Y., 362 ; Dawes v. SJied, 15 Mass., 6.) In case of collusion between- the administrator and others in- terested with him to fasten a stale claim on the estate, heirs, who have been made parties defendant, may effectually interpose the defense of the statute of limitations or presumption of payment from lapse of tima {Malley v. Vanderhilt, 4 Abb. N. Cases, 127.) A provision in the will, for the payment of all just debts, does- not revive a debt barred by the statute (3 Wend., 503), and the statute of limitations may be interposed by an executor or any person interested. {Warren v. Poff, 4 Brad., 260.) In regard to leases held by the decedent, it is the duty of the executor to collect the rents on such leases, and pay them to the landlord, not to put them with the assets of the estate. The ex- ecutor is personally liable to the landlord to the extent of the rents received by him as for money had and received. Prima facie, the rents received are sufficient to pay the landlord. If they are not, it is a matter of defense. {Miller v. Knox, 48 N. Y., 232.) An executor is liable as such, upon the covenant contained in. a lease executed by his testator, whether he enters into possession of the demised premises or not; but if he does enter into posses- Where Estate to be Assessed. 8'66 sion, he becomes personally liable on such covenant as an as- signee of the lease. {Howard v. Heinerschit, 16 Hun., 177.) The estate in the possession of an executor is liable to assess- ment and to pay taxes where the executor lives. If there are several executors, it must be assessed where the property is held. Hence, an assessment against an executor who has none of the property in his hands, the whole being in the hands of an ex- ecutor in another place, was erroneous and void. {Caswell v. Commissioner of Taxes, 17 Hun, 293.) § 31. (2 R. S., 88.) In an suit against any executor or admin- istrator, the defendant may show, under a notice for that purpose, given with his plea, that there are debts of a prior class unsatisfied, or that there are unpaid debts of the same class with that on which the suit is brought, and judgment shall be rendered only for such part of the assets in his hands as shall remain after satisfying the debts of the prior class, and as shall be a just pro- portion to the other debts of the same class with that on which the suit is brought. But the plaintiff may, as in other cases, take a judgment for the whole or part of his debt, to be levied of future assets. § 24. (2 R. S., 355.) Whenever a set-off is established in a suit brought by executors or administrators, the judgment shall be against them in their representative character, and shall be evi- dence of a debt established, to be paid in the course of administra- tion ; but execution shall not issue thereon until directed by the surrogate who granted letters testamentary or of administration. RULES RESPECTING ACTIONS BY AND AGAINST EXECUTORS OR ADMINISTRATORS. § 1814. (Code.) Actions to he brought in reprsentative capacity hy cr against an executor or adTninistrator. — An action or special pro- ceeding hereafter commenced by an executor or administrator, upon a cause of action belonging to him in his representative capacity, or an action or a special proceeding hereafter com- menced against him, except where it is brought to charge him personally must be brought by or against him in his representative capacitj'. A judgment in an action hereafter com- menced, recovered against an executor or administrator, without ■describing him in his representative capacity, cannot be enforced against the property of the decedent, except by the special direc- tion oi the court contained therein- An executor or administrator suing as such should, by aver- ment, show representative capacity. {Bright v. Currie, 5 Sandf., 336 Actions Against Executors. 438.) The fact is an issuable one. {Sheldon v. Soy, 11 How.^- 11.) The appointment must be alleged by some surrogate in this State, for foreign letters give no authority here. {Morrill v. Dickey, 1 Johns. Ch., 153 ; McNamara v. Dwyer, 7 Paige, 239 ; Bobbins v, Welles, 26 How., 15.) The place of appointment is issuable. {Rightmyer v. Raymond, 12 Wend., 51.) The allega- tion of plaintiff that he was duly appointed was held insufiSicient. ( White V. Joy 13 N. Y., 83 ; Chautauqua County Bank v. White, 6 N. Y., 236.) If the capacity in which the plaintiff sues appears in the language of the complaint, it is sufficient, though it does, not appear in the title Cordier v. Thompson (18 Alb. L. J., 498) ; Beers v. Shannon (73 N. Y., 292.) A designation of executor without the word ''as," or its equivalent, is a mere description, per- sonoi. {Stillwell v. Carpenter, 62 N. Y., 639, and note to same case in 2 Abb. N. C, 238.) In an action against executors or administrators, the representative capacity is to be determined by the allegations of the complaint. {Patterson v, Gopeland, 52 How., 460 ; Benjamin v. Taylor, 12 Barb., 328.) The action is to be brought by or against only the executors,, to whom letters have been issued in this State, however many are named in the will, and all such must join or be joined. {Moore V. Willetl, 2 Hilt, 522; Lawrence v. Townsend, 88 N. Y, 24; Scranton v. Farm, and Mech. Bank, 24 id., 424.) An executor named in the will, but who does not qualify, is so- freed from the relation, that he may bring an action against the executor to whom letters were issued. {Hunter v. Hunter, 19' Barb., 631.) § 1815. Personal and representative actions may he joined, when. — An action may be brought against an executor or administra- tor, personally, and also in his representative capacity, in either of the following cases : 1. Where the complaint sets forth a cause of action against, him in both capacities, or states facts, which render it uncertain, in which capacity the cause of action exists against him. 2. Where the complaint sets forth two or more causes of action against the defendant, in different capacities, all of which grow out of the same transaction, or transactions connected with the same subject of action ; do not require different places or modes- of trial ; and are not inconsistent with each other. In a case specified in this section, a judgment for the plaintiff for a sum of money must distinctly show whether it is awarded When Execution to Issue. 337 against the defendant personally, or in his representative capacity. An administratrix may be sued as such and individually, in an action asking an account and the delivery of books and specific property, and the payment of money. {Day v. Stone, 15 Abb. N. S., 137.) As to plaintiff suing in two capacities, see Hall v. Fisher (20 Barb., 441) ; Pugsley v. Aiken (11 N. Y., 494). § 1816. Separate dockets and executions. — In a case specified in the last section, or where costs, to be collected out of the indi- vidual property of an executor or administrator, are awarded in an action by or against him in his representative capacity, so much of the judgment as awards a sum of money against him personally, may be separately docketed, and a separate execution may be issued thereupon, as if the judgment contained no award against him in his representative capacity. § 1817. One executor served to appear ; separate answers not allowed. — In an action or special proceeding against two or more executors or administrators, representing the same decedent, all are considered as one person ; and those who are first served with process, or first appear, must answer the plaintiff. Separate answers, by different executors or administrators, cannot be re- quired or allowed, except by direction of the court. Judgment in favor of the plaintiff may be entered, and, in a proper case, execution may be issued against all the defendants, as if all had appeared. But this section does not affect the plaintiff's right to bring into court all the executors or administrators, who are parties. In an action against several executors, such of them as are first served or first appear are entitled to answer for the estate. Collu- sion even between the plaintiff and the executor who first answers, does not give his co-executors the right to answer with- out leave of the court {Sailers v. Pruyn, 15 Abb., 224.) § 1825. Execution not to issue until surrogate grants leave. — An execution shall not be issued, upon a judgment for a sum of money, against an executor or administrator, in his representative capacity, until an order, permitting it to be issued^ has been made by the surrogate, from whose court the letters were issued. Such an order must specify the sum to be collected ; and the execiHion must be indorsed with a direction to collect that sum. A surrogate has the same power to direct execution on a judg- ment recovered against an administrator for liabilities incurred bj 43 338 < Leave to Issue Execution. Him in the administratioa of the estate, as he has in case of judg- ment on a debt owing by decedent, and it is his duty to order it on request of the creditor. {Matter of Thompson; 41 Barb., 237.) A judgment against an executor for services rendered in and about the administration of the estate has preference over all other claims. {Matter of Thompson, sup.) But under the law as now expounded such a judgment would not be proper. {Ferrinv. Myrick, 41 K Y., 815.) An order granting leave to issue an execution cannot be re- viewed on appeal, unless the appellant gives security for the pay- ment of the full amount directed to be levied, with interest and the cost of the appeal. {Mitchell v. Mount, 31 N. Y., 356.) § 1826. Leave, hoiu procured. — At least six days' notice of the application for an order specified in the last section, must be per- sonally served upon the executor or administrator, unless it ap- pears that service cannot be so made with due diligence, in which case notice must be given to such persons, and in such manner as the surrogate directs, by an order to show cause why the applica- tion should not be granted. Where it appears that the assets, after payment of all sums chargeable against them for expenses, and for claims entitled to priority as against the plaintiff, are not, or will not be, sufficient to pay all the debts, legacies, or other claims of the class to which the plaintiff's claim belongs, the sum directed to be collected by the first execution, shall not exceed the plaintiff's just proportion of the assets. In that case one or more orders may be afterwards made in like manner, and one or more executions may be afterwards issued, whenever it appears that the sum directed to be collected by the first execution is less than the plaintiff's just proposition. The permission of the surrogate need not precede the application to the supreme, court. The six days' notice provided by the sec- tion may be, by citation, issued by the surrogate upon the filing of the petition. {Kerr v. Kreuder, 28 Hun, 452.) Upon the liearing the surrogate cannot hear any objection to the judgment upon the merits. {Gladus v. Fogel, 88 N. Y., 434; Keyser v. Kelly, 4 Eedl, 157.) Nor can he receive evidence that the judg- ment was fraudulently obtained. {Freeman v. Nelson, id., 374.) Where an appeal is taken on the judgment by the executor, and a stay of execution is granted, leave to issue the execution should be refused. {Keyser v. Kelly, sup.) Execution cannot issue against the real estate of the decedent, upon a judgment for deficiency recovered against the representa- "When Execution Allowed. 339 lives. This can only be done on a judgment docketed against the decedent in his Hfetinae. {James v. Beesley, 4 Eedf., 236.) § 1827. Security may he required. — Where a judgment has been rendered against an executor or administrator for a legacy or dis- tributive share, the surrogate before granting an order permitting an execution to be issued thereupon, may, and in a proper case, must require the applicant to file m his office an undertaking to the defendant, in such a sum, and with such sureties, as the surro- gate directs, to the effect that if after collection of any sum of money by virtue of the execution, the remaining assets are not sufficient to pay all sums for which the defendant is chargeable for expenses, claims entitled to priority as against the applicant^ and the other legacies or distributive shares of the class to which the applicant's claim belongs, the plaintiff will refund to the de- fendant the sum so collected, or such rateable part thereof, with the other legatees or representatives of the same class, as is neces- sary to make up the deficiency. As an execution will not be allowed unless it appears that there are assets applicable to the payment of the same, unless an ac- count shall have already been filed and adjusted, an accounting will be necessary before leave to issue an execution will be granted, and the better practice is to allege in the petition a sufficiency of assets, and if the allegation is not denied, it is a waiver of an ac- counting. (Melcher v. Fisk, 4 Eedf., 22.) It is, however, pro- vided (section 2723) that the surrogate may, in his discretion,, make an order requiring an executor or administrator to render an immediate account in this case. But where the executor or administrator has rendered an ac- count showing assets applicable to the payment of the judgment, the surrogate need not cite him to an account. On the hearing the executor or administrator may show that the assets have been materially reduced since the accounting. An allegation that there has been a reduction is not enough. {Smith v. Howell, 2 Eedf., 325.) The following form may be adapted to any state of facts : Surrogate's Coukt. In the Matter of the Estate of | , Deceased. I To John Smith, as executor of the will of the above named deceased - Please take notice, that a petition, of which the annexed is a copy, will be presented to the surrogate's court of the county of Eensselaer, at the surrogate's office in the city of Troy, on the .340 Petition for Leave to Issue Execution. day of , 1888, at 10 o'clock in tlie forenoon, and an application will then be made for an order as prayed for in said petition. Dated January — , 1888. Yours, etc., McCLELLAlSr & McCLELLAM, Atty'sfor Petitioner. PETITION. Surrogate's Court — County of Rensselaer. In the Matter of the Estate of / Michael H. Heagant, Deceased. | To Hon. "William Lord, Surrogate: The petition of Ellen Long, of the city of Troy, in said county, respectfully shows : That your petitioner has recovered a judgment in the supreme court against Jane Heagany, as administratrix, and "William V. Cleary, as administrator of the goods, etc., of Michael H. Heagany, late of said city of Troy, deceased, for the sum of four thousand, four hundred and six dollars, which has been duly entered in Rensselaer county on the 7th day of January, 1888, after a trial upon the merits, which was for an indebtedness of said intestate. Ypur petitioner further shows, on information and belief, that more than eighteen months have elapsed since letters of adminis- tration' were issued out of this court to the said Jane Heagany any "William V. Cleary, and they have had no judicial settlement of their accounts as such administratrix and administrator, but they have in their possession as such administrator and adminis- tratrix large sums of money and property, sufficient to pay all ex- penses of administration, funeral, expenses, and all the debts of their intestate, including said judgment Wherefore your petitioner prays for an order permitting an exe- cution to be issued on such judgment for the fuU amount thereof, and interest, or for such other or further order or relief as the court shall deem proper. And your petitioner will ever pray, etc. Dated January 7, 1888. ELLEN LONG. , Eensselaer County, ss. : Ellen Long, being duly sworn, says, that the foregoing petition by me subscribed is true of her own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters she believes it to be true. ELLEN LONG. Sworn before me this 8th day ) of January, 1888. ) , Notary Puhlic. Issue of Execution Generally. 341 The execution will not issue, if, on accounting, it appears that there are no assets applicable to the payment of the judgment {St. John V Voorhies, 19 Abb., 53), and -will, in any case, issue only for the sum which is a Just proportion of the assets to which the plaintiff appears to be entitled. Practically, it will scarcely ever be necessary to proceed under this section, for, as will appear, a better method of proceeding against the executor or administrator, will be to proceed upon the decree upon the accounting, and either docket it in the office of the clerk of the county, and thus make it a lien upon real estate ; or, proceed against the executor or administrator, as for a con- tempt in not paying. § 1821. A final judgment against an heir or devisee, bars an action against the executor or administrator of the decedent for the same cause, and every other remedy to enforce payment thereof, out of the decedent's property, unless an execution against property issued upon the judgment has been returned, wholly or partly un- satisfied, or sufficient real property to satisfy the judgment, has not descended or been devised to the judgment debtor. But, if the judgment was recovered for a debt or legacy, expressly charged upon the estate descended or devised, the bar is absolute. § 1376. Execution after death of judgment creditor. — Where the party recovering a final judgment has died, execution may be issued at any time within five years after the entry of the judgment by his personal representatives, or by the assignee of the judgment, if it has been assigned, and the execution must be indorsed with the name and the residence of the person issuing the same. . And where a party, or one or more of several parties, against whom a judgment for the recovery of possession of real property has been obtained, has died, an order granting leave to issue and execute such execution, or writ of possession, may be granted upon giving twenty days' notice to the occupants of the land so recovered, and to the heirs at law of said deceased, said notices to be served in the same manner as a summons is directed to be served in an ac- tion in the supreme court. § 1377 When execution may be issued after five years. — After the lapse of five years from the entry of a final judgment, execution can be issued thereupon, in one of the following cases only : 1. Where an execution was issued thereupon within five years after the entry of the judgment, and has been returned wholly or partly unsatisfied or unexecuted. 2. Where an order is made by the court, granting leave to issue the execution. 342 Leave Required. § 1378. Leave, how oblained. — Notice of an application for an order, granting leave to issue an execution, as prescribed in the last section, must be served personally upon the adverse party, if he is a resident of the State, and personal service can, with reasona- ble diligence, be made upon him therein ; otherwise notice must be given iu such manner as the court directs. Where the judg- ment is for a sum of money, leave shall not be granted, except on proof, by affidavit, to the satisfaction of the court, that the judg- ment remains wholly or partly unsatisfied. The provisions in relation to an execution against a decedent are as follows : § 1379. No execution against decedent, except, etc. — An execution to collect a sum of money cannot be issued against the property of a judgment debtor, who has died since the entry of the judgment, except as prescribed in the next two sections. « § 1380. Leave required. — After the expiration of one year from the death of a party, against whom a final judgment for a sum of money, or directing the payment of a sum of money, is rendered, the judgment may be enforced by execution against any property upon which it is a lien, with like effect as if the judgment debtor was still living. But such an execution shall not be issued, unless an order granting leave to issue it is procured from the court, from which the execution is to be issued, and a decree, to the same effect, is procured from a surrogate's court of the State, which has duly granted letters testamentary or letters of admin- istration upon the estate of the deceased judgment debtor. Where the lien of the judgment was created, as prescribed in sec- tion twelve hundred and fifty-one of this act, neither the order nor the decree can be made until the expiration of three years after letters testamentary or letters of administration have been duly granted upon the estate of the decedent ; and, for that pur- pose, such a lien, existing at the decedent's death, continues for three years and six months thereafter, notwithstanding the pre- vious expiration of ten years from the filing of the judgment roll But where the decedent died intestate, and letters of ad- ministration upon his estate have not been granted within three years after his death, by the surrogate's court of the county in which the decedent resided at the time of his death, or, if the de- cedent resided out of the State at the time of his death, and letters testamentary or letters of administration have not been granted within the same time by the surrogate's court of the county in which the property on which the judgment is a lien, is situated, such court may grant the decree, where it appears that the de- cedent did not leave any personal property within the State, on which to administer. In such a case, the lien of the judgment Motion in Supbeme Court. 343 existing at the decedent's death continues for three years and six months, as aforesaid. § 1381. Leave, how obtained. — Leave to issue an execution, as prescribed in the last section, must be procured as follows : 1. Notice of the application to the court, from which the ex- ecution is to be issued for an order granting leave to issue the execution, must be given to the person or persons whose interest in the property will be affected by a sale by virtue of the execu- tion, and also to the executor or administrator of the judgment debtor. The general rules of practice may prescribe the manner in which the notice must be given ; until provision is so made therein, it must be served either personally, or in such manner as the court prescribes, in an order to show cause. Leave shall not be granted except upon proof, by affidavit, to the satisfaction of the court, that the judgment remains wholly or partly un- satisfied. 2. For the purpose of procuring a decree from the surrogate's court, granting leave to issue the execution, the judgment creditor ■ must present to that court a written petition, duly verified, setting forth the facts, and praying for such a decree, and that the persons specified in the first subdivision of this section may be cited to show cause why it should not be granted. Upon the presentation of such a petition, the surrogate must issue a citation accord- ingly ; and upon the return thereof, he must make such a decree in the premises as justice requires. When a surrogate has determined that the judgment is a sub- sisting claim against the estate, his duty is ended ; he cannot de- termine whether the judgment creditor owes the estate and deduct the amount from the judgment {Cleveland v. Whiton, 31 Barb., 544.) The court will not entertain an objection that the judgment is illegal, and ought not to be enforced. {Oladiis v. Fogel, 4 Eedf., 516.) An accounting may follow in the discretion of the surrogate. (Section 1826.) AFFIDAVIT FOE MOTION TO SUPEEMB COUET. Supreme Court. John Doe agt. ElCHARD EOE. Eensselaer County, ss. : John Doe, of the city of Troy, in said county, being duly sworn 344 Motion in Supreme Court. says that on tlie 10th day of November, 1878, and more than one year before this time, deponent recovered a judgment against the above named Eichard Roe, at that time residing in the town of Brunswick, in said county, in this court, for the sum of ■ dollars and cents, damages and costs, and the judgment roll thereon was on said day filed in the office of the clerk of said county. That soon after said day said defendant died, and letters of administration were thereupon duly issued by the surrogate of said county, to (or, the will of said deceased was duly proved and letters testamentary thereon were daly issued to ), on the day of —, 1878. That said deceased at the time of his death owned and was in possession of the following described real estate, to wit : All that parcel of land, etc. (describing it). That said deceased left him surviving A. B., C. D., and E. ¥., of said town of Brunswick, his heirs at law (or, by the will of said, deceased, he devised said real estate to R. R, his widow, residing in said town of Brunswick). And deponent further says that said judgment is wholly un- satisfied and unpaid. (Signed) JOHN DOE. Sworn before me, this day ( of , 1888. ) A B., Com'r of Deeds. NOTICE TO BE ANNEXED. Supreme Court. John Doe ag't Richard Rok To A. B., administrator of the goods q/" Richard Roe, deceased, and to C. D., E. E., and G. H., heirs at law of said deceased: Take notice, that upon an affidavit of which the annexed is a copy, this court will be moved at a special term thereof, to be held at in the city of , on the day of , 1888, at the openmg of court or as soon thereafter as counsel can be heard, for an order that leave be granted to the plaintiff before named to issue an execution to the sheriff of the county of Rensselaer against the real estate described in said affi- davit, or for such other or further order as the court shall decree proper. Yours, etc., A. B., Attorney for Plaintiff. Dated March 10, 1888.^ Leave of Subrogate. 345 OEDEE TO SHOW CAUSE INDOESED. Upon the within affidavit and notice it is ordered that service thereof be made by deUvering copies thereof to the person to whom said notice is directed on or before this 10th day of March, 1888, and that said person show cause at the special term mentioned in said notice, why the order therein mentioned should not be granted. (Signed) C. E. INGALLS, Justice. Dated March 10, 1888. This proceeding being against heirs at law, or devisees, the notice of it or citation to show cause must run to them, and as such a judgment is a preferred debt, and might be paid by the executor or administrator, if letters have been issued, he also should be included in the citation. It has been held that it is not showing sufficient cause to prove the non-payment of the Judgment. It should also appear that proper proceedings had been taken to collect out of the personal estate, and that the petition should show the land sought to be sold. {Matter of Benthy, 16 Abb., 89.) PETITION FOE LEAVE TO ISSUE EXECUTION. To Hon. ■ , Surrogate of the County of -: Your petitioner, A. E., of the town of , in said county, repectively shows : That heretofore your petitioner recovered a judgment against ■C. D., late of the town of , in said county, in his life- time, in the supreme court, for the sum of $ , damages and costs, which said judgment was entered in said countv on the . day of , 1878. That afterwards, and on or about the day of , 1878, and more than one year since, said C. D. died, leaving him surviving B. F. (and others, naming them), his heirs at law (or having made his will which was duly proved in this court in which E. F. is named devisee of the real estate of said deceased). That letters of administration of the goods, chattels and credits of the said deceased were granted by this court to G. H., of the town of , in said county. Your petitioner further shows, that the said deceased was seized in his life-time, and at the time of his death, of certain real estate, upon which the aforesaid judgment is a lien, described as follows : All that parcel, etc. (describing it). "Wherefore your petitioner prays that a citation issue to the aforesaid administrator and said heirs at law (or devisees), requir- 44 346 Judgment Not to be Conteoverted. ing them to appear in this court on a day to be named therein, to- show cause why an execution should not issue upon said judg- ment, or for such other or further relief as the court shall deem proper in the premises. (Signed) ^ A. B. Dated November 23, 1878. Eensselaer County, ss. • A. B., being duly sworn, says, that he has heard the foregoing petition, by him subscribed, read, and that the same is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he , believes it to be true. (Signed) A. B. Sworn before me this day ) of , 1888. ' i Com'r of Deeds, Troy, K Y. Upon this petition the surrogate enters an order for the issue of a citation, and issues the citation which is to be served as provided for generally. (See ante.) Where, upon the petition of a judgment creditor of the deceased, for leave to issue execution, and praying a citation to account, the answer of the executor alleged the publication of the usual notice to creditors to present their claims, the non-presentation of peti- tioner's claims, and the distribution of the assets, but it did not appear that any accounting had been had, it was held that the petitioner was entitled to an accounting. On the motion, the sur- rogate cannot try the validity of the judgment. It is binding upon the surrogate, as to all matters which might have been pleaded as defenses to the action. But leave to issue will not be granted, while execution is stayed by due proceedings. {Keyser V. Kelly, 4 Eedf., 157 ; Freeman v. Nelson, id., 374.) The power of the surrogate to make "such a decree as justice requires" defined. {Freeman v. Nelson, sup.) There seems to be no distinction as to judgments against a de- cedent, between those recovered less or those recovered more than five years before the application for leave to issue execution there- on. Leave may be granted in any case in which the judgment is a lien upon real estate, that is, at any time after one year from decedent's death and within ten years from the docketing of the judgment For the purpose of deciding as to the propriety of the When Leave Necessary. 347 issue of the execution, the surrogate may order an intermediate account to be filed. (Section 1826.) These provisions relate to obtaining leave to issue an execution where none is in force. It was held that where, after the issue of execution and pending the advertisement of sale, the judgment debtor died, the plaintiff could proceed to enforce the judgment, as though the defendant was alive. ( Wood v. Moreltouse, 45 N. Y., 868 ; Holman v. Holman, 66 Barb., 215.) So, also, where a de- fendant dies after execution is issued against his property, and within five years after the judgment and the issuing and return of the execution, it was held that no consent or order of the court is necessary on issuing the second execution. {Flanagan v. Tinin, 53 Barb., 587.) But this is overruled by the court of appeals, which held that an execution against real property, issued after the death of the judgment creditor, is absolutely void as against those hav- ing in their possession any portion of the real estate of the deceased affected by the judgment, who have not been made parties to pro- ceedings authorized by law to revive the judgment ( Wallace v. ^winton, 64 K Y., 188.) The proceeding for leave to issue an execution is not a motion, but a special proceeding, and if the application is contested, the petitioner is entitled to seventy dollars' costs ; if uncontested, to twenty -five dollars. {Estate of Taylor, 8 Civ. Pro. Eep., 458.) § 1823. Heal property not affected hy judgmait against executor or administrator. — Real property, which belonged to a decedent, is not bound, or in any way affected, by a judgment against his executor or administrator, and is not liable to be sold by virtue of an execution issued upon such a judgment, unless the judgment is expressly made, by its terms, a lien upon specific real property therein described, or expressly directs the sale thereof. Payment of debts, how evforced. An executor or administrator may be compelled, under certain circumstances, to pay a debt of his decedent, before the expira- tion of the time limited for a final settlement § 2717. Petition hy creditor to compel payment. — In either of the following cases, a petition may be presented to the surrogate's court, praying for a decree directing an executor or administrator to pay the petitioner's claim, and that he may be cited to show cause why such a decree should not be made : 1. By a creditor, for the payment of a debt, or of its just pro- 348 Creditok May Enforce Claim. portional part, at any time after six months have expired since letters were granted. 2. By a person entitled to a legacy, or any other pecuniary pro- vision under the will, or a distributive share, for the payment or satisfaction thereof, or of its Just proportional part, at any time after one year has expired since letters were granted. The petition must be filed within the time in which an action of a similar character is required to be commenced in a court of common law, for the statute of limitations is as applicable as in the latter court. {Goh v. Terpenrdng, 25 Hun, 482; House v. Agate, 3 Eedf., 807.) Demand for payment is not necessary to set the statute running, and the fact that on such a petition executors proceed to an accounting, where no assets had come to their hands within six years, and the right to the claim arose over twenty years previous, was held not a waiver of the limitations. {House V. Agate, sup.) If proceedings for the settlement of the accounts of an admin- istrator and the distribution of the estate are pending, these pro- ceedings should not be allowed. {Estate ofBruen, 3 Law Bull., 88.) A defendant who has recovered a judgment for costs in an action by an administrator is not a creditor within the meaning of this or the succeeding section, and is not authorized to petition for the payment of his claim. The attorneys for a defendant who has recovered such a judgment, although conceded to have an equit- able lien on the judgment by reason of their professional services, are not such creditors. The term '' creditors " in the statute ap- plies only to persons to whom the decedent was indebted in his lifetime. {Hall v. Dusenlerry, 4 Dem., 181 ; affirmed 38 Hun, 125; see contra, 4 Dem., 546.) The power of the surrogate to decree the payment of a debt be- fore the expiration of eighteen months is discretionary and where the evidence of the claim is suspicious, the motion will be denied. {Flagg v. Euden, 1 Bradf., 192.) PETITION BY A CREDITOR FOR PAYMENT OF A DEBT. To the Surrogate of the County of The petition of , of the of , respectfully shows : That your petitioner is a creditor of said deceased upon a claim for dollars, as follows : That your petitioner sold and delivered to said deceased, in his Petition of Creditor, etc. S49' lifetime goods, -wares and merchandise to the value of ■ dollars, which sum the said deceased, in his lifetime, promised to pay at the expiration of months ; that said did not pay the same in his lifetime, nor have any pay- ments been made thereon since, and there are no offsets against the same to the knowledge of your petitioner, and there is due to your petitioner the sum of ■ — dollars, with interest thereon,. from the day of , 1869. That on or about the day of , 1871, the last will and testament of said deceased was duly proved in this court, and letters testamentary were issued to -, , exe- cutor named therein, who has duly returned an inventory of the personal estate of said deceased. That said executor advertised for the presentation of claims against the estate of said deceased, and your petitioner duly presented his claim, which was not dis- puted, and your petitioner, after the expiration of six months from the granting of such letters, demanded payment of his said claim from the said executor who has hitherto neglected and refused to pay the same or any part thereof. Wherefore, your petitioner prays that a decree be made for the payment of said claim, or for such other order or decree as shall be agreeable to law and equity. Dated December 6, 1872. (Signed) Eensselaeb County, ss. : being duly sworn, says, that the foregoing petition by him subscribed is true of his own knowledge, except as to the matters which are therein alleged to be stated on infor- mation and belief, and as to those matters he believes it to be true. (Signed) Sworn, etc. The petition should not pray for an intermediate accounting. After the executor has filed an answer, the surrogate, of his own motion, may require him to render an intermediate account, but no decree can be entered thereon. {Baylis v. Swartwout, 4 Eedf., 395.) OEDEE FOE CITATION TO ADMINISTEATOE At a surrogate's court, held in and for the county of at the surrogate's office in the of , on the day of , 1874. Present — Hon. , Surrogate. In the Matter of the Estate of / , Deceased. I On reading and filing the petition of , show- ing that he is a creditor of said deceased ; that he has presented §50 Executor May Contest Debt. his claim to , administrator, etc., of said de- ceased ; that said claim was not disputed, and that more than six months have elapsed since letters of administration were issued to the said " Ordered, that a citation issue to the said administrator, requirmg him to show cause why payment of said ■debt should not be decreed. , Surrogate. § 2718. Hearing ; decree.— TJ^an the presentation of a petition as prescribed in the last section, the surrogate must issue a cita- tion accordingly ; and, upon the return thereof, he must make such a decree in the premises as justice requires. But in either of the following cases, the decree must dismiss the petition, without prejudice to an action or an accounting, in behalf of the petitioner: 1. Where the executor or administrator files a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner's claim is valid and legal, and denying its validity or legality, absolutely, or upon information and belief. {Hurlhut V. Durant, 88 K Y., 121 ; Lambert y. Craft, 98 id., 342 ; Mull V. Dusenhury, 4 Dem., 181 ; Estate of Cowdrey, 8 N. Y. St Eep., 774.) 2. Where it is not proved, to the satisfaction of the surrogate, that there is money or other personal property of the estate, ap- plicable to the payment or satisfaction of the petitioner's claim, and which may be so applied, without injuriously aSecting the rights of others entitled to priority or equality of payment or sat- isfaction. Where a proceeding before the court is, in effect, for the re- moval of an executor from office, although other relief is sought, the respondent cannot, by disputing the petitioner's interest, entitle himself to a dismissal of the proceeding under this section. {Susz V. Forsi, 4 Dem., 346.) Where the claim of a creditor of the estate of a decedent is evidenced by a judgment against the latter in his Hfe-time, an answer filed pursuant to subdivision one of the foregoing section, to a petition to compel payment, must, in order to oust the surro- gate of jurisdiction, set forth facts constituting a defense to or avoidance of the judgment {Salomon v. Heichel, 4 Dem., 176.) But if the executor faUs to show that it is doubtful whether the claim is legal, and fails to deny its validity, in writing, setting out facts, the surrogate should direct payment where it appears that there is sufficient personalty applicable thereto. An oral plea denying the claim, is ineffectual for any purpose. (Lambert v. Crcfl, 98 N. Y, 342.) hliirACY, JIoW Coi,T.KCTKI). 351 The authority to decree payment of a debt in such a case is to be exercised in conformity with the principles of equity among creditors, and only in cases where the contemplated payment can b6 made consistently with the rights of all parties interested. {Thompson v. Tayhr, 72 K Y., 321.^ Where the debt sought to be collected is a judgment of another court, the surrogate has power to inquire whether any such judg- ment exists, and the only proper proof is the judgment roll. This must show jurisdiction in the court granting the judgment, and a defect in its showing cannot be cured by affidavits. {Archer v. Furniss, 4 Eedf., 88.) But the surrogate's order denying a creditor's application for payment of his claim, does not prevent the creditor from main- taining his action in any other proper court. {Fitzpatrick v. Brady, 6 Hill, 581; Flagg v. Ruden, 1 Bradf., 192; see, also, 18 Wend., 666 ; 6 Barb., 152.) The defect of omitting a citation is waived by the executor or administrator appearing and proceeding without objection. {St John V. Voorhies, 19 Abb., 58.) Under the former statute (2 K. S., 116, § 18), for which this section is substituted, the surrogate had the same power to direct payment to a legatee of his legacy, or a proportionate part thereof, in anticipation of the final accounting. {Oilman v. Gilman, 63 N. Y., 41.) In the same case it was held, that the surrogate could, in a proceeding by the executors asking for leave, order payment by the executors, to their counsel, of the fees as settled and ad- justed by them. This decision, if sustained, must be upheld by virtue of the general powers of the surrogate to control and direct executors. (See Seaman v. Whitehead, 78 N. Y., 306; Marsh v. Covey, 81 id., 29 ; Code, § 2472.) Under the former practice it was held to be discretionary with the surrogate, whether or not he would direct payment of a debt contested by the executor or administrator {Flagg v. Ruden, 1 Bradf., 192) ; but under the sec- tion as it now stands, where a written answer is interposed which shows that the claim is doubtful, or as wo would suppose, framing an issue, the petition must be dismissed. The proceeding for the payment of a legacy cannot be enter- tained until it is determined whether the will is valid, and the surrogate has no power to order payment pending a contest as to the probate. {Riegelman v. Riegelman, 4 Redf., 492.) The rule would seem to us to be the same where an appeal is pending from So2 Intermediate Accoujs'ting. a decree admitting the will to probate. {Tooker v. Bel\ 1 Dem., m.) The surrogate cannot, in this proceeding, determine who the legatees are, where that question requires adjudication {Sayre t. Ladd^ 7 Week. Dig., 302); nor where the executor denies that a claimant is the person who comes within the description of residu- ary legatee, has the -surrogate authority to try that question. (Fiesier v. Shepard, 27 Alb. L. J., 373.) Where the administrator of a legatee petitions for payment of a legacy, an answer that the legatee had, in his lifetime, assigned the legacy, and that it had been paid to the assignee, is suflBcient {Mumford v. Coddinglon, 1 Dem., 27.) So an answer that the legatee, at testator's death, owed him more than the amount of the legacy is sufficient. {Smith v. Murray, 1 Dem., 34.) So that as "the general rule from all the authorities, as well as from the obvious intention of the statute, where the executor or administrator puts in an answer verified, which makes an issue to the allegations of the petition on a material point, or suggests new matter which •casts doubt on the claim, the petition will be dismissed, and it is unnecessary to multiply authorities on that point To this effect is the following authority, which is applicable to these proceedings: In proceedings for a special accounting of an executor at the instance of a legatee, to enforce the payment of a legacy, the surro- gate has only jurisdiction to decree payment where the legacy is undisputed. Where upon such an application the surrogate can see (from the verified answer) that other persons may claim, and a real question is presented as to the right of one of several persons to the legacy or fund, he may not proceed to a determination with- out the presence of all the parties who may be affected by the adjudication ; these can be brought in only on a final accounting, and only in that proceeding has the suiTogate jurisdiction to settle and adjust conflicting rights and interests. {Riggs v. Cragg, 89 N. Y., 479 ; by which same case, 26 Hun, 89, is reversed.) But the issues raised by the answer must be issues of fact and not of law merely. {Steinele v. Oechshr, 5 Eedf., 312.) As to the effect of the decree for payment, it seems that an executor or administrator, acting in good faith, will be protected in paying a debt in full, pursuant to the surrogate's decree, although it may finally turn out that, by reason of losses or other causes, the re- maining assets are insufficient to pay the other creditors. Such a Legacy Collected for Support. 353 ■decree, however, is provisional to this extent, that if it remains unexecuted when the general decree for the distribution of the «state among the creditors is made, it must, in case of insufficiency of assets to pay the debts in full, give way to the paramount authority providing for equality between the creditors ; and the creditor obtaining the decree cannot claim a preference under it It is not necessary, in such a case, to procure the decree to be formally vacated. {Thompson v. Taylor, 11 Hun, 274; 72 N. Y, 32.) Under circumstances where the legacy or distributive share, or some part of it, is necessary for the support or education of the petitioner, the surrogate may make a decree for payment, upon filing a bond under the following section : Section 2719 — Decree for Payment of Legacy on Security, In a case specified in subdivision second of the last section but one (§ 2717), the surrogate may, in his discretion, entertain the petition at any time after letters are granted, although a year has not expired. In such a case, if it appears upon the return of the citation that a decree for payment may be made as prescribed in the last section, and that ihe amount of money and the value of the other property in the hands of the executor or administra- tor applicable to the payment of debts, legacies and expenses, ex- ceed, by at least one-third, the amount of all known debts and claims against the estate, of all legacies which are entitled to pri- ority over the petitioner's claim, and of all legacies or distributive shares of the same class ; and that the payment or satisfaction of the legacy, pecuniary provision or distributive share, or some part thereof,^ is necessary for the support or education of the petitioner, the surrogate may, in his discretion, make a decree, directing pay- ment or satisfaction accordingly, upon the filing of a bond, ap- proved by the surrogate, conditioned as prescribed by law, with respect to a bond which an executor, or an administrator with the will annexed, may require from a legatee, upon payment or satis- faction of a legacy, before the expiration of one year from the time when letters were issued, pursuant to a direction to that effect, contained in the will. (See Tuiile v. Hdderman, 5 Eedf., 199.) This provision is in place of sections 82, 83, 2 E. S., 98. The surrogate can only make the decree in this case, where the title of the petitioner is undisputed and free from doubt {Ketellas v. Oreen, 9 Hun, 599), and the limitation that the advance must be 45 354 "When Claim Was Not Eejected. necessary for support and education, cannot be ignored. {Soyt v. Jackson^ 1 Dem., 553.) To procure an advance for support, the petitioner must present facts going to show that it is necessary to petitioner's support in the station of Hfe she occupies, and should state the amount re- quired. The court can only order a specific sum to meet present needs. Where the legacy on which an advance is asked is an in- come, only the income accrued can be directed to be paid. {Lockwood V. Lockwood, 3 Eedf., 330.) When the validity of the will is still in question, an advance can be ordered to a legatee, although she is also a distributee as one of the next of kin, in case the will should be set aside. {La Bau V. Vanderhilt, 3 Redf., 384.) In a case where the surrogate decreed an advance on a legacy, upon appeal from his decree the supreme court held that, in order to give jurisdiction to decree the advance, it must appear that there is a surplus of assets, and that as no proof on this point ap- peared to have been presented to the surrogate, the decree was un- authorized. Moreover, the bond should have been conditioned for the refunding of the money whenever required, and not sim- ply, if necessary, for the payment of debts and prior legacies. {Barnes v. Barnes, 13 Hun, 233.) Although in such a proceeding by a creditor, by petition to the surrogate, to direct payment of his claim, it is in the power of the executors, under the provisions of section 2718 to divest the sur- rogate of jurisdiction and put the claimant to his proof in another court ; if they fail to do this, that is, if they fail to put in the written answer provided for by subdivision 1 of section 2718, it is only necessary for the surrogate to be satisfied by proof that there is personal property of the estate applicable to the payment or satisfaction of the claim, and which may be applied without injuriously affecting the rights of others. (Section 2718, subdi- vision 2.) So, then, if the claim has been presented to the executor in proper form, and, after a reasonable opportunity given, the execu- tors do not offer to refer, on the ground that they doubt its justice, or do not dispute it, it acquires the character of a liquidated and undisputed debt against the estate. {Lambert v. Graft, 98 N. Y., 342.) In any case, as the jurisdiction of the surrogate to direct payment of a debt is confined to undisputed claims, the petitioner is neither required to state the facts which go to make out his How Payment Enforced. 355 -debt, nor, if stated, will he be permitted to establisli them. The presentation of the petition, and the citation issued thereon, bring in the executor, not to plead or respond to the petition, but by a verified written answer to set forth affirmatively facts, if any exist, which show " that it is doubtful whether the petitioner's claim is valid and legal," and also "denying its validity or legality absolutely, or upon information and belief." The answer must meet both requirements to require a dismissal of the petition. (lA) Payment either of the debt or legacy claimed to be paid may be enforced by attachment, execution or suit upon the bond filed by the executor or administrator. §2552. Decree conclusive evidence of assets. — A decree directing payment by an executor, administrator or testamentary trustee, to a creditor of, or a person interested in, the estate or fund, or an order permitting a judgment creditor to issue an execution against an executor or administrator is, except upon an appeal therefrom, ■conclusive evidence that there are sufficient assets in his hands to satisfy the sum which the decree directs him to pay, or for which the order permits the execution to issue. {Gillies v. Kreuder, 6 Dem., 349.) Creditors also, in certain cases, are subrogated to a charge upon property purchased with funds of a deceased debtor. Thus, where a widow, before the appointment of any administrator, took the assets of her deceased husband and used them in making a partial payment for land which she purchased, giving her- note for the remainder of the purchase money, with a surety, and the surety afterwards paid the note, and took a deed of the land for his in- demnity, it was decided that the surety held the title and the land in trust for the creditors and distributees of the deceased ; subject, however, to his own prior lien for so much as he had been com- pelled to pay as surety upon the note. {Miller v. Birdsong, 7 Baxter [Tenn.J, 531.) In such a case it would be the duty of an administrator to en- force the claim against the surety. Payment of a debt may he enforced after a judgment. The provisions of the new revision in relation to the collection of a judgment recovered against an executor or administrator are contained in 2 E. S., 116, § 19, et seq. 356 Payment After Judgment. § 1824. Want of assets not to he pleaded hy executor, etc. — In an action against an executor or administrator in his representative capacity, wherein the complaint demands judgment for a sum of money, the existence, sufficiency, or want of assets shall not be pleaded by either party ; and the plaintiff's right of recovery is not affected thereby, except with respect to the costs to be awarded, as prescribed by law. A judgment in such an action is not evi- dence of assets in the defendant's hands. This effects a great change in the rule, and remits the question of assets to the surrogate's court. The trial court only liquidates the demand against the decedent § 1825. Execution not to issue until allowed. — An execution shall not be issued upon a judgment for a sum of money against an executor or administrator, in his representative capacity, until an order permitting it to be issued has been made by the surrogate from whose court the letters were issued. Such an order must specify the sum to be collected, and the execution must be indorsed with a direction to collect that sum. The manner of obtaining the order is not so definitely prescribed, but the motion should be made to the surrogate on a petition, a copy of which, with a notice that the motion will be made at a specified time, should be served. It has been held that a surrogate has the same power to direct execution on a judgment recovered against an executor, for lia- bility incurred by him in the administration of the estate, as he has to order such process to issue on a judgment for a debt owing- by the decedent, and it is his duty to so order on the request of the creditor. {Matter of Thompson, 41 Barb., 237.) But we may question the authority, since the court of appeals has settled that there can be no liability of the estate on a contract of a representa- tive, and that a judgment for liability incurred by a representative must be against him personally, and be collected of his goods. {Ferrin v. Myrieic, 41 K Y., 315.) The provision is inapplicable to a judgment in an action origi- nally commenced against the decedent {Thatcher v. Bancroft, 15 Abb., 243.) An order granting leave to issue an execution against an ex- ecutor cannot be reviewed on appeal, unless the appellant gives security for the payment of the full amount directed to be levied, with interest and the costs of the appeal. {Mitcliell v. Mount, 81 N". Y., 356.) And it seems that on the appeal the order cannot be reviewed in respect to the sufficiency of assets. (Id.) Execution May Issue. 357 In regard to tte execution, the description of the defendants, as executors or administrators alone, is sufficient to prevent the sheriff from levying upon their individual property, ( Olmsted v. Vredenburgh, 10 How., 215.) PETITION FOE EXECUTION. To Son. , Surrogate of the County of ; Your petitioner, A. B., of the town of — , in said county, respectfully shows : That C. D., late of said town, was a creditor of your petitioner, and that he having died, letters testamentary upon his will have been duly issued from the surrogate's court of this county, to B. F., an executor named in said will ; That your petitioner brought an action upon his claim against said E. F., as executor as aforesaid, in the supreme court, and your petitioner obtained judgment against said executor for the sum of dollars and cents, damages and costs, on the day of , 1880, as will appear by a transcript of said judgment, made by the county clerk of the county of , annexed hereto. That, as your petitioner is mformed and verily believes, said executor has in his possession, and under his control, as such executor, assets in excess of the sums necessary to pay your peti- tioner and other creditors of the decedent, besides the expenses of administration. That said executor has not paid said judgment, or any part thereof, but that the whole amount, with interest from the day in which the same was entered as aforesaid, is due to your petitioner. Wherefore, your petitioner prays that he may be permitted to issue an execution for the amount so due as aforesaid upon said judgment (Signed) A. B. Dated , November 26, 1888. Eensselaee County, ss. . A. B., being duly sworn, says, that the foregoing petition by him subscribed, is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be trua (Signed) A. B. Sworn before me, this ) day of , 1888. f Commissioner of Deeds, Troy, N. Y. 358 When Execution Will Not Issue. NOTICE OF APPLICATION FOR LEAVE TO BE IN- DOESED. To E. F., executor of the will of G. D., deceased: Take notice, that upon a petition, of which the within (or fore- going, or annexed) is a copy, an apphcation will be made to Hon. ■ , surrogate, at his office in the city of Troy, on the day of , 1880, at ten o'clock ia the forenoon, for an order, as asked in said petition. Yours, etc., E. L., Atiy for Petitioner. . Dated March 11, 1888. § 1826. Notice and hearing. — At least six days' notice of the application for an order specified in the last section must be per- sonally served upon the executor or administrator, unless it appears that service cannot be so made with due diligence ; in which case, notice must be given to such persons, and in such manner, as the surrogate directs, by an order to show cause why the application should not be granted. Where it appears that the assets, after payment of all sums chargeable against them for expenses, a:nd for claims entitled to priority as against the plaintiff, are not, or will not be, sufficient to pay all the debts, legacies, or other claims of the class to which the plaintiff's claim belongs, the sum directed to be collected by the execution shall not exceed the plaintiff's just proportion of the assets. In that case, one or more orders may be afterwards made in like manner, and one or mbre execu- tions may be afterwards issued, whenever it appears that the sum directed to be collected by the first execution is less than the plaintiff's just proportion. Instead of notice to the executor of the presentation of the petition, the surrogate may issue a citation to the executor and ail persons interested, unless they appear voluntarily, in which case they will be bound by the decree. {Kerr v. Kfeuder, 28 Hun, 452.) Where an appeal is pending on the judgment, execution can- not issue until the appeal is decided. {Keyser v. Kelly, 4 Redf., 157 ) Nor can it issue against the real estate of the deceased, upon a judgment for deficiency recovered against his representatives. This can only be done on a judgment docketed against the de- cedent in his life-time. {James v. Beasly, 4 Redf., 236.) The surrogate cannot hear any objections to the judgment on the merits, nor receive evidence that it was fraudulently obtained. {Glacius V- Fogel, 88 N. Y., 434; Freeman v. Nelson, 4 Redf., 374.) Accounting Preliminary. 359 The execution can issue only for the sum which is a just pro- portion of the assets to which the plaintifE appears to be entitled. {Estate of Wilson, 3 Law Bull., 87.) And if there are no assets applicable to the debt, the surrogate will not grant leave for the issue of it {St. John v. Voorhies, 19 Abb., 53.) Before an order can be entered the executor must render an ac- count, which will not differ generally from an account rendered on final settlement of his accounts, but it must appear, also, that there are no debts of a prior class unpaid, or that there are enough assets to pay them all, and it must also show how much the debts of the same class as the judgment amount to, and the amount in hand applicable to the payment thereof. These facts could not be ascertained, until after publication of notice to creditors to present claims had been made. (But see Keyser v. Kelley, 4 Redf., 157, contra.) Inasmiich as an order or decree for the issuing of an execution for a certain sum is made conclusive evidence of a sufficiency of assets to pay the petitioning creditor such a sum without prejudice to the personal representatives or the other creditors, where the judgment is in favor of a creditor, it will be very difficult to de- cide, in a case where the estate is at all embarrassed, how much ought to be paid, until the time for presenting claims under notice shall have elapsed. The surrogate cannot, more than the personal represensatives, know until the expiration of the time of notice, how much the estate can properly pay. It is presumed, then, that this proceeding will not be taken very often, until after the lapse of a year from the issuing of letters. We present an order, or, more properly a decree, for the issuing of an execution, which can hardly ever be necessary, unless the executor or administrator is contumacious : DECREE FOR EXECUTION. At a surrogate's court, held in the county of , at the surrogate's office in the of on the day of , 1888. Present — Hon. , Surrogate. In the Matter of the Estate of C. D., Deceased. i A. B., having presented his petition to the surrogate, praying that he might be permitted to issue an execution against E. P. 360 Executor May Pay. tlie executor cI the will of the above named deceased, and it ap- pearing that a copy of said petition with a notice of the applica- tion for such permission was duly served on the said E. F. more than six days before this day, and the said E. F. having attended and filed his account as such executor, from which it appears that there is in the hands of said executor a sufficiency of assets to pay the claim of the said petitions, without prejudice to the claims of other creditors : It was adjudged, that an execution may issue upon the judg- ment referred to in the petition in favor of the said A. B., and against the said executor, for the sum of $ , damages and costs, entered in county on the day of , 1879, directing the sheriff to collect from said executor the whole amount with his fees and expenses proper to the case. Witness, , surrogate, and the seal of [l. S.J the court, the day and year first above writtea — , Surrogate. After publication for claims, the executor or administrator may pay, or ratably pay, the claims presented, and if there be a sur- plus, may distribute such sui-plus according to the will or among the next of kin. § 39. (2 R S., 89.) In case any suit shall be brought upon a claim which shall not have been presented to the executor or ad- ministrator of a deceased person, within six months from the first publication of such notice, as hereinbefore directed, such executor or administrator shall not be chargeable for any assets or money sthat he may have paid in satisfaction of any claims of an inferior degree, or of any legacies, or in making distribution to the next of kin, before such suit was commenced. * * * COSTS AGAINST EXECUTOES OR ADMIFISTEATORS. The liability of executors and administrators for costs, either as against thbmselves or against the estate which they represent, is regulated by statute. The Code provides for costs to the plaintiff or defendant gener- ally m section 8228, etc., and further provides as to executors and administrators. § 3246. Costs against an executor or administrator. — In an action brought by or against an executor or adrmnistrator in his repre- sentative capacity, or the trustee of an express trust, or a person expressly authorized by statute, to sue or be sued, costs must be awarded as in an action by or against a person prosecuting or de- fending in his own right, except as otherwise prescribed in sections Costs Against Executors. 361 1835 and 1836 of this act, but they are exclusively chargeable upon and collectable from the estate, fund or person represented, unless the court directs them to be paid by the party personally, for mismanagement or bad faith in the prosecution or defense of the action. As to what action is considered as coming within the terms of this section, see Spencer v. Strait (40 Hun, 463). The executor, unless mismanagement or bad faith is shown, is not chargeable individually with costs, and this rule is not changed by the fact that the executor is beneficially interested in the estate as residuary legatee. {Hone v. De Peyster, 106 N. Y., 645.) The sections referred to are as follows : § 1835. Costs, how awarded. — Where a judgment for a sum of money only is rendered against an executor or administrator, in an action brought against him in his representative capacity, costs shall not be awarded against him except as prescribed in the next section. § 1836. Costs, when awarded. — Where it apperrs, in a case speci- fied in the last section, that the plaintiff's demand was presented within the time limited by a notice, published as prescribed by law, requiring creditors to present their claims ; and that the pay- ment thereof was unreasonably resisted or neglected, or that the defendant refused to refer the claim as prescribed by law, the court may award costs against the executor or administrator, to be col- lected either out of his individual property or out of the property of the decedent, as the court directs, having reference to the facts which appeared upon the trial. Where the action is brought in the supreme court or in a superior city court, the facts must be certified by the judge or referee before whom the trial took place. These sections together represent section 317 of the Code and section 412, 2 E. S., 90, and the former decisions are of value. It will be observed that the provision of the R. S. referred to is repealed by the general repealing act, and this would effect a repeal of the provision for allowing for the disbursements incurred by the plaintiff who succeeded in the prosecution of his claim. But section 3, subdivision 8 of the repealing act (chap. 245, 1880) saves the right of the prevailing party to recover costs. {Krill v. Brownell, 40 Hun, 72 ; Sutton v. Newton, 11 Abb, N C, 452 , Hull V. Edmunds, 67 How. Pr.,. 202 ; Overheiser v. Morehouse, 16 Abb. N. C, 208 ; LarUns v Maxon, 103 K Y., 680.) 46 362 Costs Against Executors Personally. The former statute related to costs only in cases where the aotioii was prosecuted against an executor or administrator, and charged them with costs, only in case the payment of the claim was un- reasonably neglected. The courts then logically held, that in actions brought by executors or administrators they were liable to costs as other parties. {Columbian Ins. Co. v. Stevens, 37 N. Y., 536.) Where there is a refusal to refer, costs are to be allowed, of course. {Snyder v. Snyder, 26 Hun, 324 ; Matter of Doll, 91 K Y., 365.) The right to costs in such a case — refusal — is not affected by the fact that the amount claimed in the account was larger than that claimed in the complaint, or that the latter was larger than the recovery. Where it appears that, upon presentation of the claim, the defendant executor not only refused to pay, but to refer, to entitle the plaintiff to costs, it is not essential to show that, after the refusal, he made an offer of reference before the com- mencement of the action. {Carter v. Beckwiih, 104 N. Y, 236.) The question whether there was a refusal to refer, or the case was unreasonably defended, is a question of fact to be considered by the court on the question of costs. It is proper for the referee to certify as to these facts. The certificate may, however, be sup- plemented by affidavits. {Ely v. Taylor, 42 Hun, 205 ; 5 N. Y. St. Kep., 127.) No costs are allowed against a plaintiff's administrator person- ally, in an action of trover, when the alleged conversion was in the decedent's life-time, but it is otherwise when the conversion was subsequent to the decedent's death, and the action might have been maintained in the plaintiff over right. {Fox v. Fox, 5 Hun, 53.) Whether costs should be charged against the defendant person- ally, or against the estate he represents, depends upon facts which may be shown by affidavits, if necessary. {Ely v. Taylor, sup.) A referee has no power to award costs against executors or ad- ministrators. {Bailey v. Bergen, 5 Hun, 555.) But if the executor or administrator does not advertise for claims, that fact will not prevent an order for costs against him. {Bullock V. Bogardus, 1 Den., 276 ; Field v. Field, 77 K Y , 294.) So, when the claim was presented thirty-four days after letters testamentary were issued and saed in fifteen days thereafter ; on recovery it was held that the executor was not liable for costs. What Entitles to Costs. 363 {Buckhout V. Hunt, 16 How., 407.) In another case, the court say : " The action was defended upon the merits, and although the defense failed, it does not necesarily follow that it was improper to have made it ; for aught that appears, the evidence in the case may have been nicely balanced." {Nicholson v. Showerman, 6 Wend., 554.) To entitle a plaintiff to charge an executor defendant for costs, on judgment being rendered against him, he must establish to the satisfaction of the court that the demand being duly presented, payment of it was : 1. Unreasonably neglected : or, 2, unreasona- bly resisted ; or, 3, that the executor refused to refer, as provided by the statute. {Buckhout v. Hunt, 16 Hun, 407 ; Snyder v. Young, 4 id., 217 ; Van Vleck v. Burroughs, 6 Barb., 341 ; Fort V. Gooding, 9, Barb., 388 ; Russell v. Lane, 1 id., 519 ; Belden v. Knowlton, 3 Sandf., 758.) The provision as-to costs against executors or administrators applies only to actions by or against them, and does not apply to an action commenced against an intestate in his life-time, and, after his death, continued against his administrators. If the plain- tiff succeed in such an action, he is entitled to costs against the estate and without special application therefor. {Merrill v. Thomp- son, 27 N. Y., 225 ; Seman v. Wood, 16 How:, 285.) In another case the claimant demanded over $200, and on ref- erence under the statute, got only $76.07, the court held that he ought not to have costs, and said : " The statute, I apprehend, cannot be construed to subject executors and administrators to costs, unless they are guilty of a violation of duty. If a creditor presents a claim, known to be a fair one, and there is property enough to pay it, not liable to pajr debts of a higher class, it is the duty of the executor or administrator to pay it, and a refusal to pay, under such circumstances, I think, would be unreasonable ; but if the executor or administrator doubts the correctness of the claim, the statute provides that not only the vouchers may be re- quired, but also the affidavit of the claimant Where the plaintiff presented a claim for $1,551, and the ref- eree allowed $674, it was held not to be a proper case for the allowance of costs. {Johnson v. Myers, 103 JST. Y., 666.) If the executor or administrator should remam unsatisfied, he may resist ; and if, upon the trial, it shall appear that he had good reason for such resistance, it can never be called unreasonable. If, for instance, the plaintiff should fail to substantiate his claim 364 Allowance of Costs. to the amount demanded, or tlie defendant should succeed in establishing a demand by way of set off, which the plaintiff had refused to allow, such defendant could never be charged with un- reasonable resistance. {Robert v Ditmas, 7 Wend., 522.) Where the plaintiff brought his action as executor upon a prom- ise made to him after the decease of his testator, a verdict was rendered in favor of the defendant and a judgment was entered thereon against the plaintiff, without reference to his representa- tive capacity. An execution was issued in this judgment, to be collected against the plaintiff, de bonis propriis, and it was held proper. {Bostwick v. Burns, 15 Hun, 308.) In a recent case not reported, the claimant presented a claim to the administrator, as against the decedent He had erroneously included an item for services to the executor named^who did not qualify, on proving the decedent's will, and also a general charge for interest on the claim, which was for services rendered as an attorney. The claim was referred, and that part relating to ser- vices rendered after decedent's death was struck out by the ref- eree, and the claim for interest was waived. The plaintiff recov- ered the entire remainder of his claim, except one item of nineteen dollars, his recovery being $155. On motion for costs, the court at special term held, denying the costs, that the defense was not unreasonable, as the whole reduction was ninety-seven dollars, and that the defense was none the less necessary because the claimant made a mistake in stating his claim. Each case seems to be decided upon its own circumstances. The subject of costs for and against parties in the surrogate's court is a subject of special notice in the new revision. Costs under the former practice when granted were fixed by the fee bill of the former court of common please, which was very small in amovnt when known to practitioners well enough to enable them to prepare a bill. Besides there are few lawyers now in practice who could draw such a bill. Accordingly the allowances by the ' court have generally been arbitrary, and the sums fixed in the dis- cretion of the court. This proceeded upon the theory that a hearing in the surrogate's court was in the natxre of a hearing in equity, a view sustained, for other reasons, in the higher courts. {Matter of Miles, 5 Eedl, 110.) This theory seems to have been adopted in the preparation of the revision. Costs. 365 § 2557. Costs, how made payable. — Except where special pro- vision is otherwise made by law, costs awarded by a decree may be made payable by the party personally, or out of the estate or fund, as justice requires; but costs other than actual expenses cannot be awarded to be paid out of an estate or fund which is less than one thousand dollars in amount or value. i This limit of one thousand dollars is not the remainder left after payment of debts and expenses, but the gross amount of the estate at the time of the eecedent's death, with any increase up to the time of accounting. {Ghalker v. Ghalker, 5 Eedf., 480.) § 2558. Costs, when awarded. — The award of costs in a decree is in the discretion of the surrogate, except in one of the following cases : 1. Where special directions respecting the award of costs are contained in a judgment or order, made upon an appeal from the surrogate's determination, or upon a motion for a new trial of questions of fact tried by a jury, in either of which cases costs must be awarded according to those directions. 2. When a question of fact has been tried by a jury, in which case, unless it is within the foregoing subdivision, the decree must award costs to the successful party. 3. Where the decree is made upon a contested application for probate or revocation of probate of a will, costs payable out of the estate or otherwise, shall not be awarded to an unsuccessful con- testant of the will unlesfe he is a special guardian for an infant, ap- pointed by the surrogate, or is named as an executor in a paper propounded by him in good faith as the last wil of the decedent. But the surrogate may order a copy of the stenographer's minutes to be furnished to the contestant's counsel, and charge the expense thereof to the estate, if he shall be satisfied that the contest is made in good faith. {Matter of Collamer, 5 N. Y. St Rep., 196 ; Mtate of Henry, 7 id., 113.) § 2559. Costs, how awarded. — Costs, when awarded hy a decree, include all disbursements of the party to whom they are awarded, which might be taxed in the supreme court The sum allowed for costs must be fixed by the surrogate and inserted in the decree. Costs are awarded to parties, not to counsel. [Devin v. Patchin, 26 K y., 441; Willcox v. Smith, 26 Barb., 316; Seaman v. Whitehead, 20 Alb. L. J., 315.) By rule in the city of New York, " Whenever a party to a ■decree shall deem himself entitled to costs, the same will be con- sidered and determined by the surrogate on two days' notice of 366^ Costs to Special Guardians. adjustment to be served upon the opposing party, with the items of costs and disbursements to which the party may deem himseK entitled at the time of the settlement of the decree, which dis- bursements shall be duly verified both as to their amount and necessity, and at the same time, and on like notice, the surrogate shall pass upon any additional allowance to be made to an execu- tor, administrator, guardian or testamentary trustee upon a judi- cial settlement of his account, which notice of adjustment and allowance shall be accompanied by an affidavit setting forth the number of days which the trial or hearing necessarily occupied, together with' the time so occupied in preparing an account for settlement and for the trial, and in case such trial shall have been had before a referee, the time necessarily occupied in such trial before him may be shown by a certificate of such referee, which affidavit of disbursements, time of trial and preparing account, and for trial, may be controverted by affidavit." Since September 1, 1880, the Code is the sole source of au- thority for a surrogates court to allow costs or compensation to special guardians in probate proceedings. {Forster v. Kane, 1 Dem., 67.) Where probate is opposed in behalf of an infant and granted, his special guardian is an "unsuccessful contestant of the will," and may have costs. Where objections to an executor's account are referred, and the report finds it correct, no allowance should be made to proctors for legatees who appeared, but filed no objections, nor to proctors for a general or special guardian in filing objections which were not sustained. A special guardian may have an allowance for services in examining the account, but the attorney of a general guardian cannot. If an action for construction has resulted in increasing the personal estate, the attorney who brought it is en- titled to an allowance. {Re Meeker, 9 Daly, 556.) The court may grant costs to an executor who has in good faith, but unsuccessfully, opposed an application to revoke probate of the will under which he received letters, he being within the equity of the statute. {Bertine v. Huhhell, 1 Dem., 335.) But a contestant cannot have costs, where he is an attorney and acts as his own counsel. {Whelpley v. Loder, 1 Dem., 368.) An order is improper which directs that a sum be allowed to a party, or costs and expenses "to be paid to his counsel," and directing the same to be deposited with the clerk. ( Walton v. Havard, 1 Dem., 103.) What Costs Are Allowed. 367 Charges for services rendered by an attorney to an executor are against the executor individually, and there is no authority war- ranting a decree in favor of the attorney against the estate, or against the executor as such. {Seaman v. Whitehead^ 78 N. Y , 306 ; Marsh v. Avery, 81 K Y , 29.) A bill of costs, allowances and disbursements should be pre- pared precisely as is the practice in the supreme court, and notice of taxation should be given m the cases and manner required by that court The stenographer's fees should be paid by the proper party, and the amount included in his bill of costs, the same as if they were referee's fees. {Du Bois v. Burns, 1 Dem., 317.) § 2560. Costs, same as in supreme court. — Where a question of fact has been tried by a jury, the costs, awarded against the un- successful party are the same as the taxable costs of an action m the supreme court. The costs of an appeal, where they are awarded in a surrogate's court, are the same as if they were awarded in the supreme court. The costs, then, would seem to be costs before notice, costs after notice and before trial, and trial fee. § 2561. When surrogate to fix costs. — In a case other than one of those specified in the last section, the surrogate, upon rendering a decree, may, in his discretion, fix such a sum, to be allowed as costs, in addition to the disbursements, as he deems reasonable, not exceeding, where there has not been a contest, twenty -five dol- lars, or where there has been a contest, seventy dollars ; and, m addition thereto, where a trial or hearing upon the merits before the surrogate necessarily occupies more than two days, ten dollars for each additional day ; and where a motion for a new trial is made before the surrogate, if it is granted, seventy dollars, if it is denied, forty dollars. When the allowance made by the court below — the surrogate — is within the limits of its discretion, it cannot be reviewed. Not so, if it exceeds the limits of its discretionary authority. (Down- ing V. Marshall, 37 K Y, 380.) The surrogate has no power to award, under any circumstances, a greater sum as costs than that provided for in this and the next section. {Esta^te of Withers, 3 Civ. Pro. Eep., 162.) Therefore, costs to a special guardian of an infant, on an unsuccessful contest of a will, cannot succeed seventy dollars, and ten dollars a day for ■each day beyond two necessarily occupied in the ti-ial. {Forster 368 Additional Allowances. V. Kane, 1 Dem., 67 ; but see for rule that special guardian is not so limited, McCue v. OHara, 5 Eed., 336.) This and the next sections (§§ 2561, 2562) which, except in rare cases, govern the grant of costs and allowances in a surrogate's court, substantially declare that, (1) however eminent may be the counsel who renders legal services in a proceeding for any other party than an executor, an administrator, a guardian or testamentary trustee, the maximum amount which can be taxed for those services,, in favor of his client, or for his own benefit, is seventy dollars,, together with ten times as many dollars as there have been days, less two, necessarily occupied in the trial or hearing ; and (2) pre- cisely the same limitations apply also to executors, administrators guardians and testamentary trustees, except that upon the final accounting of such ofiicers, they may be awarded, in addition, pot more than ten dollars for each day employed in the trial and. necessarily occupied in preparing therefor, and in arranging and set- tling the account. ( Walton v. Howard, 1 Dem., 103.) Whether it is the counsel's or the client's time whose necessary occupation is to be considered in this connection, qucere. It seems that parts of days are not synonymous with days so necessarily occupied for the purposes of the statute. (Id.) The time which may have been spent by an attorney in prepar- ing pleadings, making briefs, ascertaining facts, appearing upon an adjournment, or appearing to settle a decree, is no part of the " trial or hearing upon the merits," within the meaning of this sec- tion. But the summing up of counsel is "a hearing upon the merits." {Du Bois v. Brown, 1 Dem., 317.) The allowance of twenty-five dollars covers all the proceedings on an accounting, where there is no contest, except preparation of the accounts. {Re Miles, 5 Eed., 110.) But this may not apply where objections are filed, and after preparation to meet them,. and before trial, they are withdrawn. (Id.) An application for leave to issue execution, made under section 1381, IS an onginal special proceeding, commenced by petition and terminating in a decree, which may, in case of contest, award costs under the general rule. {Gillies v. Kreuder, 1 Dem., 349.) § 2562. Additional allowances. — In addition to the sums specified in the last two sections, the surrogate may, in his discretion, allow to an executor, administrator, guardian or testamentary trustee, upon a judicial settlement of his account, or an intermediate ac- counting required by the surrogate, such a sum as the surrogate- Allowance to Executor. 369- deems reasonable for his counsel fees and other expenses, not ex- ceeding ten dollars for each day occupied in the trial, and neces- sarily occupied in preparing his account for settlement, and other- wise preparing for the trial {Matter of Collamer, 5 N. Y. St. Eep.^ 196.) An accounting executor, to entitle him to the additional allow- ance under this section, should present an affidavit showing sepa- rately the number of days necessarily occupied (1) by the trial or hearing upon the merits (2), in preparing the account for settle- ment, and (3) in otherwise preparing for the trial. A statement. of the whole number of days in gross is improper. {Dubois v. Brown, 1 Dem., 317; Carroll v. Hughes, 5 Eedf., 337.) An exe- cutor who, upon an accounting, receives the maximum allowance oi per diem costs under the former section (§ 2561), viz: ten dol- lars for each of the days, less two, occupied in the trial, may under this section be allowed twenty dollars in addition for the two days excluded by the former section. {Dubois v. Brown, sup.) It is the duty of an executor to render and settle his account without any other expense to the estate than the sums authorized to be allowed to him by sections 2561 and 2562, and such taxable disbursements as are connected with the proceedings for a judicial settlement. Thus he cannot be allowed to retain from the balance in his hands, in addition to the sums above mentioned, and with- out proof of the necessity of the employment, the amount of com- pensation paid to a book-keeper for making up the account {Hall V. Campbell, 1 Dem., 415.) Absence of proof that it was neces- sary for an administrator to employ an accountant to prepare his- accounts justifies a rejecting of the item for such expense. {Underhill v. Newhurger, 4 EedL, 499.) An executor who prepares his -accounts without counsel is not. entitled to the costs and counsel fee, though he is himself an attor- ney and counselor. {Estate of Valentine, 9 Abb. N. C, 313.) The words "necessarily occupied" must be held to have pre- cisely the same force and effect in sections 2561 and 2562 which they were decided to have in the statute of 1844, as interpreted by the court of appeals in Higbie v. Westlake (14 N. Y , 281). An attorney, no more than an administrator, can fairly be said to have been " necessarily occupied " one hundred and forty days in the business of an estate, unless his devotion to such business during that time was substantially to the exclusion of other busi- 47 S70 Per Diem Compensation ness, and was essential to tlie proper discharge of his duties. He lias certainly not been employed that number of days within the meaning of the Code, although on each of such days he may have rendered some slight service, if his time has mainly been occupied in other pursuits. It is difficult and perhaps impossible to formu- late an exact rule applicable to this subject. It would be harsh and unjust to require that any arbitrarily selected number of hours should constitute a day's employment, and that the per diem allow- ance should be rigidly computed by ascertaining the number of liours employed, and reducing those hours to days by the stem process of arithmetic. It would be equally harsh and unjust, when counsel had set apart a day for devoting himself to some matter pending in this court, and had put aside other business in consequence, to disallow a per diem compensation, if otherwise properly taxable, because, without fault of his own, he chanced to be prevented from executing his purpose. If, by devoting him- self with reasonable diligence for a week to the preparation of an executor's account, he could render all the service which the oc- casion required, he surely should not be allowed for a year's employment, because through indifference, or from pressure of business, or (if such a case can be conceived possible) he, for the very purpose of increasing his compensation, prolonged his labors through that period of time, and actually devoted thereto some odds and ends of time during every day. ( Walton v. Howard, 1 Dem., 103.) THE STATUTE OF LIMITATIONS. The statute of limitations was not formerly considered a meri- torious defense, and the pleading of it was discouraged, as between living persons ; but latterly the courts have looked with more favor on the defense. {Purdy v. Austin, 3 Wend., 187; Van Keuren v. Parmelee, 2 N. Y., 523.) But as between claimants, and executors or administrators, the statute of limitations is a very proper and meritorious defense, the executor or administra- ,tor being entirely ignorant of the claims. {Tracy v. Suydam, 80 Barb., 110 , Rouss v. Bradney, 19 Hun, 573.) There can be no doubt that, in a proper case, the executor or administrator is bound to set up the defense of the statute of limitations. This is the more his duty, because there is no other person who can do so while the estate still remains in his hands. {Wilcox V Smith, 26 Barb., 316, 335.) It is also held in this case Statute of Limitations. 371 that, where the claim of a creditor was duly recognized by the administrator, the next of kin could not raise the statute as a bar before the surrogate on final settlement. (Id., 334.) But this must be considered overruled by the court of appeals, which held that the executor or administrator will not be protected in paying^ a claim barred by the statute of limitations, and that his promise even will not revive such a claim. {Bloodgood v. Bruen, 8 N. Y.,. 362.) But where the debt was not barred at the time of the decedent's death, a payment by the executor or administrator upon the clairm will furnish a new period from which the statute is to run. (Note, 12 Am. Dec, 661.) No acknowledgment by an executor or administrator of a debt of the decedent, barred by the statute of limitations, can preclude- him from pleading the statute of limitations in an action on tha original debt, and no action on his own promise lies against him. {Fritz V. Thomas, 29 Am. Dec, 89 ; 1 Wharton, 66.) As to the effect of a new promise by an executor or administrator upon the- running of the statute of limitations, see authorities collected holding both ways. (29 Am. Dec, 42, note.) It would seem to- ns that while the personal representative cannot safely pay a debt barred by the statute, he so represents the personal estate that his promise made in legal form, or a payment on account, will furnish a new period from which the statute is to run. It was also held by the court of appeals that a proceeding to- compel the accounting of an executor, who had been removed, could not be entertained after the lapse of ten years from his removal {Clark v. Ford, 1 Abb. Ct. of App. Dec, 859.) The statute applies no less in contests between husband and wife, or to claims made by either surviving, against the estate of the other. In Wright v. Wright (54 K Y., 437), a wife had sued her hus- band on a note given to her by him before her marriage, and the defense was, the incapacity of the wife to sue, arising out of the marital relation. The commission of appeals held that the inca- pacity does not exist, and that a wife can sue her husband to enforce any right affecting her separate property, in the same manner that she might sue a stranger. The court cites Power v. Lester (23 K Y, 527) ; Dygert v. Remerschndder (32 id., 629), and Whiir).ey v. Whitney (49 Barb., 319). The supreme court, in Fletcher v. Updike (5 Th. & C, 513), fol- S72 Collection From Next of Kin. lowing out tlie above decisions, holds that inasmuch as there was no disability on the part of the wife to sue her husband, the statute runs against her claim in the same manner as against a stranger. (See, also, Adarns v. Curtis, 4 Lans.. 164; Minier v. Minier, id., 421 ; Dunham v. Sage, 52 K Y,, 229.) It may be interesting at this point to pursue the subject of the collection of claims against distributees of a decedent's estate. The provisions are found in section 1837, et seq., of the Code, as revised. § 1837. When action lies against distributees. — An action may be mamtamed, as prescribed in this article, against the surviving husband or wife of a decedent, and the next of km of an intestate, or the next of kin or legatees of a testator, to recover, to the extent of the assets paid or distributed to them, for a debt of the ■decedent, upon which an action might have been maintained against the executor or administrator. The neglect of the cred- itor to present his claim to the executor or administrator, within Ihe time prescribed by law for that purpose, does not impair his right to maintain such an action. In such an action, to secure payment by a judgment creditor of the decedent, from real estate which descended to the heirs at law, it is sufficient to allege and prove that the personal assets of the decedent were not sufficient to pay and discharge the debt, and it is not necessary to show the inability of the creditor to collect the same by proceedings at law, or before the surrogate, from the per- sonal representatives, next of kin or legatees of the deceased. {Blossom V. Hatfield, 24 Hun, 275.) § 1838. Action may he joint or several. — An action, specified in "the last section, must be brought either jointly against the surviv- ing husband or wife, and all the legatees, or all the next of kin, as the case may be, or, at the plaintiff's election, against one of them only. But where a legacy is received by two or more persons jointly, they are deemed one legatee within the meaning of each provision of this article relating to legatees. The husband of one of the next of km is not a proper defend- ant, but an infant whose guardian has received his portion may be joined. {Merchants' Ins. Co. v. Hinman, 34 Barb., 410.) For complaint against heirs for the debt of their ancestor, see Hollister V. Hollister (10 How., 532). § 1839. In joint action, recovery to be apportioned. — Where a joint action is brought, as prescribed in the last section, the whole Suits Against Next of Kin. 373 sum wWcli the plaintiff is entitled to recover must be apportioned among the defendants, in proportion to the legacy or distributive share, as the case may be, received by each of them ; and the final judgment must award against each defendant separately the pro- portionate sum thus ascertained. The costs of the action, if the plaintiff is entitled to costs, must be apportioned in like manner , €xcept that the expenses of serving the summons upon each de- fendant must be taxed against him only, and one sheriff's fee for returning an execution may be taxed against each defendant against whom any sum is awarded. § 1840. Recovery in several actions to he partial. — When an action is brought against the surviving husband or wife only, or against one only of the next of kin or legatees, the sum which the plain- tiff is entitled to recover cannot exceed the sum which he would have been entitled to recover from the same defendant in an action brought as prescribed in the last section. § 1841. Requisites to recovery. — If the action is brought against a legatee, or against all the legatees, the plaintiff must show either 1. That no assets were delivered by the executor or administra- tor of the decedent, to the surviving husband or wife, or next of kin; or 2. That the value of assets so delivered has been recovered by some other creditor ; or 3. Thau those assets, after payment of the expenses of adminis- tration and preferred demands, are not sufficient to satisfy the de- mand of the plaintiff, in which case he can recover only for the deficiency. § 1842. Requisites in action against a preferred legatee.^-Wheie some of the legatees are preferred to others an action may be main- tained, as prescribed in the last five sections, against one or all of those who arc equally preferred or equally deferred, as if the lega- tees of that class were all the legatees. But where it is brought against a preferred legatee, or a class of preferred legatees, the plaintiff must show, in addition to the matters with respect to the next of kin, required by the provisions of the last section, the same matters with respect to each legatee or class of legatees to whom the defendant or defendants are preferred. A creditor also, having exhausted all other remedies open to him, may collect a debt due from a decedent from an heir at law or devisee out of the real estate descended or acquired by devise. § 1843. Liability of heirs or devisees for debts. — The heirs of an intestate and the heirs and devisees of a testator are respectively liable for the debts of the decedent arising by simple contract, or 374 Action Against Heir. by specialty, to the extent of the estate, interest, and right in the real property which descended to them from, or was efEectually devised to them by the decedent But this liability does not extend to moneys received by an heir on an insurance upon his interest in the estate. (Herkimer v. Bice, 27 N. Y., 163.) It seems that if the executor had incurred testamentary expen- ses, and a decree of the surrogate upon an adjustment of his ac- counts had adjudged the amount due him, and upon demand the heirs at law had refused to pay, an action might lie to enforce a lien upon the real estate for the same. {Dill v. Wisner, 88 N. Y., 153.) The same rule would apply where the executor had paid debts out of his own funds and the amount was decreed to be due to him on settlement, for the reason that he was subrogated to all the rights which the creditors would have had Where the devisee is liable for the testator's debts to the extent of the property received by him, beyond this he does not become personally liable by merely accepting the devise, and the rents and profits thereof, though the devise is charged with the debts, unless the will charges the devisee with the duty of personally paying the debts, or unless the devise is upon the condition that the devi- see pay the debts. {Clift v. Moses, 7 K Y St Eep., 691.) § 1844. When action may he brought against heir, etc. — But an action to enforce the liability declared in the last section, cannot be maintained, except in one of the following cases : 1. Where three years have elapsed since the death of the de- cedent, and no letters testamentary, or letters of administration, upon his estate, have been granted within the State. {Selover v. Goe, 63 N. Y., 438.) 2. Where three years have elapsed since letters testamentary, or letters of administration, upon his estate, were granted, within the State. The suspension of the power to sue, for three years or more, suspends the running of the statute of limitations for the same time, and may make the limitation nine years instead of six. {Mead v. Jenkins, 27 Hun, 570 ; Selover v. Coe, sup.) A judgment recovered against the survivor of a partnership upon a firm obligation, is not a lien upon the property of the de- ceased partner, nor obligatory upon his heirs or devisees ; and a decree of the surrogate, directing the executors of such deceased partner to pay such claims out of the assets in their hands, is not Action Against Heirs. 375 sucTi a decree as will authorize the sale of such property by the sherifE for the satisfaction of such claim ; and a purchaser at such attempted sale by the sheriff, cannot maintain summary proceed- ings for the recovery of the land against the deviseea {Bennett v. Grain, 41 Hun, 183.) § 1845. Action to he stayed, when, etc. — Where it appears that, at the time of the commencement of such an action, a petition, seasonably presented as prescribed by law, praying for a decree to dispose of real property of the decedent, for the payment of his debts, was pending in a surrogate's couri having jurisdiction, the proceedings in the action, subsequent to the complaint, must be stayed by the court, until the petition is disposed of, unless the plaintiff elects to discontinue. If a decree to dispose of real prop- erty, pursuant to the prayer of the petition, is granted, the action must be dismissed, unless the pJamtiff has alleged in his com ■ plaint, or alleges in a supplemental complaint, that real property, other than that included in the decree, descended or was devised to the defendants. If the plamtiff elects to proceed under such an allegation, he is entitled to a preference in payment, out of the real property, with respect to which the allegation is made ; but he cannot share, as a creditor, m the distribution of the money, arising from the disposal of the real property, described in the de- cree ; and the judgment in the action does not charge, or in any way affect, that property. § 1846. Action must be joint— An action against heirs or devi- sees, brought as prescribed in the last three sections, must be brought jointly against all the heirs, to whom any real property descended from the decedent, or jointly against all the devisees, as the case may be. § 1847. Becovery to he apportioned. — In such an action, the sum which the plaintiff is entitled to recover, for damages and costs, must be apportioned among all the defendants in proportion to the value of the real property descended to each heir, or devised to' each devisee, as the case may be, as prescribed in section 1839 of this act, for a similar apportionment among legatees or next of kin, in proportion to the assets received by them. The final judgment must, in like manner, award against each defendant the proportionate sum with which he is chargeable, § 1848. Requisites for recovery against heirs. — Where the action is brought against heirs, the plaintiff must show, either : 1. That the decedent's assets, if any, within the State, were not sufficient to pay the plaintiff's debt, in addition to the expenses of administration, and debts of a prior class ; or, 2. That the plaintiff has been unable, or will be unable, with 876 Judgment Against Heirs. due diligence, to collect his debt, by proceedings in the proper surrogate's court, and by action against the executor or adminis- trator, and against the surviving husband or wife, legatees and next of kin. The executor's or administrator's account, as rendered to and settled by the surrogate, may be used as presumptive evidence of any of the facts required to be shown by this section. § 1849. Requisites for recovery against devisees. — Where the action is brought against devisees, the plaintiff must show, in ad- dition to the matters specified in the last section, either that the property of the decedent, which descended to his heirs, was not sufficient to pay the plaintiff's debt, or that the plaintiff has been unable, or will be unable, with due diligence, to collect his debt by an action against the heirs. § 1850. Deductions for prior recoveries hy plainiiff. — Where the assets, applicable to tbie plaintiff^s debt, were sufiicient to pay a part thereof, or a part thereof has been collected from the executor or administrator, or from the surviving husband or wife, next of kin, or legatees, the plaintiff can recover only for the residue remain- ing unpaid or uncollected ; and if the action is against devisees, he can recover only for the residue, which the real estate descend- ed, or the amount of his recovery against the heirs, is insufficient to discharge. § 1851. Complaint to describe real estate. — The complaint must describe, with common certainty, the real property descended or devised to the defendant ; and must specify its value. The plaintiff can secure a description, if he cannot otherwise get it, under sections 803 to 809 of the Code. § 1852. Judgment to direct out of which real estate collection is to he made. — If it appears that any of the real property which de- scended or was devised to a defendant had not been aliened by him at the time of the commencement of the action, the final judg- ment must direct that the debt of the plaintiff or the proportion thereof which he is entitled to recover against that defendant, be collected out of that real property. Such a judgment is preferred as a lien upon that property to a judgment obtained against the defendant for his individual debt or demand. § 1853. Judgment not to affect title in certain cases. — But a judg- ment rendered as prescribed in the last section does not bind, and the execution thereupon cannot in any way affect the title of a purchaser in good faith and for value, acquired before a notice of Defense of Heir to Action. 877 the pendency of the action is filed, or final judgment is entered and the judgment roll filed. § 1854. How judgment taken when land aliened. — If it appears that before the commencement of the action, or afterwards and be- fore the filing of a notice of the pendency of the action, the de- fendant aliened the real property descended or devised to him, or any part thereof, the plaintiff may, at his election, take a final judgment against him for the value of the property so aliened, or so much thereof as may be necessary, as m an action for the de- fendant's own debt. § 1855. Classification of debts to be enforced. — Where the surviv- ing husband or wife, next of kin, legatees, heirs, or devisees, are liable for demands against the decedent, as prescribed in this article, they must give preference in the payment thereof, and they are so liable therefor in the order prescribed by law for the payment of debts by an executor or administrator. Preference of payment cannot be given to a demand over another of the same class, ex- cept where a similar preference by an executor or administrator is allowed by law. The commencement of an action under any pro- vision of this article does not entitle the plaintiff's demand to pre- ference over another of the same class, except as otherwise specially prescribed by law. § 1856. Defense by reason of prior or equal claim. — Where it ap- pears, in an action brought as prescribed in this article, that there are unsatisfied demands against the decedent's estate of a class prior to that of the plaintiff's demand, the defendant is entitled to judgment if the value of the property which was received, devised -or inherited, as the case may be, by the class to which he belongs, does not exceed the amount of the valid demands of a prior class. If it exceeds the amount of those demands the judgment against the defendant cannot exceed such a proportion of the plaintiff's demand as the total amount of the valid demands of his class bears to the excess. § 1857. Defense when similar claim has been paid. — Wh6re a defendant, or a person belonging to his class, has paid a demand against the decedent's estate of a class prior to that of the plain- tiff's demand, or has paid a demand of the same class, the amount of the demand so paid must be estimated in ascertaining the amount to be recovered, as if it was outstanding and unpaid. § 1858. Action not suspended by infancy of any party. — An action against heirs or devisees, brought as prescribed in this article, is not delayed, nor is the remedy of the plaintiff suspended by reason of the infancy of any of the parties ; except that an execution. 48 378 Action Against Devisee. shall not be issued against an infant heir or devisee until the ex- piration of one year after final judgment is rendered and the judg- ment roll filed. § 1859. Not applicable in certain case. — This article does not affect the liability of an heir or devisee, for a debt of a testator, where the will expressly charges the debt exclusively upon the real property descended or devised, or makes it payable exclus- ively by the heir or devisee, or out of the real property descended or devised, before resorting to the personal property, or to any other real property descended or devised. § 1860. One action where safne person is heir and devisee. — Where a person, who takes real property of a decedent by devise, and also by descent ; or who takes personal property as next of kin, and also as legatee ; or who takes both real and personal property in either capacity ; or who is executor or administrator, and also takes in either of the before mentioned capacities ; would be liable, in one capacity, for a demand against the decedent, after the exhaustion of the remedy against him in another capacity ; the plaintiff, in any action to charge him, which can be main- tained, without joining with him any other person, except, a per- son whose liability is in all respects the same, may recover any sum, for which he is liable, although the remedy against him. in another capacity was not exhausted. But this section does not increase the sum, which the plaintiff is entitled to recover against him, in the capacity in which he is actually liable ; nor does it charge a defendant individually, who is liable only in a representa- tive capacity. {Stuart v. Kissam, 11 Barb., 271.) CHAPTER XVII. Gifts and Legacies and Disteibdtive Shares and Pay- ment Thereof. The subject of gifts, inter vivos and causa mortis, frequently en- gages the attention of the court A gift inter vivos is, when properly made and accepted, an exe- cuted contract, and effectually vests the property in the donee. All that is necessary to constitute a vahd parol gift is an ex- pression to that effect, by the donor, accompanied by a delivery of the thing to the donee. Neither a donatio inter vivos or mortis causa, is good without delivery ; but, in the one case, the title passes immediately to the donee on delivery, and the donor haa What Constitutes a Gift. 379 no more right to or over the property, than any other person ; in the other, the title does not pass immediately, it takes effect only on the death of the donor who, in the meantime, has the power of revocation. {Bedell v. Carll, 33 K. Y., 581.) The distinction be- tween the two classes of gifts is very clearly stated in the case last cited, the one being absolute and the other being conditional. To render a gift of either class valid, a delivery is essential, when the subject matter is capable of delivery. The possession, or some means of obtaining possession, must be transferred to the doriee, or the title does not pass. ( Woodruff v. Cook, 25 Barb., 605, and cases cited ; Young v. Young, 80 K Y., 422.) But a constructive delivery is sufficient, where the nature of the thing does not admit of an actual delivery. {Fulton v. Fulton, 48 Barb., .581.) But possession of a chattel, by a claimant thereof, is not pre- sumptive evidence of a gift, for the law does not presume a gift {Grey v. Grey, 47 K Y., 552.) As to what constitutes an insufficient delivery, see Noble v. Smith (2 Johns., 52) ; Taylor v. Fire Department (1 Edw. Ch., 294); Harrison v, McMenomy {2 id., 251); NeuvilleY. Thomson (8 id., 92) ; Huntington v. Gilmore (14 Barb., 243) ; Brink v. GouU (43 How., 289 ; S. C, 7 Lans., 429). As to what is a sufficient delivery, and instances, see Grangiac V. Arden (10 Johns., 293); Minchin v. Merrill (4 Edw., 333); Logan v. Deshay (Clarke, 209) ; Penfield v. Thayer (2 E. D. Smith, 305). So, also, the delivery may be made to a third party for the donee. {Gonutant v. Schuyler, 1 Paige, 316; Hunter v. Hunter, 19 Barb., 631.) It would seem that any chattel may be the subject of a valid gift, for, on a sale, the title passes by the receipt of the considera- tion and delivery. A bond and mortgage may be given, and the title passes by delivery without writing. {Hackney v. Yrooman, 62 Barb., 650 ; Bucklin v. Bucklin, 1 Abb. Ct of App. Dec, 242.) But real estate is not the subject of gift, without deed, for title passes only by deed. The transaction may take place between all or any persons com- petent to contract with each other, and even between husband and wife, who are, by common law, incompetent to contract. {Shirley 880 Gift Causa Mortis. V. Shirley, 9 Paige, 363 ; Gauge v. Dauchy, 28 Barb., 622 ; Bors V. Spelman, 4 N. Y., 284.) A gift causa mortis is distinguished from one inter vivos, in that, while the latter is irrevocable by the donor, the former is expressly ambulatory, partaking of the character of a will, and may be re- voked by the donor a,t any time before his decease. {Merchant v. Merchant, 2 Bradf., 432.) The rule in regard to actual or constructive delivery, is the same as in the case of a gift inter vivos. But in all cases of gifts of either character, they are subject to question, on the ground of fraud, as against the creditors of the donor, and if a gift causa mortis should prove prejudicial to creditors, it is the duty of the personal representative to question it and set it aside. {House v. Grant, 4 Lans., 296.) So, also, it would seem, that a gift causa mortis must be made in apprehension of death, this was the rule of the civil law, that the gift should be made under expressed apprehension of death, and in the presence of the donee. (Code Jus., Lib., 2, title 7.) The rule m this State, m regard to the apprehension of death, is well stated by Bacon, J., m Irish v. Nutting (47 Barb., 370), thus: " I think there will no case be found where such a gift is upheld, in which there was not either peril of death from some imminent and impending cause, or the conceived near approach of natural death. It is not, indeed, necessary that the party should be irt extremis, according to some of the earlier cases, but the gift will be presumed in contemplation of death, when the donor is on his death bed, or languishing in what proved to be his last illness. The party must be in condition to fear approaching death from a proximate and impending peril, or from illness preceding ex- pected dissolution." To constitute a valid gift causa mortis, three things are neces- sary ; First. It must be made with a view of the donor's death. Second. The donor must die of that ailment or peril. Third. There must be a dehvery. {Grymes v. Howe, 49 N. Y., 17.) LEGACIES. A legacy, in general terms, is a gift by will of some property other than real estate. {Orion v. Orton, 3 Abb. Ct of App. Dec, 411.) A misnomer or misdescription of a legatee; whether a natural person or a corporation, will not invalidate the provision, it either When Legacies Abate. 381 from the will itself, or evidence aliunde, the object of the testator's- bounty can be ascertained and parol proof may be adduced to prove the identity. (Lefever v. Lefever, 59 N. Y., 434) Legacies are general and specific. A legacy is general when it is bequeathed in terms not pointing out a particular item of the estate from which it shall be paid. It is specific when the thing is bequeathed and pointed out To illustrate : A legacy of one thousand dollars is general ; a legacy of a certain bond and mortgage is specific. A legacy is said to be demonsiraiive when the fund or portion of the estate is designated as the source from which payment is to be made. If the testator say, 1 give to A. one of my horses, the legacy is demonstrative as to the class of property from which it is to pe paid. The dehvery of any horse satisfies the legacy. ( Watrous V. Smith, 7 Hun, 544.) Legacies are said to be vested when they are to be paid in the future, contingeM when they may fail, being dependent on some- contingency or survivorship. They are also absolute and conditional, and all classes of legacies may lapse by failure of a proper person to take, or are to be adeemed by the destruction of the subject matter, in the life-time of the testator. Inasmuch as most general legacies are subject to abatement, while specific legacies are not, the courts generally incline to con- sider legacies general rather than specific. There is no positive rule for determining whether a particular legacy is to be paid in full at all events, or whether, in case the estate is insufficient to pay all, it shall abate in proportion to others. Each case will depend upon a consideration of all the material provisions of the will to be construed, and of the extrin- sic circumstances which bear upon the question of intent The leading principle is, that when a testator bequeaths a sum of money, or a life annuity, in such a manner as to show an inten- tion that the money shall be paid to the legatee at all events, that intention will not be permitted to be overruled merely by a direc- tion in the will that the money is to be raised in a particular way, or out of a particular fund. {Pierrepiant v. Edwards, 25 N. Y., 128.) - Where a legacy is given to a widow in lieu of dower, or to a creditor in lieu of the debt owed to him, the legatee may, within a suitable time, elect which shall be accepted. §82 Certain Legacies do Not Lapse. A legacy to a creditor is not to be deemed in satisfaction of his ■claim unless so intended by the testator, and there must be some- thing in the will to show such intent. {Boughton v. Flint, 74 N. y., 476; Clark Y. Bogardus, 2 Bdw., 387; Stagg v. Beekman, 2 id., 89; Smith v. Murray, 1 Dem., 34.) In the absence of evi- dence to the contrary, m the will itself, a legacy is not a release of a debt. {Matter of Leslie, 3 Eedf., 280.) Legatees who are also executors cannot, by assigning the legacy, give to the assignee a right to enforce payment discharged from abatement for advances, or for assets misappropriated, or debts due from them to the estate. {Clapp v. Meserole, 1 Abb. Ct of App. Dec, 362 ; 38 Barb., 661.) Upon the settlement of the accounts of an executrix, the amount^ <3f a joint and several promissory note given to the testatrix by one of the legatees under the will and her husband, and which after the death of her husband and of the testatrix, she had promised to pay to the executrix, may properly be charged against Ler share as legatee. {Wallace v. Storry, 4 Hun, 791.) Certain legacies do not lapse. Legacies to children do not. § 52. (2 R. S., 66.) Whenever any estate, real or personal, shall be devised or bequeathed to a child or other descendant of the testator, and such legatee or devisee shall die during the life-time of the testator, leaving a child or other descendant who shall sur- vive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed, shall vest in the surviving child or other descendant of the legatee or devisee, as if such legatee or devisee had survived the testator and had died intestate. The title to a legacy in such a case vests, by force of the stat- ute, immediately upon the death of the testator, in the descendant of the deceased legatee, and consequently the executor cannot de- duct therefrom the amount of a debt which the deceased legatee owed to the testator. {Tuttle v. Tuttle, 2 Dem., 48.) The validity of bequests of personal property, and also ques- tions of succession thereto, or rights therein, must as a general thing, be determined under the laws of the State, and by the courts of the State in which the testator was domiciled at his death, when the property, or those having the possession and con- trol thereof, are within its jurisdiction. ( White v. Howard, 46 N. Y., 144.) When the circumstances and conditions of the legatees and the circumstances of the estate and of the devisee, show that the time Legacies, How Collected. 383 given for payment of legacies was designed for the benefit of the estate, and not with reference to the circumstances or situation of the legatees, the legacies do not lapse by reason of the death of the legatees before the time of payment. {Loder v. Hatfield, 4 Hun, 36 ; see, also. Van Beuren v. Dash, 30 N. Y., 393 ; Arm- strong V. Moran, 1 Bradf , 314.) So, also, a legacy to a creditor is not to be deemed in satisfac- tion of the claim, unless it appears clearly by the will that such was the intent of the testator. {Boiighton v. Flint, 74 K Y., 476.) Legacies may be of annuities of specific sums. In such cases the whole sums are payable to the annuitant without abatement for expenses of any kind. It follows that, in investing, care should be taken to make the investment large enough to meet the con- tingencies of expenses, reduced rates of interest and failure to invest But, as a general rule, the bequest of the interest of a particular sum will not be construed as an annuity, although made payable annually, but will be regarded simply as the gift of the income or interest of the specified sum. In the latter case, the taxes and expenses of the trust should be paid out of the in- come, and not out of the estate. ( Whitson v. Whiison, 53 N. Y., 479.) PAYMENT OF LEGACIES AND DISTEIBUTIYE SHAKES AND HOW ENFORCED. The supreme and the surrogate's courts have concurrent juris- diction to compel the payment of legacies, after they shall be- come due by the terms of the will creating them ; but the surro- gate's- court, as will be seen, can, in a proper case, compel such payment before they become due. A petition to the surrogate by a legatee, praying that the ex- ecutrix be ordered to appear and account, and that such further proceedings be had as might be necessary to enforce payment of the legacy, is sufficient to give jurisdiction under this section of the subject matter, and under an order to render a settlement, and a citation for an accounting issued thereon, the surrogate has power to examine into the account and adjust the same so far as to de- termine how much should be paid to the legatee. {Feck v. Sher- wood, 56 N. Y., 615.) It is in the power of the surrogate to direct a payment to a lega- tee of a portion of his legacy in anticipation of the final account- ing and distribution of the estate, where this can be done without -384 Legacy Paid Before a Year prejudice to the rights of creditors or other legatees, or persons interested. {Oilman v. Oilman, 63 N. Y., 41.) The case last above quoted should be considered in connection -with the provision of the Eevised Statutes in relation to voluntary payment of legacies. § 43. (2 E. S., 90.) No legacy shall be paid by an executor or administrator until after the expiration of one year from the time of granting letters testamentary or of administration, unless the .same are directed by the will to be sooner paid. § 44. In case a legacy is directed to be sooner paid, the execu- tor or administrator may require a bond, with two sufficient sure ties, conditioned that if any debts against the deceased shall duly appear, and which there shall be no other assets to pay, and there shall be no other assets to pay other legacies, or not sufficient, that then the legatee shall refund the legacy so paid, or such ratable proportion thereof with the other legatees as may be necessary for the payment of said debts and the proportional parts of such other legacies, if there be any, and the costs and damages incurred by reason of the payment to such legatee ; and that if the probate of the will under which such legacy is paid shall be revoked, or the will declared void, then that such legatee shall refund the whole of such legacy with interest, to the executor or administrator entitled thereto. BOND OP PAYMENT OF LEGACY BBFOEE EXPIEA- TION OF YEAR Know all men by these presents, that we, A. B., as principal, and C. D. and E. F., as sureties, of the city of Troy, in the county of Eensselaer and State of New York, are held and firmly bound unto J. D., as executor of the will of John Doe, late of the town ■of Brunswick, deceased, m the sum of dollars, for which payment well and truly to be made we bind our and each of our heirs, executors and administrators jointly and severally, firmly by these presents. Sealed with our seals, and dated this 14th day of December, A. D. 1872. Whereas, in' and by the will of said John Doe, deceased, dated the day of , 1870,, a legacy was bequeathed to the said A. B., of one hundred dollars, payable by the terms of said will in after the decease of said John Doe, and be- fore the expiration of one year from the granting of letters testa- mentary to the said J. D., executor named therein, and the said J. D. has, at the request of the said A. B., paid said legacy : Now the condition of this obligation is sach that if any debts against Executor to Pay Specific LESAciEa 885 tlie deceased shall duly appear, and whicli there shall be no other assets to pay, and there shall be no other assets to pay other lega- cies, or not suf&cient, then the said A. B. shall refund the legacy so paid, or such ratable proportion thereof, with the other legatees, as may be necessary for the payment of said debts, and the pro- portional parts of such other legacies, and the costs and charges incurred by reason of the payment of such legatee ; and that if the probate of the said will shaU be revoked or the will declared void, then the said A. B. shall refund the whole of such legacy, with interest, to the said J. D., or the administrator entitled thereto, then this obligation to be void, otherwise to remain in full force and effect A. B. C. D. E. F. Add acknowledgment L. s. L. s. L. s. § 45. After the expiration of one year from the granting of any letters testamentary or of administration, the executors or adminis- trators shall discharge the specific legacies bequeathed by any will, and pay the general legacies if there be assets, and if there be not sufficient assets then abatement of the general legacies shall be made in equal proportions. Such payments inay be enforced by the surrogatfe in the same manner as the return of an inventory, as hereinbefore provided, and also by a suit on the bond of such executor or administrator, whenever directed by the surrogate. It is the duty of an executor, after the expiration of one year from the granting of letters to discharge a specific legacy by deliv- ery to the legatee, and if the legacy is an undivided half of a promissory note, and the legatees refuse to, or for any reason can- not, take it jointly, it is proper for him to divide the note by . taking notes payable to each of the legatees on demand. If the legatee is a minor, the executor cannot discharge himself by a delivery to the minor or his parent, but should deliver to his guardian ; and the fact ihat he has no guardian will not justify the executor in withholding the note for many years, and until the maker becomes insolvent and the note worthless. In such an event, he will be liable to the legatee for the loss. If no applica- tion is made in behalf of the minor legatee for the appointment of a guardian, and the executor wishes to be relieved, he should have a guardian appointed to whom he can make a valid delivery or payment {Davis v. Crandall, 101 N. Y,, 311.) It is the duty of executors to turn over specific legacies at the end of one year, with all the advantage which would have accrued 49 S86 Action fob Legacy. to the legatees had the property thus bequeathed been delivered ■when the will took effect In the case at bar, rent which had ac- crued on leasehold property prior to delivery of the bequeathed lease, was held to belong to the legatee. {Bevan v. Cooper, 7 Hun, 117.) Where, by the will, a trust fund of $10,000 was to be invested in certain securities, and on the death of a daughter the fund was to be divided among the testator's other children, by consent of all parties, the fund was invested in securities not authorized, and after the death of the daughter they were sold at a premium be- yond cost, it was held that the surplus was not an accretion to the fund and belonged to the remaindermen. {In re Gerry, 103 N. Y., 445.) The postponement of the payment of legacies is absolute, even if the will provides for their payment within the year, and it is solely for the protection of the executor that he may retain the assets, whether bequeathed or not, to pay debts, if necessary. But the same reason does not exist for the postponement of payment of a legacy as to which the executor has no duty, but which is charged upon real estate and to be paid by the devisee. The older authorities discuss this question thus : The rule with respect to legacies out of personal estate is taken from the practice in the ecclesiastical courts, where a year is given to the executor to collect the effects, and he cannot be called upon to pay before that time, because he cannot know until then what fund there is to pay ; in conformity to this, courts of equity have proceeded in the case of legacies out of personal estate. But in the case of legacies charged upon lands only, where no day of payment is fixed, interest must be chargeable from the death of the testator, or not at all. {Pearson v. Pearson, 1 Sch. & Lef., 10 ; 2 Redfield on Wills, 565.) Payment may be enforced by petition, order and attachment in the surrogate's court, or an action may be commenced in the supreme court {Oilman v. Oilman, 63 N. Y., 41.) An action commenced for a legacy in the supreme court is a bar to subsequent proceedings to enforce the payment of the same legacy in the surrogate's court. {Lewis v. Malone, 12 Hun, 207.) It was formerly provided that a legatee might bring an action for his legacy, at any time after the expiration of one year from the granting of letters testamentary, and after refusal of the ex- ecutors to pay on. the tender of a bond, for the re-payment, if Peoceedings in Action. 387 necessary ; but tliose provisions were repealed in the revision, and the bond is given after a decree by the surrogate for payment, under section 2719 (post). § 1819. Action by legatee or distributee. — If, after the expiration of one year after granting of letters testamentary or letters of ad- ministration, an executor or administrator refuses, upon demand, to pay a legacy, or distributive share, the person entitled thereto may maintain such an action against him as the case requires. But for the purpose of computing the time within which such an action must be commenced, the cause of action is deemed to accrue when the executor's or administrator's account is judicially settled, and not before. Where one party entitled brings suit for a legacy, it is not necessary to join other legatees. {Hitchcock v. lAnsly, 17 Hun, 656.) A legatee can sue for his legacy without joining the other legatees, unless he is a residuary legatee, in which case all must be joined. {Rundall v. Allison, 34 N. Y., 180 ; Trustees v. Kel- logg, 16 N Y., 83.) "Where a legacy is a charge upon real estate, the heir or devisee is a necessary defendant in an action to recover it. {Tonnele v. Sail, 3 Abb., 205.) If the fund is insufficient, all interested must be made parties. {Towner v. Tooley, 38 Barb., 698.) § 1820. Guardian ad litem to file bond. — The guardian ad litem of an infant, in whose favor an action is brought, as prescribed in the last section, must, unless he is also the general guardian, ex- ecute and file with the clerk, before the commencement of the action, a bond to the infant, with at least two sufficient sureties, in a penalty fixed by a judge of the court, conditioned that the guardian will duly account to the infant when he attains full age, or, in case of his death, to his personal representatives, for all money or property which the guardian may receive by reason of the legacy or distributive share. § 2717. Proceedings in surrogate's court to obtain legacy or disiri- buiive share. — In either of the following cases a petition may be presented to the surrogate's court praying for a decree, directing an executor or administrator to pay the petitioner's claim, and that he may be cited to show cause why such a decree should be made: 1. By a creditor. * * * 2. By a person entitled to a legacy or any other pecuniary pro- vision under the will, or a distributive share, for the payment or satisfaction thereof or of its just proportional part, at any time after one year has expired since letters were granted. 388 What Legacies Abate. In case there be a deficiency of assets to pay the legacies in full, as well as the debts of the testator, general legacies will abate ratably, unless there is a contrary intention indicated in the will, while legacies founded upon a prior indebtedness or a valuable consideration do not, except as between themselves, so abate, but must be paid in full though the assets are not sufficient to pay all the general legacies. ( Wood v. Van Denhurgh, 6 Paige, 277.) Specific legacies are not subject to abatement unless the testator clearly expresses his intention that they shall be so. (1 P. Wil- hams, 540 ; Bevan v. Cooper, 7 Hun, 117.) The rule as to abatement of general legacies applies only to such as are mere gratuities. Where the legacy is given for a debt owing to the legatee, or for the relinquishment of any right or interest, as of a dower by a widow, such legacy will be entitled to a preference of payment over the general legacies, which are mere bounties. (1 P. Williams, 127 ; Williamson v. Williamson, 6 Paige, 298 ; 1 Russ's Ch. E., 543 ; 1 Edwards Ch., 411 ; Matter of Dolan, 4 Redf., 511 ; Tifft v. Porter, 8 N. Y., 516.) . But where the will bequeathing the legacy, even in lieu of dower, directs that the legacies mentioned in it shall abate ratably ,^ then the rule above stated that such legacy is preferred to mere bounties does not apply. In such case the legacy will abate. {Orton V. Orton, 3 Abb. Ct of App. Dec.) A legacy to a near relative, as a husband, for maintenance is not subject to abatement {Scofield v. Adams, 12 Hun, 366.) A legacy for education, like one for maintainance, is to be pre- ferred to general legacies, and in case of doubt as to a sufficiency of assets to provide for such legacy, the legatee has a right to an accounting, and to compel an investment of a sufficient sura to answer the purpose of the bequest. {Petrie v. Petrie, 7 Lans., 90.) A legacy of piety, as for headstones at a parent's grave, will not be subject to abatement. {Wood v. Vandenhurgh, 6 Paige, 277.) In a proceeding for the payment of a Kgacy, the executor may set up in answer to the petition any proper defense. The statute of limitations may be interposed with success when six years shall have elapsed from the time when the legacy was payable by the will {Sawyer v. De Meyer, 2 Paige, 574; McCartce v. Camel, 1 Barb. Ch., 455; Smith v. Remington, 42 Barb., 75.) Where one of the executors being also the residuary legatee, takes possession of all the assets and mingles them with his own, and fails to pay a legacy to an infant ; upon the death of such exe- Set Off to Legacy. 389 cutor, his estate is liable for the devastavit, and his representatives ■will be directed to pay the legacy to the general guardian of the infant legatee and not to the surviving executor. {BorJce v. Mo Qmville, 4 Eedf., 291.) The petition must show that there is money or other personal property of the estate, applicable to the payment of the petition- er's claims, and which may be so applied without injuriously affecting the rights of others. Where, therefore, the petition alleges the existence of such a fund, but also states that the executor alleges that there is a suit pending in reference to said fund, the facts required to be proved, to warrant an order for payment, cannot be said to be proved to the satisfaction of the surrogate, and the petition must be dis- missed. {Baylis v. Swartout, 4 Eedf., 395 ; but see 94 K Y., 574.) The petition should not contain a prayer for an account- ing. It may be ordered by the surrogate on his own motion, ad.) So executors have a right to set off the debt of the legatee of the testator against a claim made by him for payment of the legacy (Williams on Exrs. [6th Am. ed], 1413, 1415; Jeffs y. Wood, 2 P, Wms., 128 ; Sims v- Doughty, 5 Ves., 243 ; Stagg v. Beekman, 2 Edw. Ch., 89 , Smith v. Kearney, 2 Barb. Ch.. 538.) The right of the executor to retain, says Chancellor Walworth, in the last case, depends upon the principle that the legatee is not entitled to his legacy, while he retains in his hands a part of tiie funds out of which that and the other legatees ought to be paid. It is no objection to the executor's right to retain against a legatee the amount of a debt due the estate ; that the same is barred by the statute of limitations by the lapse of time subsequent to the testator's death. {Courtney v. Williams, 3 Hare, 539; Hill v. Walker, 4: K. & J., 166; Coates v. Coates, 10 Jur. [K S.], 632; Mailer of Bog art, 1 Wend., 41.) The provision of the Code, requiring the surrogate to dismiss the petition when it does not appear to the satisfaction of the sur- rogate that there are assets applicable to the payment of the claim of the petitioner, which may be so applied without injuriously affecting the rights of others (sub. 2), does not require a reference to that" subject in the petition, or that proof shall be made before the issuing of an order requiring an accounting ; but upon the re- turn of the citation, if based upon a petition showing the peti- tioner to be entitled to a legacy, and that more than a year has 890 Petition fob Payment, elapsed since letters testamentary were issued (§ 2717, subd. 2), the surrogate is authorized to make the order requiring the execu- tor to account (§ 2723, sub. 3), and, when that is complied with, if the surrogate is not satisfied that there are, in the hands of the executor, assets properly applicable to the payment of the peti- tioner's claim, it is duty to dismiss the petition. {In re Macaulay, 94 N. Y., 574.) PETITION FOE OEDER TO ACCOUNT AND FOE PAY- MENT OF LEGACY. The petition of 0. D., of the town of , in the county of , to Hon. , surrogate of said county, respectfully shows : That your petitioner is a legatee named in the last will and tes- tament of A. B., late of the town of — , in said county, deceased : That said will was admitted to probate by said surrogate, and letters testamentary were thereon issued to J. D., an executor named therein, on the first day of , 1887, and more than one year has elapsed since the issue of such letters. That in and by said will, a legacy of dollars was be- queathed to your petitioner, payable in one year after the decease of the testator. That said testator left a large personal estate amounting to • dollars, as by the inventory thereof on file in the office of said surrogate, will fully appear, and that such personal estate was amply sufficient, as your petitioner is informed and believes, to pay. all the funeral expenses and debts of the testator, the ex- penses of administration, and the legacies bequeathed in said will Your petitioner has, since the expiration of one year from the issue of letters as aforesaid, applied to said executor, and requested him to pay the legacy so bequeathed to your petitioner, but he 'has not paid the same. Wherefore, your petitioner prays that it may be decreed that said executor pay said legacy to your petitioner, and that such other or further proceedings may be had as may be requisite to enforce the payment of such legacy as shall be just and equi- table. (Signed) C. D. Rensselaer County, ss.: C. D„ being duly sworn, says, that the foregoing petition by him subscribed is true, of his own knowledge, except as to the Petition fob Payment. 391 matters which are. therein stated to be alleged on infonnation and belief, and as to those matters he believes it to be true. (Signed) C. D. Sworn before me, this day ) of , 1888. ) , Notary Public, OEDER FOR CITATION. At a surrogate's court, held in the county of , at the surrogate's office, in the of , on the day of , 1888. Present — Hon. , Surrogate. In the Matter of the Estate of / A. B., Deceased. \ On reading and filing the petition of C. D., one of the legatees named in the will of the above named deceased, and it appearing that more thansOne year has elapsed since the issue of letters tes- tamentary to E. F., executor named in said will, and that the legacy to said C. D. has not been paid : Ordered, that a citation issue to said executor requiring him to be and appear before said surrogate, on the day of , 1888, at his office, in the village of , at ten o'clock in the forenoon, to show cause why a decree should not be made that he pay the legacy bequeathed in said will to said C. D. , Surrogate, A legatee petitioned for an order that the executor account, and for such further order as may be requisite to enfbrce his claim. The surrogate entered an order for a citation requiring the execu- tor to appear and " render a settlement of his accounts," and a citation was issued requiring the executor " to render an account of his proceedings and to show cause," etc. Held, that the petition was sufficient to give jurisdiction. {Peck v. Sherwood, 56 N. Y., 615.) The proceeding for the early payment of a legacy or distributive share can be entertained by the surrogate only in cases in which the title of the party claiming the legacy, or entitled to the dis- tributive share, is undisputed and free from doubt, and where such is not the case the surrogate has no authority to hear and deter- mine the proceedings. {Kettletas v. Oreen, 9 Hun, 599 ; Kerrigan V. Kerrigan, 2 Redf., 517.) S92 When Payment Decreed. The court will not decree the payment of a legacy or a distribu- tive share, pending a controversy over the probate of the alleged will. It must be first determined whether the decedent died intes- tate or otherwise. {Riegelman y. Riegelman, 4 Eedf., 492 ; La Bau V. Vanderbilt, 3 Eedf., 384, 414.) Where a legatee applies for the payment of a legacy, an answer by the executor " that the petitioner's legacy is not yet payable by the terms of the will," does not raise such an issue as requires the petition to be dismissed under section 2718. It raises no question 6t fact, but only a question of the construction of the will. This the court may decide so far as necessary for .the distribution of the estate. {Steinele v. Oechskr, 5 Eedf., 312.) It seems to us that the change in the statute has not changed the rule as to the necessity of an accounting, the filing of an inter- mediate account, as it would now be called, where the sufficiency of the assets is not admitted by the executor. For as it appears by the next section of the statute (§ 2718) the proceeding must be dismissed where it is not proved that there is a sufficiency of assets. The proof, except by the express admission of the executor, could not well be made except by an accounting, either voluntary or compulsory. This is provided for by section 2723, post. The surrogate may compel an accounting to ascertain whether or not there is money applicable to the payment of the claim {Matter of Macaulay, 27 Hun, 577), and a legatee may combine in one petition, an application to obtain payment and one to compel an accounting. (Id.) § 2718. Hearing. Decree. — Upon the presentation of a petition, as prescribed in the last section, the surrogate must issue a citation accordingly ; and upon the return thereof he must make such a decree in the premises as justice requires. But in either of the following cases the decree must dismiss the petition, without pre- judice to an action or an accounting, in behalf of the petitioner : 1. Where the executor or administrator files a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner's claim is valid and legal, and denying its validity or legality absolutely or upon information and belief. 2. Where it is not proved to the satisfaction of the surrogate that there is money or other personal property of the estate appli- cable to the payment or satisfaction of the petitioner's claim, and which may be so applied without injuriously affecting the rights of others entitled to priority or equality of payment or satisfaction. Answer to Petition. 393 "Where an executor cited to appear under sections 2717 and 2718, upon the return day files his petition for a settlement of his accounts under section 2727, et seq., the proceedings are not con- solidated under section 2728, but the surrogate may order the filing of an intermediate account under section 2723, and direct citation to issue for an accounting under section 2728. The two proceedings are entirely distinct. {Baylis v. Swartwout, 4 Eedf., 895.) Where the right of one claiming to be a residuary legatee to call the execiitor to account, is contested by the latter on the ground that the petitioner has no interest in the estate, the order of the surrogate granting the application and compelling the ex- ecutor to account, involves a substantial right, and is appealable. {Fiester v. Shepard, 26 Hun, 183.) An answer to the petition, which simply denies the validity and legality of the petitioner's claims, is not sufficient to require the surrogate to dismiss the petition. It must also set forth facts showing that the claim is doubtful. {In re Macaulay, 94 N. Y., 574) Upon an application to compel an executor to pay a legacy due and payable, it was conceded that the executor had on hand the means of payment ; he opposed on the ground that proceedings de lunatico, against the legatees, were pending. It appeared there had been a trial in said proceedings before a jury, who had ren- dered a verdict of sanity ; the inquisition, however, had not been confirmed. The surrogate's order directed payment by the ex- ecutor of the legacy, and this was affirmed by the supreme court On an appeal to the court of appeals, it was held that the proceed- ings de lunatico were no defense unless they afiEected the validity of the payment ; that, conceding that the supreme court had the care of the property of the alleged lunatic from the time of the filing of the petition, that court, with the facts before it, having declined to interfere to prevent the legatee from receiving her legacy, the payment would be valid. The order was, therefore, affirmed. {In re Malsey, 93 N. Y., 48.) The account rendered will necessarily be a full one, of all re- ceipts and disbursements, and will not differ from the account on final or judicial settlement, more fully treated of hereafter. But the executor may, doubtless, admit a sufficiency of assets, and thus render an account unnecessary. 50 894 Statute of LiMiTATiONa So, also, tke executor may plead in bar to the claim, a lapse of six years since the legacy became due and payable, for a proceed- ing in the surrogate's court to obtain payment of a debt or legacy should be instituted within the same time in which suits are re- quired to be commenced in courts of common law or equity. {McCartee v. Garmel, 1 Barb. Ch., 455; Warren v. I*aff, 4 Bradi, 260.) In such proceedings, the statute of limitations is a bar to the claim for a legacy. The policy of limiting rights of action to six years, is founded upon the difficulty of obtaining proof to sub- stantiate the claim of payment and settlement, after that lapse of time, and it applies peculiarly to cases of this kind. {Smith v. Remington, 42 Barb., 75 ; Loder v. Hatfield, 71 K Y., 92 ; affirm- ing, 4 Hun, 36 ; Cole v. Turpenning, 25 Hun, 482.) But where a legacy is charged on real estate only, and there is no personal claim against the executor or any other person for its payment, the statute of limitations does not run against the claim on the land for the legacy. {Shannon v. Howell, 43 Hun, 47.) In all cases on payment of a legacy, the executor should take a receipt for it, EECEIPT FOE LEGACY. Whereas, James Eichards, late of the town of Schodack, in the county of Eensselaer, deceased, lately made his last will and testa- ment, dated the day of , 1862, in which he gave and bequeathed to me the sum of (five hundred dollars) : Now, therefore, I hereby acknowledge the receipt of said sum so bequeathed to me, of John Eichards, executor named in said will. Dated, Schodack, March 1, 1862. (Signed) MAEY WILLIAMS. When a sufficiency of assets is admitted by the executor, or if, upon accounting, it shall appear proper, the surrogate will make a decree for the payment of the legacy, or distributive share, or a proportional share of it Answek to Petition. 395 DECREE. At a surrogate's court, held in the county of , at the surrogate's office in the of , on the day of , 1888. Present — Hon. , Surrogate. In the Matter of the Estate of / , Deceased. t A. B., having presented a, petition, duly verified, praying that a decree of this court should be made, that , the executor of the will of the above named deceased, pay to the petitioner a legacy of dollars, bequeathed to the said A B., in and by the will of said deceased. And it appearing that more than one year has elapsed since the issue of letters testa- mentary to the said ■ , and upon an accounting had, it further appearing that there is a sufficiency of assets in the hands of the said executor to pay all the debts which have been presented, after due notice to creditors to present the same, and to Say all funeral expenses and expenses of administration, and after ischarging the specific legacies bequeathed in said will, to pay all the general legacies : It is adjudged and decreed, that said , ex- ecutor as aforesaid, pay to A. B., the petitioner, his said legacy of dollars, with interest from the expiration of one year from the time letters testamentary were issued to him in this matter. And it is further decreed, that said , execu- tor, pay to said A. B. the further sum of dollars, costs of this proceeding. Witness, , surrogate, and the seal of [L. a] the court, the day and year first above written. , Surrogate. But under subdivision one of the section last quoted (2718), the executor may answer, and, raising an issue, procure a dis- missal of the proceeding. ANSWER Sttehogate's Couet. In the Matter of the Estate of | , Deceased. j A. B., executor of the will of the above named deceased, for answer to the petition of , praying for pay- ment of the legacy bequeathed to him by the said will, says : 896 Payment Decreed. That notwithstanding the bequeathing of said legacy to the said -, said executor has found among the papers of the said deceased a paper purporting to be a promissory note, and to be signed by the said petitioner, for an amount larger than the amount bequeathed to him, payable to the order of the decedent, and he verily believes that said note is a genuine security and should be set off against the claim of said petitioner for said legacy. Wherefore said executor asks that the said petition of the said ■ be dismissed. Dated March 15, 1880. (Signed) A- B, Alvah Tkaver, Attorney, Troy, N. Y. Eensselaer County, ss. : A. B., being duly sworn, says that he has read the foregoing answer by him subscribed, and that the same is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he be- lieves it to be trua A. B. Sworn, etc. A decree will thereupon be made reciting the presentation of the petition, the appearance and answer of the executor, and dis- missing the petition. Payment of a legacy or a distributive share, or a part thereof, may be obtained in certain cases against any executor or adminis- trator, except the public administrator of the city of New York, under the following section which is in place of 2 R. S., 98, §§ 82 and 83. § 2719. Decree for payment before expiration of year, on giving security. — In a case specified in subdivision second of the last sec- tion but one, the surrogate may, in his discretion, entertain the petition at any time after letters are granted, although a year has not expired. In such a case, if it appears, upon the return of the citation, that a decree for payment may be made, as prescribed in the last section ; and that the amount of money and the value of the other property in the hands of the executor or administrator, applicable to the payment of debts, legacies and expenses exceed, by at least one-tnurd, the amount of all known debts and claims against the estate, of all legacies which are entitled to priority over thfc petitioner's claim, and of all legacies or distributive shares of the same class ; and that the payment 6v satisfaction of the legacy, pecuniary provision, or d&tributive share, or some Part of Legacy Paid. 397 part thereof, is necessary for the support or education of the peti- tioner ; the surrogate may, in his discretion, malie a decree directing payment or satisfaction accordingly, iipon the filing of a bond, ap- proved by the surrogate, conditioned as prescribed by law with re^ spect to a bond which an executor or an administrator, with the will annexed, may require from a legatee, upon payment or satisfaction of a legacy, before the expiration of one year from the time when letters were issued pursuant to a direction to that effect contained in the will. It is essential to confer jurisdiction that the bond should con- form to the terms of the statute. Where the condition was for the refunding of the money, " if necessary," instead of " whenever re- quired" for the payment of debts, etc., the order was held improp- erly granted. {Barnes v. Barnes, 13 Hun, 234.) Where there has been a delay in the probate of the will and the grant of letters, and the legatee needs an advance for mainte- , nance, the surrogate will order payment of such part of the legacy as may be necessary, if there is one-third more assets than will be sufficient to pay the debts, and if a satisfactory bond of in- demnity be given. {Seymour v. Butler, 3 BradL, 193.) The sur- rogate has no power to order partial payment of a distributive share before the expiration of a year for the support of a dis- tributee, except where his title is undisputed and free from doubt {Keteltas v. Keteltas, 72 N. Y., 312.) A widow to whom a legacy in lieu of dower may make the application, as well as any other legatee. {^Seymour v. Butler, sup.) The forms for proceeding under these provisions may readily be had, by adopting the forms already given for enforcing the payment of legacies after one year has elapsed, which see. Legacies Charged on Heal Estate. The general rule as to legacies is, that the personal estate is the primary fund for the payment of them, and the real estate is not to be resorted to, unless the will discloses a clear intention to charge it {Taylor v. Dodd, 58 N. Y., 335; Beavan v. Cooper, 72 N Y., 317.) But where the personal estate is grossly insufficient to pay the debts and legacies, very slight indications in the will will be laid hold of by the court, to raise an implication that the executor is to pay the legacies out of the real estate. Especially as to a legacy to a widow, in lieu of dower, where the testator's sons, to whom 398 Legacy Charged on Real Estate. the real estate was devised, were, in words, directed to pay the legacy, it was held that the legacy, was a charge upon the realty. {Manson v. Manson, 8 Abb. N. C, 123.) Where a devisee of the real estate is appointed executor, and is directed to pay legacies, a charge upon the real estate will be cre- ated when the personal estate is insufficient (Id.) But where a testator, by his will, gave certain legacies which his estate, at that time, could pay out of the personalty, but, his personal estate having disappeared by shrinkage in values, six years later he made a codicil, giving to his executrix the power to sell real estate, not revoking the legacies bequeathed in the will, the court held that it was the intention of the testator that the legacies should be paid at all events, and that the real estate -was liable for the payment of them. (^Hoyt v. Soyt, 85 N. F., 142.) Where the intent, although it is not written in express terms, is clear that the testator intended to charge his real estate, it will be enforced by the court {Brill v. Wright, 44 Hun, 628 ; S. C, 8 K Y. St Rep., 814.) CHAPTER XVIIL Accounting and Settlement. Executors or Administrators may he ordered to Account, and may have Settlement The rights of creditors and next of kin are to some extent sus- pended during twelve months from the time of granting letters. They may indeed sue, but the creditor obtains no priority, and he pays his own costs, unless he can show that the executor or ad- ministrator refused to refer, or unreasonably resisted the payment of the claim, as we have seen. But twelvemonths having elapsed, a creditor, legatee, or one of the next of kin may petition for an accounting, and the creditor may obtain payment of his claim or its ^ro rata dividend if it has been established upon a trial or ad- mitted by the executor or administrator ; for the executor or administrator admits the justice of a claim if he does not dispute it {Matter of Jones, 5 N. Y. Legal Observer, 124.) There are two kinds of accounting under the present practice, as heretofore, and they are styled the intermediate accounting and Accounting. 899 the accounting on judicial settlement An executor or adminis- trator may now file an intermediate account with the vouchers, in the surrogate's office, if he wishes to do so, either for the preserva- tion of the vouchers or to give information to the persons inte- rested in the matter. The section is as follows : § 2722. InterTnediate accounting, when voluntary. — An executor or administrator may, at any time, voluntarily file in the surro- gate's office an intermediate account and the vouchers in support of the same. § 2723. Intermediate account, when compulsory. — In either of the following cases the surrogate may, in his discretion, make an order requiring an executor or administrator to render an interme- diate account : 1. Where an application for an order permitting an execution to issue upon a judgment against the executor or administrator has been made by the judgment creditor, as prescribed in section 1826 of this act 2. Upon the return of a citation issued upon the petition of a judgment creditor, praying for a decree, granting leave to issue an execution upon a judgment rendered against the decedent in his life time, as prescribed in section 1381 of this act 3. Upon the return of a citation issued upon the petition of a creditor or person entitled to a legacy, or other pecuniary provis- ion, or a distributive share, praying for a decree directing payment thereof, as prescribed in section 2717 of this act 4 Where eighteen months have elapsed since letters were issued and no special proceeding, upon a petition for a judicial settlement of the executor's or administrator's account, is pending. The provisions requisite to the accounting under the first three subdivisions . of the section have already been considered. The la:St subdivision is the equivalent of section 52, 2 E. S., 92, as amended by chapter 261 of Laws of 1859. {Matter of Hurlbwri, i K Y. St Eep., 354; S. C, 42 Hun, 311.) The jurisdiction of the surrogate's court having been extended, so that it can now pass on the construction of wills and compel and entertain settlements of trustees' accounts, there can be veiy few cases in which it will be necessary to invoke the aid of the supreme court, unless some relief is required beyond the settle- ment of the account The powers of the courts being concurrent, as to accounting, proceedings cannot be had in both, at the same time, for the same relief, and an answer that proceedings for the same relief are pending in the other court is good. ( Christy v. Uhhy, 5 Abb. Pr. [N. S.]. 192 ; Lewis v. Moloney, 12 Hun, 207.) 400 Executor of Executor to Account. The supreme court has, in its constitution, as a court of equity^ jurisdiction to compel an accounting, concurrently with the surro- gate's court {Haddow v. Lundy, 59 N. Y , 320.) But the surro- gate's court is the only court in which, under ordinary circum- stances, an accounting can be had. Formerly, in England, be- cause of defects in the process and powers of the ecclesiastical courts and the early courts of probate, courts of equity assumed jurisdiction in respect to accounts. But as the surrogate's court has, by the law, full power to call executors to account, to decree distribution and to pass upon every question which may arise,, directly or indirectly, in the progress of the accounting, and final distribution, an action for an accounting as to the personalty ought not to be sustained. {ChipmanY. Montgomery, 63 N". Y., 221; Wager v. Wager, 89 N. Y., 161.) In this connection, the provision to compel the representative of a deceased executor, administrator, guardian or trustee to ac- count is to be noted Before 1880, the practice was fixed by judi- cial decisions, which have been embodied in the following section : § 2606. Where an executor, administrator, guardian or testa- mentary trustee dies, the surrogate's court has the same jurisdic- tion, upon the petition of his successor, or of a surviving execu- tor, administrator or guardian, or of a creditor, or person interested in the estate, or of the guardian's ward, to compel the executor, or administrator of the decedent, to account, which it would have as against the decedent if his letters had been revoked by a surro- gate's decree. With respect to the liability of the sureties, in and for the purpose of maintaining an action upon the decedent's ofii- cial bond, a decree against this executor or adniinistrator rendered upon such an accounting, has the same effect as if an execution, issued upon a surrogate's decree against the property of the de- cedent, had been returned unsatisfied during decedent's life-time. So far as concerns the executor or administrator of decedent, such a decree is not within the provisions of section two thousand, five hundred and fifty-two of this act (That is, it is not conclusive as to sufficiency of assets.) The surrogate's court, has also juris- diction to compel the executor or administrator, at any time, tO' deliver over any of the trust property which has come to his pos- session, or under his control, and if the same is delivered over, after a decree, the court must allow such credit upon the decree as justice requires. This would seem to be founded upon Dakin v. Deming, ft Paige, 95 ; see, also, Montross v. Wheeler, 4 Lans., 99 ; WaUon v. Wallon, 4 Abb, Ot of App. Dec, 512.) ACCOUNTINS. 401 PETITION FOE AN ACCOUNTING BY AN EXECUTOR OF AN EXECUTOR Surrogate's Court — County of . In the Matter of the Estate of/ John Smith, Deceased. f To Hon. Moses Warren, Surrogate of the County of Rensselaer : The petition of John Doe, of the city of Troy, in said county, respectfully shows : That heretofore the will of the abore named deceased was duly proved in this court, and letters testamentary were, on the day of , 1883, duly issued to , an executor named therein, who assumed the trust im- posed upon him, and took into his possession the assets and prop- erty belonging to the decedent. That afterwards, on or about the day of , 1883, the said executor died, not having fally administered said estate, and still having in his possession or under his control cer- tain of the trust property or assets, and letters testamentary upon his will have been duly granted to Sarah Smith and James Finn, executrix and executor named therein. Your petitioners have been duly appointed admmistrators, with the will annexed, of the said John Smith, deceased. Wherefore, your petitioner prays that the said , executrix, and — — , executor of the will of the above named deceased executor, may be cited to render an account of and pay and deliver to your petitioners any of the trust property belonging to the estate of the above named John Smith, deceased. And your petitioner will ever pray, etc. Dated October 8, 1883. Rensselaer County, ss. : John Doe, being duly sworn, says, that he is the petitioner above named, and that the foregoing petition is true of his own knowledge, except as to the matters which are therein alleged to be stated on information and belief, and as to such matters he believes it to be true, Sworn before me, this day of , 1883. By this section (§ 2606), as amended in 1884, it was intended to develop all that the representative executor knows or can know 51 402 Who to Petition. about the trust estate and m reference to it, to compel the delivery of any part of it which has reached his hands or is under his control. The surrogate may, upon the accounting, determine what the representative executor owes the trust, but the decree shall not be evidence conclusive that the representative executor has the assets to pay. It is a proceeding in the nature of an in- vestigation. The design of the law is to invest the power in the surrogate to enforce the delivery of the trust estate remaining. {Matter of Fithian, 44 Hun, 557 ; S. C, 9 N. Y. St. Eep., 279.) Proceedings to compel an executor of an executor to account must be brought by the administrator de bonis non, and can not be brought by persons interested in the estate of the original deced- ent, unless the administrator de bonis non either refused to sue or stand in such relation to the executor that a demand that he should proceed would have been a mere idle ceremony. {Matter of aSrien, 10 N. Y. St Eep., 414.) The executrix of an executor, although also a legatee of such executor's testator, cannot, in her latter capacity, cause herself to be cited as such executrix to account under this section, because she cannot sue herself. {Popham v. Spencer, 4 Eedf., 399.) § 2724. When surrogate may require judicial settlement — In either of the following cases, the surrogate's court may, from time to time, compel a judicial settlement of the account of an executor or administrator : 1. Where one year has expired since letters were issued to him. 2. Where letters issued to him have been revoked, or, for any other reason, his powers have ceased. 3. Where a decree for the disposition of real property, or of an interest in real property, has been made, as described in title fifth of this chapter, and the property, or a part thereof, has been dis- posed of by him, pursuant to the decree. 4. Where he has sold, or otherwise disposed of any of the de- cedent's real property, or devisable interest in real property, or the rents, profits or proceeds thereof, pursuant to a power contained in the decedent's will, where one year has elapsed since letters were issued to him. The surrogate has jurisdiction to compel an accounting to enable the legatee to ascertain what is in the hands of a trustee, although the party applying be not entitled to a decree for the payment of any amount {Harris v. Ely, 25 N. Y., 138.) Executors cannot refuse to account on the ground that they have settled with the AccouKTiNG, When Ordered. 403 legatees out of court, and that any fund they hold is held as trustees, nor for the reason that a co-executor has not been served with an order to account. {StouvewelVs Estate, 1 Tuck., 241.) A final accounting is not necessarily the last to be made. Final accountings may be had from time to time, whenever there is any- thing to account for. {Matter of Hood, 27 Hun, 579.) But the decree of the surrogate on a final accounting, presumptively em- braces all matters as to which the executors are liable to account, and is, prima facie, a good answer to a petition for a second ac- counting. If new facts exist which render it proper that a further accounting should be had, they should be averred in the petition. (Estate of Hood, 90 N. Y., 512.) § 2725. Account of temporary administrator or of a freeholder may be compelled. — The surrogate's court may compel a judicial settlement of the account of a temporary administrator at any tima It may also compel a judicial settlement of the account of a free- holder appointed to dispose of a decedent's real property, or inte- rest in real property, as prescribed in title fifth of this chapter, in like manner as where the same has been disposed of by the execu- tor or administrator. § 2726. Who may petition. Citation. — A petition praying for the judicial settlement of an account, and that the executor or ad- ministrator may be cited to show cause why he should not render and settle his account, may be presented, in a case prescribed in either of the last two sections, by a creditor or a person interested in the estate or fund, including a child born after the making of a will ; or by any person in behalf of an infant so interested ; or by the surety in an official bond of the person required to account, or the legal representative of such a surety. Upon the presenta- tion of such a petition a citation must be issued accordingly ; ex- cept that in a case specified in subdivision first of the last section but one, if the petition is presented within less than eighteen months after letters were issued to the executor or administrator, the surrogate may entertain or decUne to entertain it, in his dis- cretion. It is provided that the surrogate may order an account on peti- tion by any person in behalf of an infant interested, and although there is no direct provision for it, it is probably the duty of the surrogate, where infants only are concerned, to call executors or administrators to an account after a reasonable time has elapsed beyond the eighteen months allowed by law, without the applica- tion of any one, if he has reason to apprehend that the interests 404 "Who Mat Petition. of the infants require tis action. {Smith v. Lawrence, 11 Paige, ^06.) A mere appearance of interest in the applicant will warrant an order for an account without trial of the issue of interest {Thom- son V. Thomson, 1 Bradf., 24; Reily v. Duffy, 4 Dem., 366^) Next of kin may compel an accounting notwithstanding they have executed a release to the administrator, on an allegation that the release was invalid or void. {Matter of Hear, 41 Hun, 95.) Even an instrument signed by a legatee, who was also an ex- ecutor, acknowledging the receipt of his share in the final distri- bution of the estate, does not estop him from calling a co-executor to an accounting before the surrogate's court {Matter of Dun- hel, Jr., 10 N. Y. St Eep., 213 ; S. C, 5 Dem., 188.)' Even a contingent interest in the estate is sufficient to entitle the applicant to an order for the account {Gratacap v. Phyfe, 1 Barb. Ch., 485.) In some circumstances an account may be or- dered, even though the petitioner is not entitled to a decree of payment {Harris v. Ely, 25 N. Y., 138 ; StouveneVs Estate, 1 Tuck, 241.) A legatee may petition for and procure an accounting, after he has assigned to one of the executors of the will of his testator. {Estate ofW.F. Jones, 2 Month. Law. Bui., 91, and the cases cited by Surrogate Calvin.) If it is pleaded, in answer to the petition, that the petitioner has assigned his interest, the surrogate has no jurisdiction to avoid a release, assignment or settlement on a disputed question of fact (Id. ; Bonfanti v. Deguerre, 3 Bradf., 429.) So a contingent lega- tee may have, on his own petition, an accounting of the executora PETITION FOR ATTACHMENT. To Hon. , Surrogate of the County of .- Your petitioner, A. B., of the town of , in said county respectfully shows: That he is a legatee named in the will of C. D , late of the town of , in said county, deceased. That in certain proceedings in this court the account of E. F, was finally settled, and on the • day of last, a. decree was made whereby the said E. F. was directed to pay to your petitioner the sum of dollars, which, by the terms of said decree, became due and payable upon demand. That thereupon your petitioner caused a certificate of said decree, issued by said surrogate, to be filed in the office of the clerk of the county of , in which county the said E. F. resides, and said decree to be docketed in said county ; and caused an execution to be duly issued to said county, which has been re- turned wholly unsatisfied, as by the record thereof in this court will more fully and at large appear ; that thereupon your petitioner procured a certified copy thereof, and by power of attorney, under his hand, authorized A. Gr. to make demand of said E. F. of said sum of dollars, in behalf of your petitioner. And he further shows, that as he is informed and believes, said demand was made, as appears by the affidavit hereunto annexed^ and said E. F. did not pay said sum, nor has he since paid said sum to your petitioner, or any one in his behalf. "Wherefore, your petitioner prays that a precept issue out of and under the seal of this court, directed to the sheriff of the county of , commanding him to take the body of the said E. F., if he shall be found in his bailiwick, and commit him to the common jail of said county of , and to keep and detain him therein under his custody until he shall pay said sum of dollars, as required by said decree, and such further sum as the court shall allow for costs and expenses and the fees of said sheriff, or for such other or further relief as the court shall see fit to grant Dated December 11, 1887. (Signed) , A. B. 65 514 Practice on Attachment. •County of , ss. : A. B., being duly sworn, says, that the foregoing petition by liim subscribed is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be true. (Signed) A. B. Sworn before me, this -. — ) day of . 1887. ) , Notary Public. AFFIDAVIT OF SERVICE OF COPY OF DECREE AND DEMAND. "County of , ss. . A. G., of, etc., being duly sworn, says that on the day ■of , 1874, he served the copy of the decree hereto annexed on E. F., in said decree named, by delivering the same to and leaving the same with the said E. F., in said county, at his resi- •dence in the town of ■ , and that the copy he so served was duly certified as a copy by certificate under the seal of the .surrogate's court of said county of — . And deponent further says that at the time of the service of said copy of said decree as aforesaid, he personally, on behalf of A. B., in said decree named, demanded of the said E. F payment of the sum of $ , by said decree to be paid to said A. B., but that said E. F. neglected and refused to pay the same or any part thereof. And deponent further says that such demand was made on behalf of the said A. B., and that deponent was duly authorized to make such demand, as appears by the power of attorney an- nexed hereto, and that at the time deponent made his demand as aforesaid, he stated to the said B. F. the nature of Ms authority, :and showed him the said power of attorney. (Signed) A. G. Sworn before me, this dav \ of , 1887. " 3 Annex copy decree and power of attorney. DECREE FOR ATTACHMENT. At a surrogate's court, held in the county of , at the surrogate's office in the of , on the day of , 1887. Present — Hon. , Surrogate. In the Matter of the Estate of C.^D., Deceased. On reading and filing the petition of A. B., dated this day, and Attachment. 515 the affidavit therein referred to, showing due personal service on E. F , the executor of the will of the above named deceased, of a copy of the decree of this court made in this matter on the day of , 1874, and also showing a demand on the said E. F., personally, for the payment of the sum of $ - as in said decree required,, and of his neglect and refusal to pay the same or any part thereof, and the costs of this proceeding to coinpel such payment having been fixed by the court at $ : Now, on motion of , of counsel for peti- tioner, it is ordered that a precept be issued out of and under the seal of this court, directed to the sheriff of the county of : ^ commanding him to take the body of the said E. F., if he shall be found in his bailiwick, and to commit him to the common jail of said county of , and to keep and detain him therein under his custody, until he shall pay the sum of dollars- as required by said decree, and the further sum of dollars for the costs and expenses of the proceeding to compel such payment, together with the sheriff's fees on such precept Witness, , surrogate, and the seal of [l. a] the court, the day and year first above written. , Surrogate. ATTACHMENT. The People of the State of New York to the Sheriff of the Count'tf [SEAL.] of , greeting : "Whereas, on the day of , 1874, by a certain decree made in our surrogate's court of the county of in a certain proceeding in relation to the settlement of the accounts of E. F., and executor of the last will and testament of C. D., de- ceased, it was ordered and adjudged that the said E. F. pay to A. B-. the sum of dollars, as a legacy bequeathed in said will. And whereas the surrogate issued a certificate of said decree and the same was docketed in the county of , in which the said E. F. resides, and did thereupon issue an execution to said county which has been returned wholly unsatisfied. And, whereas, we have been informed in our said court, that although the said sum of dollars has been personally demanded of the said E. F., by or on behalf of the said A. B., yet the said E. F. has hitherto neglected and refused, and still neglects and refuses to pay the same, or any part thereof; and, whereas, the costs and expenses of the proceeding on the part of the said A. B., to compel payment thereof, amount to r dollars ; Now, therefore, we command you to take the body of the said E. F., if he shall be found in your bailiwick, and commit him ta the common jail of the county of ■■ , and keep and detain him therein, under your custody, until he shall pay the said sum 516 Pkactioe on Attachment. of dollars, for the said moneys ordered to be paid by said decree ; and also the sum of dollars for the costs and expenses of the proceeding to compel payment of the same, together with your fees on this writ. And you are to make and return to said surrogate's court on the day of , next, at the surrogate's office in the city of , a certificate, under your hand, of the man- ner in which you have executed this writ, and have you then and there this writ "Witness, , surrogate, at the city of [l. s.] , on the day of , 1874. , Surrogate. There is no provision for an order to show cause why an attach- ment should not issue, but there can be no doubt that the surro- gate might issue a citation to that effect But whether any cause •could be shown on the return of such citation is a question. The proceeding by attachment can only be taken when the executor or administrator " refuses or willfully neglects'to obey " the decree. ■(Section 2555, sup.) It becomes a serious question what consti- tutes such refusal or neglect It must be held, in view of the provision of section 2552, that the decree is " conclusive evidence that there are sufficient assets in his hands to satisfy the sum which the decree directs him to pay." The delinquent cannot thus be allowed to excuse payment by the plea of inability, and his neg- lect to pay must be held to be a willful neglect, and consequently punished by attachment or a contempt (See Doran v. Dempsey, 1 Bradf., 490 ; Frear's Case, 15 Abb. Pr., 350 ; Saltus v. Saltus, '2 Lans., 9 ; Woodhead's Estate, 1 Tuck, 92 ; Simpson's JEstate, 15 Abb. Pr. [K S.], 230 ; Underhill v. Nichols, 4 Redf., 318; Matter ■of Snyder, 34 Hun, 302; affirmed, 108 N. Y., 178.) When a surrogate is asked to imprison for contempt, under the above section, one who is shown to have disobeyed a decree of the surrogate's court, he is not bound to grant the application as of oourse ; granting or denying it is in his sound discretion. This discretion should never be exercised in favor of a delinquent ex- ecutor or administrator, who has been directed to make payments from money previously adjudged to be in his hands, and who has disobeyed such directions, except under extraordinary circum- stances. But a state of facts which, pending one's imprisonment in colitempt proceedings, would justify his discharge, would equally justify the denial of an application for his contempt {Matter of Battle, 10 K Y. St Rep., 167.) Executor Punished by Fine, etc. 517 The proceedings to punish a contempt of the court are regu- lated in detail by sections 2266 to 2292, inclusive, of the Code of Civil Procedure. A delinquent executor or administrator may be punished crim- inally as for a felony under the following statute (chap. 208, of Laws of 1877) : Section 1. If any person acting as executor, administrator, trustee, or guardian, appointed by any will, deed, or other written instrument, or by the judgment, or order of any court, or judicial officer in this State, shall convert to his own use, or take, make way with, or secrete with intent to convert to his own use, or shall fraudulently withhold any money, goods, property, rights in action, or other valuable security, or effects whatever, belonging to the estate or person, or persons, for whose benefit or in whose behalf such executor, administrator, trustee, or guardian may have appointed, and which shall have come into his possession, or under his care or control, by virtue of such trust, employment or office, he shall be adjudged guilty of embezzlement, and shall, upon conviction, be punished by a fine, not less than the amount shown on the trial to the satisfaction of the court, to be so em- bezzled, with interest and twenty per cent thereon, in addition, and he shall be imprisoned in the State prison until such fine be paid, but not for a period exceeding five years. § 2. The amount of such fine, to the extent of the sum so em- bezzled, together with seven per cent mterest thereon from the time of such embezzlement, and costs of actions, for the recovery of judgment, for the amount so embezzled, shall, after its collec- tion, be paid to the county treasurer, subject to the order of the supreme court, in the district where the conviction has been had, for the benefit of the estate, or the party or parties for whose benefit, or in whose behalf the person so convicted, was acting as such executor, administrator, trustee or guardian, and shall only be drawn out on application to and under the order of the court, and so much of the amount collected for such fine as shall be necessary for that purpose shall be applied in satisfaction of any judgment or decree obtained in a court of law or equity, on ac- count of the embezzlement, for which such conviction was had ; and any amount not so drawn out within two years after such convictiop, shall be paid to the county treasurer of the county in which such conviction was had, for the use of such county, but shall, upon the order of such supreme court, be repaid, without interest, and applied to the satisfaction of such judgment or decree, in case such judgment or decree shall be recovered after the expiration of said two years. § 3. In case of the payment of the amount embezzled, and in- terest at seven per cent, by the person convicted, or by the collec- tion of the same by civil action, the court may, in its discretion. 518 Executor Fined, etc. upon application by such person, and notice to the parties inter- ested in the fund, or property embezzled, and to the district attorney of the county, remit the fine imposed, except the addi- tional percentaga "We are informed that this act was intended to supply the defi- ciencies in the provisions for an attachment. We are not aware that there has been any judicial interpretation of the statute, but if it is desired to take advantage of it, we would recommend that a certified copy of the decree be procured from the surrogate, and that it be served upon the delinquent with an explicit demand for the sum decreed to be paid. If it be not paid, it must be held as a question of law that the delinquent has converted the fund tO' his own use, or taken, made away with, or secreted it, for it is- provided : § 2552. Decree conclusive, when. — A decree directing payment by an executor, administrator or testamentary trustee, to a cred- itor of, or person interested in, the estate or fund, or an order per- mitting a judgment creditor to issue an execution against an ex- ecutor or administrator, is, except upon an appeal' therefrom^ conclusive evidence that there are sufiicient assets in his hands to satisfy the sum which the decree directs him to pay, or for which the order permits the execution to issue. The, decree, then, being conclusive evidence that the executor or administrator had, at the time of making it, the funds in hand to pay the sum required, it must follow that, if he does not pay it on a proper demand by the proper party, he is guilty of the crime defined in the act. The proof, then, of the making of the decree, the demand and refusal or neglect to pay, should be pre- sented to the grand jury. But where the decree is made up of a debt due from the execu- tor to the decedent, which he is wholly unable to pay because of insolvency, which existed at the time of his appointment and still continues, he would not be guilty of embezzlement in not paying. {Baucus v. Stover, 89 N. Y,, 1.) Sails/action of the Decree. After the decree shall have been entered, and even after it has been docketed, it may be discharged. § 9. (S. L., 1867, chap: 782.) Any decree or order of a surro- gate for the payment of moneys, may be discharged by filing with Decree, How Discharged. 519 Tiim a release of the amount executed by the person to whom such money is directed to be paid, and acknowledged, or proved, as is now required as to a conveyance of real estate ; and such surro- gate, on filing such release, shall endorse such discharge on the margin of the record of such decree or order. When the decree has been docketed in the office of any county clerk, by the filing of the certificate of the surrogate, as to the decree, then, on filing with, the same clerk a certificate of the surrogate, of the discharge, the clerk shall enter the discharge upon his docket EELEASE FOE DISCHAEGE OF DECEEE. Surrogate's Court — County of . In the Matter of the Estate of , Deceased. Whereas, by a decree of the surrogate of the county of in this matter, entered on the day of , 1873, , executor of the will of the above named de- ceased, was ordered and directed to pay to the undersigned, a legatee named in said will, the sum of dollars, now I do hereby acknowledge the receipt of the said sum from said and release him from aU claims therefor, and request the surrogate of said county to enter this as a discharge from said decree. Witness my hand this day of , 1873. (Signed) . Eensselaer County, ss. : On this day of , 1878, before me personally came , to me known to be the same person described La and who executed the foregoing instrument, and who acknowledged that he executed the same for the uses and pur- poses therein mention. (Signed) , Justice of the Peace. CHAPTEE XX. Of the Mortgage, Lease ok Sale of Eeal Estate. The real estate of a testator or intestate remains subject to his debts and funeral expenses, and may be applied to the payment of them by raising money on it by way of mortgage or lease, or 520 Sale for Debts. by a sale thereof, and the executor or administrator on discovering that the personal estate is insufficient to pay debts, becomes a trustee for the creditors as to the real estate. But until proper proceedings are taken to apply the real estate of an insolvent decedent to the payment of his debts, and in de- fault of a vesting of the estate in his executors, the title reniains in the heirs at law in case of intestacy or devisees in case of testacy, and they are entitled as against the personal representatives to re- ceive and retain the rents or income and use, from the death of the decedent to the sale, for the payment of debts. {Glift v. Moses, 7 N. Y. St. Eep., 691.) § 56. A devise of lands to executors or other trustees to be sold or niortgaged, where the trustees are not also empowered to re- ceive the rents and profits, shall vest no estate in the trustees ; but the trust shall be valid as a power, and the lands shall descend to the heirs or pass to the devisees of the testator, subject to the exe- cution of the power. (1 E. S., 729.) But if the will, by an im- perative direction to sell the real estate, converts it into personalty,, the executor and not the heir or devisee is entitled to possession, and to recover the rents and profits, notwithstanding the above statute. {Glift v. Moses, sup.) For a history of the proceedings to convert the real estate into money for payment of debts, etc., see Ferguson v. Broome (1 Bradf., 10.) Upon a deficiency of personal assets, the heirs are liable for their intestate's debts to the extent of the land descended to them. This may be enforced by action, and the proceeding in the surro- gate's court to sell such lands is a concurrent remedy to substan- tially effect the same object. {Mead v. Jenhins, 27 Hun, 570.) If * the personal property belonging to a testator is insufiicient to pay his debts, the only remedy of the judgment creditor of the dece- dent's representatives is by a proceeding against the real estate under the statute. {Patterson v. McCume, 17 Week. Dig., 186.) The provisions of the revision are found in title five of chapter eighteen. § 2749. What property may be disposed of. — Real property of "which the decedent died seized, and the interest of a decedent in real property, held by him under a contract for' the purchase thereof, made either with him or with a person from whom he de- rived his interest, may be disposed of for the payment of his debts and funeral expenses, as prescribed in this title ; except when it is Sale, When Ordered. 521 •devised, expressly charged witli tlie payment of all debts or funeral ■expenses, or is exempted from levy and sale by virtue of an execu- tion, as prescribed in title second of chapter thirteen of this act. The expression, "funeral expenses,' as used in this title, includes a, reasonable charge for a suitable headstone. The property excepted from liability to sale are burying ground, properly designated (Code, §§ 1395. 1396), and a homestead (§§ 1397, 1398). But the exemption as to the homestead expires at the majority of the youngest surviving child and on the death of the widow, and when the homestead ceases permanently to be occupied by the family (§§ 1400, 1401.) It will be noted that a sale cannot be ordered of real estate which is devised expressly charged with the payment of all debts or funeral expenses. It was accordingly held that where a will authorized the executors, in their discretion, to sell and dispose of the whole or any part of the real estate, and to invest the moneys as might seem to them proper for carrying into effect the provis- ions of the will, that the lands were subject to a valid power of sale for the purpose of paying debts which barred a statutory pro- ceeding for their sale for that purpose. {Estate of Eosenfield, 10 Civ Pro. E., 201.) But where the will contained a power of sale only for the purpose of division or distribution, it was held that the real estate was subject to a proceeding to sell it for the pay- ment of debts. {Matter of Dodge, 40 Hun, 443.) § 2750. Petition, when and hy whom presented. — At any time within three years after letters were first duly granted within the State, upon the estate of a decedent, an executor or administrator, whether sole, or joined in the letters with another, other than a temporary administrator ; or a creditor of the decedent, other than a, creditor by a judgment or a mortgage, which is a lien upon the decedent's real property , may present to the surrogate's court, froni which letters were issued, a written petition, duly verified, praying for a decree directing the disposition of the decedent's real property, or interest in real property, specified in the last sec- tion, or so much thereof as is necessary, for the payment of his debts or funeral expenses ; and that the necessary parties, as pre- scribed in the subsequent sections of this title, may be cited to show cause why such decree should not be made. This section, by its terms, takes away the jurisdicdiction form- orly had, to order a sale on the apphcation of a creditor, made more than three years after the issuing of letters. 522 Time Extended, When. After the lapse of three years, the land is discharged in the hands of the heirs. {Parkinson v. Jacobson, 18 Hun, 353 ; &lo- cum V. JEhglish, 2 id., 78.) Discharged, indeed, from liability to be sold in proceedings, but the heir or devisee then becomes liable to creditors for their full value. (Section 1843.) § 2751. Creditor's time to petition extended, when.- — The time during which an action is pending in a coiirt of record, between a creditor and an executor or administrator of the estate, is not a part of the time limited in the last section, for presenting a peti- tion, founded upon a debt, which was in controversy in the action ; if the creditor has, before the expiration of the time so- limited, filed, in the clerk's ofiice of the county where the real property is situated, a notice of the pendency of the action; specifying the names of the parties, the object of the action, and, if the creditor's debt is made the foundation of a counter-claim, the nature of a 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 pendency of an action, in article ninth of title first of chapter fourteenth of this act It may also be cancelled in like manner, or a specified pcxrtion of the property affected thereby, may be discharged from the lien thereof by the order of the court in which the actioh is pending, made upon the application of a person having an mterest in the real property, upon notice to the creditor, and upon suck terms as justice requires. Whenever an executor, administrator or creditor of a deceased person shall have commenced, or shall hereafter commence, an action in any court of competent jurisdic- tion of this State, for the purpose of setting aside a fraudulent, conveyance of, or incumbrance upon, any real estate of such de- ceased person, and such action shall have been decided in favor of such executor, administrator or creditor, such executor, adminis- trator or creditor may, at any time within three years after the final determination of such action, have and maintain an action or proceeding against the proper parties, in any court of competent jurisdiction of this State, for a sale of such real estate, and for a distribution of the proceeds of such real estate among the cred- itors of such deceased person, and other persons entitled to the same, as may be directed by the judgment in such action. The time, then, as to a creditor, may be extended if he files, a notice of pendency of the action pursued by him in the clerk's office. Supreme Court. Sale, When Void. 523 NOTICE. John Doe agt. Richard Eoe, as Executor of the Will of A. B., Deceased. Notice is given, pursuant to section 2751 of the Code of Civil Procedure, of an action brought by John Doe, plaintiff, against Richard Roe, as executor of the will of A. B., late of the city of Troy, deceased, to recover judgment upon a promissory note, made by said deceased in his life-time. The following real property owned by the decedent in his life- time, and at the time of his death situated in the city of Troy, and bounded and described as follows (description), is affected by said action, and said real property will be held as security for any judgment obtained in the action, C. D., Plaintiff's Attorney. Dated March 29, 1888. A sale made upon a petition presented more than three years from the issuing of letters, was held void, in an action of eject- ment brought by the heir aaginst the purchaser under the sale, made by the surrogate's order. {Slocum v. English, 4 Th. & C, 267 ; 62 N. Y., 494.) As to the time, three years, within which the application must be made by executors or administrators, see Fitch V. Wiibeck (2 Barb. Ch., 161). The three years' limit of the statute, in which executors or ad- ministrators may make the application, means three years after the first issuing of letters. This was held in a case where the first letters had been revoked and letters de bonis non, had been issued. {iS locum V. English, 2 Hun, 78.) During the period of three years, purchasers from heirs or devi- sees take at their peril {Hyde v. Tanner, 1 Barb., 75), and a sale in partition between heirs, is no bar to a sale for the payment of debts in these proceedings. {Hall v. Partridge, 10 How., 188 ; Meadv. Jenhins, 95 N. Y., 31.) But if the heir or devisee shall have sold some lands and some remain to him, a sale will be directed first of those which remain. {Eddy v. Traver, 6 Paige, 521.) Where proceedings had been instituted by a creditor, and after- wards after three years from the issue of letters, proceedings were 524 Petition. commenced by the administrator, the latter proceedings derive no- aid from the former. {Slocum v. -Eiiglish, 62 N. Y., 494.) § 2752. Contents of petition. — The petition must set forth the fol- lowing matters, as nearly as the petitioner can upon diligent in- quiry ascertain them : 1. The unpaid debts of the decedent and the name of each credi- tor or person claiming to be a creditor, and the amount of the un- paid funeral expenses of the decedent, if any, and the name of each person to whom any sum is due by reason thereof. 2. A general description of all the decedent's real property and interest in real property within the State, which may be disposed of as prescribed in this title ; a statement of the value of each dis- tinct parcel ; whether it is improved or not ; whether it is occupied or not : and, if occupied, the name of each occupant. Where the petition describes an interest in real property, specified in section 2749 {contract) of this act, the value of the interest must be stated, and also the value of, and the other particulars specified in thi& section relating to the real property to which the interest attaches. 3. The names of the husband or wife, and of all the heirs and devisees of the decedent, and also of every other person claiming under them or either of them, stating who, if any, are infants ; the age of each infant and the name of his general guardian, if any ; and also if the petition is presented by a creditor, the name of each executor or administrator. 4. If the petition is presented by an executor or administrator,, the amount of personal property which has come to his hands and those of his co-executors or co-administrators, if any ; the applica- tion thereof and the amount which may yet be realized therefrom. By the presentation of a petition in due form and time, the surrogate obtains jurisdiction against all parties regularly brought into court. {Farrington v. King, 1 Bradf., 182.) A petition which states that the amount of personal property which has come to the executor's hands so appraised by the inven- tory is, etc., sufficiently states the amount of personal property which actually came into his hands. A statement of the amount received, and that it is still in his hands unpaid and unapplied, sufficiently shows the application of the moneys received. {Rich- mond V. Foote, 3 Lans., 244.) A petition asking for sale, and not in the alternative to mortgage, lease or sale, gives jurisdiction to the surrogate to inquire as to- mortgage and order a sale. {Sibley v. Waffle, 16 N. Y., 180.) A petition by executors asking only for a sale of real estate, is proper where it appears therein that a mortgage or lease would fail to ac- complish the purpose intended. {Dorlons Estate, 88 N". Y, 309.) Contents of Petition. 525 As to the evidence necessary to confer jurisdiction, see Forbes v. Halsey (26 N. Y. 53). If a petition for the sale of real estate be defective in failing ta allege the matters made necessary by section 2752, unless it ap- pears that the omissions could not by diligent inquiry have been supplied, such defect is jurisdictional, and makes the proceedings- invalid. {Estate of Collins, 4 Law BuL, 80.) The petition cannot be amended as to such allegations. {Dennis v. Jon£s, 1 Dem., 80.) A petition was held to be fatally defective, in that it did not state the value of the lands sought to be sold, etc. {Mead v. Sherwood, 4 Redf., 352.) The petition must set forth all the facts required to be stated. Failing this, the surrogate does not acquire jurisdiction, and can make no valid decree in the matter. But if the petitioner has, in every respect, complied with the requirements of the statute, in setting forth his own indebtedness due from the decedent, that alone will sustain the jurisdiction of the court If no reference has been made in the petition to unpaid funeral expenses, then it may be presumed that none existed. The statute does not require the petititioner to make any negative averments. If he is not ad- vised that there are unpaid funeral expenses, or, is informed that there are, and is ignorant of the amount and to whom the same is- due, he may omit to make any reference to it in his petition. The petition may be upon information and belief. {Matter of Seaman^s Bank, 39 Hun, 181.) If the petitioner omits to set forth any of the facts required by the statute to be stated, the court would not acquire jurisdiction to order a sale. But it was held when the petition was made by a creditor, jurisdiction was acquired if the petition sets forth any one item of indebtedness, as required by the statute. (Id.) § 2758. Where some facts are unknown, proceedings. — If, upon diligent inquiry, any of the matters required to be set forth, as prescribed in the last section, cannot be ascertained by the peti- tioner, that fact must be shown to the surrogate's satisfaction, and the surrogate must thereupon inquire into the matter, as prescribed in article first of title second of this chapter. If the petition is presented by a creditor, the surrogate may, by order, require the executor or administrator to render such an account or other statement as he deems necessary for the purpose of the inquiry. The fact that the debts are not yet due is no obstacle to the ap- plication, if the personal estate shall be found to be insufficienl 526 Debts may be Litigated. i^Moers v. White, 6 Johns. Ch., 360.) But see contra, Estate of Wilcox (11 Civ. Pro. E., 115). Nor is it a bar that the creditor has neglected to report the claims to the executor. {Wood v. Byingion, 2 Barb. Ch., 387.) Where the claimant, who held collaterals, had agreed that a decree might be entered in judicial settlement for payment of $500 to him, his whole claim amounting to $1,000, and he had ac- cepted it, reserving right to collect on his collaterals, and the latter proving insufficient to pay him in full, it was held that he "was not estopped by the former decree from resorting to the real •estate for the collection of the remainder due to him. {Mead v. ■Jenkins, 38 Hun, 340.) But the debts, to pay which the application is made, must be •debts of the decedent, not costs awarded against the executor .since the testator's decease {Sanford v. Granger, 12 Barb., 392), nor .a claim of a mother for the support of her infant children ( Wood- ruff V Cook, 2 Edw., 259 ; Wood v. Byington, 2 Barb. Ch., 387), mor expenses of administration {Cornwallis' Estate, 1 Tuck, 250), and the claims must not be barred by the statute of limitations, iGUchrist V. Bea, 9 Paige, 65.) It seems that the heirs at law can litigate a claim, notwithstand- ing a judgment has been obtained upon it, against the personal representatives of the decedent. {Mayer v. Oilligan, 2 N. Y. St Eep., 702.) The representation of the executor or administrator that there is a deficiency of assets, with the account of debts and assets, con- fers jurisdiction on the surrogata In deciding whether the assets are insufficient, he acts judicially, and his error, if any, cannot affect his jurisdiction. {Atkins v. Kinnan, 20 "Wend., 241, and ■cases cited.) , The decree of the surrogate for sale or mortgage is conclusive as to the insufficiency of assets to pay debts, even where fraud is :aUeged and concealment of assets. So held in an action to fore- close a mortgage made under such decree. {Oraham v. Linden, m N. Y., 547.) Form Petition, 527 PETITION FOR MOETGAGE, LEASE OR SALE BY EX- ECUTOR OR ADMINISTRATOR. Surrogate's Court — Rensselaer County. In the Matter of the Estate of / A. B., Deceased. I To Moses Warren, Esq., Surrogate of the County of Rensselae)- The petition of C. D., executor (or administrator) of the will of (or of the goods, etc., of) A. B., late of the town of Brunswick in the county of Rensselaer, deceased, shows that your petitioner has made and filed an inventory of the personal property of the said A. B., deceased, according to law, and has discovered the same ta be insufficient to pay the debts of the deceased. That the amount of the personal property which has come to the hands of your petitioner amounts to the sum of $578. That the outstanding debts of the deceased, which remain un- paid and which are justly due and owing, and which are not se- cured by judgment or mortgage, or expressly charged on the real estate of the deceased, as near as the same can be ascertained, amount to the sum of $1,005, owing as follows : •To A.B $175 00 -« CD 50 00 ■" G, F 200 00 - " G. H. for funeral expenses, etc., etc 125 00 And your petitioner verily believes and states the fact to be, that he has proceeded with reasonable diligence in converting the personal property of said deceased into money, and applying the same to the payment of debts. That the deceased died seized of the following real estate, situ- ated in the county of Rensselaer aforesaid, valued at the sum re- spectively affixed to each lot or parcel, and occupied or not occu pied as stated in respect to each of the several lots or parcels, that is to say, all (stating fully metes and bounds.) The first of said parcels is unimproved, but the remaining par- cels are improved. Besides the above described real estate, the deceased left no other in the State of New York which may be disposed of for the payment of his debts, and none of the above described real estate is devised by the testator expressly charged with the pay- ment of debts or funeral expenses, or is exempted from levy and sele by virtue of an execution. And your petitioner further shows, that S. B. is the widow, and A. B., 0. B. and E. B., of the town of Brunswick, are children and heirs at law of the said A. B., deceased, of the age of twenty^ .528 Account may be Ordered. -one years and upwards, and J B. and K. B. are infants of the age of fourteen years and upwards, and aged sixteen and nineteen years respectively, and L. B. and M. B. are infants, and are also children and heirs at law of the deceased, and under fourteen years of age, and aged ten and twelve years respectively, and none of said infants have any general guardian. That as your petitioner is informed and believes, one claims to own said real property, as grantee of said heirs at law. Your petitioner, therefore, prays that authority may be granted to him by the said surrogate (pursuant to the statutes of the State of New York in such case made and provided) to mortgage, lease or sell so much of the real estate of the deceased as shall be neces- ■.sary to pay the debts of the deceased. And your petitioner will ever pray, etc (Signed) C. D. Dated March 30, 1880. :State of New York, ) Bensselaer County^ j G. D., being sworn, deposes and says, that the above petition, by him subscribed, is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be true. Sworn, etc (Signed) C. D. The circumstances and means of knowledge of a creditor are •ordinarily so different from those of an executor or administrator, that the petition of the creditor, verified as it must be, will be Yery different from the petition of the executor or administrator. It is required as to both that they state the same facts, or that the facts cannot, after diligent inquiry, be ascertained by the petitioner. Again, in either petition, it would seem necessary to allege that an inventory had been made and filed, otherwise it would seem that the surrogate could not be certified as to the amount of per- sonal property which has come to the hands of the executor or administrator. The statute as it formerly stood (2 E. S., 100, § 1, as amended by chap, 820 of Laws of 1830) required as a prelimi- nary the making and filing of an inventory In regard to the petition of a creditor, the surrogate may or may not, as he shall deem necessary, order the executor or ad- mmistrator to render such an account or other statement as he deems necessary for the purpose of the inquiry. It is seriously PETITION OF Creditor. 529 ^suggested that it would be hardly proper to direct the sale or dis- ' position of real estate on the application of the creditor, without some such account or statement Under the former practice, the account was a necessary preliminary. Upon an application to the surrogate by one who has recovered a judgment against the personal representatives of a decedent, upon a debt due from him in his lifetime, for an order to sell his real estate, the applicant, to prove his debt, shows only his judg- ment But that does not prove that all the personal property of the deceased has been applied to the payment of his debts, so as to render the remaining debts a charge upon the real estate in the hands of the heir or devisee. This is done by the accounting, ^nd without it the judgment is no evidence of debt against the heir or devisea And it seems that the costs recovered against the executor on establishing the debt are not a charge on the real ■estate. {Sanford v. Granger, 12 Barb., 392.) It seems that where, in these proceedings, the' insufficiency of ^he personal estate to pay debts is denied, the proceedings should be delayed until the termination of an accounting, in which that iact shall be ascertained. {Estate of RosenfieM, 10 Civ. Pro. Eep., 201.) The executors or administrators cannot set up, in bar to the pro- ceeding, that the real estate has been regularly sold in partition under a decree of a court of competent jurisdiction. {Richardson V. Judah, 2 Bradf., 157; HoIIy. Partridge, 10 How., 158; Mead V. Jenkins, 95 N. Y., 31.) PETITION OP CEEDITOR FOR SALE. To Hon. , Surrogate of County: The petition of , of the of , respectfully shows as follows . Your petitioner is a creditor of , late of the of , deceased, intestate, said intestate having died, indebted to your petitioner, in the sum of dollars, and interest, upon a promissory note, made by him to your peti- tioner, or order, dated the day of , 1873, and payable ninety days after date. Said claim is justly due to your petitioner ; no payments have been made thereon, and there are no offsets against the same to the knowledge of your petitioner, and the same is not secured by judgment, mortgage upon, or ex- pressly charged on the real estate of the said deceased. 67 530 • Citation to be Issued. Letters of administration of the goods, chattels and credits of the said , deceased, were duly issued by the, surrogate of the county of , on the day of , 1873, to , of the , and the same still remains in full force, as your petitioner is informed and believes. That besides the debt to your petitioner, he is informed, and verily believes, that there are other debts of the decedent unpaid, but your petitioner, after diligent inquiry, is unable to ascertain the names of the creditor, or the amount of such debts. The said intestate died seized of the following described parcels of real estate, valued at the sum respectively affixed to each parcel, and occupied or not occupied, as hereafter stated, as to each, that is to say (describe each parcel and names of occupants and value). Your petitioner has made diligent inquiry as to whether said deceased left any other real estate within the State, but is unable to ascertain whether or not he did so). is the widow, and ■ — — ■ — of full age, and ■ • , an infant, of the age of twenty years, and , an infant, of the age of thirteen years, neither of whom have a general guardian, are the heirs at law of the said deceased. Your petitioner, therefore, prays that the surrogate issue a cita- tion to the said , administrator as aforesaid, to show cause why he should not be required to mortgage, lease or sell the real estate of the said deceased, for the payment of his debts, and that such other or further proceedings, according to law, may be thereupon had, as may tend to the relief of your peti- tioner, and the .payment of his claim aforesaid. Dated Decemb&r 1, 1887. (Signed) . ; — County, ss. : , being duly sworn, says, that the foregoing petition, by him subscribed, is true of his own kdowledge, except as to the matters which are therein stated on information and be- lief, and as to those matters he believes it to be tru& Sworn, etc. (Signed) § 2754. Oitation. — Where the surrogate is satisfied that all the facts, specified in the last section but one, have been ascertained, as far as they can be upon diligent inquiry, and it appears to him that the debts and funeral expenses, or either, cannot be paid, without resorting to the real property, or interest in real property, he must issue a citation according to the prayer of the petition. If, upon the inquiry, it appears to the surrogate that any heir or devisee, or person claiming an interest in the property under an Citation to be Issued. 531 lieir or devisee, is not named in the petition, the citatioTi must also be directed to him. Unless the executor or administrator has caused to be published, as prescribed hj law, a notice requiring creditors to present their claims, and the time for the presentation thereof, pursuant to the notice, has elapsed, the citation must be directed, generally, to all other creditors of the decedent, as well as to the creditors named. As to service of the citation when directed generally to "all other creditors," see section 2523, providing for publication as in case of non-residents. Where the order (citation), directing persons interested in the estate to show cause, etc., is made returnable in less time than that required by statute, it shows a want of jurisdiction ^.fatal to its validity, and all proceedings founded thereon are void. The rights ■of infant defendants in such proceedings cannot be waived by fail- ure to make the objection. {SttUwell v. Swartwout, 81 N. Y., 109.) A widow who has had her dower assigned is not a necessary party. {Rigney v. Cbfes, 6 Bosw., 479.) Nor are legatees in cer- tain casea {Matter of Dolan, 88 N. Y., 309.) Where executors presented their petition with a view of mort- gaging houses or selhng the real estate of their testator, and it was ascertained that the will authorized the sale by the executors, it was held that it would be an injustice to the estate to grant the petition. {Matter of Davids, 5 Dem., 14; 5 JST. Y. St. Eep., 357) The citation will issue upon an order of the court for that pur- pose. It is presumed that where the proceeding is upon the appli- cation of a creditor, and the executor or administrator has not already accounted, an order may be made at the same time for such executor or administrator to show cause on the return of the citation, why he should not be required to render an account of his proceedings, and of all the claims which have been presented to him, ORDER FOR CITATION. At a surrogate's court, held in the county of , at the surrogate's office in the of , on the day of , 1880. Present — Hon. , Surrogate. Is THE Matter of the Real Estate / OF A. B., Deceased. j C. D., executor of the will of A. B., late of the town of - 532 Executor Mat Account. deceased, having presented his petition duly verified, showing that there are unpaid debts of the testator to the amount of $ , and funeral expenses, as stated m said petition, and owing to the persons therein named , that the said deceased left certain real estate described m said petition which may be disposed of for the payment of his debts, and occupied as therein stated, that the said deceased left him surviving his widow , and his children and , and that the personal property which has come to the hands of said execu tor is $ , and the same has been applied in the payment of debts and expenses. On motion of ' , of counsel for the petitioner, it is ordered that a citation issue to said creditors, occupants of the said real estate, and to said creditors and heirs at law of the decedent, requiring them to show cause why a decree should not be made for the mortgage, lease or sale of said real estate, for the payment of the said debts and funeral expenses, returnable on the day of next , Surrogate. As to the manner and time of service of this citation, see the general provisions, ante. Where the application is made by a creditor, the citation will necessarily be directed also to the executors or administrators, as well as to the creditors and other claimants. (Kammerer v. Zeig- ler, 1 Dem., 177) If the surrogate think proper to order the executor or adminis- trator to render an account, the following may serve as a guide for preparing it : OEDER THAT EXECUTOR SHOW CAUSE WHY HE SHOULD NOT ACCOUNT. At a surrogate's court, held in the county of , at the surrogate's office, in the of , on the day of , 1888. Present — Hon. , Surrogate. In the Matter of the Real Estate I OF A. B., Deceased. f J. B., claiming to be a creditor of A. B., late of the town of -, deceased, having presented his petition to the surrogate, duly verified, asking that proceedings be had for the mortgage, lease or sale of the real estate of the said deceased, for the pay- ment of his debts, and said petition not stating in detail the debts of the decedent Hearing on Petition. 533 On motion of , of counsel for petitioner, it is ordered that C. D., the executor of the will of the said deceased show cause before said surrogate, at his office in the • — of , on the day of next, at ten o'clock in the forenoon, why he should not be required to render an ac- count of his receipts and disbursements as such executor, and a statement of the claims presented to or known by him. , Surrogate. All the executors or administrators should join in the applica- tion. An order fcr sale wiU be erroneous in allowing the peti- tioning executors to make a sale without the consent of all, especi- ally when no reason is stated in the petition for not making the one, or those not Joining in the petitiop, a party or parties to the proceeding. (Fiich v. Wiibeck, 2 Barb. Ch., 161.) ' By the presentation of the petition in due form and time, the surrogate obtains jurisdiction as against all parties regularly brought into court {Schneider v. McFarland, 4 Barb., 139), and the subsequent exercise of the jurisdiction cannot, generally, be questioned collaterally for error or irregularity, but only on ap- peal {Farrington y. King, 1 Bradf., 182.) A petition which states " that the amount of the personal prop- erty which actually came to the executor's hands, as appraised by the inventory, is," etc., sufficiently states the amount of personal property which actually came into his hands. And a statement of the amount received, and that it is still in his hands unpaid and unapplied, sufficiently shows " the application " of the money received. {Richmond v. Foote, 3 Lans., 244.) And a sworn statement in the petition for sale, that the decedent left no personal estate, was held to answer the purpose of an in- ventory. {Butler v. Emmett, 8 Paige, 12.) § 2755. Hearing. — Upon the return of the citation, the surro- gate must proceed to hear the allegations and proofs of the partiea A creditor of the decedent, or a person having a claim for unpaid funeral expenses, although not named in the citation, may present and prove his debt, and thus make himself a party to the special proceeding. A creditor of the decedent, whose claim is not yet due, may present and prove his debt, and have the same estab- lished upon a rebate of legal interest, and thus make himself a party to the special proceeding. An heir or devisee, or a person claiming under an heir or devisee, of the property in question, although not named in the citation, may contest the necessity of applying the property to the payment of debts or funeral ex- penses, or the validity of a debt due or undue, represented as 534 Guardian fob Infants, etc. 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 himself a party to the special proceeding. Where such a defense arises under the statute of limitations, an act or admission by an executor or administra- tor does not prevent the running of the statute, or revive the debt, so as to affect in any manner the real property, or interest in real property, in question. Upon the hearing, a special guardian is appointed for the infants, habitual drunkards or lunatics, as provided in sections 2630 and 2531. (See Index, Tit. Special Guardian.) If there is an infant heir or devisee, a guardian must be ap- pointed for such infant by the surrogate, even though it does not appear by the petition that such infant is an heir or devisee. No one can be divested of his rights by being ignored. He has a right to a day in court before that power can rightfully be exerted. {Ackley v. Dygert, 33 Barb., 176.) When the general guardian of infants, being also administra- tor or executor, applies in the latter capacity for an order to mortgage, lease or sell, the appointment of a special guardian for - the infants is essential to give the surrogate jurisdictioa {Havens V. Sherman, 42 Barb., 636.) The appointment-and appearance of a guardian for infants is a jurisdictional fact, and necessary to the validity of the sale. {Schneider v. McFarland, 2 N. Y., 459 ; Ackley v. Dygert, sup.) A blank in the date of an order appointing a guardian will be disregarded {Sheldon v. Wright, 5 N. Y., 497.) § 2756. Proof of debt on which a judgment has been rendered. — Where a judgment or decree has been rendered against an ex- ecutor or administrator for a debt due from the decedent, the debt is, nevertheless, deemed a debt of the decedent to the same extent, and to be established in the same manner, and, except as pre- scribed in the next section, subject to the same defenses as if an action had not been brought thereon. But a judgment or decree, rendered upon a trial upon the merits, is presumptive evidence of the debt upon the hearing before the surrogata A devisee of the real estate in question, or any person claiming under him, may contest the validity of a judgment obtained against the administrators like any other claim or demand against the estate. {Colson v. Brainard, 1 Eedf., 324.) This decision must be limited to mean, in view of the next sections, that any Proof of Debts. 535 devisee or heir may prove in reduction of tlie claim any payment or proper counter-claim as therein provided only. A judgment for a debt due from the decedent, entered on an oflfer of his executor against whom the action had been revived, is not evidence of the debt in these proceedings, as there is no trial on the merits. The offer does not constitute, for these proceed- ings a admission of the claim. {Kavanagh v. WiUson^ 5 Eedf., 43 ; Mayer v. Qilligan, 2 N. Y. St Eep., 702.) § 2757. The last section qualified. — The last section is subject to the folldwing exceptions : 1. The debt for which the judgment was rendered cannot be allowed as against the property in question, at any greater sum than the amount recovered, exclusive of costs. {Sanford v. Gran- ger, 12 Barb., 392 ; Kavangah v. Wilson, sup.) 2. An heir or devisee of any of the property in question, or a party claiming under an heir or devisee, may interpose, in reduc- tion of the amount claimed to be due upon a judgment or decree against the decedent or against the executor or administrator, any payment! or counter-claim which might be allowed to him, or to the person ujider whom he claims, in an action founded upon the debt There seems to be no class of claims, legal or equitable, which may not be presented, proved and adjusted before the surrogate on the hearing. (JRe.n'wick v. Benwick, 1 Bradf., 234.) An executor may present and prove his own claim, and the same proof is necessary in such a case as m a final accounting, that is, common law proof and the executor's own affidavit \Matter of Gardner, 5 Eedf., 14.) Persons interested in the real estate may resist the debts, and interpose the statute of limitations or any other defense. {Mboers Y. Johnson, 6 Johns. CL, 360 ; Gilchrist v. Hea, 9 Paige, 66 ; Ben- wick V. Benwick, sup.) It is competent for the heirs or devisees to show that the personal estate is sufficient {Skidmore v. Bo- maine, 2 Bradf., 122.) Judgment creditors may set up the statute of limitations though the devisee of the land does not appear. {Baynor v. Gordon, 23 Hun, 264.) It is no bar to these proceedings that the creditor has neglected to report the debt to the administrator. {Wood v. Byington, 2 Barb. CL, 387.) But if a claim has been presented and disputed or rejected by the administrator (§ 1822), and six months have elapsed since that time, and no action has been commenced upon the claim, it will be barred in these or any other proceedings. The 536 Jury Trial on Debts. existence of a dispute as to the validity of the petitioner's claim does not deprive the surrogate of jurisdiction of the proceedings, the same being determinable by him. {Kammerer v. Zeighr, 1 Dem., 177; People exrel. v. Westbrook, 61 How., 138. But see contra^ Ex parte Olann, 2 Eed£, 75.) The proceeding may not be discontmued at the option of the petitioner, after other parties have been brought in. (Farringion v. Xing, 1 Bradf., 182; Maiier of Luce, 17 Week. Dig., 35.) The surrogate may, upon the hearing to establish claims on the return of the order to show cause {citation) refuse to hear testi- mony offered for the purpose of establishing a disputed claim, and thus postpone the claims to the time of final distribution. {Bar- nell V. Kincaid, 2 Lans., 320.) It was held by the surrogate's court (2 Eedf., 75), that the surrogate, on the return of the order to show cause {citation), could not pass upon a claim presented against the estate and disputed by the executor. But the su- preme court {Hopkins v. Van Valkenburgh, 16 Hun, 3), expressly overrule the decision of the surrogate quoted as above. - (See, also, In re Haxtun, 102 K Y., 157.) It may, and often does, occur, that the executor or administra- tor, in ignorance of the extent of claims against the estate, has paid to some creditors in full, or more than their pro rata share from the personal estate. In such case he is to be regarded as the equitable assignee of the claims which he has so paid, and to have them satisfied out of the proceeds of the real estate, m the same manner as the creditors would have been paid {Ball v. Miller, 17 How., 300.) The surrogate may appoint a referee to take and report to the surrogate evidence upon the facts, or upon a specific question of fact. (Section 2546.) § 2547. Trial by jury, when ordered. — The surrogate may, in his discretion, make an order directing the trial by a jury, at a circuit court to be held within the county, or in the county court of the county, or, in the city and county of New York, in the court of common pleas, of any controverted question of fact arising in a special proceeding for the disposition of the real property of the decedent, as prescribed in title fifth of this chapter. The order must state, distinctly and plainly, each question of fact to be tried ; and it is the only authority necessary for the trial. Where the validity of the creditor's claim is denied, the order- ing of the issues to be made, to be tried at circuit, is discretionary, JuEY Teial. 537 and will be refused where it would entail needless delay and ex- pense. {Mead v. Jenkins, 4 Kedf., 369.) OEDEE FOE TEIAL BY JUEY. At a surrogate's court, held in the county of , at the sur- rogate's office in the of , on the day of , 1888. Present — Hon. , Surrogate. In the Matter of the Eeal Estate / OF , Deceased. I A. B., having presented to the surrogate, upon the return of a citation to the creditors, heirs at law, and administrator of the estate of the above named deceased, a claim against the said de- ceased, arising upon a promissory note claimed te have been made by the said decedent in his life-time, of which the following is a copy: (Here insert copy of note, or account) And C. D., the said administrator, having disputed said claim, and alleging that said decedent did not make said note, and that he did not deliver it to the payee ; and the surrogate having de- cided that the issue should be tried at a circuit court to be held within this county (in the county court of the county) ; II is ordered, that such controverted questions of fact to wit : Whether the said decedent made said promissory note in his life- time, and whether he delivered said promissory note in his life- time to the payee, for value, be tried by a jury at a circuit court, to be held as aforesaid. -, Surrogate. § 2548. Trial by jury, how reviewed. — A trial by jury, pursuant to an order made as prescribed in the last section, can be reviewed, in the first instance, only upon a motion for a new trial. A new trial may be granted by the surrogate, or the court in which the trial took place, or, if it took place at the circuit court, by the su- preme court, in a case where a new trial of specific questions of fact, tried by a jury, pursuant to an order for such a trial, made in an action, would be granted. The verdict of the jury must be certified to the surrogate's court by the clerk of the court in which the trial took place. § 2549. Appeal — An appeal may be taken from an order, made upon a motion for a new trial, as prescribed in the last section, as if the order had been made in an action, and with like effect Costs of such an appeal may be awarded by the appellate court, 68 538 Limitations on Debts. as if the appeal was from an order or decree of the surrogate's court § 2758. Decree to recite debts. — The decree must determine and specify the amount of each debt established before the surrogate, as a valid and subsisting debt against the decedent's estate, or as a just and reasonable charge for f aneral expenses, and must, in like manner, specify what demands presented have been rejected. The vouchers presented before the surrogate, in support of each debt established, must be filed and remain in the surrogate's office. A judgment is evidence of the debt, when recovered against the executor or administrator, but does not charge the land for the costs, and the heir or devisee, or other persons interested, may insist on the statute of limitations, in the same manner as though the proceedings were an action against him for the debt {Fergu- son V. Brov.ne, 1 Bradl, 10 ; Raynor v. Gordon, 23 Hun, 264.) The statute of limitations ceases running against the creditors upon the filing of the petition or the return of the order to show cause (the citation); and it seems that the period of eighteen months after the granting of letters is also excluded. Moreover, the surrogate's adjudication that a demand is valid and subsisting, disposes of all objections to its validity. {Farrington v. King, 1 Bradf., 182.) It was also held, that the six years' limitation is extended three years, making nine years in all, for commencing these proceedings before the surrogate, upon the ground that, as the statute (2 R. S., 113, § 53, which is re-enacted by the Code, § 1844) prevented any action being brought against the heirs within three years from the decree of the testator, such three years constituted no part of the period of limitation. The court, therefore, reversed the decree of the surrogate. {Mead v. Jenkins, 576 ; affirmed, 95 N. Y., 31.) § 2759. Proof necessary for a decree. — A decree directing the disposition of real property, or of an interest in real property, can be made only where, after due examination, the following facts have been estabhshed to the satisfaction of the surrogate : 1. That the proceedings have been in conformity to this title. 2. That the debts, for the payment of which the decree is made, are the debts of the decedent, or are just and reasonable charges for his funeral expenses , and are justly due. 3. That they are not secured by a judgment or mortgage, or expressly charged by the will upon the decedent's real property, or interest in real property ; or if a debt is so secured or charged upon a portion of the real property, or interest in real property, "When Sale Not Oedebed. 539 that the remedies of the creditor, by virtue of that charge or security, have been exhausted. 4. That the property directed to be disposed of was not effectu- ally 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. 5. That all the personal property of the decedent, which could have been applied to payment' of the decedent's debts and funeral expenses, has been so applied ; or that the executors or adminis- trators have proceeded, with reasonable diligence, in converting the personal property into money and applying it to the payment of those debts and funeral expenses ; and that it is insufficient for the payment of the same, as established by the decree. A surrogate cannot order the sale until the executors have ap- plied all the personal estate to the payment of debts and expenses. {Conover v. Merritt, 3 Barb., 34; Moore v. Moore, 14 id., 27.) But if this is done before the order for sale, it is sufficient {Bloom v. Burdick, 1 Hill, 130.) Where it sufficiently appears that a sale is necessary, the order may be made without awaiting the termination of pending litiga- tion or disputed claims against the estate. {Barnett v. Kincaid, 2 Lans., 320.) A sale cannot be had for the purpose of re-imbursing the ex- ecutor for debts paid, or for disbursements and expenses of administration, or for commissions. {Fitch v. Witheck, 2 Barb. Ch., 161 ; Ball v. Miller, 17 How., 300.) But see section 2793 {post), that, on distribution, any balance due the executor or ad- ministrator, shown by decree on settlement, may be paid. The surrogate may take into consideration not only the debts allowed on the return of the order to show cause, but all that are presented and likely to be established, in determining whether it is not advantageous to mortgage, lease or sell. {Barnett v. Kincaid, sup.) "Where the petition set forth claims in the aggregate $4,314, and the executor admitted funds in his hands to the amount of $1,322, and debts are proved at $1,723, and the surrogate directed the sale of the real estate valued at $6,200, held that the order for sale should be sustained. (Id.) As to the real estate which may be mortgaged or sold, the liability attaches to lands not only in the hands of the heirs or 540 Peopeety to be Appeaised. devisees, but in the hands of any subsequent purchaser. The heirs or devisees may sell and convey the real estate of which the testator died seized, at any time after his death. But if they con- vey before the expiration of three years, the lands pass subject to the power of the surrogate to direct the same to be sold for the payment of debts. (^Hyde v. Tanner, 1 Barb., 75.) § 2760. Decree to mortgage or lease. — If the facts specified in the last section are satisfactorily established, the surrogate must in- quire whether sufficient money can be raised, advantageously to the persons interested in the real property, by a mortgage or lease of the real property of which the decedent died seized, or of a part thereof, and to that end he shall appoint three competent dis- interested persons to examine and appraise each parcel of such real property and its rental value at its just and fair market value ; they shall forthwith so appraise the same, make a report thereof, signed and verified by at least two of them, describing each parcel and stating its value and rental value, and file the same in the surrogate's office. If he ascertains that the money can be so raised, the decree must direct the execution of one or more mortgages or leases accordingly ; but a lease shall not be made for a longer time than until the youngest person interested in the property leased attains full age. A mortgage or lease executed pursuant to such a decree has the same effect as if it had been made by the dece- dent, immediately before his death. OEDER APPOINTING APPRAISERS. At a surrogate's court held in the county of , at the surrogate's office in the city of , on the day of , 1888. Present — Hon. , Surrogate. In the Mattee of the Real Estate ( OF , Deceased, j Application having been heretofore made for the disposition of the real estate of the above named decedent, for the payment of his debts and funeral expenses, and it having been made to appear that some disposition thereof should be made for the purposes aforesaid, to the end that the surrogate may decide whether such teal property shall be mortgaged, or leased or sold. Ordered, that of the city of Troy, and of the town of Bninswick, are hereby appointed to examine and appraise each parcel of such real property, and its rented value, at its just and fair market value • they shall forthwith so appraise the same, make a report Decree for Mortgage. 541 thereof, signed and verified by at least two of them, describing each parcel, and stating its value and rental value, and file the same in the surrogate's office. , Surrogate. The surrogate's order giving leave to dispose of the real estate of a decedent for the payment of his debts, is conclusive upon the parties as to the question of the sufficiency of assets ; and where the administratrix, by virtue of such order, mortgaged the estate, and subsequently became the purchaser of the mortgage, Jield, that the heir or devisee, or those. claiming under them, could not resist foreclosure by proving that she concealed assets belong- ing to the estate, and purchased the mortgage with them. {Gra- ham V Linden, 50 N. Y., 547.) It was the former practice to enter a special order adjudicating as to the debts proved before the surrogate, which was distinct from the order to mortgage, lease or sell, but the present practice would seem to require that the decree for the disposition of the property should also establish the debts; that the adjudication Tipon the claims, and the adjudication to mortgage, lease or sell should be in the same decree. (Sections 2758, 2759.) DECEEE FOR MOETGAGB. At a surrogate's court, held in the county of , at the surrogate's office, in the of on the day of , 1888. Present — Hon. , Surrogate. In the Matter of the Eeal Estate / OF , Deceased. I 0. D., the executor of the last will and testament of late of the town of , deceased, having lately 3)resented his petition to the surrogate of the county of , for authority to mortgage, lease or sell so much of the real estate of the said deceased as shall be necessary to pay the debts and funeral expenses of the deceased, and such proceedings having -been thereupon had that the surrogate is satisfied that the said ex- ecutor has fully complied with the several provisions of the stat- ute ; that the debts outstanding against the deceased, as far as the same can be ascertained, are the debts of the decedent, and the just and reasonable funeral charges for his funeral expenses, are justly 4ue, and axe as follows, amounting to $1,200 ; 542 When Sale Ordered. To A. B., debt established $ "CD., " " E. F., for funeral expenses " G. H., " " -) That the said debts are not secured by judgment, mortgage or other lien on the real estate of the said deceased, nor expressly charged by the will upon the decedent's real property, or interest in real property ; that the property hereinafter directed to be dis- posed of was not effectually devised or expressly charged with the payment of debts or funeral expenses, and is not subject to a valid power of sale for the payment thereof ; that the said executor has proceeded with reasonable diligence, in converting the personal property into money, aad applymg it to the payment of the debts- and funeral expenses of the decedent ; and that it is insufficient for the payment of the same as herein established ; and, Whereas, it has been made to appear that sufficient moneys for the payment of such debts can be raised advantageously to the in- terests of the estate by a mortgage on land ; and the said executor- having, with two sureties, executed a bond in the manner required by law, which is duly approved, acknowledged and filed ; It IS ordered, adjudged and decreed, that the said executor exe- cute, in due form for record, a mortgage upon the following de- scribed premises (describe premises) ; And it is further ordered, that said mortgage be made for the- sum of dollars, and be made payable in years from the date thereof, with semi-annual interest, and be secured by an assigment of the policy or policies of insurance against fire, procured upon the buildings on said premises. Witness, , surrogate, and the seal of [l. S.J the court, the day and year first above written. ■, Surrogate. § 2761. Decree to sell. — Where it appears to the surrogate, upon, the inquiry made as prescribed in the last section, that sufficient money cannot be raised advantageously to the persons interested in the real property, by mortgage or lease, the decree must direct, a sale of the real property, or interest in real property, or of so- much thereof as is necessary, in order to pay the debts and funeral expenses of the decedent, as established in the decree, at public or private sale. Where a sale of all the real property, or interest m real property, is not necessary for that purpose, but enough of either cannot be sold without manifest prejudice to the persons interested, the decree may direct a sale of all the real property or all the imerest in real property, or both, or of such a part of either- as the surrogate thinks proper, at public or private sale. Order of the Sale. 543 ■ If a sale shall be ordered the entire estate (interest in the prop- erty) of the decedent is to be sold. The surrogate cannot protect a life estate created by the will of the decedent by selling the re- mainder first {Pelletreau v. ^ith, 30 Barb.. 494.) And the surrogate has no jurisdiction to pass upon the title where the lands were prima facie vested in the decedent {Hewitt v, Hewitt, 3 Bradf., 265.) The surrogate has, by statute, the discretionary power to deter- mine as to the necessity of selling the whole, even if it will bring more than enough to pay the debts. His decision on that point ■can be reversed only on appeal. In any event purchasers cannot raise that objection. {Matter of Dolan, 88 IST. Y., 309.) § 2762. Decree when title is in controversy. — Where it appears that any' of the real property, of which the decedent died seized, cannot be sold without manifest prejudice to the persons inter- ested therein, by reason of a controversy respecting the decedent's title thereto, or interest therein, the decree may direct that the ex- ecution thereof, with respect to that property, be postponed until the special direction of the surrogate. In that case, a party may apply at any time afterwards, upon notice to the others who ap- peared, for an order directing the execution of the decree, with respect to the property so reserved. § 2763. Order in which parcels are to he sold. — Where the decree directs the sale of two or more distinct parcels of real property, of which the decedent died seized ; or his interest under two or more contracts for the purchase of distinct parcels of real property, the decree may direct the sale to be made in the order which the surrogate deems just, unless it appears that one or more distinct - parcels, of which the decedent died seized, have been devised by him, or sold by his heirs; in which case, the several distinct parcels must be sold in the following order ; 1. Property which descended to the decedent's heirs, and has not been sold by them. 2. Property so descended, which has been sold by them. 3. Property which has been devised, and has not been sold by the devisee. 4. Property so devised, which has been sold by the devisee. § 2764. Sale when undivided estate exists or precedent estate cre- Obted. — Where the decedent's will devises an undivided interest in real property, but not the whole of his estate therein ; or creates a precedent estate in real property ; or where an heir of the deced ent has sold an undivided interest, or created a precedent estate in leal property which descended to him ; the entire property, to 544 Decree for Sale. whicli the undivided interest or precedent estate attaches, must be* sold. But in applying the proceeds to the payment of debts and funeral expenses, the application of the proportion of the proceeds belonging to the devisee or grantee of the undivided interest, or of the precedent estate, must be postponed to the application of the residue, in the order prescribed in the last section, in like- manner as if that undivided interest or precedent estate was a distinct parcel of the property. (See Pelletreau v. Smithy sup.) § 2765. Form of decree of sale. — A decree directing that reali property be mortgaged, leased or sold, or that an interest in real property be sold, as prescribed in this title, must describe it with common certainty ; and must direct that a mortgage, lease or sale- thereof, for the purpose of paying the debts or funeral expenses, established by the decree, be made by the executor or adminis- trator, upon his giving the bond prescribed by law ; or, in case of his failure so to do, by a freeholder, to be appointed by the surro- gate, as prescribed by law ; and in case a sale thereof be directed, may authorize the same to be made at a price not less than the- value thereof, as appraised pursuant to the provisions of section, 2760 of this Code. Although the order (decree) must specify the lands to be sold, " it need not describe it by metes and bounds. And a description which would not be sufficient in a conveyance has been held good in the order. {Bloom v. Burdick, 1 Hill, 130 ; Jackson v. Irwiuy 10 Wend., 441.) DECEBE FOR SALE. At a surrogate's court, held for the county of , at the surrogate's office, in the , on the daT of ; 1880. Present — Hon. , Surrogate. In the Matter of the Real Estate I OF ■ , Deceased. I C. D., the executor of the last will and testament of of , deceased, having lately presented his peti- tion to the surrogate of the county of , for authority to mortgage, lease or sell so much of the real estate of the said de- ceased as shall be necessary to pay the debts and funeral expenses of the deceased, and such proceedings having been theretofore had that the surrogate is satisfied that the said executor has fully com- plied with the several provisions of the statutes ; that the debts, for the payment of which this decree is made, are the debts of the decedent, and the funeral charges allowed herein are just and- Decree for Sale. 545 reasonable, and that such debts and funeral charges are justly due^ and are as follows : To A. B $350 0(V " CD 109 00 " E. F 65 00 " G H., for funeral charges 95 00 Amounting in the whole to $619 00 That such debts are not secured by a judgment or mortgage, or expressly charged by will upon the decedent's real property, or interest in real property, that the real property hereinafter de- scribed and directed to be disposed of was not 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 ; that the said executor has proceeded with reasonable diligence in; converting the personal property of the decedent into money, and applying it to the payment of such debts and funeral expenses j and that it is insufficient for the payment of the same as estab- lished hereby ; and whereas it appears to the surrogate upon in- quiry made, that sufficient money cannot be raised advantage- ously to the persons interested in the real property by mortgage or lease. It is ordered, adjudged and decreed that upon his giving the bond prescribed, the said executor, or in case of his failure to give such bond, the freeholder to be appointed by the surrogate, as- prescribed by law, sell at public vendue the following- described real estate of the decedent, to wit : {Describe with common certainty the several parcels.') It is further ordered that the several parcels be sold in the order in which they are above described, and that on such sale the exe- cutor be authorized to give such length of credit, not exceeding: three years, for not more than three-fourths of the purchase money as shall seem best calculated to procure the highest price, and shall secure the moneys for which credit shall be so given by a bond of the purchaser and a mortgage upon the premises sold. And it is further ordered that before any deed or deeds of the premises sold shall be executed, the said executor make return of the proceedings had on this decree to the said surrogate, to the end that the said surrogate may examine said proceedings and the fairness and the legality of the said sale. Witness, , surrogate, and the seal of [L. S.J the court, the day and year first above written. , Surrogate. 546 The Bond on the Sale or Mortgage. § 2766. Bond to he given, and its terms. — Before aa executor or administrator can execute a decree directing that property be mort- gaged, leased or sold, he must execute, and file with the surrogate, iis bond, with two or more sureties, to the people of the State, in a penalty, fixed by the surrogate, not less than twice the sum so raised, if the decree directs a mortgage ; or, if it directs a lease in such a penalty as the surrogate thinks proper ; or, if it directs a .sale, in a penalty not less than twice the amount of the real property, or interest in real property, directed to be sold. The bond must be conditioned for the faithful performance of the ■duties imposed upon the principal by the decree ; for the payment into the surrogate's court, within twenty days after the receipt thereof, by the principal, of all money arising from the mortgage, lease or sale ; for the delivery to the surrogate, within the same time, of all the securities taken thereupon ; and for the account- ing lay the principal for all money received by him, whenever he- is required so to do, by a court of competent jurisdiction. See JSolmes V. Cock (2 Barb. Ch., 426). The bond given upon the order to mortgage was formerly difier •ent in its terms from one on an order to sell (2 E. S., 103, § 21) .and- the money in the former case, was to be paid by the executor or administrator directly to the claimants whose debts were estab- lished. Under the present practice, the money received is to be paid into the court in either case. BOND ON DISPOSITION OF EEAL ESTATE. , Know all men hy these presents : That w4 John Doe, executor of the wUl of ■ , deceased ; A. B. and 0. D., of the city of Troy, in the county of Eensselaer, are held and firmly bound unto the people of the State of New York in the sum of ■(double the value of the real estate to be sold), lawful money of the United States, to be paid to the said people ; to the which pav- ment, well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally firmly by these presents. Sealed with our seals, and dated this 10th ) day of September, A. D. 1872. J Whereas, the surrogate of the county of EenssaJaer, upon an .application to dispose of the real estate of . late of the city of Trqy, deceased, for the payment of his debts and funeral expenses, has made a decree that the real estate of the said deceased, described in said application, shall be sold (or mort- gaged) for the payment of such debts and expenses, by said John Another Sale May be Had. 547 Doe, as executor as aforesaid ; now, the condition of this obliga- tion is such, that if the said John Doe shall faithfully perform the duties imposed upon him by the said decree ; shall pay into the surrogate's court, within twenty days after the receipt thereof, aE money arising from such sale (or mortgage); shall deliver to the surrogate, within twenty days after their receipt by him, all the securities taken by him upon such sale , and shall account for all money received by him, whenever he is required so to do by a court of competent jurisdiction, then this obligation to be void, otherwise to remain in full force and virtue. (Signed) JOHN DOE, [l. &;, A. B., [l. a" I C. D. [L. a], Add acknowledgment and justification of sureties. If lands were ommitted in the first order to sell, by reason of ai mistake in the -boundaries, they may be sold by virtue of a second order, granted on the petition of the administrator, showing the mistake, without any new order to show cause. {Sheldon v. Wrighty 7 Barb., 39.) But in such a case, the lands must have been properly described in the petition for sale, for it would be held that, if they were not described in the petition, the surrogate would not acquire jurisdic- tion of them, § 2767. If executor or administrator faik to give hand, freeholder to be appointed. — Where there are two or more executors or ad- ministrators, if either of them fails, within such time as the sur- rogate deems reasonable, to give, or to join with his co-executors or co-administrators in giving a bond, as prescribed m 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 ad- ,ministrator, or all the executors or administrators so fail, the sur- rogate must make an order appointing a disinterested 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 appoiuted 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 cred- itors, whose debts have beea-BStaJalished, or a majority of them, in number and amojj 548 Decree to be Executed. OEDEE APPOINTING FEEEHOLDEE. At a surrogate's court, held in the county of , at the surrogate's office in the of , on the day of , 1880. Present — Hon. , Surrogate. In the Matter of the Eeal Estate ( OF A. B., Deceased. I The surrogate having heretofore made an order in this matter, that all persons interested in the estate of the above named de- •ceased, appear on a day and at a place in said order fixed, and .show cause why the real estate of the above named deceased -■should not be sold for the payment of his debts, which said order was dated on the day of last, and the surro- gate having heard the proofs and allegations of the parties, and having determined that a sale of said real estate was necessary for the purpose aforesaid, and having decreed such sale, and having given notice to the said executor applying for such disposition of said real estate, and having requested him to execute and file in this court the bond required by law, and a reasonable time havmg elapsed, and the said 0. D. having neglected to make and file such bond. It is ordered that B. R, of the town of , a disinterested freeholder, nominated by the creditors of the said deceased, be and he is hereby appointed in place of said C. D. to make sale of said real estate, upon his executing and filing with the surrogate .a bond in the penalty of dollars, with the condition re- quired by the statute in such case made and provided. , Surrogate. § 2768. Order directing execution of decree. — Where an executor -or administrator, or a freeholder, appointed as prescribed in the last section, has given the requisite bond, an order must be made reciting the fact, and directing him to proceed to execute the ■decree. The order may direct the execution of the decree with respect to all or any part of the real property, or any of the in- terests 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. OEDEE DIEEOTING EXECUTION OF DECEEE. At a surrogate's court, held in the county of , at the surrogate's office, in the of , on the day of , 1880. Sale Mat be Delayed. 549 Present — Hon. , Surrogate. In the Matter of the Eeal Estate | OF , Deceased, t The surrogate having made his decree in this matter, directing executor of the will of the above named de- ceased, to sell certain real estate of the said deceased, upon his giving the bond prescribed by law (and the said executor having iailed to give such bond, and the surrogate having appointed , a disinterested freeholder, to make such sale, upon his giving such bond, and said ■ — having filed a bond in form and as to the sufficiency of the sureties ap- proved by the surrrogate), and said executor having filed such bond approved by the surrogate : It is ordered that said proceed to execute said decree for sale. , Surrogate. § 2769. Sale delayed hy appeal^ part of property may he sold. — 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 amounc of debt established by the decree , and the real property directed to be sold, or to which the interest directed to be sold attaches, consists of two or more distinct parcels, the sale of, or with respect to, one or more of which will sufiice to pay all the other debts so established, leaving enough real property or interest in real property unsold, to satisfy the claim drawn in question upon the appeal , the appellate court may, upon the motion of any party to the special proceeding in the surrogate's court, made upon notice to all parties to the appeal, direct the surrogate's court to cause the decree to be executed, with respect to the distinct parcels of real property which will suffice to pay the debts not in controversy , and the proceeds of a sale made pursuant thereto, to be distributed m like manner as if the decree related only to those parcels and those debts ; except that any surplus which may remain for distribution after payment of those debts, or so much thereof as will suffice to pay the de- mand in controversy must be paid into the surrogate's court and retained by the county treasurer, subject to the order of the surro- gate, to abide the event of the appeal. But this section does not authorize a sale of any distinct parcel otherwise than in the order prescribed for that purpose in sections 2764 and 2765 of this act § 2770. Execution of decree not affected hy death, etc. — The death, removal or disqualification, before the complete execution of a de- cree, of all the executors or administrators who have been directed to execute it, or of a freeholder appointed for the purpose, does 550 Sale May be on Credit. , not suspend or affect the execution thereof ; but the successor of the person who has died, been removed, or become disquaHfied, must proceed to complete 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. § 2771. What credit may he 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, 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. The administrator may decline to sell on credit, in the absence of any direction by the surrogate, or assent of the creditors. {Maples V. Howe, 3 Barb. Ch., 611.) The executor or administrator may sell the real estate in sepa- rate parcels, if he deems it beneficial to the estate, although the order for sale described the property as a single parcel. {Dela- plaine v. Lawrence, 3 N. Y., 301.) The surrogate's court has no power to compel a purchaser to- take his deed, and, therefore, there should be a reasonable per- centage of the purchase money paid on the sale, sufficient, at least to pay the expenses of a new sale, in case the purchaser should fail to fulfil the terms, and a new sale should be necessary. § 2772. Mode of sale and notice thereof. — Each distinct parcel of real property must be sold in the county where it, or a part thereof, IS situated. The provisions of sections 1384, 1385, 1386, 1434, 1435 and 1436 of this act, apply to a sale of real property, or of an interest in real property, 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. These sections provide that (1) sale shall be between nine o'clock in the morning and sunset (§ 1384). That (2) a person taking down or willfully defacing a notice forfeits fifty dollars (§ 1385). But (3) that an omission to give the notice, as required by law, or the taking down or defacing a notice, to when put up, does not affect the validity of a sale a purchaser in good faith and without notice of the omission or offense. (Section 1386.) Notice, How Posted, etc. 551 § 1434. Notice of sale of real property, how given. — The sheriff (executor, administrator or freeholder) who sells real property, bj virtue of ■ an execution (decree of a surrogate), must previously give public notice of the time and place of the sale, as follows : 1. A written or printed notice thereof must be conspicuously fastened up, at least forty-two days before the sale, in three public places in the town or city where the sale is to take place, and also in three public places in the town or city where the property is situated, if the sale is to take place in another town or city. 2. A copy of the notice must be published at least once in each of the six weeks immediately preceding the sale, in a newspaper published in the county, if there is one, or, if there is none, in the newspaper printed at Albany in which legal notices are required to be published Notice of a sale of lands in a city by order of a surrogate, must be posted in the ward where the land is situated. {Ex parte Mb- Feeky, 2 Eedf., 541.) A contract made by an administrator to sell lands when the order shall be obtained, is utterly void. {Overseers of Bridgwater V. Overseers of Brookfield, 3 Oow., 299 ; Herrick v. Grow, 5 Wend, 579 ; Bolt V. Bogers, 3 Paige, 154.) § 1435. Property how described in notice. Part may be sold. — In each notice, specified in the last section, the real property to be sold must be described with common certainty, by setting forth the name of township or tract, and the number of the; lot, if there is any, or by some other appropriate descriptioa The validity of a sale is not affected by the fact that the property sold is part only of the property advertised to be sold As to matters of description see ODonnell v. Lindsay {^^ N. Y. Sup., 623). The description in the notice must follow the descrip- tion in the petition and order of sale, especially the latter. § 1436. Penalty for irregularity in sale. — A sheriff (executor, etc.) who sells real property by virtue of an execution (decree) without having given notice thereof, as prescribed in the last two sections, or otherwise than as prescribed in this chapter, forfeits one thousand dollars to the party injured, in addition to the dama- ges which the latter sustains thereby. (See Paise v. Halhut, 1 How., 235; Wood v. Morehouse, 45 N. Y., 368.) § 2773. Distinct parcels to be sold separately. — Where real prop- erty to be sold consists of one or more distin^ii parcels, the person making the sale must cause each distinct pa,' eel to be separately exposed for sale, unless otherwise directed in (At decree, or in the 552 Executor Not to Buy. order to execute tlie same, or in an order subsequently made by the surrogate. The sale may be made in parcels, although the decree describes the property as a single parcel. {Delaplaine v. Lawrence, 3 N. Y., 301.) §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 in- terested in a purchase at the sale ; except that a guardian may,, when authorized so to do by the order of the surrogate, purchase- in his name of office for the benefit of his ward. A violation of this section renders the purchase void. This section is substantially a transcript of section 27 (2 R. S., 104), and is only declaratory of the common law. If an executor join with others in the purchase, the sale may be avoided- {Miichum v. Mitchum, 3 Dana ; Paul v. Squibb, 12 Penn. St, 296.) The authorities adjudicating upon the last section above quoted, are Moore v. Moore (5 N. Y., 256) ; Boerum v. Schenck (41 id., 182), and Terwilliger v. Brown (44 id., 237) j Forbes v. Halsey (26 id., 53). The rule which forbids an executor to purchase or be interested in the purchase of land in such a case, is violated if the executor becomes interested before the confirmation, although not until after the property is struck off. That the fair value of the premi- ses was bidden and the sale confirmed ex parte, will not give it validity. Nor is it material that the agreement by which the exe- cutor becomes intrusted might be waived by the statute of frauds. {Terwilliger Y. Brown, sup.) If, however, the estate is sold in good faith to a stranger, with no collusion between him and the executor, there is nothing to prevent the executor from purchasing it afterwards, like any other property. {Silverton v. McKinister, 12 Penn. St., 67.) So a long acquiescence in a purchase made by an executor, by all parties concerned, would probably be held to be a confirmation. {Hawhy v. Cramer, 4 Cow., 717 ; Ward v. Smith, 3 Sandf. Ch., 592.) But if an administrator purchases the estate at his own sale, and afterwards conveys it to a third person, the purchaser will be Creditor May Buy. 553 , 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 f er a sale, and an order directing the execution thereof were made, .as prescribed in this title ; and the decree, and the order, if any, were duly recorded, as 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 directing the execution of the decree. 2. Where an order, confirming a sale and directing a convey- ance, has been made, upon proof satisfactory to the surrogate, that all the acts have been done which are required by law to be done, after the order directing the execution of the decree, to authorize the surrogate to make such an order of confirmation, by the actual omission to do such an act, or by any error defect or irregularity in the same, or by any omission in the recitals of the conveyance. A surrogate's order for sale of real estate for payment of debts, cannot ordinarily be impeached collaterally, even for fraud, if he obtains jurisdiction ; his adjudication, that the personal estate is insufficient for payment of debts, followed by an order of sale, is ■conclusive in any collateral proceeding. {Atkins v. Kinnan, 20 Wend., 241.) But if it be shown affirmatively, that the surrogate did not acquire jurisdiction to make the order, the proceedings will be held invalid. (Wooc? v. Mc Chesney, 40 Barb. ,417.) Abuse of the administrator's power is not cause for impeaching title .{Jackson v. Irwin, 10 Wend., 441), but fraud is. {Woodruff y. Cook, 2 Edw , 259 ) After a lease has expired, a purchaser's title 564 Proceedings Strictly Pursued. is not affected by an omission to serve on the tenants holding oyer under it. {Rigney v. Coles, 6 Bosw., 479.) Statutory proceedings to divest title to real estate, must be- strictly pursued ; and a substantial departure from the require- ments of the statute renders the proceedings void. Where, there- fore, in proceedings for the sale of real estate, the order (citation) to show cause is made returnable in less time than that required by statute, it shows a want of jurisdiction fatal to its validity, and all proceedings against those who did not appear, and so waived, the defects are void. The rights of an infant in such proceedings. cannot be waived by failure to make the objections. So, also, where in such proceedings, an order was made appointing a guard- ian for infants, but it did not appear that the guardian consented, or did act, or that he had notice of his appointment, but, on the- contrary, it appeared that he acted as counsel for the claimant : held, that even if his appearance for the infants would have con- stituted a waiver, his consent, at least, was essential {Sdlwell v. Swarthout, 81 N. E., 109. § 2785. Presumption in certain cases. — Where the records of the surrogate's court have been heretofore, or are hereafter, removed from one place to another, in either the same or another county^ and twenty-five years have elapsed after a sale or other disposition of real property, or of an interest in real property, as prescribed in this title, the due appointment of a guardian for each infant party to the special proceeding must be yresumed, and can be disproved only by affirmative record evidence to the contrary. This act throws upon the party seeking to impeach a sale of real estate, under the order of a surrogate, the whole burden of proof ; and if he fails to show a want of jurisdiction in the surro- gate to make the order, the law presumes that it was properly made. ( Wood v. McChesney, 40 Barb., 417 ) § 2786. Proceed to be paid into court. Effect thereof. — The pro- ceeds arising from a mortgage, lease or sale, made as prescribed in this title, must be paid into the surrogate's court by the executor, administrator or "freeholder receiving the same. For that purpose he must pay them to the county treasurer, to the credit of the special proceeding, to be retained by him as prescribed in section 2537 of this act Upon payment being so made the heirs and devisees of the decedent, and their assigns, and all the decedent's- remaining real property, and interest in real property, held under a contract for the purchase thereof, are exonerated from the debts Distribution of Proceeds. 565 established by the decree, or estabUshed as prescribed in the next section but one, as far as the proceeds so paid over are sufficient, after deducting the costs and expenses allowed by the surrogate to satisfy those debts. The entire proceeds of the sale should be paid into court with- out retaining for fees and disbursements ; they are afterwards to be allowed by the surrogate. {Matter of Lamherson, 63 Barb., 297) As to the section referred to (2537), see ante. § 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 surrogate must cause notice of the time and place of making the distribution to be published, at least once in each of the six weeks immediately preceding the same, in a newspapar published in the county of the surrogate. OEDER FOR NOTICE OF DISTRIBUTION. At a surrogate's court, held in the county of , at the surrogate's office in the of ■ , on the day of , 1880. Present — Hon. , Surrogate. In the Matter of the Real Estate / OF A. B., Deceased. t The proceeds of the real estate of the above named deceased, sold for the payment of his debts, having been paid into court : Ordered the same to be distributed in this court on the day of next, at ten o'clock in the forenoon, and that notice thereof be published for six weeks successively in the , a newspaper printed in the city of . ', Surrogate. NOTICE OF DISTRIBUTION. Rensselaer County, ss. : To aU persons interested in the estate of A. B., late of the town of — , in said county: Notice is hereby given that the surrogate of said county will proceed to distribute the proceeds of the real estate of the above named deceased, sold for payment of his debts^ at his office in the city of Troy, on the — day of ■. next, at ten o'clock in the forenoon of that day. Dated Troy, December 19, 1880. -, Surrogate,. 566 Another Sale May be Made. § 2788. Hearing. — At the time and place designated in the notice, or at the time and place to which the hearing is adjourned, the surrogate must hear the proofs and allegations of the creditors, 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 estab- lished or rejected, before making the decree." The provisions of this title relating to contesting and establishing debts, and preserv- ing the evidence thereof, before making the decree, apply to the proceedings respecting any demand so presented. A debt which was established by the decree may be again controverted upon the hearing provided for in this section, upon the discovery of new evidence impeachmg the same, and upon such a notice to the claimant as the surrogate directs, but not otherwise. § 2789. If proceeds insufficient, more may be sold, etc. — Where the decree was executed with respect to a part only of the real property, or interests in real property specified therein, and the proceeds of the sale are insufficient, after paying the costs and ex- penses thereof, to satisfy all the debts established by the decree, together with the demands established 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 2768 of this act, directing the execution of the decree with respect to the remainder or so much thereof as is necessary. The proceedings thereupon and subsequent thereto are the same as upon and subsequent to the first order for the execution of the decree. § 2790. Proofs to he made as to claim on surplus. — Upon the hearing, provided for in the last section but one, or upon the hear- ing 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 thereoi A claim so made may be contested by any other person making a like claim. The surrogate may, on proof of liens upon the shares of the claimants to the surplus, undoubtedly order payment to the lien- ors. He may direct payment to a receiver in supplementary pro- ceedings, but the court cannot restrain the surrogate from the dis- posal of the fund. (Davis v. Davis, 4 Eedf., 355.) § 2791. Decree for distribution. — The surrogate must, by a sup- plementary decree, made and recorded in like manner as the first decree, determine the rights of the creditors and other persons interested to share in the proceeds, and direct the distribution thereof accordingly. Where the rights of creditors are established Distribution, How Made. 567 and there is a surplus, respecting the distribution of which a con- test arises, he may make a supplementary decree providing for the payment of the creditors only, and reserving all questions as to the distribution of the surplus to be settled by a second supple- mentary 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 a party to an appeal from the second supplementary decree. § 2792. County treasurer to pay. — Each supplementary decree must fix the sums to be paid or invested, as prescribed in the fol- lowing sections of this title, as far as they can be then fixed. If any sum cannot be then fixed, it may be fixed by the order of the surrogate subsequently made. The surrogate must cause a certi- fied 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 m his hands, as directed thereby. § 2793. Distribution, how made. — Money paid into the surro- gate's court, as prescrilied 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 properry 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 proceeds 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 lor investment, one-third of the gross proceeds of the property to which her right of dower attaches, unless, within such time, and upon such a notice to her, as the surrogate deems reasonable, she presents an instru- ment under seal, acknowledgrd or proved, and certified, in like manner as a deed to be recorded in the county, whereby she con- sents to accept, in lieu of her dower, a sum, to be ascertained by the surrogate, equal to the value of her right of dower in the gross proceeds, according to the principles applicable to life annuities ; and, if she presents such an instrument, by paying to her such a sum. 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 surrogate must authorize and direct such guardian or committee, m the name of such infant lunatice, or incompetent widow, having such dower right, to exe- 568 Distribution, How Made. cute an instrument, under seal, acknowledged or proved and cer- tified 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 1 irovided, according to the principles applicable to life annuities ; and upon presentation of such an instrument to the surrogate, the value (if 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 acknowled by a competent person. 4. Out of the remainder of the money, arising upon a mortgage, lease or sale, must be paid the costs of the special proceeding, awarded to the petitioner in the decree. 5. Out of the remainder of the money must be paid the sum, if any, which has been found to be due to the executor or admin- istrator, upon a judicial settlement of his account, after applying thereupon the proceeds of the personal property. But this subdi- vision does not authorize the repayment, to an executor or ad- ministrator, 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 dis- posed of, as prescribed in this title. 6. Out of the reniainder of the money, must be paid in full the reasonable funeral expenses of the decedent, to the persons whose claims therefor were established and recited as debts, in the first degree, and were not rejected upon the second hearing. 7. Out of the remainder of the money must be paid m full the other debts which were established and recited m 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 decedent's debts by an executor or ad- ministrator out of the personal assets, without giving preference to rent, or to a specialty, or to any demand on account of ian action pending thereupon, and paying debts not yet due upon a rebate of legal interest. 8. Out of the remainder of the money must be paid in like manner the debts first established by the supplementary decree, or so much thereof as the remainder will pay. 9. If any surplus remains it must be distributed among the heirs and devisees of the decedent, or the persons claiming under them, and among those persons who have presented and proved- liens upon the interests of those heirs or devisees, or persons claiming under them, which were cut off by the sale ; according to their respective rights and priorities, as established in the sup- plementary decree. But if the proceeds of any of the property sold had been, or were to be, converted into personal property, pursuant to a direction contained in the decedent's will, the sur- Dower of "Widow in Land Sold. 569 plus proceeds of that part of the property must be paid to the person entitled thereto by the terms of the will. The section undertakes to settle the order of payment of all proper charges upon the fund, and the claims of all upon it In disposing of the proceeds, regard may be had to the fact that some of the debts are entitled tobe partially or fully paid out of funds arising from the sale of real estate in another State. {Lawrence v. Elmmdorf, 5 Bark., 73.) Liens by mortgage, judgment or decree against the portions of the heirs on a claim filed, should be ad- mitted as a valid charge against the shares of the heirs in the sur • plus. {Sears v. Mack, 2 Bradf., 894 ; Uddy v. Traver, 6 Paige, 52.) A judgment against the decedent, not docketed in his life-time, is not a lien against his real estate, but is a claim, and entitled to share with other claims pro rata. {Estate of Fox, 91 N". Y., 656; In re Fox, 92 id., 93.) Upon the hearing for distribution, all per- sons interested are parties, and the heirs or devisees or creditors, may set up any defense against any claims. The same proof is necessary for the establishment of the claim of an executor or administrator, as in a proceeding specially insti- tuted for that purpose, or on judicial settlement ; and an order validating the claim in one of these proceedings, is binding upon the distributors. {Matter of Gardner, 5 Eedf., 14.) If land devised has been sold in these proceedings, and the pro- ceeds distributed, the devisees will be entitled to re-imbursement out of assets subsequently discovered and received by the execu- tors. {Couch V. Delaplaine, 2 N. Y., 397.) The allowance to the special guardian of an infant devisee is limited to seventy dollars. {Matter of Dodge, 40 Hun, 443.) This must be understood only to apply where the number of hearings does not exceed two days ; for each day additional to two, ten dollars would be allowed. § 2794. Dower in land under contract, how computed. — 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 property so contracted and sold. 72- 570 Compensation of Executor. § 2795. Dower fund, 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 pubhc securities of the State or of the United States, or in permanent mortgage securities, bear- ing interest, payable annually or oftener. The interest, or other income, must be paid by the county treasurer to the widow dur- ing her life. After her death, the county treasurer, under the di- rection of the surrogate's court, manifested in an order duly en- tered, 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 distribu- tion of the remainder of money, after satisfying the claim for dower. § 2563. Allowance to executor or adtninistrator. — Upon the dis- position of real property of a decedent, as prescribed in title fifth of this chapter, the executor, administrator or freeholder disposing of the property, must be allowed, by the surrogate, out of the proceeds of the sale brought into court, his expenses ; and he may be allowed, out of the proceeds, a reasonable sum for his own ser- vices, not exceeding five dollars for each day actually and neces- sarily occupied by him in disposing of the property, and such a further sum as the surrogate thinks reasonable for the necessary services of his attorney and counsel therein, § 2564. The allowances specified in the last section, are in lieu of commissions. The claim for the expenses and for the per diem allowance should properly be put in to the surrogate in items, and on the oath of the executor or administrator. The statute contemplates a 'per diem allowance only for the days necessarily and actually employed about the sale. It does not warrant the idea that the executor or administrator is upon a salary from the commencement to the conclusion of the business. {Higbie v. Wcstlake, 14 N. Y., 281.) NOTICE TO WIDOW TO ELECT. In the Matter of the Eeal Estate / OF , Deceased. j To , widow of said deceased: You are hereby notified and required to elect whether you will accept such sum in gross as shall be deemed upon the- principles of law, applicable to annuities, a reasonable satisfaction of your Widow May Elect. 571 claim for dower in the lands of the above deceased in lieu of your dower; and you are notified so to elect before the surrogate of the county of Eensselaer, at his office in Troy, on the day of , 1872 (the day for distribution of proceeds.) Dated November 20, 1872. A. B., Executor of the- will of savl deceased. CONSENT OF WIDOW TO ACCEPT A SUM IN GROSS. In the Mattek of the Real Estate / OF , Deceased. I Whereas, certain lands and tenements of the above named de- ceased, in which the undersigned is entitled to dower as the widow of said deceased, have been recently sold by virtue of a decree of the surrogate of county, in this matter, and which said lands and tenements are bounded and described as follows : (de- scription as in order for sale.) And whereas, the moneys arising from the said sale have been brought into the said surrogate's court for distribution : Now, therefore, know all men by these presents, that I, A. B., the widow of the said deceased, do by these presents consent to accept in lieu of my dower, in the lands and tenements aforesaid, such sum in gross as shall be deemed, upon the principles of law applicable to annuities, a reasonable satisfaction of my said dower. In witness whereof, I have hereto set my hand and seal, this day of , 187—. A. B., [L. S.J Eensselaer County, ss. : On this day of , 187 — , before me personally came A. B., to me known to be the same person described in and who executed the foregoing instrument, and acknowledged that she executed the said instrument for the uses and purposes therein mentioned. L. W. RHODES, Commissioner of Deeds, Troy, N. Y. 572 Computation of Yalue of Dowee. ANNUITY TABLE. Table showing the value of an annuity of one dollar on a single life, according to the Northampton table of mortality, at five per cent interest, referred to in Supreme Court Rule No. 71. Agre. No. of years purchase the annuity is worth. Age. No. of years purchBse the annuity is worth. Age. No. of years purchase the annuity is worth. Age. No. of years purchase the annuity is worth. 1 11.563 31 12.965 61 8.181 91 1.447 2 13.420 32 12.854 62 7.966 92 1.153 3 14.135 33 12.740 63 7.742 93 .816 4 14.513 34 12.623 64 7.514 94 .524 5 14.827 35 12.502 65 7.276 95 .238 6 15.041 36 12.377 66 7.034 7 15.166 37 12.249 67 6.787 8 15.226 38 12.116 68 6.536 9 15.210 39 11.979 69 6.281 10 15.139 40 •11.837 70 6.023 11 15.043 41 11.695 71 5.764 12 14.937 42 11.551 72 5.504 13 14.826 43 11.407 73 5.245 14 14.710 44 11.258 74 4.990 15 14.588 45 11.105 75 4.744 16 14.460 46 10.947 76 4.511 17 14.334 47 10.784 77 4.277 18 14.217 48 10.616 78 4.035 19 14.108 49 10.443 79 3.776 20 14.007 50 10.269 80 3.515 21 13.917 51 10.097 81 3.263 22 13.833 52 9.925 82 3.020 23 13.746 53 9.748 83 2.797 24 13.658 54 9.567 84 2.627 25 13.667 55 9.3S2 85 22471 26 13.473 56 9.193 86 2.328 27 13.377 57 8.999 87 2.193 28 13.278 58 8.801 88 2.080 29 13.177 59 8.599 89 1.924 30 13.072 60 8.392 90 1.723 Rule for Computation. Calculate the interest at five per cent for one year iipon Va& sum to the income of which the person is entitled, and multiply this interest by the number of years' purchase set opposite the Interest of Infants, How Treated. 573 person's age in the table, and the product is the gross value of the life estate of such person. EXAMPLE. Suppose a widow's age is forty, and she is entitled to dower in real estote worth $1,500 ; one-third of this is $500 ; interest on $500, one year, at five per cent, is $25 ; multiply this by 11.837, the number of years' purchase set opposite her age, and you have ^295.92 as the gross value of her dower right § 2796. Fund invested for infants, 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 in- vestment 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 uniacumbered 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 persons entitled thereto. Or where surplus money, distributable to an infant, the decree may, in the discretion of the surrogate, direct that the same be paid to his general guardian, upon the latter giving such additional secarity, if any, as the surrogate directs ; or if it is one hundred dollars or less, that it be deposited by the <;ounty treasurer in a savings bank or trust company designated by the surrogate ; and that the interest or income thereof be ap- plied to the use of the infant until its majority. § 2797. Partition or foreclosure not to affect proceedings, except, etc. — The commencement of pendency of an action or special proceeding, having for its object the sale, either absolutely or <;ontingently, of property liable to be disposed of as prescribed in this title; or the foreclosure by advertisement of a mortgage thereupon ; or any proceeding to sell such property, taken pur- suant 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 directing a jnortgage, 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 proceeding, or by the proceedings then pending, until the determination 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, 574 Supplementary Decree. before making the decree in the surrogate's court, the decree must provide for the application of the surplus proceeds belonging to the decedent's estate. If such a sale is made afterwards, the di- rections contained in the decree, relating to the property sold, are deemed to relate to those proceeds. SUPPLEMENTARY DECREE ESTABLISHING- CLAIMS AND DECREEING DISTRIBUTION. At a surrogate's court, held in and foi* the county of , at the surrogate's office, in the of ^ on the day of , 1874. Present — Hon. — — , Surrogate. In the Matter of the Real Estate | OF A. B., Deceased. j The proceeds of the real estate of A. B., late of the town of deceased, sold under the order of this court for the payment of his debts, having been paid into court to the amount of ten thousand dollars, and the surrogate having caused a notice to be published for six weeks, that distribution would be made of such proceeds according to law, and due proof of such publication having been filed, and sundry creditors having attended and proved their claims to the satisfaction of the surrogate; and C. B., widow of said deceased, having filed her consent to accept a sum in lieu of her dower in the premises sold, which consent is. executed and acknowledged by the said 0. B., in the manner required as to deeds to entitle them to be recorded, and X. Y., the executor of the will of said deceased, having appeared in person by James Lansing, his counsel, and 'having filed his claim for expenses paid by him and for compensation in making such sale, which claim was duly verified and is allowed by the surrogate : It is ordered, adjudged and decreed that of the proceeds as, aforesaid paid into the court, there be paid by the county treasurer of Rensselaer county, to said C. B., widow as aforesaid, in lieu of her dower, the sum of twenty-two dollars, and to said X. Y., said executor, for his expenses and compensation, the sum of 39 50-100 dollars, and to James Lansing, his counsel, twenty-five dollars, and that the remainder, amounting to seven thousand seven hun- dred and thirty -five dollars and fifty cents, be distributed pro ratw- among the creditors of the said deceased who prove their claims as- shown in the schedule hereto annexed showing the amount of the claim by each creditor as proved, and the sum payable to each. Witness, , surrogate, and the seal of [l. s.] the court., this day of , 1880. , /Surrogate. How Money Invested. 575 SCHEDULE EEFEREED TO IN THE FOREGOING DECREE. Amount paid into court $10, 000 00 There shall be paid to C. B., widow ... $2, 200 00 There shall be paid to X. Y., executor , 39 50 'There shall be paid to J. L., attorney. . 25 00 2, 264 50 And the remainder 7, 735 50 shall be distributed to the creditors who have proved claims, as follows : Amount claimed. Distribution. J. L $900 00 $450 00 A. R 250 00 125 00 J. D 2,000 00 1,000 00 If the executor or administrator shall have paid debts in the course of administration, beyond the assets which came to his hands, he shall have the right to be reimbursed out of the pro- ceeds of the sale, being considered the equitable Assignee of such claims. {Livingston v. NewMrk, 3 John. Ch., 312.) But if the proceeds are not sufficient to pay debts in full, the executor or administrator; as above, gets only his pro rata dividend with other creditors. § 2800. Securities and investments to he in name of county treas- urer. — Except as otherwise specially prescribed in this title, a security taken or an investment made, pursuant to any provisions thereof, must be taken or made in the name of the county treas- urer, adding his official title and his successors in office. Each security so taken, and all the papers connected therewith, or with such an investment, and each lease, taken as prescribed in this title, must be immediately delivered to the surrogate for his approval and, when approved by him, must be delivered to the county treasurer, who must, from time to time, collect the money due thereupon, and apply it, under the direction of the surrogate, as prescribed by law for that purpose, or for the application of the money represented by the security. § 2798. Surplus moneys on mortgage, or Judgment sale in certain cases, to he paid to the surrogate. — Where real property, or an interest in real property, liable to be disposed of of 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 576 DisTRiBUTioK TO Heirs, etc. four years before tlie sale, issued from a surrogate's court of tW state, having jurisdiction to grant them ; the surplus money must be paid into the surrogate's court from which the letters issued. If the sale was made pursuant to the directions contained in a judg- ment or order, the surplus remaining after payment of all the liens upon the property, chargeable upon the proceeds, whicn ex- isted 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 ex- penses, must, within thirty days after the receipt of the money from which it accrues, be so paid over by the person receiving that money. The receipt of the surrogate, or the clerk of the surrogate's court, or the county treasurer, as the case may be, is a. sufficient discharge to the person paying the money. § 2799. Surplus moneys, how distributed. — "Where money is paid into a surrogate's court, as prescribed 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 dis- tribution of the money, the money must be distributed 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 cause why such a decre ; should not be made. Service of the citation may be made upon all the per-, sons designated therein, by publishing the same in two news- papers, designated as prescribed in article first of title second of this chapter, at least once in each of the four successive weeks; immediately preceding the return day thereof, except that personal service must be made upon the husband, wife, heirs and devisees- of the decedent, and also upon every other person claiming under them, or either of them, who resides in this State. Upon the re- turn of the citation, the rights and priorities of the persons inter- ested must be established, and a decree for distribution must be made, as prescribed in this title, for the distribution of the pro- ceeds of real property sold. Under this section, the citation must be served by publication on the persons entitled to share in the proceeds. Personal service,, or service by mail, confers no jurisdiction on the surrogate^ {Matt&r of Solomon, 4 Eedf., 509.) Petition for Distribution. 577 PETITION FOE DISTRIBUTION. Surrogate's Court. In the Matter of the Surplus aris- ing from Fobeclosure of Mort- gage ON THE Eeal Estate of A. B., Deceased. To Hon. , Surrogate of the County of ", The petition of 0. D., of the city of , in said county, respectfully shows : That your petitioner is one ef the heirs at law (or a devisee named in the will of, or a creditor) of A. B., late of said city, de- ceased, and as such entitled to a proportion of the surplus above mentioned. And your petitioner further allegas, on information and belief, that certain real estate of the said deceased, which descended to your petitioner as an heir at law of the said deceased, has been sold under and by virtue of a mortgage upon the same, made by the decedent in his life- time, and a surplus arising from such sale after paying said mortgage, and the costs and expenses of sale have been paid into this court to the county treasurer of this county, amounting to the sum of dollars, and still re- mains undistributed. And your petitioner farther shows, as aforesaid, that letters tes- tamentary upon the will of the said A. B. were, within four years before such sale, issued to R. X., executor in said will named, and E. F., of the town of , is the wife, and your petitioner and Gr. H., who resides in the town of , are the heirs at law of the decedent, and, as your petitioner verily believes, are entitled to said surplus. Your petitioner, therefore, prays that a decree may be made di- recting the distribution of said surplus money among the persons entitled thereto. And your petitioner will ever pray, etc. Dated May 29, 1884. (Signed) . County of , ss: A. B., being duly sworn, says that the foregoing petition by him subscribed, is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be true. Sworn before me, this 29th day of | May, 1884. \ , Notary Pyblic. 73 578 Sales by Executoes. The order for the citation and the citation itself is conformed to the prayer of the petition. § 2801. Restitution may be made to heirs, etc. — 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 afterwards discovered; or for any other reason, money or other personal property of the decedent, which should have been applied thereto, afterwards comes to the hands of the ex- ecutor, administrator, legatee or next of kin; the heir devisee, or other person aggrieved, may maintain an action to procure reim- i)ursement therefrom. CHAPTEE XXL Peovisions as to Sales by Executoes tjndee Power given IN THE Will, and as to Confiemation of Sales Oeiginally made undee Sureogate's Oedee. As a general rule, where the testator directs that certain real ■estate be sold, and the proceeds divided among persons named in the will, the legatees, if of full age, may el^t to take either the lands or the money, provided the rights of others are not affected thereby. Therefore, where the legatees have elected to take the land, the executor, who was directed by the will to sell the same, is not a necessary party to an action to partition it. {Prentice v. ■Jamessen, 14 Hun, 548.) In making the conveyance the executor is not bound to make ^ny covenants, save against incumbrances of his own making. He must do everything necessary to put the grantee in the same situation the decedent was in, but he is not authorized to make •covenants. His covenants for title cannot bind the estate, but are personal covenants, and he alone will be resposible. (17 Am. Dec, 224, notes; Bostvdck v. Beach, 81 Hun, 343; Bamsey v. Wnndell, 32 id., 482.) An executor may be compelled to execute a power of sale giveh in the will of his testator, and if he fails to exercise his judgment, the court may put him in motion or act in his placa {Haight v. Brisbin, 96 N. Y., 132.) It is to be presumed after a considerable lapse of time, in the ■absence of proof on the subject, that the executors who executed. Sales by Executors. 579 the deed were all the acting executors. {Fleming v. Burnham, 43 Hun, 456.) At a sale by executors the purchaser cannot insist on a perfect record title to avoid his purchase, there must be such a reasonable doubt as to the title as afEects the value of the property and interferes with its sale to a reasonable purchaser, and thus renders the land unmarketable. (Id.) Where the power of sale is given to executors for certain pur- poses, as for payment of debts or legacies, or both, the power terminates with the necessity. If the debts or legacies are paid without recourse to the real estate, the power to sell is ended, {Chamberlain v. Taylor, 105 K Y., 185.) An executor cannot, as against devisees, voluntarily execute a power of sale of lands for the payment of a claim which the creditor could not enforce by reason of its being barred by the statute of limitations. {Butler v. Johnson, 41 Hun, 206.) Where executors, empowered by the terms of the will to sell their testators' real estate, enter into an executory contract for such sale, performance of the contract may be enforced in equity at the suit of the purchaser. The purchaser for full value is also entitled to have incumbrances removed out of the purchase money. {Bost- wiclc V. Beach, 103 N. Y., 414.) Where land contracted to be sold by executors is subject to a ■ dower right of the testator's widow, the purchaser may elect tO' carry out his purchase and take title subject to the dower right,. and if he does so elect, he is entitled to an abatement from the contract price equal to the gross value of the dower right Where the widow was also executrix, and as such one of the parties to the contract of sale, and was made a defendant to an action for specific performance, both in her representative and individual capacity, it was held that, by joining in the contract of sale, without any reservation therein of her dower right, she consented, so far as her individual rights were concerned, to make a good title and look to the purchase money as a substitute for her dower right (Id.) Some question having arisen in relation to sales of real property after the Code went into effect, provision was made therefor by an act passed February 27, 1883. Section 1. Sales of real estate situate in the city and county af New York, or at any other place within the State of New York, made by executors, in pursuance of any authority given ■580 PowEE OF Executors to Sell. hj any last will, unless otherwise directed in said wUl, may h& public or private, and on such terms as in the opinion of the ex- ecutor shall be most advantageous to those interested therein. § 2. All such sales made since the first day of September, 1880, are hereby ratified and confirmed and declared to be as valid in ■every respect as if section one of this act had been in force on and at aU times since said first day of September, 1880. § 3. This act shall not prejudice or invalidate any suit or pro ceeding already commenced and now pending to set aside any private sale made by any executor since the first day of Septem- ber, 1880. § 56. (2 E. S., 109.) Where any real estate, or any interest therein, is given or devised by any will legally executed to the ■executors therein named, or any of teem, to be sold by them or any of them, or where such estate is ordered by any last will to be sold by the executors, and any executor shall neglect or refuse to take upon him the execution of sach will, then all sales made by the executor or executors, who shall take upon them the ex- ecution of such will, shall be equally valid as if the other execu- tors had joined in such sale. This is merely declaratory of the common law. {Davoue v. Fanning, 2 Johns. Ch., 252; Ogden v. Smith, 2 Paige, 195; Niles V. Stevens, 4 Den., 399.) The statute applies to the case where there is a mere power of sale, or a direction is given as to the sale, or where the direction is positive to sell. {Taylor v. Morris, 1 N. Y., 341 ; Leggett v. Hunter, 19 id., 445.) Where one of two or several executors or administrators dies, becomes lunatic, or otherwise incapable of executing the trust, no successor shall be appointed, but the remaining executor or ad- Ininistrator shall act (Code Civ. Pro., § 2692 ; Shook v. Shook, 19 Barb., 653 ; House v. Raymond, 3 Hun, 44.) Under a power of sale contained in a will, executors are not authorized to dispose of the testator's real estate for the purpose of forming a mining corporation, and to receive stock of the cor. poration in payment therefor. The fact that the testator, in his life-time, was willing to make such a disposition of the lands does not enlarge the powers of the executors ; it is only material, as bearing on the question of their good faith in the transaction. iAdair v. BrimTner, 74 N. Y., 539. § 58. Any executor or adminittrator, or other person, appointed as herein directed, who shall fraudulently sell any real estate of iiis testator or intestate, contrary to the foregoing provisions, shall Letters of Guaedianship. 581 forfeit double the value of the land sold, to be recovered by the person entitled to an estate of inheritance therein. CHAPTER XXII. GUABDIANS AND WaRDS. Guardians are persons having, by reason of their relation or by appointment, the care and custody of infants during their minority. Letters of guardianship, like other warrants of court, are terri- torial, and give no jurisdiction as to property beyond the bounds of the State where they are issued. Jurisdiction to appoint is de- rived from residence within the county, as to the person and prop- erty within the State, as to the estate, {McLashey v Reid, -i Bradf., 334.) A guardian appointed in another State is not en- titled to receive personal property of the infant in this State. (Id.) But his authority over the person ot the infant, when ap- pointed by a court having jurisdiction over the domicile of the infant, would probably be recognized in any State. If two or more are appointed, either by the court or by will and one dies, the authority continues to the survivor. {People v. Byron, 3 Johns. Gas., 53.) Their relation to their wards is one of trust and confidence, so much so that they cannot, in any beneficial transaction, 'substitute themselves for their wards. Guardianship by relation arises under the provisions of the statute. § 5. (1 R S., 718.) Where an estate in lands shall become vested in an infant, the guardianship of such infant, with the rights, powers and duties of a guardian in socage, shall belong : 1. To the father of the infant. 2. If thrre be no father, to the mother. 3. If there be no father or mother, to the nearest male relative of full age, not being under any legal incapacity ; and as between relatives of the same degree of consanguinity, males shall be pre- ferred. § 6. To every such guardian, the statutory provisions that are, or shall be, in force relative , to guardians in socage, shall be deemed to apply. 582 G-uAEDiAN IN Socage. § 7. The riglits and authority of every such guardian shall be superseded, in all cases where a testamentary or other guardian shall have been appointed, under the provisions of the the third title of the eighth chapter of this act {Otis v. Thompson, Hill. & Den. Sup., 131.) Guardianship in socage arose when socage land or lands, held upon the payment of certain services other than military services, descended to an heir of a tenant of such lands under fourteen years of age. Although guardianship in socage ceases when the infant arrives at the age of fourteen, it will continue if there is no appointment to succeed it. {Byrne v. Van Hoesen, 5 Johns., 65.) A guardian in socage may lease his ward's lands for any num- ber of years within the ward's minority, subject to the lease being defeated by the appointment of a guardian pursuant to statute. {Mnmerson v. Spicer, 46 N. Y., 594 ; Thaclier v. Henderson, 63 Barb., 271.) But a guardian in socage has no right to surrender a lease in fee belonging to his w^rd. {Putnam v, Ritchie, 6 Paige, 390.) He can bring trespass for entry on his ward's lands in his own name. {WilliaTns v. Storrs, 6 Johns. Ch., 353.) A father is not entitled to demand the mgney of his infant children unless he is appointed their guardian. {Williams v. Storrs, sup.; Houghton v. Watson, 1 Dem,, 299.) By S. L. 1870, chap. 431, the father, or m case of the death of the father or his abandonment of his family, or neglect to provide for them, the mother, is made the guardian of their infant children, for the purpose of surrender to any incorporated orphan asylum, or institute or home for indigent children. If both parents are dead, the mayor of the city or supervisor of the town is made such guardian. Guardians may be appointed by the father or mother, by the supreme court or by the surrogate. § 1. (2 E. S., 150, amended by Laws of 1871, chap. 31.) Every father, whether of full age or a minor, of a child likely to be born, or of any living child under the age of twenty-one years, and unmarried, may, by his deed or last will duly executed, or in case such father be dead, and shall not have exercised his said right of appointment, then the mother, whether of full age or a minor, of every such child, may, by her deed or last will duly executed, dis- pose of the custody and tuition of such child during its minority, or for any less time, to any person or persons, in possession or remainder. {Fitzgerald v. Fitzgerald, 24 Hun, 370.) Guardians by Will or Deed. 583 The will of decedent gave certain property to his son, an infant, and he appointed his executors "guardians and trustees'' of the estate of the infant. But one executor qualified, and it was held that he was appointed guardian of the infant, but there being no trust, he was not trustee. {In re Hawhy, 104 N. Y., 250.) § 2. Every such disposition, from the time' it shall take effect, shall vest m the person or persons to whom it shall be made, all the rights and powers, and subject him or them to all the duties and obligations of a guardian of such minor, and shall be valid and effectual against every other person claiming the custody or tuition of such minor, as guardian in socage or otherwise. ( Clark V. Montgomery, 23 Barb., 464.) § 3. Any person to whom the custody of any minor is so dis- posed of may take the custody and tuition of such minor, and may maintain all proper actions for the wrongful taking or detention of the minor, and shall recover damages in such actions for the benefit of his ward. The appointment by the father by deed is not defeated by a subsequent appointment by the surrogate. {People ex rel. Brooh- lyn Industrial School v, Kearney, 31 Barb., 430.) He shall also take the custody and management of the personal estate of such minor, and the profits of his real estate during the time for which such disposition shall have been made, and may bring such actions in relation thereto as a guardian in socage might by law. Such guardians, appointed by deed or by will, are subject to the supervision of the supreme court as the successor of the court of chancery. It may compel them to account from time to time, and may, for cause, remove them. The surrogate also has juris- diction to compel an accounting by testamentary guardians, as will presently be noted. It is optional, however, with the persons appointed by will or by deed, whether they will accept the trust. The testamentary guardian has no authority until he shall qualify, and letters of guardianship are issued to heirs. He may also renounce like an executor. i^Qe post) A guardian, wherever or by whomsoever appointed, is limited as to the exercise of his power to the State wherein the appoint- ment is made. The appointment is an act of jurisdiction depend- ent upon the situation of the person or the property within the territory of the State. This authority is not limited to the cases 584: Power of Foreign Guardian. of citizens of the State. {McGloshy v. Beid, 4 Bradf., 384; West V. Guniher, 3 Dem , 386.) But it is difficult to conceive that a father, resident in one State, may not appoint a guardian of his infant child with authority over real estate in another State. The authority granted is_ as great as the authority of the father, and the substitution is complete. But it was held that a guardian appointed by a foreign court was not entitled to receive from the administrator here the portion of his ward, and that a legacy to the minor must be paid into court and invested as we have heretofore considered in relation ta legacies to minors, unless the guardian shall be appointed here. {McGlosky V. Reid, sup; see, also, Matter of Hosford, 2 Eedf., 168, limiting this case.) So the rule that one may become an executor de son tort, applies also to guardianship, and it was held that an agent of the admin- istratrix, who from mere friendship assumed to act as guardian of infant heirs, and received rents and profits of their real estate, was chargeable with interest thereon,, not as agent of the adminis- tratrix, but as guardian. {Mason v. Roosevelt, 5 Johns. Ch., 534.) So a father or any other person who enters upon a minor's lands or takes possession of his personal property, may be treated by the minor as a guardian and compelled to act as sucL {Sherman v. Ballon, 8 How., 304 ; Van IJppes v. Van Deusen, 4 Paige, 64.) The authority of two or more guardians is joint, and that of each extends to the entirety, per my etper tout, so that should one die the authority continues in the survivor. {People v. Voyron, 3 Johns. Oas., 53.) They are jointly responsible for joint §,cts, and each is solely responsible for his own acts and defaults in which the others do not participate, and the fact that they gave a jo.int and several bond to the surrogate, and with the same sureties, for the discharge of their trust, does not vary such liability. {Kirhy v. Turner, Hopk., 309. But see People v. Downing, 4 Sandf., 189.) The supreme court will, upon petition, appoint a guardian for a minor, and control him in the exercise of his duties ; will com- pel him to make suitable provision for his ward, to account when necessary, and remove him for cause, as in case of a testamentary guardian ; wiU audit his final account, and discharge him from his trust The guardian appointed by the supreme court continues until Appointment of Guardian. 685 the majority of the infant, and is not controlled by the election of the infant, when he arrives at the age of fourteen years. {Matter of William Nicoll, 1 Johns. Ch., 25.) We will proceed to consider the appointment or allowance by the surrogate. When the minor is under the age of fourteen years, the surrogate is said to appoint the guardian, but when the minor is fourteen years of age or upward, he makes choice of his guardian and petitions for his allowance, and the sui-rogate is said to allow the choice of the guardian. By act of 1867 (p. 783, § 2), a married woman, formerly ineli- gible, may be appointed guardian ; and her bond given on the granting of letters has the same force and effect as though she were unmarried. § 2821. Power of surrogate's court to appoint guardians. — The surrogate's court has the hke power and authority to appoint a general guardian of the person or of the property, or both, of an infant, which the chancellor had, on the thirty-first day of Decem- ber, eighteen hundred and forty-six. It has also power and au- thority to appoint a general guardian of the person or of the property, or both, of an infant whose father or mother is living, and to appoint u general guardian of the property only of an infant married woman. Such power and authority must be exer- cised in like manner as they were exercised by the court of chan- cery, subject to the provisions of this act. The same person may be appointed guardian of an infant in both capacities; or the guardianship of the person and of the property may be committed to different persons. The surrogate may entertain an application for the appointment of a guardian for a non-resident infant, where he has property in the county of the surrogate. {Johnson v. Borden, 4 Dem., 36; Andrews v, Townshend, 53 Supr. Ct, 522.) § 2822. Petition by infant over fourteen years of age. — In either of the following cases an infant, of the age of fourteen years or upwards, may present to the surrogate's court of the county in which he resides ; or, if he is not a resident of the State, to the surrogate's court of the county in which any of his property, real or personal, is situated, a written petition, duly verified, setting forth the facts upon which the jurisdiction of the court depends, and praying for a decree appointing a general guardian, either of his person or of his property, or both, as the case requires ; and, if necessary, that the persons, entitled by law to be cited upon such 74 586 Eesidence of Infant. an application, may be cited to show cause why . such a decree should not be made : 1. Where such a general guardian has not been duly appointed, either by a court of competent jurisdiction of the State, or by the will or deed of his father or mother, admitted to probate or au- thenticated, and recorded, as prescribed in section 2851 of this act. 2. Where a general guardian so appointed has died, become incompetent or disqualified, or refuses to act, or has been removed, or where his term of office has expired. Where the petitioner is a non-resident married woman, and the petition relates to personal property only, it must affirmatively show that the property is not subject to the control or disposition of her husband by the law of the petitioner's residence. The residence of a minor is determined by the residence of the parent ; if but one survive, then of that parent. {Brown v. Lynch, 2 Bradf., 214; Matter of Hughes' Infant, 1 Tuck, 38.) But this residence must be actual, not legal, to confer jurisdic- tion upon the surrogate. {Matter of Pierce, 12 How., 532.) Sa when a guardian, was appointed m one county for a minor under the age of fourteen years, and the guardian changed the residence of the minor into another county within this State, it was held that an application by the minor for a subsequent appointment must be made in the county of the new residence. {Ex parte Bartlett, 4 Bradf., 221.) But a relative, not a guardian, by the mere removal of the minor, cannot change the legal residence of the minor. {Matter of Hughes, 1 Tuck., 38.) The cases quoted above, give the nule as to tne residence which gives jurisdiction to the court If there be a parent, his or her residence is the residence of the infant ; if there be no parent, actual residence by the infant The only question likely to be discussed, will arise under the latter condition, what is the actual residence ? Assuming that the infant at some time had an actual and legal residence with some proper custodians within this State, it must be held that it continues to be the actual as well as the legal residence until properly and sufficiently changed. A guard- ian may change the residence of his ward. {Ex parte Bartlett^ sup.) But we think that the infant himself, leaving the person in- whose charge he may have been at the place of his legal and actual residence, cannot acquire a new actual residence by a tem- porary stay. If he has real estate within the State, its locatioa might help to determine the question. If he has personal prop- erty, the court of the county where he resided at the time of its Petition for Guardian. 587 acquisition, would seem to liave the preference. If lie has no real or personal property while the court may appoint a guardian, such an infant is' subject to the control of the overseer of the poor, rather than to that of the surrogate. § 2823. Contents of petition; citation. — A petition, presented as prescribed in the last section, must also state whether or not the father and mother of the petitioner are known to be living. If either of them is known to be living, and the petition does not pray that the father, or if he is dead, that the mother, may be appointed the general guardian, it must set forth the circumstances which render the appointment of another person expedient and m.ust pray that the father, or, if he is dead, that the mother, of the petitioner may be cited to show cause why the decree should not be made. A citation, issued to the father of the petitioner, must be served at least ten days before it is returnable. "Where the case is within subdivision second of the last section the petition must pray that the person formerly appointed general guardian may be cited, unless it is shown that he is dead. The surrogate must inquire and ascertain as far as practicable what relatives of the infant reside in his county ; and he may, m his discretion, cite any relative or class of relatives of the infant, residing in that county or elsewhere, to show cause why the prayer of the petition. . should not be granted. The surrogate does not summon the relatives of the infant to attend as parties, but to give him necessary information to enable him to appoint a proper person. If he thinks proper he may appoint a guardian ad litem to procure requisite proof. {Kellinger V. Roe, 7 Paige, 362; Cozine v. Horn, 1 Bradf., 143; Ex parte Dawson, 3 id., 130 , Mattel- of Valentine, 100 N. Y., 607 ) While the Eevised Statutes (and the Code) leave it to the dis- cretion of the surrogate to decide which relatives of the infant shall be notified of the application, this is not an arbitrary dis- cretion. If the nearest relative applies or consents to the applica- tion, the surrogate may dispense with further notice to the other relatives. Where the nearest relatives do not join in the applica- tion or consent thereto, or where there are other relatives of the same degree as the applicant residing in the county, the surrogate should direct reasonable notice of the hearing to be given to such of the relatives as he may deem proper. {Matter of Feely, 4 Eedf., 306.) Where it appears that the father of the infant who petitions is a resident of a distant State, and there exists a feeling of antagonism 588 PETiTioisr BY Infant. between the father and son, the claims of the father could be dis- regarded and a third person appointed guardian. The welfare of the infant controls. {Johnson v. Borden, 4 Dem., 86.') § 2824. Petition in case of married woman. — The last section applies where the petitioner is a married woman, except that her husband must also be cited, and that the surrogate may, in his dis • cretion, make a decree appointing a guardian of her property without citing her father or her mother. FOEM OF PETITION BY INFANT OVER FOURTEEN YEARS OF AGE. To Moses Warren, Esq., Surrogate of Rensselaer county: The petition of A. B., of the town 6f Lansingburgh, in the county of Rensselaer aforesaid, respectfully shows ; That your petitioner is a resident of the county of Rensselaer^ and is a minor over fourteen years of age ; that he was sixteen (16) years of age on the fifteenth day of May last; and your peti' tioner's father and mother are both dead (or that the father of your petitioner is dead, and the mother of your petitioner is in feeble health and unused to the transaction of business) ; that your petitioner is entitled to certain property and estate, and that to protect and preserve the legal rights of your petitioner, it is- necessary that some proper person should be appointed the guard- ian of his person and estate during his minority. Your petitioner therefore nominates, subject to the approbation of the surrogate, C. D., of the town of Lansingburgh aforesaid, the maternal uncle of your petitioner (or in no way related to your petitioner), to be such guardian, and prays his appointment accordingly, and that said be cited to show cause why such appointment should not be made. And your petitioner, etc. Pated April 15, 1874 (Signed) A, B. Rensselaer County, ss. : A.,B., the foregoing petitioner, being duly sworn, gays, that he has read the foregoing petition and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and, belief, and as to those matters he believes it to be true. A.B. Sworn before me this day ) of , 1874. j Chas. J. Lansing, Justice of the Peace. Who to be Cited. 589' Consent of Person to he Appointed. I, C. D., of the town of Lansingburgh, consent to be appointed the guardian of the person and estate of the above named minor during his minority. Dated April 15, 1874. C. D. AFFIDAVIT TO PEOPEETY. Eeistsselj^er County, ss. : E. F., of the town of Lansingburgh, in said county, being duly sworn, says, that he is acquainted with the property and estate of the above named minor ; that the same consists of personal prop- erty only, which does not exceed in value the sum of five hundred dollars (that the same consists of real and personal estate) ; that that the value of the personal estate of said minor does not exceed the sum of five hundred dollars), and that the annual rents and profits of the real estate of said minor do not exceed the sum of fifty dollars, or thereabouts. E. F. Sworn this 15th day of April, ) 1874, before me, f Chas. J. Lansing, Justice of the Peace. Eule 52, of the surrogate's court of the city and county of New York, provides that the petition, besides stating the age and, resi- dence ot the infant, shall state the name and residence of the per- son proposed or nominated as guardian, and the relationship, if any, which he bears to the infant, and the nature, situation and value of the infant's real estate. "We think the form above given, which makes the statements as to the value of the infant's prop- erty to depend upon an affidavit of a third party, and not on the infant, preferable, to including these statements, without other proof, in the infant's petition, notwithstanding the proof which may be taken on the hearing provided for by section 2825. OEDEE FOE CITATION. At a surrogate's court, held in the county of , at the surrogate's office, in the of , on the day of , 1880. Present — Hon. — , Surrogate. In the Matter of the Person and Estate of — — , an Infant. The above named infant having presented his petition, praying S90 GrUABDiAJf, When Appointed. for the appointment of • , as the guardian of his person and estate, and it appearing therefrom that '■ — , the mother of said infant, is living : Ordered, that a citation issue to the said , requiring her to show cause why such appointment should not be made. (Signed) , Surrogate. § 2825. Appointment of guardian. — Upon the return of the cita- tion, the surrogate must make such a decree in the premises as justice requires. He may, in his discretion, hear allegations and proofs from a person not a party Where a citation is not issued, the surrogate must, upon the presentation of the petition, inquire into the circumstances. For the purpose of such inquiry, or of an inquiry into the amount of security to be i-equired of the guardian, he may issue a subpoena, requiring any person to attend before Jiim, to testify respecting any matter involved therein. If he is fiatisfied that the allegations of the petition are true in fact, and that the interests of the infant will be promoted by the appoint- ment of a general guardian, either of his person or of his prop- erty, he must make a decree accordingly, except that a guardian of the person of a married woman shall not be appointed. In a proper case, he may appoint a general guardian in one capacity, without a citation, and issue a citation to show cause against the. appointment of a general guardian in the other capacity. § 2826. Guardian to he nominated by in/ant — A guardian ap- pointed upon the application of an infant of the age of fourteen years or upwards, as prescribed in this article, must be nominated toy the infant, subject to the approval of the surrogate. DBCEEE FOE APPOINTMENT OF GUAKDIAN. At a surrogate's court, held in the county of Eensselaer, at the surrogate's office in the of , on the day of , 1880. Present — Hon. , Surrogate. In the Matter of the Person AND Estate of '■ ■ , AN Infant. The above named infant having petitioned for the appointment of , as the guardian of his person and estate, and the surrogate having inquired into the circumstances, and being satisfied that the allegations of the petition are true in fact, and that the interests of the mtant will be promoted by the appointment of a general guardian : GUAKDIAN FOR InFANT UnDER FOURTEEN. 59i It is ordered, adjudged and decreed, that be appointed general guardian of the person and estate of said infant, as his taking and filing the official oath required, and on his filing a bond approved by the surrogate, in the penalty of dollars. Witness , surrogate, and the seal of the [l. a] court the day and year first above written. , Surrogate. The provision in the following section as to appointment of a, guardian of a non-resident infant is new, but is in accordance with the policy to give the surrogates Jurisdiction co-extensive with that of the supreme court. § 2827. Appointment of guardian for infant under fourteen. — -A relative of an infant under fourteen years of age, or any other person in behalf of such an infant, may present to the surrogate's court of the county in which the infant resides ; or, if he is not a resident of the State, to the surrogate's court of the county in which any of the infant's property, real or personal, is situated, a written petition, duly verified, setting forth the facts upon which the jurisdiction of the court depends, and praying for a decree appointing a guardian of the persons, or of the property, or both. of the infant, to serve until the infant attains the age of fourteen, years, and a successor to the guardian is appointed. The cases in which such a guardian may be appointed, me contents of the peti- tion, and the proceedings thereupon, are the same as prescribed in the foregoing sections of this article, with respect to the appoint- ment of a general guardian, upon the petition of an infant of the age of fourteen years or upwards, except that the surrogate must nominate, as well as appoint, the temporary guardian. PETITIOlSr FOE GUAEDIAN, INFANT UNDBE FOUR- TEEN YEARS, BY MOTHER To , Esq., Surrogate of the County of .• The petition of Sarah Dean of the city of Troy, in the county of Rensselaer, respectfully showeth, that your petitioner is the mother, of James Dean, an infant; that said infant resides in the county of Rensselaer, and is under fourteen years of age ; that the father of said infant is dead ; that said James was ten years of age on the 14th day of August last past ; that said infant is entitled to personal property to the value of about four hundred dollars, as your petitioner is informed and verily believes and that he is also seized of certain real estate, the annual rents and profits whereof do not exceed the sum of fifty dollars, and to pro- tect and to preserve the legal rights of said infant, it is necessary 692 SUEECGATE MaY APPOINT. that some proper person should be duly appointed the guardian of his person and estate. Your petitioner, therefore, prays that you will appoint John Dean, of the city of Troy, in the county of Eensselaer, the guard- ian of the person and estate of said infant until he shall arrive at the age of fourteen years, and until another guardian shall be ap- pointed. And your petitioner will ever pray. Dated this 15th day of April, A. D. 1874. SAEAH DEAN". CONSENT. I, John Dean, of the city of Troy, county of Rensselaer, do hereby consent to be appointed the guardian of the person and estate of the above named infant during his minority. Dated this 15th day of April, A. D. 1874. JOHN DEAN. State of New Yoek, Rensselaer County, Sarah Dean, of the city of Troy, the above petitioner, being duly sworn, deposes and says, that the foregoing petition by her ■subscribed is true of her own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters, she believes it te be true. SARAH DEAN. Sworn before me, this 15th day ) of April, A. D., 1874. \ Moses "Waeebn, Surrogate. In the selection of a proper person to act as guardian for an infant under the age of fourteen, the surrogate may exercise his d.iscretion, which is not reviewable by the supreme court, so long as there exists no legal disqualification in the appointee. {Matter of Vandewater, 10 N. Y. St Rep., 330.) It will be observed that if the surrogate shall, on inquiry into the cirumstances, be satisfied of the propriety of the appointment, he may appoint without a hearing. (Section 2825.) Under the former practice, he was under the necessity of appointing a day for the hearing, but might same day on which the petition was presented. {Wihox v. Wilcox, 22 Barb., 178.) § 2828. Term of office of temporary guardian. — The term of ofiice of a guardian, appointed as prescribed in the last section, expires when the infant attatns the age of fourteen years. But after the infant attams that age, the person so appointed continues to retain all the powers and authority, and is subject to all the duties and Security not Dispensed With. 593 liabilities of a guardian of the person or of the property, or both, pursuant to his letters, until his successor is appointed and has qualified, or until his letters are revoked, for some other cause, by the decree of the surrogate's court, and his sureties are responsi- ble accordingly. § 2829. Inquiry as to value of property. — Where a general guardian of the property of an infant is appointed, as prescribed in this article, the surrogate must inquire into the infant's circum- stances, and must ascertain, as nearly as practicable, the value of his personal property, and of the rents and profits of his real property. § 2830. Oath of office and bond as to property. — Before letters of guardianship of an infant's property are issued by the surrogate's court, the person appointed must, besides taking an official oath, as prescribed by law, execute to the infant, and file with the surrogate, his bond, with at least two sureties, in a penalty, fixed by the surrogate, not less than twice the value of the personal property, and of the rents and profits of the real property , con- ditioned that the guardian will, in all things, faithfully discharge the trust reposed in him, and obey all lawful directions of the surrogate touching the trust, and that he will, in all respects, render a just and true account of all money and other property re- ceived by him, and of the application thereof, and of his guardian- ship, whenever he is required so to do by a court of competent jurisdiction. But the surrogate may, in his discretion, limit the amount of the bond to not less than twice the value of the per- sonal property, and of the rents and profits of the real property for the term of three years. § 2831. Oath of office and bond as to person. — Before letters of guardianship of an infant's person are issued by the surrogate's court, the person appointed must take the official oath, as pre- scribed by law. The surrogate may also require him to execute to the infant a bond, in a penalty fixed by the surrogate, and with or without sureties, as to the surrogate seems proper; conditioned, that the guardian will in all things faithfully discharge the trust reposed in him, and duly account for all money or other property which may come to his hands, as directed by the surrogate's court Security cannot be dispensed with on the ground that it cannot be obtained {Matter of Thome, 1 Edwd., 507), but the court can exercise a sound discretion in relation to the amount of the security It may, where the property is large, allow the security to be given in a fair sum only, but with such provisions as to 75 694 Another Bond Given for Legacy. ' time and mode of accounting as will protect the estate and the income of the property. {Matter of Hedges, 1 Edwd., 57.) Sureties who sign several bonds of a guardian to each of several infants should justify m the aggregate of all the bonds. {Anon., 4 How., 414.) Sureties upon a guardian's bond are not liable for counsel fees incurred by the ward in an action against the , guardian for his fraud, nor for the costs of the proceedings to remove the guardian. {Clark V. Montgomery, 23 Barb., 464.) In an action on a bond against the surety for two guardians appointed by the court, where one of the guardians died, it was held that the trust survived and the surety was liable for the acts of the survivor. {People v. Byron, 3 Johns. Cas., 53.) A general guardian was also appointed special guardian in a partition suit, and the proceeds of the real estate were paid to him. It was held that his bond as general guardian did not em- brace the receipt and disposition of that money. {MuirY. Wilson, Hopk., 512.) The sureties are liable for moneys in the guardian's hands at the time of his appointment, though received previously as well as for moneys subsequently collected. {McDowell v. Caldwell, 2 McCord's Ch., 43 ; 16 Am. Dec, 635.) - The bond given by the guardian on his appointment, even when the infant's estate consists of one item, a legacy, does not dispense with the bond required by 2 E. S., ch. 6, title 3, § 47, upon the ..payment of the legacy to the general guardian. {Rieck v Fish, 1 Dem., 75.) By S. L. 1881, ch. 486, certain corporations were au- thorized to become sureties. A bond given by such corporation, if satisfactory to the ofificer to whom it is offered, is now without any surety or justicification. {Estate of Filor, 2 McCarty, 67 ; Rieck V. Fish, sup ) The rupreme court will supervise the sureties of a guardian , and when one of two sureties oi a guardian had become insolvent, it refused to order money to be paid to the guardian until another surety was given. {Qenet v. Tallmadge, 1 Johns. Ch., 561.) The general guardian must give security before he can receive his ward's money from the supreme court, although he has previously given a bond to the surrogate. {Ferris v. Brush, 1 Bdw.. 572.) An accounting is not necessary before suit against the guardian's sureties, where the amount of the liability can be otherwise defi- nitely ascertained (but quaere under the Code) ; and a demand is Bond of Guardian. 595 not necessary where the guardian has converted the ward's prop- erty. {Girvin v. Hickman, 21 Hun, 316.) If the sureties pay the decree, it is not thereby discharged, but they are subrogated to all rights which the claimant, under the decree, had against the guardian. {Rapp v. Martin, 4 Eedl, 76.) The omission of the date is of no importance. The time of the delivery of the bond determines its date, and the delivery and filing by the surrogate controls the question of date when it is not inserted, and also when it is, when the question of date be- comes important. {Perkins v. Stimmel, 42 Hun, 526 ; . 4 N. Y. St. Eep., 459.) BOND OF GUAEDIAK Know all men by these presents : That we, John Dean, Samuel Stiles and John Doe, of the city of Troy, m the county of Eens- selaer, are held and firmly bound unto James Dean, af the city of Troy aforesaid, a minor, in the sum of two thousand five hun- dred dollars, to be paid to the said James Dean, his certain attor- ney, executors, administrators or assigns, to which payment, well and truly to be made, w&bind ourselves, our and each of our heirs, executors and administrators, jojntly and severally, firmly by these present. Sealed with our seals, and dated ) this 15th day of April, 1874 | The condition of this obligation is such, that if the above bounden John Dean, as guardian of the person and estate of said James Dean, will, in all things, faithfully discharge the trust re- posed in him, and obey all lawful directions of the surrogate touching the trust, and that he will, in all respects, render a just • and true account of all money and other property received by him, and of the application thereof, and of his guardianship, whenever he is required so to do by a court of competent jurisdic- tion (where ,the guardianship is as to the person merely, the con- dition is that the guardian will, in all things, faithfully discharge the trust reposed in him, and duly account for all money or other property which may come to his hands, as directed by the surro- gate's court), then this obligation to be void, otherwise to remain in full force and virtue. JOHN DEAN, SAMUEL STILES, JOHN DOE, Eens?elaer County, ss. : Samuel Stiles and John Doe, of the city of Troy, in said county, being severally sworn, depose and sa}-, and each for him- L. s. L. S. L. S. 596 Liability of Sureties. self say, that he is worth the sum of two thousand five hundred dollars, over and above all debts due from or liabilities incurred, and exclusive of property exempt by law from levy and sale under an execution. SAMUEL STILES, JOHN DOE. ^worn before me this 15th day ) of April, 1874. j , Justice of the Peace. State of New York, ) Rensselaer County, \ " On this 15th day of April, 1874, before me personally appeared John Dean, Samuel Stiles and John Doe, to me known to be the persons described in, and who executed, the foregoing bond, and severally acknowledged that they executed the same. , Justice of the Peace. Indorsed; approved. , Surrogate. For the purpose of fixing the extent of the liability of a guardian, and in consequence his sureties, the general rule is undoubtedly to require an accounting by the guardian before the ' surrogate. The court will require it preliminary to an action against the sureties on the bond, where the accounting will be necessary or availing to establish the extent of the sureties' liability, and is practicable to be had , but where it is a proceed- ing of no use or advantage to the sureties, and can only result in subjecting them to the burthen of a double litigation, it will not be required. This is equivalent to holding that the conditions of the bond. are independent and devisible. {Perkins v. Stimmel, 42 Hun, 526; 4 N. Y. St Eep., 459.) The subject of the official bond of guardian is discussed and provided for in section 2595, et seq., of the Code. The action upon the official bond of a guardian is regulated by section 2607, as follows : ' § 2607 Where an execution, issued upon a surrogate's decree, against the property of an executor, adniinistrator, testamentary trustee or guardian, has been returned wholly or partly unsatis- fied, an action to recover the sum remaining uncollected may be maintained upon his official bond, by and in the' name of the person in whose favor the decree was made. If the principal debtor is a resident of the State, the execution must have been issued to the county where he resides. Who is Pkopek Person, 5&7 The law and practice in relation to the enforcement of a decree, by execution, suit on the bond and by attachment is fully dis- cussed, ante. See collection of decree against executors, etc. The subject as to who shall be appointed the guardian of an infant, is not be lightly considered by the surrogate. Formerly, nnder the Revised Statutes, an order of preference was created, providing for the appointment, 1, of the mother; 2, the grand- father on the father's side ; 3, the grandfather on the mother's side ; 4, either of the uncles on the father's side ; 5, either of the uncle's* on the mother's side; 6, any one of the next of kin to the minor, who would be entitled to a distributive share in his per- sonal estate, in case of his deatL But in 1830, the sections were repealed, leaving to the surrogate a large discretion. The surro- gate, therefore, acting as the chancellor formerly would have done, will see that all the safeguacds which the law has thrown around the infant to prevent an injudicious appointment shall be regarded. {White v. Pomeroy, 7 Barb. Ch., 640; Johnson v Borden, 4 Dem., 36.) While the interest of the infant is the paramount consideration, an uncle or aunt is to be preferred to a more remote relation or stranger, and, other things being equal, the wishes of the parent, expressed before his death, as to the guardianship, should have a preponderating influence upon the surrogate. {Smith v. Smith, 2 Dem,, 43.) For it depends upon the guardian whether the infant shall be trained for a station of honor and respectability, or whether he shall be surrounded by such influence as to plunge him into prof- ligacy and ruin. The sole executor of a father's will, is not a person proper to be appointed general guardian of his orphan child, as it might lead to gross wrong. li offers too many opportunities for wrong. {Richard's Case, 15 Abb. [N. S.], 6 ; Griffin v. Sarsfield, 2 Dem., 4.) The surrogate will, therefore, consult the interests of the infant, rather than even his wishes, or the wishes of those desiring the appointment. {Bennett v. Byrne, 2 Barb. Ch., 216.) In a contest between the step-mother and the aunt of an infant for letters of guardianship, where the infant has no property, and the step-mother has nothing except what she can earn, but the aunt has an income for life of $1,300, the guardianship will be awarded to the step-mother to avoid the separation of the infant from a brother in charge of the step-mother, and to carry out the 698 WuY Eelatives Summoned. wish of the infant's deceased father. {Matter of De Marcellin, 4 Eedf., 299 ; affirmed, 24 Hun, 207.) It does not follow, of course, that even a mother should be ap- pointed. Where a mother was in a disreputable business, and she, and likewise a friend, to whom the infant had been inform- ally trusted by the father, petitioned for guardianehip, the petition of the mother was denied. {Burmaster v. Orth, 5 Eedt, 259.) The requirements of the statute as to the notice Lo be served only on such relatives as the surrogate shall think reasonable, does not relieve the surrogate from the duty of making inquiry, for the purpose of ascertaing who are the relatives of the infani residing in the county, and of requiring notice to such, and so many of them as may be deemed reasonable, to secure the proper attention to the rights of the infant ( Underhill v. Dennis, 9 Paige, 202), and if he omits to make the proper inquiries, or to cause the near rela- tives to be notified, the appointment may be set aside. (Id.) The relatives are not summoned as parties, but to give informa- tion upon the matters to the surrogate. {Kellinger v. Roe, 7 Paige, 862 ; Cozine y. Horn, 1 Bradf., 142.) But while it is imperative that a day shall be assigned for the hearing, he may assign the day on which the petition is presented, if he shall determine that notice to the relatives need not be given. And where there is nothing to show that this course was not taken, it ;will be presumed that the surrogate assigned the day of the ap- plication lor the hearing. {Wilcox v. Wilcox, 22 Barb., 178.) Where the appointment was made without notice, and, on appli- cation to the supreme court, it appeared that the relatives would have opposed the appointment, if notice had been given to them, the appointment was set aside and a new guardian appointed. {Richard's Case, 15 Abb. [K S.], 6.) The jurisdiction of the surrogate who has obtained it by proper cognizance of the subject-matter, is as brroad as that of the supreme court, or the English court of chancery, and his course in regard to making inquiries is just as discretionary as that of those courts. {Ex parte Dawson, 3 Bradf., 130.) The appointment once made is valid until it is reversed or va- cated by a direct proceeding for that purpose, and although the infant never resided in the county of the surrogate appointing the guardian, an action to vacate the appointment cannot be main- tained. {Dutton V. Dutton, 8 How., 99 ; Matter ' of Pierce, 2 id., 532.) Power and Liability of Guardian. 599 The letters issued must be in the name of the people of the State. (Section 250.) They are conclusive evidence of au- thority until they are revoked. (Section 2591.) The guardian is entitlod to the custody and control of the per- son of his ward, to the same extent as a father, under the super- vision of the court, and his duty is to attend to the proper care, nurture and education of his ward in a manner suitable to his condition in life. He shall not permit him to remain in idleness, if able to earn his support by his own industry • if he do so per- mit him, he will not be allowed for his support in such idleness, but he will be allowed the expenditures necessary to educate him for future usefulness, and his support while so educating him for future usefulness, and his support while so educating him. {Clark V. Clark, 8 Paige, 152 ; State v. Clark, 16 Ind., 97; Eel- laher v. McCahill, 26 Hun, 148.) The power of the guardian, whether he acts under a testa- mentary appointment or an appointment by the court, extends over the person as well as the property of his ward, and it is his primary duty to provide for the support, maintenance and educa- tion of the infant He stands in loco parentis, and is entitled to the custody of his ward., and to direct his education. {Clark v. Montgomery, 23 Barb., 464, 472.) A guardian cannot, after spending for support, etc., of his ward more than the amount of the infant's estate in his hands, claim reimbursement from the infant {Smith v. Bixhy, 5 Eedf., 196.) Though a father is liable for necessaries furnished to his child, without his consent, because he is bound to support him and is entitled to his services, yet a guardian is not so liable. {Cole v. Ward, 4 Watts & Serg., 118.) "Where a guardian charges for the board of his ward, services actually rendered by the ward in the family, may be set off at their value against the charge for board. Where the ward's estate was ample, the law will presume a promise by a guardian to pay for necessary medical services rendered at the request of the ward's mother, with whom the ward was residing. {Walker v. Browne, 3 Bush [Ky.J, 686.) In case the guardian abuse the power he has over the person of the ward, the court will interfere and remove him, if necessary. In relation to the personal estate, the power of the guardian, and consequently his duty, extends only to the collection and 600 Power as to Eeal Estatk investment of it in good, permanent securities, and the receipt and expenditure of the income for the necessary care, nurture, educa- tion and clothing of his ward ; and for the purpose of such collec- tion he may sell such personal property as he may think perish- able, and for the interest of the minor. {Field v. iShieffelin, 7 Johns. Ch., 150.) He may arbitrate for his ward. ( Weed v. Ullis, 3 Gaines, 153.) He may settle with executors for a legacy due to his ward and bind him until an error be shown on accounting. {Dahing v. Deming, 6 Paige, 95.) He may assign a bond and mortgage be- longing to his ward without leave of the court {Tuttle v. Heavy, 59 Barb., 334) He may bring actions relative to the personal property of his ward. {Thomas v. Bennett, 56 Barb., 197-) He may collect money due to his ward and give discharge and receipt and receive payment of money secured by bond and mortgage before it is due, and give a proper satisfaction piece. {Chapman V. Tibbits, 33 K Y., 289.) He may extend the time for the pay- ment of a mortgage after it shall have become due. ( Willick v. Taggart, 17 Hun, 511.) He may bring an action on a debt due to his ward in his own name. {Hartnett v. Morris, 10 Civ, Pro. Eep., 223.) He may purchase on foreclosure, in behalf of his ward, and can sell without leave of the court, what he so purchased. {Bayer v. Phillips, 17 Abb. N C, 425.). His power and duty in regard to the real estate is to lease it and receive the rents and profits thereof, and after paying the taxes and for the necessary repairs, to expend the surplus for his ward as above, when necessary, or invest it, and suffer it to accu- mulate for his benefit. {Genet v. Tallmadge, 1 Johns. Ch., 561.) It is his duty to lease it, if possible, and if he willfully neglect to do so, or occupy it himself, he will be accountable for the fair value of the rents and profits. He can lease only for a period ending with the minority of his ward. {Field v. Schieffelin, 7 Johns. Ch., 150 ; Putnam v, Ritchie, 6 Paige, 390.) He may sue and collect his ward's share of rent, collected in full by a co-tenant, from premises owned in part by his ward. {Conhley v. Mahar, 36 Hun, 157 ), A guardian, occupying for a minor heir whose ancestor's debts are not paid, and receiving rents, is not liable for rents applied to the maintenance of the heir prior to due notice or application from the ancestor's creditors. {Thompsonv. Brown, 4 Johns. Ch., 619.) Duty of Guardian. 601 He may maintain trespass for entry on his ward's land. {Holmes V. Seeley, 17 Wend., 75; Byrne v. Van Hoosm, 5 Johns., 66.) Where timber has been cut upon an infant's land by a trespasser, the guardian mao receive the proceeds, and has power, in good faith, for a valuable consideration, to release the claim for the trespass. {Tm-ry v Black, 58 N. Y., 185.) The general guardian has no right to purchase his ward's real estate, even though a special guardian was appointed. The sale is not absolutely void, but voidable, and where the ward suffered eighteen years to elapse without impeaching the conveyance to the guardian, it was held that he waived the objection and affirmed the sale. {Bosiwick v. Atkins, 3 N. Y., 53.) But where a guardian violates his duty towards infants, and makes a contract for them which is voidable by them when they arrive at age, they only can disavow the authority of the guard- ian. It is not for the party dealing with the guardians to raise the objection that in making the contract the guardian exceeded his authority. {Burdick v. Jackson, 7 Hun, 488.) A trustee or a guardian cannot purchase for his own benefit property which, although not the subject of his trust, is con- nected with it, in this, that a sale of it for less than its value will diminish the trust fund. A purchase by him for less than the value of the property enures to the benefit of the cestui que trust, or the ward. This will be the case, notwithstanding a provision in the decree for sale that any party to the action might become a purchaser. Even a decree by the surrogate settling the account is no bar to an action to charge the trustee or guardian for the full value of the property purchased. {Fulton v. Whitney, 66 N Y., 548.) If on foreclosure sale of his ward's land the guardian purchase as such, the only effect is to merge and extinguish the mortgaga {Low V. Purdy, 2 Lans., 422.) But it seems that if he purchase with his own funds, he may stand as assignee of the mortgage. (Id.) It is the duty of the general guardian to provide for the infant's support, maintenance and education out of his estate, notwith- standing he has a father living, if the father is poor and unable to- support him. For sums expended for that purpose he will be allowed on the settlement of his account. ( Clark v. Montgomeryy 23 Barb,, 464 ; Matter of Marx, 5 Abb. N. C, 224.) 76 602 Contracts of Guardian. A guardian's discretion in respect to the boarding and scliooling of his ward is on the same footing as a parent's. His expendi- tures for the clothing of a female ward cannot usually be re- viewed if they are appropriate to her social position, are made in good faith, and not in excess of her means. He should not, indeed, exceed his ward's income without adequate cause ; still, while it is prudent to obtain leave in ad- vance to use the principal, it is not necessary ; if circumstances justify it, the use ought to be made. {Oott v. Culp, 45 Mich., 265.) Guardians are not entitled to expend moneys derived from in- surance on his ward's buildings in the rebuilding of them. {Has- sard V. Bowe, 11 Barb.. 22 ■ Copley v. ONeil, 39 How., 41.) Contracts made by a guardian must, like those made by an ex- ecutor or administrator, be their own personal contracts, and bind tham and not the ward or his estate. The principle decided in Ferrin v. Myrick (41 N, Y., 815) applies equally to the case of a guardian. (See, also. Pool v. Wilkinson, 43. Ga. E., 539,) He has no power to mortgage or sell the real estate, but may make, as guardian, an application to the supreme court (the infant, if over fourteen years of age, joining therein, that a special guard- ian be appointed to sell the real estate at any time it may become necessary for the support, etc., of his ward, or advisable for the reason that the same is unproductive in proportion to its value, or that it is depreciating in value ; and the court, if satisfied of the propriety or necessity of the sale, will allow it, and direct the least price at which it may be sold. And whenever it shall appear to the supreme court, by due proof, or on the report of a referee appointed for the purpose, that any infant holds real estate in joint tenancy, or in common, or in any other manner which would authorize his being made a party to a suit in partition, and that the interest of such infant requires that partition of such estate should be made, such court may direct and authorize the general guardian of such infant to agree to a division thereof, or to a sale thereof, or of such a part of the said estate as m the opinion of the court shall be incapable of division, or as shall be most for the interest of the infant, to be sold. It is a sufficient ground for this last proceding, that the real estate is held jointly or in common with adults, and that the value Power as to Eeal Estate. 603 of the estate is small in comparison with the expenses of a parti- tion suit, to which it must otherwise be subjected These proceedings are specially and fully treated in Fiero's Treatise on Special Proceedings, which see. The proceeds of the sale of an infant's lands in special proceedings for that purpose, are deemed and treated as real estate, and de- scend to his or her heirs at law, in case of his or her death intes- tate durmg mmority. It follows, that the surrogate's court has no jurisdiction to determine the rights of the parties to those funds. {In re Woodworth, 3 N. Y. St Eep., 227.) These funds should never, except under the order of the court in which the sale was made, come into the hands of the general guardian ; and where the general guardian was also appointed the special guard- ian, and made the sale in the latter capacity, he should not include the funds in his account as general guardian. The accounts should be kept as distinct as if kept by different persons, and they should be rendered and settled each by the court in which it was initiated. § 20. (2 E. S., 152.) Every guardian in socage, and every gen- eral guardian, whether testamentary or appointed, shall safely keep the things that he may have in his custody belonging to his ward and the inheritance (the real estate) of his ward, and shall not make or suffer any waste, sale or destruction of such things, or such inheritance, but shall keep up and sustain the houses, gar- dens and other appurtenances to the lands of his ward by and with the issues and profits thereof, or with such other moneys be- longing to his ward as shall be in his hands, and shall deliver the same to his ward, when he comes to his full age, m as good order and condition, at least, as such guardian received the same, inevit- able decay and injury only excepted, and he shall answer to his ward for the issues and profits of real estate received by him, by a lawful account. § 21. If any guardian shall make or suffer any waste, sale or destruction of the inheritance of his ward, he shall lose the cus- tody of the same, and of such ward, and shall forfeit to the ward thrice the sum at which the damages shall be taxed by the jury. (See Torry v. Black, 58 N. Y., 185.) But the guardian shall not be held to repair from his own moneys, where the income of the estate of his ward is insufficient, although such insufficiency is a good ground for an application to the supreme court for a sale. 604 Must Not Use Funds. A guardian who invests the funds of his ward in personal securities assumes the nsk of loss thereby. And if he have litiga- tion to recover moneys so invested, he must personally bear the expenses of it. {Torry v. Frazer, 2 Eedf. Sur Eep., 486.) The relation of the guardian to his ward is one of confidence, and the guardian cannot, in any way, derive benefit from the funds or property of the ward beyond his fees. If he compromise a claim against his ward, or purchase a debt against him at a dis- count, it wiU be for the benefit of his ward only. (2 Kent's Com., 229.) He cannot substitute himself for his ward in any beneficial transaction, although if he do so put himselt m place of his ward, and a loss accrue, he himself will have to bear it. If he purchase land m a sale where his ward is interested, and take the conveyance to himselt, his ward, on coming of age, may, if he elect, claim the benefit of the purchase. If he settle a debt due to his ward, and take a promissory note running to himself, he will be held accountable for it, whether it be collected or not , otherwise, if he take the note to himself as guardian. If the guardian use the moneys of his ward in trade, the ward may elect, on coming of age, to take either the profits of the trade or his money, with compound interest, to meet the profits. If he neglect to invest the money of his ward after a reasonable time (and he is usually allowed six months) he must pay interest, and in case of gross neglect he will be charged compound interest The proper rate of interest is six per cent, with annual rests, adding to the principal at each rest. {King y. Talbot, 40 N, Y., 76 ; see, also, 2 Wend., 77 ; 8 Barb., 48.) He may not employ an agent or attorney, at the expense of his ward, to do those acts which he ought to do himself, such as the collection of rents, etc.; his commissions are for such services. If he have his ward in his own family, he will be allowed a reason- able sum for his board, if the ward does not earn enough to remunerate him. {Rait v. Bait, 1 Bradf., 345.) But a guardian, being the father, supporting his child and ward according to his own means and station in life, cannot be allowed for such support {Matter of Kane, 2 Barb. Ch., 375, Smith v. Goertner, 40 How Pr., 185, 188, 189.) But a father in moderate circumstances, having supported and educated his children by his labors, was allowed, on accounting as guardian, a part of. the expenses. {Harring v. Coh, 2 Bradf., 349.) A mother who is guardian may apply a pension to which her Must Keep Principal. 605 ■ward is entitled to his support in the family of his stepfather. {Hill V. Hanford, 11 Hun, 536.) It is the primary duty of a parent, whether father or mother, if of sufhoient ability, to support a minor child. Where the parent of a minor is also guardian, the circumstances of the parent, as well as the amount of the ward s estate, may be taken into consideration in determining the liability of the former to support the latter There may be a proper case on allowance for part maintenance. {Voessing y. Yoessing, 4 Eedf., 360 ; see, also. Matter of Burke, 4 Sandf. Ch., 617 ; Wilkes V. -ffiop'eT-s, 6 Johns., 566 ; Matter of Bostivick, 4 Johns. Ch., 100.) A guardian may not expend the capital of his ward, but only the income, except under the direction of the court, which will, upon the petition of the guardian, if considered necessary and advisable for the interest oi the minor, authorize the guardian to expend so much as may be directed in support and education, especially education, wisely considering this in the highest degree important The proper course for the guardian to pursue when the income is insufficient is to make an application - to the court for leave to use so much of the principal as may be necessary, ( Voessiny v. Voessing, supra.) " To entitle a father, even to an inquiry as to the propriety of making an allowance for part support, he should state a special case showing the extent of his means at the time such support was furnished, and the particulars of the extraordinary expenditure for the actual benefit of the infant, which created an equitable claim in his favor " {Matter of Kane, supra.) I A guardian, however, acting within the scope of his powers, like an executor or administrator, is bound only to fidelity and ordinary diligence and prudence in the execution of his trust and his acts, in the absence of fraud, will be liberally construed. ( White V. Parker, 8 Barb., 48.) A guardian appointed in another State cannot receive of an ex- ecutor or administrator in this State a legacy or distribufive share to his ward ; but to acquire the right he must be appointed in this State and give the proper security. And a guardian ap- pointed in this State has no power over the real estate of his ward situated in another State. But a non-resident guardian may obtain ancillary letters under the following sections : 606 Guardian of Foreign Infant. § 2838. Ancillary letters to foreign guardian. — Where an infant, ■who resides without the State and within the United States, is en titled to property within the State, or to maintain an action in any court thereof, a general guardian of his property, who has been appointed by a court of competent jurisdiction within the State or territory where the ward resides, and has there given security in at least twice the value of the personal property, and of the rents and profits of the real property of the ward, may present to the surrogate's court having jurisdiction a written petition, duly veri- fied, setting forth the facts, and praying for ancillary letters of guardianship accordingly. The petition must be accompanied with exemplified copies of the records and other papers showing that he has been so appointed and has given the security required in this section, which must be authenticated in the mode pre- scribed in article seventh of title third of this chapter for the au- thentication of records and papers, upon an application for ancillary letters testamentary or ancillary letters of adminis- tration. PETITION FOR ANOILLAEY GUARDIAlSrSHIR Surrogate's Court. In the Matter of A. B., an In- I FANT. r To Hon. -, Surrogate of the County of ; The petition of C. D., of the town of , in the county of , in the State of New Jersey, respectfully shows : That your petitioner is general guardian of the property of A. B., an infant, who resides in said town of — , in said State of New Jersey, and has been duly appointed such guardian by the court of said State; and given security on such appointment m twice the value of the personal property, and of the rents and profits of the real property of his ward, as will more fully appear by the exemplified copies of the records and other papers, and of such security, which are hereto annexed. And your petitioner further shows, that said infant is entitled to certain property within the State of New York, to wit : A house and lot in the city of New York (or to maintain an action in the supreme court of the State of New York, against one for dollars). And your petitioner is advised that it is necessary to protect and preserve the rights and property of said infant, that some proper person should be appointed the general guardian of his property within the State of New York. Wherefore your petitioner prays, that he may be appointed the Ancillary Letters. 607 general guardian of the property of the said infant witMn this State, and that ancillary letters of guardianship may issue to him. And your petitioner will ever pray, etc. Dated May 30, 1884. (Signed) . County of , ss. : C. D., being duly sworn, says, that he is the petitioner named above, and that the foregoing petition is true of his own knowl- edge, except as to the matters which are therein stated to be alleged on mformation and belief, and as to those matters, he be- lieves it to be true. (Signed) ■ Sworn before me, this 30th ) day of May, 1888. ) 1 Notary Public. Annex exemplified copies of the papers relating to the appoint- ment in the foreign State. § 2839. Proceedings on petition. — Where the surrogate is satis- fied, upon the papers presented, as prescribed in the last section, that the case is within that section, and that it will be for the ward's interest that ancillary letters of guardianship should be issued to the petitioner, he may make a decree admitting the ex- emplified copies of the foreign letters to be recorded, and granting ancillary letters accordingly. Such a decree may be made with- out a citation ; or the surroa;ate may cite slich persons as he thinks proper, to show cause why the prayer of the petition should not be granted. But before the ancillary letters are issued, the surro- gate must inquire whether any debts are due from the ward's estate to residents of the .State, and, if so, he must require pay- ment thereof. § 2840. Effect of ancillary letters. — Ancillary letters are issued, as prescribed in the last section, without security and without an oath of office. They authorize the person to whom they are issued to demand and receive the personal property, and the rents and profits of the real property, of the ward ; to dispose of them in like manner as a guardian of the property, appointed as pre- scribed in this article ; to remove them from the State , and to main- tain or defend any action or special proceeding m the ward's behalf. But they do not authorize him to receive, from a residen: guardian, executor or administrator, or from a testamentary trustee subject to the jurisdiction of a surrogate's court, money or other property, belonging to the ward in a case where letters have been issued to a guardian of the infant's property, from a surrogate's court of a county within the State, upon an allegation that the infant was a resident of that county ; except by the special direction, made upon a good cause shown, of the surrogate's court from which the 608 Accounting by Guardian. principal letters were issued ; or unless the principal letters have been duly revoked. § 2841. Application to former guardian. — The last section applies to letters granted before this chapter takes effect, bj a surrogate's court of the State, to a guardian appointed by a court of another State or a territory of the United States, upon presentation of an exemplified transcript of the record of his appointment. The rights and powers of guardians are strictly local and cannot be exercised in other States. {Morrill v. Dickey, 1 Johns. Ch., 156 ; Story Conf. Laws, 414.) Nor have they any authority over the real property of their wards, situate in other countries , for such property is governed by the law rei sitm. (Story, id., 414, 417.) We have already seen that a legacy to a minor of fifty dollars or under may be paid, under decree of the court, to his father or another, for the use and benefit of such minor ; but when the legacy exceeds that sum, the same may be paid under the direc- tion of the surrogate, to the general guardian, who must first give security to the minor, to be approved by the surrogate, for the faithful application of such legacy ; and this security is additional to that previously given on the appointment, unless that so previ- ously given, was estimated especially in view of the legacy (Section 2746.) When a distributive share is to be paid to a minor, the surro- gate may direct that it be paid into court and invested under his orders ; or he may direct that it be paid to the general guardian. A general guardian has the same powers in relation to the collec- tion of a legacy or distributive share by actions or proceedings before the surrogate, that his ward would have if of full age. "(Id.) Accounts of Guardians. How Compelled to Account, AND HOW EeMOVED OB EbLIEVED OF THEIR TeUST. Guardians appointed by deed or by the supreme court are sub- ject to the jurisdiction of that court, and may account personally to their ward on their coming of age, or may be compelled to do so by the court. The court, on petition, or after action brought, will appoint a referee to take and state the account, and will compel the attendance of witnesses, and on the coming in of the report will confirm or modify it, according to the facts. But the surrogate's court has no jurisdiction of that class of guardians, but guardians appointed by the surrogate must account, annually to him, and he must supervise their accounts. Annual Accounts. 609 § 2842. Guardian to file annual inventory and account. — A general guardian of an infant's property, appointed by a surro- gate's court, must, in the month of January of each year, as long as any of the infant's property, or of the proceeds thereof, remams under his control, file in the surrogate's court the following papers . 1. An inventory containing a full and true statement and de- scription of each article or item of personal property of his ward received by him since his appointment, or since the filing of the last annual inventory, as the case requires ; the value of each article or item so received ; a list of the articles or items remaining in his hands; a statement of the manner in which he has disposed of each article or item not remaining in his hands ; and a full de- scription of the amount and nature of each investment of money made by him. 2. A full and true account, in form of debtor and creditor, of all his receipts and disbursements of money during the preceding year ; in which he must charge himself with any balance remain- ing in his hands when the last account was rendered, and must distinctly state the amount of the balance remaining in his hands at the conclusion of the year, to be charged to him in the next year's account. Those provisions to compel a guardian to render and file an account and inventory annually are intended merely to inform the court as to the manner in which the guardian is discharging his trust They do not authorize the judicial settlement of such intermediate accounts. (In re Gilbert, 104 N. Y., 200.) § 2843. Affidavit to inventory and account. — With the inventory and account filed as prescribed m the last section must be filed an affidavit, which must be made by the guardian, unless, for good cause shown in the affidavit, the surrogate permits the same to be made by an agent or attorney who is cognizant of the facts. The affidavit must state in substance that the inventory and account contain, to the best of the affiant's knowledge and belief, a fuU and true statement of all the gaardian's receipts and disbursements on account of the ward ; and of all money and other personal property of the ward which have come to the hands of the guard- ian, or have been received by any other person by his order or authority, or for his use, since his appointment, or since the filing of the last annual inventory and account, as the case requires • and of the value of all such property, together with a full and true statement and account of the manner in which he has disposed of the same, and of all the property remaining in his hands at the time of filing the inventory and account ; and a full and true de- scription of the amount and nature of each investment made by him since his appointment, or since the filing of the last annual 77 610 Form of Annual Account. inventory and account as the case requires ; and that he does not know of any error or omission in the inventory or account to the prejudice of the ward. The surrogate must annex a copy of this and the last section to all letters of guardianship of the property of an infant issued from his court OUAEDIANS' ANNUAL ACCOUNT AND INYENTOEY. Inventory. Suehogate's Court — Ebnssblaer County. In the Matter of A B. ) , A Minor. t A just and true inventory of the estate and effects of the above named minor, on the first day of April, 1862 : Cash received of C. D., executor, etc., of C. D., deceased $350 00 1861. Db. John La Fountain, bond and mortgage, $200 ; interest one year, $14 214 00 E. Thompson, bond and mortgage, $300 ; interest six months, $10.50 310 50 Ten shares Central Eailroad stock, par value $1,000, actually worth 880 00 House and lot No. 164 Fulton street, Troy, valued at 800 00 Farm in Sand Lake, valued at 2,000 00 $4,504 50 Account. J. K., Guardian^ in Account with A. B., a Minor. 1861. Dr. April 1. To interest on La Fountain mort- gage $14 00 Oct. 1. To interest on Thompson mort- gage 21 00 1862. Feb. 1. To dividend Central Eailroad, 3 per cent 30 00 To three-quarters' rent house 164 Fourth street 180 00 March 1. To one year's rent farm in Sand Lake 200 00 $445 00 Annual Examination of Accounts. 611 Contra. 1861. Oe. April 10. By board paid J. H., 26 weeks, at $2 $52 00 July 1. By clothing purchased of J. N . . 10 00 9. By hats purchased of Gr. F 50 Oct 1. By board paid J. K, 26 weeks . . 52 00 10. By clothing of J. N 15 00 1. By repairs No. 164 Fourth street, 8 50 1862. Feb. 10. By taxes 164 Fourth street 11 00 By taxes farm in Sand Lake .... 22 00 April 1. By interest on $350, uninvested six months 12 25 Commission for receiving income, 2i per cent on $445 11 12 Commission on paying out income, 2i per cent on $195.37 3 87 Balance due estate 234 64 $445 00 Eensselaer County, ss. : J. K., of the city of Troy, being duly sworn, says, that the foregoing inventory and account contains, to the best of his knowl- edge and belief, a full and true statement of all his receipts and disbursements as guardian, as therein stated ; and of all money and other personal property of the ward which have come into deponent's hands as guardian, or have been received by any other person by his order or authority, or for his use, since his appoint- ment (or since the filing of the last annual inventory and account), and of the value of such, together with a full and true statement and account of the manner in which he has disposed of the same, and of all the property remaining in his hands at the time of filing said inventory and account ; and a full and true descrip- tion of the amount and nature of each investment made by him since his appointment (or since the filing of the last annual inven- tory and account), and that he does not know of any error or omission in the inventory or account to the prejudice of said ward. J. K. Sworn before me this ) 13th May, 1888. \ A B., Justice of the Peace. § 2844. Annual examination of accounts. — In the month of February of each year, and thereafter until completed, the surro- gate must, for the purposes specified m the next section, examine or cause to be examined, under his direction, all inventories and accounts of guardians filed since the first day of February of the "612 New Account May be Oedered. preceding year. The examiDation may be made by the clerk of the surrogate's court, or by a person specially appointed by the surrogate to make it, who must, before he enters upon the examina- tion, subscribe and take, before the surrogate, and file with the clerk of the surrogate's court, an oath faithfully to execute his duties, and to make a true report to the surrogate. Where the surrogate seasonably certifies in writing to the board of super- visors, or, in the county of New York, to the board of aldermen, that the examination required by this section cannot be made by him, or by the clerk of the surrogate's court, or by any clerk employed in his ofiice and paid by the county, the board must provide for the compensation of a suitable person to make the examination. § 2845. Proceedings when account is defective. — If it appears to the surrogate, upon an examination made as prescribed in the last section, that a general guardian of an infant's property, appointed by letters issued from this court, has omitted to file his annual inventory or account, or the afiidavit relating thereto, as prescribed in the last section but one ; or if the surrogate is of the opinion that the interest of the ward requires that the guardian should render a more full or satisfactory inventory or account ; the sur- rogate must make an order requiring the guardian to supply the deficiency, and also, in his discretion, requiring the guardian per- sonally to pay the expense of serving the order upon him. Where the guardian fails to comply with such an order within three months after it is made, or where the surrogate has reason to believe that sufficient cause exists for the guardian's removal, the surrogate may, in his discretion, appoint a fit and proper person special guardian of the ward, for the purpose of filing a petition in his behalf, for the removal of the guardian and prosecuting the necessary proceedings for that purpose. § 2846. Surrogate may direct as to infantas maintenance. — Upon the petition of the general guardian of an infant's person or prop- erty, or of the infant or any relative or other person in his behalf, the surrogate, upon notice to such persons, if any, as he thinks proper to notify, may make an order directing the application, by the guardian of the infant's property, to the support and educa- tion of the infant, of such a sum as to the surrogate seems proper, out of the income of the infant's property, or, where the income is inadequate for that purpose, out of the principal. The provisions in this section extend the power of the surrogate and give him the power heretofore exercised by the court of chancery and the supreme court. On such an application, the amoun^ of the net annual income of the mfant's estate, the station in life and style of living of her Guardian's Settlement Compelled. 613 family, and the circumstances of her surviving father and his ability to provide for and maintain her, are material facts which may be ascertained and considered in reaching a determination. {Norton v. Silkocks, 4:,Dem., 145.) PETITION FOR LEAVE TO EXPEND FOB INFANT. Surrogate's Court — Rensselaer County. In the Matter of the Person and ( Estate of A. B., an Infant. f The petition of C. D. respectfully shows to this court : That your petitioner was heretofore appointed by this court the general guardian of the person and estate of the above named A. B., an infant, and has faithfully discharged his duty as such general guardian. That said infant is now of the age of fourteen years, and your petitioner deems it desirable to take proper steps for his education, but the income of the estate of said infant is insufficient (if this be the case) to properly educate and maintain said infant while acquiring an education. The income wUl not exceed the sum of dollars per annum, and the sum requisite for the afore- said purposes is at least dollars per annum. Your petitioner therefore prays that he may be authorized to make application of the income of the estate of said infant to his support and education, and that he may further apply annually dollars of the principal of said estate for that purpose. And your petitioner will ever pray, etc. Dated May 13, 1880. C. D. Rensselar County, ss. : C. D., being duly sworn, says, that the foregoing petition by him subscribed is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be true. C. D. Sworn before me, this day of May, 1880. , Notary Public. § 2847. Judicial settlement, how compelled. — A written petition duly verified, praying for the judicial settlement of the account of a general guardian of an infant's property, and that he may be cited to attend the settlement thereof, may be presented to the sur- rogate's court in either of the following cases : 1. By the ward, after he has attained his majority. 2. By the executor or administrator of a ward, who has died. 614 ^ May Apply fok Settlement. 3. By the guardian's successor, including a guardian appointed after the reversal of a decree, appointing a person so required to account There is no provision of the statute for a judicial examination and settlement of the guardian's accounts, at the instance of either the ward or the guardian, while the guardianship continues. {Draper v Anderson, 37 Barb., 168.) This is also the rule under the Code. {Matter of Hawley, 104 K Y., 250.) A- settlement between a guardian and his ward, after the latter becomes of age, made within six months of that time, is valid, if made freely and without fraud. {Kirly v. Taylor, 6 Johns. Ch., 242.) It was the practice, in equity, to allow a ward a year's time, after becoming of age, to investigate his guardian's accounts, on the ground that, when he first comes of age, he is still too much under the guardian's influence to protect himself. {Hylton v. Hyl- ton, 2 Ves., 548; In re Van Home, 7 Paige, 46.) Where the ward, just arrived at full age, was induced, by fraud, to authorize an attorney to appear for him in the surrogate's court and consent to a decree discharging his guardian, the supreme court will set aside the decree. {Douglass v. Low, 36 Hun, 497 ; Ross v. Wood, 70 N. Y., 8 ) On the removal of a guardian by the surrogate, it is a matter of course to require him to account and pay over to his successor. {Skidmore v. Davies, 10 Paige, 316 ; see Seaman v. Duryea, 11 N. Y , 824.) The guardian of an infant's person may apply for a judicial set- tlement. § 2848. Accounting hy guardian of person. — A petition for the judicial settlement of the account of a general guardian of an infant's person, may be presented, as prescribed in the last section, or by the general guardian of the infant's property ; but, upon the presentation thereof, proof must be made to the surrogate's satisfaction, that the guardian so required to account has received money or property of the ward, for which he has not accounted, or which he has not paid or delivered to the general guardian of the infant's property; and a guardian of the estate only, of a minor, shall be, for the purposes of this chapter, deemed a general guardian. § 2849. Voluntary settlement, petition for. — A guardian may present to the surrogate's court a written petition, duly verified, Peoceedings on Petition. 615 praying for a judicial settlement of his account, and a discharge from his duties and liabilities, in any case where a petition for a judicial settlement of his account may be presented by any other person, as prescribed in either of the last two sections. The pe- tition must pray that the person who might have so presented a petition may be cited to attend the settlement The provisions of the act in relation to an accounting of ex- ecutors and administrators {ante) are applicable to an accounting, either compulsory or voluntary. § 2850. Citation and proceeding. — Upon the presentation of a petition, as prescribed in either of the last three sections, the sur- rogate must issue a citation accordingly. Section 2727, sections 2737 to 2738, both inclusive, and section 2741 and 2744 of this act apply to a guardian accounting, as prescribed in this article, and regulate the proceedings upon such an accounting. The ac- counting party must annex to every account produced and filed by him an affidavit in the form prescribed in the last article, for the affidavit to be annexed by him to his annual inventory and account. A guardian designated in this title is entitled to the same compensation as an executor or administrator. The service of a citation to a ward, to attend an accounting of a guardian before the surrogate, is properly made by delivering a copy to the ward personally, in the presence of his legal guardian, but if the guardian has an interest adverse to the ward, a special guardian shoula be appointed. {Brick's Estate, 15 Abb., 12.) Even if the service should be defective, the ward's actual appear- ance gives jurisdiction to the surrogate. (Id.) On the return of the citation, if the ward be still an infant, an idiot, or of unsound mind, a special guardian will be appointed, and will appear for him. See ante as to forms and statute in full. The petition made by the guardian should state the jurisdic- tional facts ; the appointment by the surrogate and the arrival of the ward at full age, or the superseding of the guardian, and pray that proceedings be had for the settlement of his accounts. Instead of procuring a citation in these cases, the parties may voluntarily appear before the surrogate, and proceedings will be had the same as on the return of the citation. The form of the account differs so little from the account filed by an executor or administrator on final judicial settlement (see ante), that it is not deemed necessary here to preseiit one. The 616 Allowances to Guardian. proceedings, in all respects, except the mere matter of form, resemble the proceedings of a final settlement The guardian should file his account in full, which should give dates and names of parties to whom payments may have been made, and should charge the guardian with the whole of the per- sonal property received by him, and with all interest received, or for which he is liable, for funds uninvested after six months froni the receipt of such funds. It should also contain the reasonable expenses of the guardian, which are regulated by the same rule as the allowance for expenses of executors and administrators and his commissions. Where a guardian claims that he has expended considerable sums for the benefit of the infant, clear and satisfactory reasons should be shown for having done so. {Kellahery. McCahill, 26 Hun, 148.) Upon the settlement, the surrogate may, in a proper case, allow to the guardian the amounts expended by him in procuring neces- saries for the infant prior to the time when letters of guardianship were issued to him. But in making such allowance, it must be shown that the amounts so expended were advanced upon the faith and credit of the' infant's estate, and that they were not in- tended to be mere gratuities ; and the rule that the principal of an infant's estate should not be encroached upon must be borne in mind. {Matter of Miller, 34 Hun, 267.) It was held in Morgan v. Morgan (39 Barb.), that a guardian performing services outside of his official duties, for the benefit of his ward, as where he personally made repairs on the real estate, bestowing his personal labor, was entitled, on settlement, to a fair allowance for such services. But in Morgan v. Hannas (49 N. Y., 667), the rigid rule as to executors and administrators, that however beneficial their ser- vices to the estate ; however onerous the trust, they could be al- lowed only commissions. The case then of Matter of the Bank of Niagara (6 Paige, 213), must be considered as overruled. The commissions for receiving and paying out moneys, are the same as allowed to executors, to wit : five per cent on all sums up to one thousand dollars ; two and a half ,per cent on sums above one thousand dollars, up to ten thousand dollars, and one per cent on all sums above ten thousand dollars. {Foley v. Egan, 13 Abb. [K S.], 361.) And in making his annual account, as well as on settlement, Decree on Settlement. 617 the guardian may charge five per cent or two and a half per cent, as the sums may demand on his receipts and disbursements for each year. {Hancox v. Meeker, 95 N. Y., 528.) But an investment or reinvestment of the fund, from time to time, is not such a paying out of the trust fund as entitles the guardian to commissions for paying out the same ; nor is he enti- tled to charge a commission for collecting or receiving back of the principal of the fund which he has so invested {Matter of Kel- logg, 7 Paige, 265.) Annual rests cannot be made for the purpose of allowing com- missions at full rates upon the balance found ; but where they are required by special directions of the court, for the sake of charging the trustee with interest, or by a rule of court or the pro- visions of the statute, then full commissions may be computed upon the amounts, excluding re-investments.' Therefore a guard, ian obliged by statute to render an annual account, may be allowed full commissions on each annual account rendered, and, at his final accounting, may be allowed interest on the balance due him on his annual accounts. {Morgan v. Hannas, 49 N. Y., 667.) The guardian's omission to claim commissions does not con- clude him, where a strict legal claim, as for interest, is made against him, which he did not anticipate at the time of the omis- sion. {Rappalje v. Hall, 1 Sandf. Ch., 399.) He should also file all vouchers received by him, and verify the whole by his oath ; and the accounting will be conducted, in all respects, like an accounting by executors or administrators, and may be contested in the same manner. When the proofs are all in, the surrogate will make a decree settling the accounts of the guardian, and directing the payment of any remainder in the hands of the guardian to the ward. This decree can readily be formed, from the decree on judicial settle- ment of the accounts of an executor. {Ante, p. .) Should the decree be against the guardian, a certificate thereof may be filed in the clerk's ofiice, so as to make it a lien against the real estate, and an execution may be issued thereon. The payment may likewise be enforced by attachment as in the case of an executor, or after return of execution unsatisfied, by suit upon the bond of the guardian. (Section 2553, ante.) The decree may be discharged in the same manner as a decree against an executor or administrator, (For form see ante.) 78 618 Eblease by Ward. An accounting is not a prerequisite to an action against the sureties of a guardian on his bond, m those cases in which the ex- tent of his liability has been as definitely ascei-tained as it could be by an accounting, and where the action is for a wrongful con- version of his ward's money, no demand is necessary before be- ginning the action against the sureties. {Oirvin v. Hickman, 21 Hun, 316.) A release of the guardian by the ward, after he arrives at full . age, is prima facie good, and is not necessarily presumed to have been obtained by undue influence. {Kirby v. Taylor, 6 Johns. Ch., 242.) And such a release will discharge the guardian's secu- rity if given without his knowledge or consent (Id.) But not- withstanding a guardian has settled with his ward upon his com- ing of age, he is not entitled to be absolutely discharged until the expiration of one year after the ward comes of age, that being the time allowed for the examination of the accounts. (Matter of Van Home, 7 Paige, 46.) But a settlement will not be presumed. That a guardian has given his ward an opportunity to examine his books, and has in- formed her from time to time, after she comes of age, of the bal- ance, is not a settlement of her accounts. (Rapalye v. Hall, 1 Sandf. Ch., 399.) And an examination of the guardian's ac- count by the ward, after coming of age, and an admission by her of their correctness, and expression of her intention to call and give him a receipt, followed by an attempt to find him for that purpose, was held not sufficient to preclude her administrator from challenging the account. {Matter of Gill, 3 Hun, 20.) So a guardian may be removed and his letters revoked under section 2832, quoted ante, and we will consider that question now. The section is as follows ; §2832. When letters may he revoked for misconduct, etc. — In either of the following cases, the ward, or any relative or other person in his behalf, or the surety of a guardian, may, at any time, present to the surrogate's court a written petition, duly veri- fied, setting forth the facts and praying for a decree revoking letters of guardianship, either of the person or of the property, or both , and that the guardian complained of may be cited to show cause why such a decree should not be made ; 1. Where the guardian is disqualified by law, or is, for any reason, incompetent to fulfil his trust. {Ketlletas v. Gardner, 1 Paige, 488.) 2. Where, by reason of his having wasted or improperly ap- Eemoval of Guardian. 619 plied the money or other property in his charge, or invested money in securities unauthorized by law, or otherwise improvi- dently managed or injured the real or personal property of the ward, or by reason of other misconduct in the execution of his office, or his dishonesty, drunkenness, improvidence, or want of understanding, he is unfit for the due execution of his office. 3. Where he has willfully refused, or, without good cause, neg- lected to obey any lawful direction of the surrogate contained in a decree or order or any provision of law relating to the discharge of his duty. 4. Where the grant of letters to him was obtained by a false suggestion of a material fact. 5. Where he has removed, or is about to remove from the State. 6. In the case of the guardian of the person, where the infant's welfare will be promoted by the appointment of another guardian. Female guardians are still liable to be removed after marriage. {Matter of Elgin, 1 Tuck., 97 ; Swartwout v. Swartwout, 2 Eedf., 62 : Matter of Cooper, 2 Paige, 34.) § 2833. Citation, hearing, and decree. — Upon the presentation of a petition, as prescribed in the last section, the surrogate must inquire into the matter ; and for that purpose he may issue a subpoena to any person requiring him to attend and testify in the premises. If the surrogate is satisfied that there is probable cause to believe that the allegations of the petition are true, he must issue a citation to the guardian complained of ; and upon the return thereof, if the material allegations of the petition are established, he must make a decree revoking the guardian's letters accord- ingly, except that where the case is within subdivision third or fourth of the last section, he must dismiss the proceedings under the like circumstances and upon the like terms, as prescribed in sections 2686 and 2687 of this act, where a similar complaint is made against an executor or administrator. PETITION TO EEMOVE A GUAEDIAK To the Surrogate of the County of .- The petition of , of the of -, respectfully shows: That on or about the day of , 187 — , one was duly appointed by the surrogate of said county the guardian of the person and estate of a minor ; that the said entered upon his trust and assumed control of the person and estate of said minor. And your petitioner further shows, that since his appointment 620 Citation on Eemoval. as aforesaid, the said has become incompe- tent, and an unsuitable person to perform the duties of such guardian, by reason of habitual intemperance in the use of alco- holic liquors (or that the said ■ has wasted, and continues to waste, and misapply the estate of said minors, or other cause) ; that your petitioner is one of the sureties of said '■ as such guardian (or a relative of said minor). Your petitioner, therefore, prays that an examination may be had in the premises, and that a citation issue to the said , to the end that he may be removed as such guardian, and his appointment revoked. Dated this day of , 1880. (Signed) . Eensselabe County, ss. : , being duly sworn, says, that he has read the petition by him subscribed, and that the same is true of his own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be true. (Signed) . Sworn before me, this 25 th ) May, 1888. j , Notary Public. OEDER FOE CITATION THEEBON. At a surrogate's court, held in the county of , at the surrogate's office, in the of , on the day of , 1888. Present — Hon. ■ , Surrogate. In the Matter of the Person and Estate of , a Minor. On reading and filing the petition of , one of the sureties of , the guardian of the person and estate of the above named minor, setting forth that the said — ; has become incompetent by reason of intem- perance, and praying for his removal (or that the said has removed, or is about to remove, from this State): Ordered, that a citation issue to the said requiring him to appear in this court, to show cause why he should not be removed from his guardianship. , Surrogate. Grounds for Eemoval. 621 The insolvency of the guardian, or one of his sureties, is cause for removal. {Matter of Cooper, 2 Paige, 34.) Gross intemper- ance of the guardian is also good cause, {Ketiletas v. Gardner, 1 Paige, 488.) The guardian was removed for misconduct, in hav- ing trusted his ward's money to his brother-in-law, on personal security. {Matter of Mary O'Neil, 1 Tuck., 34.) Insanity is a cause for removal. {Damarell v. WaVcer, 2 Eedf. Sur, Kep., 198.) The citation should be served on the guardian, even if he is in- sane. (Id.) §2834. Suspension of a guardian. — Upon issuing a citation as- prescribed in the last section, the surrogate may, in his discretion, make an order suspending the guardian, wholly or partly, from the exercise of his powers and authority, during the pendency of the special proceeding. A certified copy of an order so made must accompany the citation and be served therewith ; but, from the time when it is made, the order is binding upon the guardian and upon all other persons, without service thereof, subject to the exceptions and limitations prescribed in sections 2603 and 2604 of this act, with respect to a decree for revoking letters. The following may serve as a decree for removal : DECEEE FOR REVOOATIOK At a suiTogate's court, held in the county of , at the surrogate's office in the of , on the day of , 1888. Present — Hon. • ■, Surrogate. In the Matter of the Person and Estate of , De- ceased. On filing the citation heretofore issued in this matter, returna- ble this day, with proof of the due service thereof on i the guardian of the above named minor, and the said not appearing (or the said I having appeared), and the surrogate bemg satisfied, after hearing the proofs and allegations of the parties of the truth of the mat- ters stated in the petition of , in this matter, it is ordered and decreed that the said be re- moved from the office of guardian of the person and estate of said minor, and that his appointment heretofore made be revoked. Witness, , surrogate, and the seal of [l. a J the court, the day and year first above written. r-. Surrogate. 622 New Sureties Eequibed. Any person interested in the estate or fund, or any relative of tTie infant, may present petition for further sureties. § 2597. New bond may he required. — Any person interested in the estate or fund may present to the surrogate's court a written petition, duly verified, setting forth that a surety in a bond, taken as prescribed in this chapter, is insufficient, or has removed, or is about to remove, from the State, or that the bond is inadequate in amount ; and praying that the principal in the bond may be re- ' quired to give a new bond in a larger penalty, or new or addi- tional sureties, as the case requires ; or in default thereof, that he may be removed from his ofiice, and that letters issued to him may be revoked. Where the bond so taken is that of a guardian, the petition may also be presented by any relative of the infant. When the bond is that of an executor or administrator, the peti- tion may also be presented by any creditor of the decedent. If it appears to the surrogate that there is reason to believe that the allegations of the petition are true, he must cite the principal in the bond to show cause why the prayer of the petition should not be granted. PETITION THAT GUAEDIAN GIVE NEW SUEETIES. To the Surrogate of the County of .• The petition of , of the town of , respectfully shows : That your petitioner is a relative of , a minor, of said — of . That on or about the — • day of , 1869, one was appointed by this court the guardian of the person and estate of said minor, and on such appointment, and united with said as sureties, in his bond filed in this court to said minor. That your petitioner is informed, and believes, that one of said sureties, is becoming, or has become, in- solvent, as your petitioner is informed, and verily believes (or has removed, or is about to remove, from this State ; or, that the said sureties are insuificient, for the reason that the estate of said minor has increased very much in value since appointment of such guardian). Your petitioner, therefore, prays that your honor will investi- gate the matter, to the end that the said should give further surties, or be removed from his guardianship. Dated this day of , 1888. i (Signed) ! County, ss. : ^— , being duly sworn, says, that the foregoing New Bond May be Eequired. 62S petition, by him subscribed, is true of his own knowledge, except as to the matters which are therein stated to be alleged on infor- mation and belief, and, as to those matters, he believes it to be true. Sworn before me this I day of ,• 1888. , CUrk of Surrogates Court. § 2598. New bond may he required. — Upon the return of a cita- tion, issued as prescribed in the last section, the surrogate must hear the allegations aad proofs of the parties, and, if the objec- tions, or any of them, are found to be valid, he must make an order requiring the principal in the bond to give new or addi- tional sureties, or a new bond in a larger penalty, as the case re- quires, within such a reasonable time, not exceeding five days, as the surrogate fixes, and direoting that, in default thereof, his let- ters be revoked. OEDEE FOE ADDITIONAL SUEETIES. At a surrogate's court, held m the county of , at the sur- rogate's office in the of , on the day of , 1888. Present — Hon. , Surrogate. Ik the Matter of the Person and Estate of , a Minor. I On the return'of the citation issued to , the guardian of the person and estate of said minor, with due proof of the service thereof on said , and the said ' having appeared, and it appearing that , one of his sureties, has removed from thia State : Ordered^ that said . give further sureties, ap- proved by the surrogate, in a bond in a penalty of dol- lars, to said minor, within days from this date. In default of filing such bond, the letters heretofore issued to- the said guardian shall be revoked. , Surrogate. § 2599. Decree revoking letters. — If a bond with new or addi- tional sureties, or in a larger penalty, is approved and filed in the surrogate's office, as required by such an order, the surrogate must make a decree dismissing the proceedings, upon such terms as to 624 Sureties May Apply to be Eeleased. costs, as justice requires ; otherwise he must make a decree re- moving the delinquent from office and revoking the letters issued to him. DECEEE EEMOYING GUAEDIAJST FOE NEGLECT TO GIVE SUEETIES. At a surrogate's court, held in the county of , at the surrogate's office in the of , on the day of , 1888. Present — Hon. , Surrogate. In the Matter of the Person anb Estate of , a Minor. An order having been heretofore made in this matter, on the day of ■■ — , requiring , the guardian of the person and estate of said minor, to give further sureties within days from that day : Now, on reading due proof of the service of said order on the said , on the day of , 1888, and the said having neglected to give such further sureties : It is ordered and decreed that said be re- moved from his trust as such guardian, and that a revocation issue under the seal of this court of the letters heretofore granted to him. Witness, , surrogate, and the seal of the court, this day and year first abo^ written. , Surrogate. The sureties of a guardian may apply to be released, and with- out giving any reason, except that they desire it. § 2600. Application of sureties for. release, etc., to future breaches. — Any or all of the sureties in a bond taken as prescribed m this chapter may present a petition to the surrogate's court, praying to be released from responsibility, on account of any future breach of the conditions of the bond ; and that the principal in the bond may be cited to show cause why he should not give new sureties. The surrogate must thereupon issue a citation accordingly. The surety has a right to be released from liability for future acts or neglect His motive in seeking relief is unimportant It is the duty of the surrogate to entertain his application on his Sureties May be Eeleased. 625 ■arbitrary wish. {Lewis v. WaUon^ 3 Eedf., 43 ; Stevens v. Stevens, id,, 507.). § 2601. Order releasing sureties. Removal for failure to give new band. — Upon the return of a citation, issued as prescribed in the last section, if the principal in the bond files in the surrogate's of&ce a bond in the usual form, with new sureties to the satisfac- tion of the surrogate, then, or within such a reasonable time, not exceeding five days, as the surrogate fixes, the surrogate must make a decree, releasing the petitioner from liability upon the bond for any subsequent act or default of the principal ; otherwise ihe must make a decree revoking the letters. The proceedings are identical with those instituted by a surety ■of an executor or adoknistrator, and full forms may be found, ante. The guardian may then be required to account upon the peti- tion of the new guardian, or other person, as provided for by sec- tion 2847, of which we have already treated in fuU. It has been held that an ex parte order by the surrogate that he account and pay over any balance in his hands, and appointing a time for the guardian to attend and render his account is not irregular. {Skid- more V. Bavies, 10 Paige, 316.) CHAPTBE XXIV. Eesignation of G-tjaedian, As the court of chancery, in the exercise of its supervisory power over guardians, permitted them, when they become incapa- citated, to discharge their duties or to resign when the interests of their ward required it ; so the statute permits the surrogate to accept the resignation of a guardian. § 2835. Guardian's petition for revocation. — A guardian, ap- pointed as prescribed in this title, may, at any time, present to the surrogate's court a written petition, duly verified, setting forth the facts upon which the application is founded, and praying that his account may be judicially settled ; that a decree may thereupon be made, revoking his letters and discharging him accordingly ; and that the ward may be cited to show cause why such a decree should not be made. The surrogate may, in his discretion, enter- tain or decline to entertain the application. 79 626 GuARDiAisr May Eesign. He may show as a reason for the revocation his physical dis- ability, arising from age or illness, his removal, actual or contem- plated, to a distance from where the property of his ward is situated ; the marriage of his ward, if a female, or any other cause which would render it for the interest of the infant that he should resign. PETITION OF GUARDIAN" FOE A REVOCATION. To the Surrogate of ilie County of .• The petition of , of the of , respectfully shows : That heretofore your petitioner was, on the day of , 1868, duly appointed by the surrogate of said county, the guardian of the person and estate of ■ , a minor, and has, as your petitioner verily believes, conducted him- self honestly in the execution of his trust. That • — — and are the next of kin of said minor, residing in this county above the age of fourteen years. That your petitioner is desirous of resigning his trust as such guardian, and that his letters be revoked for the reason that he has removed from this State (or is about to remove, or other cause, and he prays that he may be permitted to render an account of his proceedings as such guardian, and that the same be judic- ially, settled, to the end that a successor may be appointed and your petitioner may be relieved therefrom. Dated this day of , 1888. (Signed) . Rensselaer County, ss. : , being duly sworn, says, that the foregoing petition, by him subscribed, is true of his own knowledge, except as to the matters which are therein stated to be alleged on inform- ation and belief, and, as to those matters, he believes it to be true.. (Signed) . Sworn before me this } day of , 1888. f § 2836. Proceedings thereupon. — If the surrogate entertains an application, made as prescribed in the last section, he must issue a citation as prayed for in the petition ; and he may also require notice of the application to be given to such other persons, and in such a manner as he deems proper. Upon the return of the citation, a guardian ad litem for the ward must be appointed ; and the surrogate may also, in his discretion, allow any person to ap- pear and contest the application, in the interest of the ward. Upon the hearing, the surrogate must first determine whether sufficient Eesignation Accepted. 627 reasons exist for granting the prayer of the petition. If he deter- mines that there exist, and that the interests of the ward will not be prejudiced by the resignation of the guardian, the surrogate must make an order accordingly, and allowing the petitioner to account, for the purpose of being discharged. Upon his fully accounting, and paying all money which is found to be due from him to the ward, and delivering all books, papers and other property of the ward in his hands, either into the surrogate's court, or in such a manner as the surrogate directs, a decree may be made, revoking the petitioner's letters, and discharging him accordingly. The citation should be served on the ward, and to such other persons as the surrogate shall direct, formerly the next of kin of the ward. If served in the same county or adjoining county, it must be served at least eight days before the return day ; if in any other county of the State, fiffteen days. OEDEE FOE CITATION THEEEOK At a surrogate's court, held in the county of , at the surrogate's office in the of , on the day of , 1888. Present — Hoa , Surrogate. Lsr THE Matter of the Person and Estate of , a Minor. , the guardian of the person and estate of the above named minor, having presented his petition to the sur- rogate, setting forth that he has conducted himself honestly in the execution of his trust, but has removed from the State : Ordered, that a citation issue to said minor, and to his nest of Mn residing in this county, requiring him to appear and show cause why the letters issued to said should not be revoked. , Surrogate. Upon the return of the citation, the surrogate wiU appoint a special guardian for the infant and take the account of the guard- ian, which dijBEers in no respect from an account of an executor or admmistrator, and with the same verification. If the surrogate shall find the account satisfactory and the reason for the revocation -good, he will make a decree revoking the former letters. The infant can then proceed to another appointment 628 Gtuakdian's Eesignation. OEDER FOR DELIVERY OF ASSETS TO SURROGATE, At a surrogate's court, held for the county of , at th& surrogate's office, in the , on the day of , 1888. Present — Hon. , Surrogate, In the Matter op the Person and Estate of , a Minor. It appearing to the satisfaction of the surrogate that ■ guardian of the above named minor, has, in all respects, conducted himself honestly in the execution of his trust ; that he has rendered a full, just and true account, and that the interests of the said minor would not be prejudiced by allowing the guardiaa to resign his trust. Ordered, that said , who has accounted,. deliver over all the books, papers, money, choses in action, or other property of said minor, appearing in his hands by his said account to the surrogate, and that he take duplicate receipts for the same. , Surrogate. Thereupon follows the decree revoking the letters. DECREE REVOKING- LETTERS. At a surrogate's court, held in the county of , at the surrogate's office in the city of , on . the- day of , 1888. Present — Hon. , Surrogate. In the Matter of the Person and Estate of , a - Minor. J , guardian of the above named minor, hav- ing heretofore petitioned this court to be allowed to resign his- trust, and the said minor having been cited, and such further pro- ceedings having been had that the said ren- dered his account as such guardian, and the said having, according to the order of this court, delivered. over to the said surrogate all the books, papers, moneys, choses in action or other property of said minor, and having filed in this- court one of the receipts taken therefor : Will Appolnttng Guardian to be Proved. 629 It is ordered and decreed that the said , on his own application, has been and is permitted to resign his trust as guardian for the said minor, and he is discharged from any further custody or care of said minor, or of his estate, and the letters issued to said guardian, be and they are hereby revoked. Witness, , surrogate, and the seal of [l. S.J the court, the day and year first above written. • , Surrogate. § 2837. Ward or new gtmrdian may require another account- ing. — Notwithstanding the discharge of a guardian, as prescribed in the last section, his successor or the ward may compel a judicial settlement of his account, as prescribed in article second of this title, in the same manner and with like effect as if the decree dis- charging him had not been made. With respect to all matters connected with his trust, his sureties continue to be liable until his account is judicially settled accordingly. Guardians appointed by will or deed are also regulated, and jurisdiction of them and their accounts, which was formerly vested in the supreme court, is given to the surrogate. They must take out letters founded upon the will, which must also be previously proved or, in case of a deed, recorded. § 2851. Will or deed to he proved or recorded, etc. — A person shall not exercise within the State any power or authority as guardian of the person or property of an infant, by virtue of an appointment contained in the will of the infant's father or mother, being a resident of the State, and dying after this chapter takes effect, unless the will has been duly admitted to probate, and re- corded in the proper surrogate's court, and letters of guardianship have been issued to him thereupon, or by virtue of an appoint- ment contained in a deed of the infant's father or mother, being a resident of the State, executed after this chapter takes effect, unless the deed has been acknowledged or proved and certified, so as to entitle it to be recorded, and has been recorded in the office for recording deeds in the county in which the person making the appointment resided, at the time of the execution thereof. Where a deed containing such an appointment is not recorded within three months after the death of the grantor, the person ap- pointed is presumed to have renounced the appointment ; and if a guardian is afterwards duly appointed by a surrogate's court, the presumption is conclusive. The section above quoted does not apply to an instrument deeding an infant, which was executed before September 1, 1880. {Matter of Schroeder, 65 How., 194.) 630 Testamentary Guakdian to Qualify. A provision by will that a testator's widow shall have the "' guardianship, custody and tuition " of his children during their minority, creates her guardian both of their persons and estate. {Hagerty v. Hagerty, 9 Hun, 175.) But testamentary guardians are not general guardians to the extent of entitling them to receive legacies to be paid to general guardians. {/Sackett's JEsiate, 1 Tuck, 84.) § 2852. Testamentary guardians to qualify. — Where a will, con- taining the appointment of a guardian, is admitted to probate, the person appointed guardian must, within thirty days thereafter, qualify as prescribed in section 2594 of this act ; otherwise he is deemed to have renounced the appointment But the surrogate may extend the time so to qualify, upon good cause shown, for not more than three months. And any person interested in the estate may, before letters of guardianship are issued, file an affida- vit, setting forth with respect to the guardian so appointed, any fact which is made, by law, an objection to the issuing of letters testa- mentary to an executor. Sections 2636 to 2638 of this act, both inclusive, apply to such an affidavit, and to the proceedings there- upon. A person appointed guardian by will may, at any time before he qualifies, renounce the appointment by a written instru- ment, under his hand, filed in the surrogate's office. The section referred to (§ 2594), requires the filing of the usual oath of office. The other sections (§§ 2636 to 2638) relate to ob- jections to the issuing of letters, and the manner of disposing of them, and are fully treated of heretofore. A father has power to appoint a testamentary guardian without the consent of the mother. {Thomson v. Thomson, 55 How , 494.) But a grandfather cannot appoint such a guardian. {Fullerton v Jackson, 5 Johns. Oh., 278 ; Hoyt v. Eilion, 2 Edw., 202.) A testamentary guardian appointed by the mother or father, holds office for the whole period of the infant's minority. {Mm parte Reynolds, 11 Hun, 41.) § 2853. Security may he required, whexi. — Where a guardian of an infant's person or property has been appointed by will or by deed, the infant, or any relative or other person in his behalf, may present to the surrogate's court in which the will was admitted to probate, or to the surrogate's court of the county in which the deed was recorded, a written petition, duly verified, setting forth, either upon his knowledge or upon his information and belief, any fact respecting the guardian, the existence of which, if it was interposed as an objection to granting letters testamentary to a Security May be Eequired. 631 person named as executor in a will, would make it necessary for such a person to give a bond, in order to entitle himself to letters ; and praying for a decree requiring the guardian to give security for the performance of his trust, and that he may be cited to show cause why such a decree should not be made. Upon the presenta- tion of such a petition, and proof of the facts therein alleged, to the satisfaction of the surrogate, he must issue a citation accord- ingly. Upon the return of the citation, a decree requiring the guardian to give security may be made, in the discretion of the surrogate, in a case where a person so named as executor can entitle himself to letters testamentary only by giving a bond ; but not otherwise. The practice under this section has already been discussed under the head of irecurity from an executor. § 2854. What security to be given. — The security to be given, as prescribed in the last two sections, must be a bond to the same effect, and in the same form, as the bond of a general guardian appointed by the surrogate's court. Each provision of this chap- ter, applicable to the bond of such a guardian and to the rights, duties and liabilities of the parties thereto, or any of them, includ- ing the release of the sureties, and the giving of a new bond, applies to the bond so given, and the parties thereto. The guardian appointed by will or deed, is subject to the same obligations in regard to filing an inventory and account, only after he shall have been ordered to file them. After such order, he is liable as guardian appointed by the surrogate. § 2855. Inventory and account may be ordered. — Upon the peti- tion of the ward, or of any relative or other person in his behalf, the surrogate's court having jurisdiction to require security, as prescribed in the last three sections, may, at any time, in the dis- cretion of the surrogate, make an order, requiring a guardian, ap- pointed by will or by deed, to render and file an inventory and account, in the same form, and verified in the same manner as the inventory and account required to be filed annually by a guard ian appointed by a surrogate's court, as prescribed in article second of this title. The order may also require such an inventory and account, to be fired in the month of January of each year there- after. Sections 2842 to 2845 of this act, both inclusive, apply to such an inventory and account, and to the filing thereof, as if the guardian had been appointed by the surrogate's court § 2856. Surrogate may compel settlement. — The surrogate's court, having jurisdiction to require security, may compel a judicial set- tlement of the account of a guardian, appointed by will or by "632 Guardian May be Eemoved. deed, in any case where it may compel a judicial settlement of the account of a guardian appointed by it ; and the proceedings to procure such a settlement are the same as if the guardian had been so appointed. But the decree would seem to be different from an ordinary de- cree of the surrogate's court. § 2857. Effect of decree. — A decree, made upon the judicial settle- ment of the account of a guardian appointed by will or by deed, as prescribed in this article, or the judgment rendered upon appeal from such decree, has the same force as a judgment of the supreme court to the same effect So a guardian, in this case, may be removed, and he may resign as another guardian, and a successor may be appointed. § 2^58. Ouardivn may he removed. — Upon the petition of the ward, or of any relative or other person in his behalf, the surro- gate's court, having jurisdiction to require security from a guardian appointed by will or by deed, may remove such a guardian, in any case where a testamentary trustee may be removed as pre- scribed in title sixth of this chapter ; and the proceedings upon such a petition are the same as prescribed in that title for the removal of a testamentary trustee. Where a citation is issued upon a petition for the removal of such a guardian, he may be suspended from the exercise of his powers and authority as if he had been appointed by the surrogate's court. The supreme court, through its general, original jurisdiction, has power to interfere for the protection of infant children when- ever a proper case may appear for that purpose. It is not neces- sary that the party supplying the information shall disclose an injury to himself, or that any of his rights shall be shown to be jeopardized, but that he shall show such a state of facts as will render it evident to the court that it should interpose for the pro- tection of the infant. When that information is supplied, it is the court which acts and directs the proceedings found to be necessary to fully inform itself and indicate what action in the premises may appear to be proper. The practice usually has been to proceed in a summary way by petition, and where the allegations of the petition are controverted, by reference to ascertain the facts. The court has power to deprive the parents of the custody of their children, and as the parent cannot delegate any more complete or irrevocable authority than he or she may New Guardian Appointed. 633 possess, it has also the power to remove a testamentary guardian appointed by the parent {Matter of King, 42 Hun, 587 ; 4 N. Y. St. Eep., 570.) The court will not hesitate to exercise this power of removal when the guardian fails to protect his ward from immoral influences. (Id.) § 2859. Guardian may resign. — A guardian appointed by will or by deed may be allowed to resign his trust, by the surrogate's court, having jurisdiction to require security from him. The pro- ceedings for that purpose, and the effect of a decree made there- upon, are the same, as where a guardian appointed by the surro- gate's court presents a petition, praying that his letters may be revoked, as prescribed in article first of this title. § 2860. Successor may he appointed. — Where a sole guardian, appointed by will or by deed, has been, by the decree of the sur- rogate's court, removed or allowed to resign, a successor may be appointed by the same court, with the effect prescribed in section 2605 of this act, unless such an appointment would contravene the express terms of the will or deed It seems unnecessary to give forms under these sections, as those already given may so readily be adapted. CHAPTBE XXV. Appeals. Appeals lie from the surrogate to the supreme court § 2568. When a party may appeal. — Any party aggrieved may appeal from a decree or an order of the surrogate's court, in a case prescribed in this article, except where the decree or order of which he complains was rendered or made upon his default Any party aggrieved may appeal. Therefore a legatee or devisee may appeal, even if he had petitioned for probate. ( Yun- demarh v. Vandemark, 26 Barb., 416.) The remedy for an order entered by default is to move to vacate the order and appeal from the order denying it {Shid- more v. Davtes, 10 Paige, 316.) 80 634 Appeal to Supreme Couet. § 2569. When a person not a party tnay appeal. — A creditor of, or person interested in, the estate or fund affected by the decree or order, who was not a party to the special proceeding, but was entitled by law to be heard therein, upon his application, or who has acquired, since the decree or order was made, a right or inter- est which would have entitled him to be heard, if it had been previously acquired, may intervene and appeal, as prescribed in this article. The facts which entitle such a person- to appeal must be shown by an affidavit, which must be filed, and a copy thereof served with the notice of appeal A legatee and devisee named in a will, though not a party to the proceedings before the surrogate, may appeal from a decree refusing to admit the will to probate, 'and without leave of the court {Lewis v. Jones, 50 Barb., 645 ; Parish v. Parish, 42 id,, 274 ; Marvin v. Marvin, 11 Abb. [K. S.], 97 ; Foster v. Foster, 7 Paige, 48.) Where a decree required an administrator to account for certain sales by a third party, of real estate which he had purchased, under a foreclosure, but conveyed without consideration to such third party, it was held a final order, and, as such appealable. {Matter of Gilbert, 39 Hun, 61.) § 2570. To what court. — An appeal to the supreme court may be taken from a decree of a surrogate's court, or from an order affecting a substantial right, made by a surrogate, or by a surro- gate's court, in a special proceeding pending in that court, or after a decree in such a special proceeding. An order of the surrogate adjudging, against the denial of an administrator, that there are assets of the estate in his hands, and requiring him to account therefor, affects a substantial right, and is appealable. {In re Gilbert, 104 K Y., 200.) § 2571. Effect of appeal on intermediate order. — An appeal taken from a decree brings up for review each intermediate order which is specified in the notice of appeal, and necessarily affected by the decree, and which has not already been reviewed by the appellate court upon a separate appeal taken from that order. § 2572. Time to appeal — An appeal by a party must be taken within thirty days after the service upon the appellant, or upon the attorney, if any, who appeared for him in the surrogate's court, of a copy of the decree or order from which the appeal is taken, and a written, notice of the entry thereof. An appeal by a How TO Appeal. 635 person who was not a party, taken as prescribed in this article, must be taken within three months after the entry of the decree or order, unless the appellant's title was acquired by means of an assignment or conveyance from a party, in which case the appeal must be taken within the time limited for the taking thereof by the assignor or grantor. § 2573. Who must he made parties. — ^Each party to the special proceeding in the surrogate's court, and each person not a party, who has, or claims to have, in the subject-matter of the decree or order, a right or interest, which is directly affected thereby, and which appears upon the face of the papers presented in the surro- gate's court, or has become manifest in the course of the proceed- ings taken therein, must be made a party to the appeal. A person not a party, but who must be made a party, as prescribed in this section, may be brought in by an order of the appellate court, made after the appeal is taken, or the appeal may be dismissed on account of his absence. The appellate court may prescribe the mode of bringing in such a person, by publication, by personal service, or otherwise. But this section does not require a person interested, but not a party to be brought in, if he was legally rep- resented, or was duly cited in the court below. i In an appeal from the decree of a surrogate, in proceedings to sell real estate taken by a creditor, the heirs at law of the dece- dent must be made parties. {Patterson v. Hamilton, 26 Hun, 665.) f § 2574. Appeal, how taken. — An appeal must be taken by the service, within the State, upon each party to the special proceed- ing, other than the appellant ; and upon the surrogate, or the clerk of the surrogate's court, of a written notice, referring to the decree or order appealed from, and stating that the appellant appeals from the same, or from a specified part thereof. Where a party to the special proceedmgs in the court below appeared in person, the notice of appeal must be personally served upon him ; where he appeared by an attorney, it must be served personally, either upon him or upon his attorney. Where a party who was duly cited, did not appear in the surrogate's court, notice of appeal must be served upon him personally, if he can, with due diligence, be found within the county ; otherwise it may be served by deposit- ing it, indorsed with a direction to the party, with the surrogate or the clerk of the surrogate's court. Where a person to be served cannot, with due diligence, be found, to make personal service upon him, as prescribed in this section, the surrogate, or a justice of the supreme court, may, by order, prescribe such a mode of service as he thinks proper, and service in that mode has the same effect as personal service. 636 Security on Appeal. NOTICE OF APPEAL. Surkogate's Court — Eensselaer County. In the Matter of the Will of| , Deceased. j Please take notice that appeals from the decree of the surrogate, made in this matter, dated May 20, 1880, that the said will be admitted to proba,te, and that the testator was of sound mind and memory, and from every part of said dftCrGG Dated June 30, 1880, Yours, etc.. Tq Hon. , Surrogate, and to , attorney for respondent §2575. Certain provisions applicahle. — The provisions of the foUbwmg sections of this act, to wit : Sections 1295, 1297, 1298, 1299, 1303 and 1305 to 1309, both inclusive, apply to an appeal tajien as prescribed in this article. It is deemed best to refer the reader to those septions of the Code which comprise appeals from this court to appeals in other cases. § 2576. Appeal on law and facts. — The appeal may be taken upon questions of law or upon the facts, or upon both. If it is taken from a decree rendered upon the trial by the surrogate, of an issue of fact, it 'must be heard upon a case, to be made and settled by the surrogate, as prescribed by law, for the making and settling of a case upon an appeal in an action. § 2577. Security to perfect the appeal. — To render a notice of ap- peal effectual for any purpose, except in a case specified in the next section, or where it is specially prescribed by law, that secu- rity is not necessary to perfect the appeal, the appellant must give a written undertaking, with at least two sureties, to the effect that the appellant will pay all costs and damages which may be awarded against him upon the appeal, not exceeding two hundred and fifty dollars. UNDERTAKING ON APPEAL. Surrogate's Court. In the Matter of the Will of | , Deceased. | Whereas, on the 20th day of May, 1880, the surrogate of Rens- Additional Security, When. 637 selaer county made a decree admitting the will of the above named deceased to probate, and that the said ■was of sound mind and memory, and ' feel- ing aggrieved thereby, intends to appeal to the supreme court irom said surrogate : Now, therefore, we, , of — , and , of , do hereby undertake that the •appellant will pay all costs which may be awarded against him on said appeal, not exceeding two hundred and fifty dollars. Dated June 1, 1888. State of New York, ) County of , ] and , on this ■day of , A. D. 188 — , before me, the subscriber, appeared , to me personally known to be the same per- sons described in and who executed the above undertaking, and severally acknowledged that they executed the same. County of , ss. : and , being severally sworn, each for himself says : the said , that he is a , of the county of , in this State, and is worth in property not exempt from execution, the sum of $ over and above all debts and responsibilities which he owes or has incurred ; and the said , for himself, says, that he is a , of the county of , in this State, and is worth in property not exempt from execution, the sum of $ over and above all debts and responsibilities which he owes or has incurred. Severally sworn to and subscribed before me, ) this day of , 188—. j § 2578. Security where decree is for payment of money, etc. — Notice of appeal by an executor, admmistrator, testamentary trus- tee, guardian, or other person appointed by the surrogate's court, from a decree directing him to pay or distribute money, or to deposit money in a bank or trust company, or to deliver property, or by an executor or administrator, from an order granting leave to issue an execution against him, as prescribed in section 1825 of this act, is not effectual for any purpose unless the appellant gives an undertaking, with at least two sureties, in a sum therein speci- fied, to the effect that if the decree or order, or any part thereof is affirmed, or the appeal is dismissed, the appellant will pay all costs and damages which may be awarded against hini upon the appeal, and will pay the sum so directed to be paid or collected, or, as the case requires, will deposit or distribute the money, or 638 Undertakiitg. deliver the property so directed to be deposited, distributed or de- livered, or the part thereof as to which the decree or order is affirmed. § 2579. Security in case of commitment. — An appeal from a decree or an order directing the commitment of an executor, ad- ministrator, testamentary trustee, guardian, or other person ap- pointed by the surrogate's court, or an attorney or counsel employed therein, for disobedience to a direction of the surrogate, or for neglect of duty, or directing the commitment of a person refusing to obey a subpoena, or to testify, when required, according to law, does not stay the execution of the decree or order appealed from, unless the appellant gives an undertaking, with at least two sureties, in a sum therein specified, to the effect that, if the decree or order appealed from, or any part thereof, is affirmed, or the appealed is dismissed, the appellant will, within twenty days after the affirmance or dismissal, surrender himself, in obedience to the decree or order, to the custody of the sheriff of the county wherein. he was directed to be committed. If the undertaking is broken, it may be prosecuted in the same manner, and with the same effect, as an administrator's official bond, and. the proceeds of the action must be paid or distributed, as directed by the surrogate, to or among the persons aggrieved, to the extent of the pecuniary injuries sustained by them, and the balance, if any, must be paid into the county treasury. § 2580. ATnount of undertaking how fixed.— The sura specified in an undertaking, executed as prescribed in either of the last two sections, must, where the appeal is taken from a decree directing the payment, depositing or distribution of rnoney, be not less than twice the sum directed to be paid, deposited or distributed. Where the appeal ia taken from an order granting leave to issue an execution, it must be not less than twice the sum, to collect which the execution may issue. In every other case it must be fixed by the surrogate, or by a judge of the appellate court, who may require proof, by affidavit, of the value of any property, or of such other facts as he deems proper. The respondent may apply to the appellate court, upon notice, for an order requiring the appellant to increase the sum so fixed. If such an order is granted, and the appellant makes default in giving the new under- taking, the appeal may be dismissed or the stay dissolved, as the case requires. § 2581. JRequisites of undertaking in last cases. — An undertaking, given as prescribed in the last four sections, must be to the people of the State, must contain the name and residence of each of the sureties thereto; must be approved by the surrogate, or a judge of the appellate court, and must be filed in the surrogate's office. Except as otherwise specially prescribed, the filing of a proper Probate, How Affected. 639 undertaking, and service of the notice of appeal, perfects the appeal. The surrogate may, at any time, in his discretion, make an order authorizing any person aggrieved to bring an action upon the undertaking, in his own name, or m the name of the people. Where it is brought in the name of the people, the damages col- lected must be paid over to the surrogate and distributed by him as justice requires. § 2582. Decree for probate, how far affected hy appeal. — An appeal from a decree of a surrogate admitting a wUl to probate, or grant- ing letters testamentary, or letters of administration, does not stay the issuing of letters where, in the opinion of the surrogate,, manifested by an order, the preservation of the estate requires that the letters should issue. Letters so issued confer upon the person named therein all the powers and authority, and subject nim to all the duties and liabilities of an executor or administra- tor in an ordinary case, except that they do not confer power to sell real property by virtue of a provision in the will, or to pay or satisfy a legacy, or to distribute the unbequeathed property of the decedent, until after the final determination of the appeal. And in case letters shall have been issued before such appeal, the executor or administrator, on a like order of the surrogate, may exercise the powers and authority subject to the duties, liabilities and exceptions above provided. § 2583. Appeal does not stay in case of decree revoldng probate, €tc. — An appeal from a decree revoking the probate of a will, or revoking letters testamentary, letters of administration, or letters of guardianship ; or from a decree or an order, suspending an ex- ecutor, administrator or guardian, or removing or suspending a testamentary trustee, or a freeholder, appointed to execute' a de- cree, as prescribed in title fifth of this chapter, or appointing a temporary administrator, or an appraiser of personal property, does not stay the execution of the decree or order appealed from. The power of executors, after appeal from probate, extends to everything except payment of debts. {Thomson v. Tracy, 60 N". Y., 174:) § 2584. Perfected appeal stays in other cases. — ^Except as other- wise expressly prescribed in this artice, a perfected appeal has the effect, as stay of the proceedings to enforce the decree or order appealed from, prescribed in section 1310 of this act, with respect to a. perfected appeal from a judgment § 2585. Appeal, hearing on. — In the supreme court, an appeal from a decree or an order of a surrogate's court must be heard, the judgment or an order made thereupon must be entered, and the 640 Further Testimony on Appeal. papers must be filed, in the same manner, and the effect of the- judgment, with respect to the proceedings in the surrogate's court, is the same as where an appeal is taken to the supreme court, from a final judgment or an order of an inferior court, as prescribed m title third of chapter twelfth of this act. An exception taken to a surrogate's decree must be specific, pointing out the exact question intended to be reviewed on appeaL A general exception is not available, and, without an exception properly made, there can be no review. {Angevine v^ Jackaon^ 0. of App.; 3 N. Y. St. Eep., 643.) § 2586. Power of appellate court to receive further testimony. — Where an appeal is taken upon the facts, the appellate court has the same power to decide the questions of fact, which the surro- gate had ; and it may, in its discretion, receive further testimony or documentary evidence, and appoint a referee. The power given by the last preceding section to receive fur- ther testimony, should be cautiously used. It practically opens the case, and gives a rehearing on new evidence before the appel- late tribunal. If one side is allowed to introduce new evidence,, it would seem unjust not to permit the other side to dp the same. Unless the evidence which is desired to be produced seems of sufficient importance to justify a rehearing, the court will not ex- ercise the power given it by the section. {Matter of Hannah, 10- K Y. St. Eep., 638.) § 25§7. Judgment on appeal — The appellate court may reverse, affirm or modify the decree or order appealed from, and each inter- mediate order specified in the notice of appeal, which it is author- ized by law to review, and as to any or all of the parties ; and it may, if necessary or proper, grant a new trial or hearing. The, decree or order appealed from may be enforced, or restitution may be awarded, as the case requires, as prescribed in title first of chap- ter twelfth of this act, with respect to an appeal from a judgment {lu re Kellogg, 104 N Y., 648.) § 2588. In case of probate, appellate court mxiy order jury trial. — Where the revesal or modification of a decree by the appellate court is founded upon a question of fact, the appellate court must, if the appeal was taken from a decree made upon a petition to ad- mit a will to probate, or to revoke the probate of a will, make an. order, directing the trial, by a jury, of the material questions of fact, arising upon the issues between the parties. Such an order- must state, distinctly and plainly, the questions of fact to be tried ;, and must direct the trial to take place either in a circuit court^ "Who May Appeal. 641 specified in the order, or in the county court of the county of the surrogate ; or, in the city and county of 'New York, in the court of common pleas. After the trial, a new trial may be granted, as prescribed in section 2548 of this act § 2589. Gosts of appeal — The appellate court may award to the successful party the costs of the appeal , or it may direct that they abide the event of a new trial, or of tht, subsequent proceedings in the surrogate's court In either case, the ooste may be made pay- able out of the estate or fund, or personally by the unsuccessful party, as directed by the appellate court , or, if such a direction is. not given, as directed by the surrogate The court has no power to enlarge the time for appealing, fixed by statute. {Stone v. Morgan, 10 Paige, 615.) Where an executor, on being ordered to account, does so, and an order is entered thereon without citation to parties interested, so as to make it a final settlement, an appeal must be made from the prder in thirty days. {Guild v. Peck., 11 Paige, 475.) So, also, a decision of a surrogate, confirming probate after alle- gations against a will, must be appealed from in thirty days. ( Wil- liams V. Fitch. 15 Barb., 654) Upon the question as to who may or may not appeal, we wiR cite the following cases : A devisee or legatee may appeal from an order admitting a will to probate, notwithstanding that he was a petitioner for probate,, and he is not estopped by his petition. ( Vandermark v. Yander- mark, 26 Barb., 416.) Parties to a proceeding to prove a will and codicils, who if the wiU is proved, take nothing under the codicUs, and whose inter- ests are, therefore, unaffected, whether the codicils be proved or not, may nevertheless appeal from an order admittiug the codicils- to probate. {Parish v. Parish, 42 Barb., 274.) Legatees may intervene in the proceedings for probate before the surrogate, and may do the same on the appeal ; but if they da not intervene, and a final judgment is rendered declaring the in- validity of the instrument propounded as a will, they cease to be interested parties, and cannot appeal from the order annulhng the record and awarding costs against the executor, and directing hiin to file an inventory The executor thus represents the legatees and they are bound by his acts. {Marvin v. Marvin, 11 Abb [N S.], 97.) 81 642 Parties May Inteeyene. But a legatee who is not a party to the proceedings for probate, may appeal from the order refusing probate ; and this without leave of the court. {Lewis y. Jones, 50 Barb., 645.) A husband cannot appeal in his own name from a decree allow- ing probate, by virtue of his wife being one of the next of Mn. {Foster v. Foster. 7 Paige, 48.) One whose interest is determined, ceases to have a right to prosecute an appeal, as where an heir at law apparent, prosecuting an appeal, a posthumous child is born to the decedent {Beid v. Yanderheyden, 5 Cow , 719.) In proceedings for the sale of real estate, a purchaser who bid off the property, can appeal from an erroneous order of the sur- rogate setting aside the sale. If an appearance before the surro- gate was necessary to constitute him a party, the administrater appearing in behalf of himself and the purchaser is sufficient. {Delaplaine v Lawrence, 10 Paige, 602.) If the surrogate denies an application for the appointment of a guardian of a minor, and the applicant appeals, the minor must be made respondent The relatives of the minor who approved the appointment are not the proper parties respondent as to the appeal. {Kellmger v. Boe, 7 Paige, 362.) But it seems it is not necessary, in all cases, to make the infant a party, on an appeal from an order appointing or removmg a guardian. ( Underhill v. Dennis, 9 Paige, 202.) On an appeal from a decree, all persons interested (as those to whom sums were awarded by the surrogate), should be made par- ties, although they were not parties before the surrogata ( Wil- cox V. Smith, 26 Barb., 316.) Parties interested in the establishment of a will, may intervene on an appeal from a decision against it ; but must come in by petition in the proper form, and make themselves parties to the proceedings before they can take any part therein. {Foster v. Fos- ter, 7 Paige, 48.) A writ ot prohibition from the supreme court, cannot affect the rights of parties to bring and carry on an appeal. {Thomson v Tracy, 60 N, Y., 31.) A decree ot a surrogate's court is in the nature of a decree in equity, and costs on an appeal therefrom are discretionary. There- fore in the case before the court all the parties were held entitled to costs out of the estate. {Larm-ence v. Lindsay, 70 N. Y , 566.) GENERAL INDEX. ABATEMENT : pagk when does not take place 276- general legacies subject to 381 specific, are not 381 legacy, in lieu of dower, does not suffer 361 to creditor, does not suffer 381 rule as to 388 ABSENCE OF SUEEOGATB: provided for 6 ABSENTEE : administrator on estate of ; 190 petition for adnunistration on estate of 192 ACCOUNT: surrogate's power as to 7 wlien reference made of 56 objections to, to be filed 56 executor or administrator may ask settlement of and revocation 222 petition for revocation allowed 22S to be inventoried 241 executor have action for 273 petition for order to, and for legacy 390 necessary on petition for legacy 392 on petition for payment of legacy 893 form of, on settlement 41& objections to 41(> must state of filing of inventory 419 advertising for claims 419 what claims allowed, etc 41ff suits 419 character of debts 419 644 Index. ACCOUNT— (Cont'd) • page charge inventory 419 increase 414 must credit articles lost 419 decrease 419 debts 419 funeral charges 419 state minors 420 not necessary to include interest when 420 to show sums paid distributees 421 objections to 422 additional objections may be filed 422 may be referred 423 order for reference of 424 final unless surcharged 424 allowance for prepareing 440 surrogate must supervise 608 testamentary guardians to file 631 ACCOUNTING: decree for revocation may require 217 of executor of executor may be had 218 proceedings on , 218 extent of 219 petition for, form of 219 to be had before revocation , . . . 224 may be had before execution 339 allowance to party on 368 there are two kinds 398 treated 398 m.ay be had after one year . . . , 398 creditor may petition after one year 398 intermediate, when compulsory 399 after eighteen months 399 supreme court can compel 400 may be had on petition of any one interested 403 what interest warrants petition for 404 petition for, order for 405 order that executor be cited for 406 when dismissed 406 ordered on petition of creditor, etc. 407 Index. 645 ACCOUNTING— (Cont'd): page petition for dismissed, when 407 statute of limitations on 407 petition for, when dismissed 409 proceedings for, may be discontinued 409 to be adjourned . . . ; 409 executor should raise objections on return of citation . . . 412 vouchers to be filed on 418 executor may be examined on 422 referee may be appointed on 423 when voucher filed, burden on contestant 429 counsel fee on 442 provisions apply to trustees 468 guardians 468 may be ordered by trustee 470 decree may be made for legacy on 471 who to be cited on, by trustee 471 trustee may petition for final 472 by trustee on resignation 484 proceedings on 484 when may be ordered 528 on real estate ; petition, when ordered 532 when not necessary before suit 594 new, may be required of guardian 529 ACKNOWLEDGMENT : clerk may take 14 to witnesses, how made 63 ACTION: against executor or administrator, must be aU sued .... 259 executors in suing must all join 259 executors and administrators to have 278 what survives decedent 274 does not survive 274 time to begin, against executors extended 275 in favor of executors extended 275 successor of executor may continue 276 do not abate, when 276 court may allow continuance 276 order abatement 276 64:6 Index. AOTIOIN— (Cont'd); pagbt on contract of executor or administrator, liow brought. . 323 how brought against executor or administrator 335 judgment in, how enforced 335 averments in complaint 335 who to join in 338 what may be joined ' 33& judgment in, what to show 33& executor first served to appear in 33T separate answers not allowed in 337 want of assets not pleaded in 35& on claim not presented under notice 360" lies for decedent's debt, against heirs, etc 372 may be joint or several 372 recovery may be apportioned in 372 against heirs, etc., requisites for recovery in 373- when lies against heir, etc 373 to charge real estate ; stayed, when 375 to charge real estate to be joint 375 recovery in, apportioned 375 reitjuisites for recovery 375 for debt of decedent regulated 376 judgment to specify real estate 376 against heirs, defense 377 not suspended by infancy 377 may be had for legacy 386 bar to petition, etc 386 may be brought after one year, for legacy 387 who to be made parties 387 by guardian, he to file bond 387 on bond, requisites of 505 is joint and several 505 ADJOURNMENT: clerk may make 14 when granted 15 ADMISSION: of service sufficient 38 form of 38 of one executor not binding on co-executor 260 Index. 647 ADMINISTEATION : page surrogate's, jurisdiction as to 1 to be granted to whom 164 order of grant of 165 when minors entitled to 165 petition for 179 is void, when 181 issue on death of administrator 183 petition for de bonis non form 183 with will annexed, rules as to 184 ADMINISTEATOE : authority of surrogate over 7 may be enjoined 15 controlled by surrogate 15 penalty of bond of 138 foreign, may be appointed here 138 ■with will annexed to be suspended, when 150 letters of, defined 161 renunciation of 172 order for citation on petition 172 powers of, may be limited 175 oath of, form 176 bond of, penalty of 176 bond reduced in certain cases , 176 may deposit securities 177 . bargain as to securities void 178 several, bond of one sufficient 178 bond of, form 178 liability of sureties of 179 same are sureties for each other 180 letters to, evidence 180 cannot be attacked collaterally 180 foreign, no authority here 181 agreement of, before letters binding 181 who may be with will annexed 185 with will annexed, bond of 187 authority of 187 cannot sell real estate, when 188 with wiU annexed : power of, over real estate 189.< . 648 Index. ADMINISTEATOE- (Cont'd) : pagb may sell as trustee 189 responsibilities of 190 temporary, considered 190 temporary . in what cases appointed 190 appointed by order 190 appointed in case of absentee 190 in case of delay in letters 191 who proper to be. . . , 191 temporary, application for 192 how appointed for absentee 192 petition for, in case of absentee 192 how appointed for absentee 192 temporary, must qualify 19S general power of 194 power as to creditors 194 for absentee, general power of 192 may pay debtor 192 dispose of real estate 193 proyide for family 195 must deposit money 195 may be attached ■. 196 how draws deposits 196 temporary, to account , 197 may be attached 197 commissions of ■ 198 liability of one de son tort 198 title to assets vests in 198 interfering with real estate, what 199 one dying, others to act 199 all dying, successors to be appointed 199 new sureties, when required 200 when new bond given 202 surety of, may ask for release 204 decree releasing surety of 205 decree revoking letters of 206 disagreement of surrogate to settle 206 petition in case of disagreement 208 revocation of letters, grounds of 209 improvidence 209 Index. 649 ADMINISTRATOE^Cont'd) : pagb disobedience 210 letters obtained by falsehood 210 circumstances precarious 210 removal of petition for form 212 letters revoked peremptorily 216 on revocation account required 217 to pay to successor 227 successors may cite 217 of executor : proceedings to compel account 219 liability of 220 after revocation, bond sued 220 successor may sue bond 221 any person interested may sue bond 221 may ask settlement and revocation 222 petition of, for revocation etc 223 order that he account 224 decree revoking letters, etc 225 may recover assets 225 proceedings regulating 226 petition of, to discover assets 227 ■duty of to make inventory 233 ■effect of not returning inventory. 283 to file inventory 252 may have further time 252 ■order that he file inventory 254 may be attached for not filing inventory 255 how discharged from arrest 256 letters revoked for disobedience 257 to file supplementary inventory 257 several are one in law 258 one may sell, release, etc 258 satisfy mortgage 258 personal estate vests in 258 several, power joint 259 may constitute an attorney 259 one may compromise 259 release mortgage 259 82 650 ISDEX- ADMISISTBATOE— (Cont'd): page assign note 259 boirowing, personally liable 259 one has absolute control 259 purchaser from, protected 259 all must join in suit 260 one cannot waive just claim 260 admission of one not binding 260 cannot bind estate by contract 261 take partnership estate .'.... 261 allowed proper expenses 261 succeeds to trust of decedent 262 have power to compromise 262 one can discharge claims to several 262 sell mortgages 26S purchaser from, protected 26S duty of, as to vigilance 26S should keep funds separate 264 subject to surrogate's control 264 liability for co-administrators 265 liable for co-administrators through negligence 266 on decease, HabiUty of his executor 268 may petition for direction 269 one cannot charge co-administrator 269 indorsing, liable individually 269 foreign, power of 270 cannot sue here 270 can sell in foreclosure 270 duty to keep insurance 270 as to collections 270 to collect personal securities 271 may sue in any court 271 in what court sued 271 can sue note iu own name 271 collect judgment in favor of predecessor 271 contract of, no offset to claims of decedent ^ ... 271 to collect from predecessor 272 treat as void fraudulent transfers 272 what actions to have 273 may be sued for trespass 274 torts 274 Index. 651 ADMINISTEATOE— (Cont'd) : page may sue foreign corporations 274 suits by, limitation extended 275 against, time extended 275 successor of, may continue action 276 security for costs may be required of 276 costs may be required of, personally 276 may set up counter-claim 277 pleading by, in suit 277 duty as to claims in other States 278 foreign can assign mortgage 278 can buy on foreclosure 278 ■counsel of, bave claim against 278 may settle with surviving partner 278 not to interfere in business 278 liability as to partnership of decedent 279 may arbitrate disputed claim 279 liable for negligence to coUect 279 may collect debt of distributee 280 ■cannot sue co-administrator to collect debt 280 may sell personal property 282 how may sue for goods sold '. . 282 title of purchaser from, when void 283 liable for sale without security 283 cannot buy at own sale 284 buying liable for actual value 284 should keep money at interest 285 timeallowed to invest 285 may deposit in savings bank 285 be ordered to put at interest 285 "when charged with interest 285 care of in investing 285 to sell unauthorized securities 288 reasonable time to convert debts 289 may foreclose , . . 289 take deed as administrators 290 land purchased by, still personal 290 duty as to State tax 292 care of, in paying claims ^ . „ 299 may advertise six months for 300 claims to be presented to personally 301 652 Index. ADMESriSTEATOE— (Cont'd) : ^^<^^ effect on, of publication for claims 302 may require vouchers, etc 302 how claims presented to 303 effect of paying interest by 303 may conclusively admit claims 303 not disputing claim, admitted 304 axe trustees for creditors 305 cannot be forced to pay within a year 305 may refer disputed claim 305 stipulation to refer by stops outlawing 30& refusal merely, not disputing 30& disputing to start actually must be clear 30& may agree to refer claim 307 agreement to refer claim 307 practice on appeal of 316- duty to reject or admit 316' what is dispute of claim, by 316 to pay funeral expenses 319 what are reasonale 320' when individually liable for 322 cannot bind estate 323 contract binds them only 323 to be reimbursed 325 could compromise before statute 325 may be authorized to compromise 325 bound to compromise 325 staute for compromise 326 , petition for authority 32& duty as to debts 327 subrogated to claims 32S after year to pay debts 32^ to pay debts not due 332 not protected paying outlawed debt 334r liability for taxes , 335 in suit against, may set up debts 335 terms of judgment against 335 judgment in case of set-off 335 execution against, -only by leave 335 to sue and be saed as such 335 who to be joined in actions 83ft Index. 653 ADMINISTKATOR— (Cont'd): page. wliat actions against, may be joined 33& judgment against, what to show 83& one sued to appear 387 execution against, how issued „ 337 accounting before execution 339 security before execution against 33& accouniing may be required of 349 may be cited to pay debt 849 assignees in proceeding 850 decree conclusive against 355 may pay after notice to creditors 860 may distribute after notice 360 costs against ^ 360 grounds for costs against 361 charged personally with costs when 361 attorney's services to, do not bind estate 867 additional allowance to 868 bound to plead limitation 370 cannot pay claim barred by lapse of time 371 renew claims barred 371 can, by payment, prevent outlawing 371 expenses of, charge on real estate 374 may be sued for distributive share 387 distributive share collected within a year, when 896 may be cited to intermediate accounting .' 899 of deceased administrator, to account for acts of decedent, 400 deceased, his representative to account 400 may be ordered to deliver trust property 400 de bonis non may cite executor of predecessor 401 temporary, settlement required of 408 can plead lapse of time 407 ordered to account 407 not accounting, letters may be revoked -. . . 407 answer of, to petition for accounting 408 cited, may petition for settlement 409 petition of, for judicial settlement 410 account of, form 416 allowance to, without vouchers 418 course, when voucher lost, etc 419 account, what to state 419 654 Index. PAGE ADMINISTEATOE— (Cont'd) : lands bought by, on foreclosure 420 how to charge interest 421 next of kin 421 who may appear on account of 421 may be examined before objections 421 objections to account of 422 may be examined 422 taking assets, pays whole value 425 liable for acts before letters 425 -^debt of, to decedent, liability for 425 when debt of, to be settled 426 when chargeable with interest 426 charged with mterest for negligence 427 not investing, charged mterest 427 time allowed to invest 427 may call claimant paid, as witness 429 account of, surcharged 429 may prove assets his own 429 accounting not to include assets twice 429 bound to protect estate 430 when presents his own claim 431 must verify claim 432 •claim of, when presented 482 cannot retain for his own debt 433 proof required on claim of 433 allowance to, for lost property 436 no profits to, by increase 437 charged with interest 437 liable for uncollected demands 488 accounts to be adjusted equitably 438 allowed for expenses of next of kin 488 commissions of 439 when not allowed commissions 444 not to have commissions, when 447 allowed expenses 447 oath as to items less than $20 447 may be exammed on oath 447 allowed expense of agent, when 447 not allowed for clerical services , 447 allowed counsel fees 448 Index. 655 ADMINISTEATOR— (Cont'd) : page allowed travel expenses 448 not allowed to own horse 448 Battlement of directs payment 450 effect of settlement of 494 bond of, sued to enforce decree 504 when attached for non-payment 500 imprisonment no bar to suit on bond 500 attachment against 515 when indicted and fined 517 petition of, for sale, etc., of real estate 527 order to account, when 532 bond of, on sale, etc., of real estate 546 on failure of, to give bond to freeholder appointed 547 not to buy at his own sale 552 to make report of sale 554 deed of real estate by 560 to sell decedent's contract 561 balance due to, to be paid out of real estate 568 allowance to, on sale of real estate 570 re-imbursed out of real estate 575 of infant may cite guardian to account 613 ADOPTIOlSr: of children as provided 462 ADVANCEMENT : ' how adjusted of personal property 455 defined 455 maintaining, etc., child is not 455 in real estate, how treated 456 ADVANCEMENT: value of, how fixed 456 conveyance is 'prima facie' 457 evidence of 457 based on contract 467 distinguished from loans 457 manner of estimating. 458 ADVERTISEMENT : order for, for claims 301 €58 Index. AFFIDAVIT: page petition verified 25 affidavit to procure substituted service 27 of service, form of 38 of verification, form of 41 for commission 47 of sickness of witness 51 to procure order for filing of inventory 254 annexed to claim may be required 302 form of 303 for motion for leave to issue execution 343 not necessary to claim 429 of service on petition for attachment 514 AGENT : executor may employ, when 447 AGEEBMENT : for reference of claim 307 presents issue 308 to refer claim to one or three referees 309 ALLEGATIONS : objecting to account 422 ALLOWANCE : for days necessarily occupied 369 additional, how procured 369 to executor without vouchers 418 ANCILLARY LETTERS : when issued 137 do not make executors trustees 138 issue to foreign executors 139 other persons 139 on petition , 140 petition for testamentary 139 petition for administration 140 order for citation on 143 citation on issue 143 hearing on petition for 144 duty of person receiving 144 security on issue of 144 Index. 657 ANCILLAKY LETTERS— (Cont'd) : page person having may sue 145' how estate distributed under 145 give exclusive authority 146 ' general duties under 146 ANCILLARY GUARDIAN: how appointed 606 petition for 606 effect of letters to 607 ANNUAL ACCOUNT: trustees may file 469 to be made by guardian 608 guardian's form of 610 ANNUITY : of specific sum does not abate 283 when does not abate 381 when begins 454 table and rule computation 572 ANNUAL RENTS: commissions allowed on 441 ANSWER: to objections to issue of letters form, 131 on petition for payment 395 proper on petition for accounting 408 testamentary trustee may file 470 APPEAL: exceptions considered on 55 when reversal had 55 what justifies reversal on 55 from order for new trial 57 costs on 57 does not lie from order refusing administrators 191 from report of referee, how made 314 costs of 367 from trial by jury, how taken, 437 may lie on order vacating decree 501 83 658 Index. APPEAL— (Cont'd) : page stays attachment 511 how probate afEects 639 affects generally 639 court may hear testimony on 640 judgment on 640 court may adjudge trial on 640 to supreme court 633 any party aggrieved may have 633 person not a party may 634 what decree appealable 634 effect of 634 must be brought in thirty days 634 how taken 635 notice of 636 security required on 636 undertaking form 636 who made respondents 635 court cannot extend time for 641 who may 641 costs discretionary on 642 APPBAEANCE : when it gives no jurisdiction 9 JTirisdiction 9 effect of 34 general, is waiver 35 all parties may make 29 effect of 88 APPEAISEES : who to be appointed 233 fees of 234 order for 234 warrant of 234 clerk of surrogate not to be 234 who competent to be 235 to be sworn 236 how to make inventory 236 estimate not conclusive 248 how to state securities 248 Index. 659 APPRAISEES— (Cont'd) : page petition for, on legacy tax 296 order for on legacy 297 oath of 298 when surrogate would revoke appointment of. 503 order for, of real estate 540 APPRAISAL : to be made of real estate 540 order for 540 clerk not to make 20 ARBITRATION : executor or administrator may enter into 272 executor or administrator may submit to 279 ARBITRATORS: award of, no preference of payment 333 ASSAULT AND BATTERY: action for, does not survive 274 ASSESSMENTS: distinguished from taxes 330 to be made where executor is 330 when not preferred 331 not preferred debt 332 when estate liable to 335 ASSETS : how recovered 225 what are 239 error in stating, not conclusive 250 foreign executor can sell here 270 debt of executor is 425 ASSIGNMENT : executor may unite with surviving partner 282 provisions for, of bond repealed 508 ASSIGNEE: of distributee may have payment 456 660 Iotjex, ATTACHMENT : pagk who may serve 21 how directed and executed 24 may issue against temporary administratoiy 197 order for, for not filing inventory 255 form -of 256 how executed 255 imprisonment on, no bar to action 509 when issues on decree 509 rule for, before the Code 510 appeal stays 511 cause to be shown 511 when executor not liable to 511 insolvent executor not liable 511 ptactice on obtaining 512 petition for 513 affidavit to annex to petition 514: decree for 514 form of 513 on petition for order, to show cause may issue 516 issue of discretionary 516 facts which would negative 516 ATTENDANCE : surrogate may compel 15 ATTESTATION : clause reading good publication 64 clause, importance of 97 ATTOENBYS : represent in court 1 for executor not to act as surrogate 3 acts void 3 incompetent as surrogate 4 clerk not to be 20 surrogate not to be . . , 21 papers how served on 45 services to executor bind him only 367 maximum allowance to 368 also executor, not allowed costs 369 Index. 661 ATTORNEYS— (Cont'd): page claims of, scrutinized 449 may have allowances in New York 449 , ATTORNEY-GENERAL : should not employ when 604 when to be cited 86 AWARD OF ARBITRATORS: no preference of payment , 333 BENEVOLENT SOCIETIES: inhibition as to wills 59 BEQUEST : who may make 58 made less than two months before death invalid 59 BOARD : guardian allowed for 604 BOND: surrogate to file 1 omission to take, error not fatal 11 when may be required of 132 not required 132 runs in name of people 133 penalty of, by executor 133 required, issue of ancillary letters 144 of administrator, penalty of 176 penalty, how reduced , 176 sureties must justify 177 securities deposited to reduce 177 administrator, form of 178 liability of sureties on I79 when void and when not 180 when new may be required 200 principal in may be cited 200 wh(5 may petition for new 201 letters revoked on failure to give new 203 sureties on, may be released 204 new, releases former sureties 205 decree releasing surety on 205 662 Index. BOND— (Cont'd): i-agb to prevent removal, when given 214 when required 214 not required , 214 of executor, terms of 215 amount of, discretionary when 216 successor may prosecute 220 official successor may sue 221 any person may sue 221 aU on, liable for each other 267 worth premium, not to be sold at par , 283 for repayment of legacy 284 investments allowed in of U. S 286 on payment of legacy 384 on suit for legacy 387 to be given when legacy is paid within a year 396 to conform with statute 397 sureties on bond of executor or administrator, deceased, concluded 400 when required of trustee 486 trustee to give 492 may be sued to collect decree 504 default on, how established 505 assignment of, not necessary 505 when execution not necessary 505 action on, how brought 505 is joint on 505 liability of sureties on 506 in actions on obligors estopped, how 508 assignment of, not necessary 508 to be given on sale, etc., of real estate 546 form of 54^ on failure of executor to give, freeholder appointed .... 547 general guardian to give 598 as to person and property 593 person only 593 cannot be dispensed with 593 additional for legacy 594 sureties on several, to justify in sum of all 594 not liable for counsel fees 594 . liability of 594 Index. 663 BOND— (Cont'd) : page of guardian of infant 594 of general guardian, form 595 liability on bond now fixed 596 when may be sued 596 new, may be required of guardian 622 petition that guardian give new 622 when new, ordered 623 order for additional sureties on 623 sureties may apply for release from 624 sureties released, new required 626 when required of testamentary guardian 630 BOOKS : surrogate may order production of 17 what surrogate to keep 18 BEOTHBES : entitled to administration 165 rights to intestate estate 460 BUEDBN OF PEOOF: proponent has 99 when on contestants 429 BUENING-: revokes will 73 BUEYING-GEOUNP : exempted from sale 521 CASE: to be made to appeal 315 CEETIFICATE : indorsed on proof, form of 104 of probate indorsed 104 of decree for docket 606 CESTUI QUE TEUST : not to have trust estate 265 CHAEITABLE SOCIETIES: limit as to wills , . . , 59 664 Index. CHILD . PAGE legacies, when to draw interest .' 454 CHILDEBN : entitled to administration 165 legacy to, does not lapse 382 distribution to 460 , effect of adoption of 462 CITATION: clerk may issue 14 surrogate may issue 15 officer may serve 21 to be returnable to court 24 proceedings to be commenced by 24 effect on limitations 24 when returnable 24 how served on unknown parties 24 how served on class 25 insertion of name in void. . 25 how made returnable 25 how served on parties ia State 25 proof, service, form 26 admission of form 26 in case resident cannot be found, service 27 order for substituted service 28 proof substituted service 29 publication of 29 order for publication, form 30 deposited in post-office 30 personal service out of State 31 how served on habitual drunkard 32 corporation 32 proof publication, how made 32 how served on infant 32 lunatic , 32 idiot 32 order for substituted service 33, 34 service unnecessary when 34 infants cannot waive 33 special guardian on return of 35 Index. 665 CITATION— (Oout'd): page proof service, how made 37 proof service, forms 38 in what paper published 41 when published in State paper 41 when unnecessary for probate 82 when unnecessary 85 order for form on probate 85 on probate, contents of 86 when to attorney-general 86 public administrator 86 on proof of will, form 87 when returnable 87 time of service 87 infants, how served 88 appearance waives 89 persons not served with appear 91 order for, form of 130 order for, on petition for ancillary letters 143 on petition for administration 172 order for, form of 172 order for, on discovery 228 how served in discovery 228 order for, on petition for legacy 391 to be issued on petition 392 who to on judicial settlement 411 how served 412 issued on petition for sale of real estate 530 how directed and served 531 order for 531 CLAIMS : against executor, how treated 248 limitation of, actions on 281 executor cannot assign to himself 281 care about paying 299 may be advertised for 300 notice protects executor 300 to be published as ordered 300 order to advertise for 30], 84 666 Index. CLAIMS- (Cont'd) : p^™ notice to be published 301 efEect of 302 notice to present must be to executor 301 publication of, what sui35cient 301 omission of letters in name, etc 301 executor may select place for presentation 302 efiEect of 302 on presentation voucher may be required 302 how may be presented 303 may be presented to an executor 303 executor or administrator can admit 303 when barred after rejecting 304 admission of executor or administrator final 304 retained, considered, admitted 304 may be prosecuted any time 305 disputed may be referred 305 omission to refer, not admitting 306 neglect to pay, not disputing i 306 rejection must be unequivocal 307 ground of rejecting 307 reference of 307 what may be referred 310 what may not be referred 310 proceedings on, reference of 311 on reference of, no judgments for defendants 312 disputed, barred in six months 315 compromise of 325 petition for authority 326 after notice to present, may be paid 360 party receiving payment of, a witness 429 of executor, when to be presented 431 surrogate can try 431 when statute begins on 431 no preference for 431 how established 432 executor cannot retain for 433 surrogate can try, for executor 433 of executor regarded with suspicion 433 executor not competent witness on 433 defenses as to, of executor 434 Index. 667 CLAIMS— (Cont'd): page what is dispute of 316 rejection of, when waived 318 may be collected of heirs, etc 318 surrogate not to try disputed 480 admitted by executor may be decreed 430 court can try issue whether disputed 431 usury, defense as to, of decedent 435 statute of limitations on, of executor 435 disputed, how treated on settlement 451 surrogate cannot allow 451 not yet due, money retained for. 453 proof necessary on 569 supplementary decree establishing, etc 574 CLERK: not to practice before surrogate 3 of court surrogate may appoint 14 may certify 14 sign citations 14 certify 14 adjourn 14 take acknowledgment 14 surrogate liable for 20 not to be appraiser, counsel, etc 20 of surrogate not to be appraiser 234 trustee may employ when 476 CODICIL : what is 58 execution of, is re-publication 69 form of 156 COLLECTOR (See Temporary Administrator.) COLLECTIONS : duty to make 270 power of executor or administrator to make. 271 COMMISSION: court may issue 18 to take testimony authorized 44 668 Index. COMMISSION-^Oont'd): page proceedings to procure 47 constitutes court 4' form of, deposition on 47 COMMISSIONS: of temporary administrator 198 how divided 440 of executor or administrator 439 how apportioned 441 new rate of, appUes 441 not appropriated in advance 441 how computed 441 annual rests on trust 442 extra, not allowed 442 computed on aggregate 443 when there are several executors 443 not allowed on specific legacies 443 allowed on stocks, etc., transferred 444 when administrator not to have 444 not chargeable on legacies 444 when allowed to trustee 444 when extra allowed 445 right to absolute 445 surrogate may withhold 445 allowed on surplus on sale 445 or legacy in lieu of 445 compensation beyond allowed 446 when not allowed 446 on successive letters 446 waived as condition of letters 447 to executor not filing inventory 447 trustee same as executor 469 trustee to have 474 allowed to trustees discussed ~ 477 of trustees, when computed 478 when not allowed 4:78 to three trustees, when 478 annual charge for 479 when fixed by instrument 479 trustees 479 Index. 609 COMMISSION'S— (Cont'd) : page annually on income 479 of guardian generally 616 annual to guardian 617 what charged on 617 COMMITTEE : when to be served 32 COMMON LAW: rights of next of kin by 162 COMMON PLEAS: court to appoint surrogate 4 COMPENSATION : see commission's 439 COMPROMISE : executor cannot with co-executor 262 statute for 326 petition for 326 order permitting 327 CONFIRMATION : order for, and for costs 313 of sale of real estate, when 558 CONSENT : to be joined in administration, form of 170 of special guardian , .36 CONSTITUTION : provides for court 1 provision as to age not to apply 3 CONSTRUCTION : of wiU may be had on probate 101 surrogate may decree, of will 451 CONTEMPT : power of surrogate to punish for 15 witness not attending guilty of 90 executor or administrator attached for 509 (See Attachment.) 670 Index. CONTESTANT : page unsuccessful not to have costs 36& CONTEST : costs in case of 367 CONTESTANTS : costs may be allowed to 100 CONTEACT : executor cannot bind estate by. 261 for real estate sold for debts 520 of decedent for purchase of land, how sold 561 proceedings for sale of 562 of guardian does not bind ward 602 CONTEOL: guardian to have, of ward 599 CONTEOVEESIES: decree to settle, as to trustee 480 CONVICT : not entitled to administration 167 COEONEE : to obey process 21 COEPOEATION : foreign, how served 2& how citation served on 32 stocks of private, to be sold 288 COPY: clerk may certity. 14 COSTS : of special guardian on probate 91 surrogate may allow, on proof 100 rate of, on probate lOO allowance in discretion 100 may be allowed to several 100 executor or administrator may be required to give secu- rity for , 276 Index. 671 COSTS— (Cont'd) : ' i-^»= may be required of executor personally 276 order for, and confirming report 313 claimant, when entitled to 316 on petition for leave to issue execution 347 against executors and administrators 360 chargeable on estate 361 when charged on executor 361 cases in which same are allowed 361 none allowed, when 362 whether against estate or individually 362 referee has no power to award 362 when not allowed 362 what entitles plaintifE to 363 in surrogate's court regulated 365 includes disbursements 365 awarded to parties, not counsel 365 rule in New York as to 365 Code sole source of power as to 366 when special guardian to have 366 who not to have 866 to be allowed to executor 366 order for payment to counsel wrong 366 bill of, how prepared 367 rate of, on trial of issue 367 rate to be allowed by surrogate 367 allowance not to be reviewed 367 none except by statute 367 to be allowed to guardian 367 maximum, allowance of 368 allowance additional to 368 in action against heirs, etc 373 trustee may divide with attorney 476 liability of, for 476 should retain for 477 on resignation of trustee 482 allowance of, not conclusive on attorney 497 to petitioner in real estate proceeding 568 of appeal, how payable 641 discretionary on appeal 642 672 Index. COTTON MACHINEEY : page to be inventoried 23& COUNSEL: clerk not to be 20 surrogate not to be 21 money paid to, requires proof 428 no allowance to, for services, when 42 & COUNSEL FEB : allowance for 36& allowance for 440 belongs to executor or administrator 440 allowance for time preparing account 442 when allowed as paid 448 to be scrutinized 449' COUNTER-CLAIM : no judgment for, on reference SCO' set up in suits by executor or administrator 277 what allowed 277 COUNTY CLERK: wills may be deposited with 5& COUNTY JUDGE : designated as surrogate , 2 when to act 2 acts on surrogate 1 files of&cial oath 1 bond 1 COUNTY TREASURER: moneys paid to 42 proceeds of sale paid to 564 COURT OF EQUITY: has jurisdiction of executors or administrators 290 may decline to exercise it 290 COURT OF RECORD: surrogate's is ... 1 Index. 67S OEEDIT : page when, may be allowed on sale ot reai estate 550 CREDITOES: unknown, how served 30 when legacy to, not payment 283 of decedent, proceediags by 30O proceedings by, to collect 368- may have actions against heirs, etc 318- how claims enforced . . - 327 to exhaust collaterals first 333- may petition for payment 34T petition of 34& subrogated to charge on property 355 may collect of next of kin, etc 372 legacy to, for debt does not abate 381 may petition for settlement 40^ of distributee not parties to settlement 450 when to be paid on settlement 450 not barred not by decree, if not cited 497 may hav6 time to sell real estate extended 522 petition of, for sale of real estate 529' may purchase real estate 55S CROPS: what to be inventoried 23^ CUSTODY: of ward, guardian entitled to 59^ DEATH: efEect of, of parties 89 what is proof of 175 proceeding abates by, of executor 41& DEBTS: surrogate to enforce payment of 7 power of surrogate to sell real estate for 8 owing decedent, non-resident, effect of 12 of executor to decedent, how treated 248 liability for negligence to collect 279 85 674 Index. DEBTS— (Cont'd): p^«== set-ofE against legacy 280 of legatee or distributee,. or legatee, collected 280 of executor or administrator to decedent, how collected. 280 settled in court of equity 281 when limitation on, waived. 281 executor cannot assign to himself 281 executor or administrator may sell to pay 282 estate liable for 327 not affected by special decree 327 marshalling assets for 328 executor presumed to know 328 preferred to legacies 328 order of, payment of 329 to be paid after year 329 what not preferred 330 judgments, when are 331 interest on mortgage not 331 not due may be paid 332 formula in will for payment surplusage. 333 individual preferred to co-partnership 333 claimed by son suspicious 334 sister requires proof 334 Darred by statute not to be paid 334 in suit for, what may be set up 335 judgment on terms of 335 payment of, may be enforced 347 after six months creditor may petition 347 judgments for costs not a debt 348 petition by creditor for payment 348 on petition for payment citation issues 349 on heanng, answer interposed 350 evidenced by judgment, effect of 350 when payment decreed 351 what proof of, in case of judgment 351 denial of payment does not prejudice 351 when it is liquidated 354 only undisputed, to be ordered paid 354 what requires dismissal of petition for 355 payment of decree for, how enforced 355 ascertained after notice 360 Index. 675 DEBTS— (Cont'd) : • page not presented may be disregarded 360 of decedent, how collected of distributees 372 action for joint or several 372 recovering apportioned 372 how preferred on payment ■ 377 owed by legatee charged to legacy 382 legacy for does not abate 388 of legatee to be set off 389 collected charged in accounts 41& of executor to decedent, assets 425 on objection to payment of, claimant as witness 42& of decedent to executor, when proved 432 how established 432 decree for sale to recite 488 surrogate not to settle validity of 451 money may be retained for, on settlement 452 proceedings to sell lands to pay 519 what real estate sold to pay 520 what real estate may be sold for 526- on real estate proceedings litigated 526 decree conclusive as to 52& how proved on petition for sale of real estate 533 who may contest 534 what may be proved against real estate 535 disputed barred as to real estate 535 jury trial may be ordered on 586 surrogate may postpone proof on 586 paid by executor refunded when 536 decree for mortgage to pay 541 when sale ordered to pay 542 contract of decedent, how sold to pay 561 paid on distribution, and order of 568 proof necessary of 569 supplementary decree establishing, etc 574 reimbursed to executor or administrator 675 DEBTOE: cannot plead consent of other administrators 272 DECEEB : power of surrogate to open, etc 15 676 Index. DECEBE— (Cont'd): page opened in. what cases 16 exceptions to 55 on probate to construe will; when 101 on probate entered 101 on probate, form of 102 on probate of heirship, proceedings for 160 for letters of administration , 175 enforced against temporary administrator 197 upon assets belong to personal representative 198 for revocation on failure to give bond 203 valid as to sureties 204 releasing surety 205 revoking letters on not giving bond 206 revoking letters, what to contain 216 revoking letters does not affect trusts 221 revoking letters 225 awarding possession of assets 230 what justifies 230 when not sufficient 280 form of 231 security to prevent 231 for debt or legacy, how enforced 355 conclusive evidence of assets 355 for issue of execution 359 for payment of legacy 395 when not conclusive as to assets 400 ior sale, to recite debts. 438 proof necessary for 438 settles distribution 450 adjusts claims 450 may direct delivery of specific articles 451 money to be retained for debt 452 how to treat legacy etc., to infant 463 •defined 465 on judicial settlement, form 466 must be signed by surrogate 468 accepting resignation of trustee 484 when conclusive 493 how collected 494 not invalidated by error 494 Index. 677 DEOEEE— (Cont'd) : page conclusive 494 void as to those not cited 495 acquiesced in, and paid even erroneous final 495 determines sums received and paid 495 concludes sureties 496 executor's personal liability for 497 protects executor 497 to pay judgment conclusive 497 no bar to action by one executor against the other 497 power of court to open, modify, etc 498 opened for cause 498 in behaK of infant 498 opened for fraud 499 mistake 499 only in extraordinary cases-, 499 when not opened 499 time to open limited 500 order vacating appealable 501 petition to open 501 nforced by execution 503 attachment 503 suit on bond '. . . 503 action on the decree 503 how docketed 503 effect of docket 503 transcripts, what required in 503 execution on 504 collected by suit on bond 504 certificate of, for docket 506 execution on 507 obligors on bond cannot question on suit 509 binding on sureties 509 not merged in judgment on , 509 attachment may issue to collect 509 for attachment 514 not paying is embezzeiment 517 how satisfied , 518 for mortgage of real estate 541 decree appointing guardian, form 590 how collected of guardian . , 617 678 Index. DBOEEE— (Cont'd): page discharged ' 617 revoking guardian's letters 621 revocation of letters 624 DECISION": surrogate required to give grounds of 101 decree to be entered on 101 DEEDS: wills to be regarded as 105 on sale of real estate 560 on sale for debts, effect of 561 appointing guardian to be recorded 629 DEFAULT : on bond to be establisbed before action 505 DEFENSE : of short statute good for heirs, etc 316 statute of limitations as a 370 DELIRIUM: effect of 124 DELIVERY: essential to valid gift 379 what is suflBcient 379 what subject of 379 DELUSION: may not affect wiU 118 DEPOSIT : for children, how treated 243 DEPOSITION : to perpetuate testimony 44 form of, on proof of wiU 47 on commission 47 on proof of will 96 DESTROYING : revokes will 73 Index. 679 devise : page who may make 58 DEVISEE: claim may be collected from 318 surrogate being disqualified 22 may propound will 81 unlinown, how served 30 not cited may intervene 92 to be cited on proceedings for revocation 150 liability for decedent's debts 374 requisites for recovery of 376 may contest debts 534 DISABILITY: of surrogate, who to act in case of 2 court to appoint in case of 4 objection to, when to be made 22 DISAGEEEMENTS: surrogate to settle 206 what will warrant order 207 petition in case of, form 208 DISBUESEMENTS : allowed when costs are not 361 DISOHAEGE : how made of decree 519 guardian may petition for accounting and 614 proceedings thereupon 615 DISCOFTIKUAKCE : by petitioner, when 93 DISGOVEEY : of books and papers authorized 44 of papers compelled 46 of assets, proceedings for 225 of assets, petition for 227 order for citation on 227 who may issue citation for 229 be examined on 229 680 Index. DISCOYEEY— (Cont'd): page when possession awarded 230 what justifies order 230 of assets, decree on 231 security as to, prevent liens 231 warrant for assets 232 DISOEETIONAEY POWEE: how exercised 263 not to be controlled 263 DISMISSAL : of petition, when granted 389 when granted 392 when answer not sufficient 393 on answer for petition for legacy 470 DISPUTED CLAIMS: may be referred 305 agrement to refer 307 order to refer 308 DISQUALIFICATION : proof of, how made 4 objection to, when to be made 22 bequest to witness is not 54 of executors or administrators 209 DISSOLUTION : of partnership, death is 278 DISTEIBUTEE : debt of, to decedent, how collected , 280 may be sued for debt of decedent 372 DISTEIBUTIYE SHAEE: surrogate to enforce payment of 7 security before execution for 339 proceedings by petition for 387 suit may be had for 387 how collected within year 396 to infants payable to general guardian, when 463 county treasurer, when 464 Index. 681 DISTEIBUTIVE SHARE— (Cont'd) : page when payable to State treasury 465 county treasurer ■ 465 when paid toguardian 608 DISTRIBUTION: to legatees, etc., should be pro rata 329 how made on settlement 450 to be settled by decree 450 may be made of specific articles 452 how made in case of intestacy 459 of estate of an illegitimate 460 when made equal 460 unequal 460 per capita and per stirpes 462 of proceeds of real estate, order for notice of 565 notice of 565 hearing on 666 new debts may be proved on 566 claims on surplus proved on 566 ■decree for 566 charges first paid on 567 dower next paid, etc 567 costs to petitioner on 568 order of payment of debts on 568 surplus to heirs, etc 568 supplementary decree of proceeds 574 executor or administrator reimbursed on 575 of surplus on foreclosure 576 petition for, of surplus on foreclosure 577 DISTRICT ATTORNEY: when to act 2 DIVIDENDS: when assets 242 DIVORCED WIFE: not entitled to letters 167 nor distribution 167 DOCKET : certificate for 506 86 682 Index. DOMICIL : PAGE how acquired 10 of testator controls execution of will 60 change of, does not invalidate will 70 what is law of 81 of father fixes of child 163 DONATIO CAUSA MOETIS : considered 378 DO WEE • will does not cut off 58 legacy in lieu of, does not abate 381 legacy for, does not abate 388 legacy in lieu of, how draws interest 453 adjusted on distribution 567 of infant, lunatic, etc 567 notice to widow to choose 570 consent to accept a sum in gross 571 table for computation of value of 572 DEUNKBNNESS: may not avoid wUl 118 what degree of, incapacitates 168 DEUNKAED : not entitled to administration 167 EMBEZZLEMENT : executor or administrator, when guilty of. 517 EQUITABLE CONVEESION : what is 418. EXCEPTIONS : may be taken on trial 55 to be filed with surrogate 56 to report of referee, how made 423 EXECUTION: of will, how regulated 60 executor may prove. 67 order for leave to issue not renewable 337 leave for, how procured 338 Index. 683 EXECUTION— (Cont'd) : page when not to issue against real estate 388 security required on 339 only on leave 335 governed by law and time 85 to what court issued 504 how returnable 508 on decree, requisites of 504 not allowed except there are assets 339 notice of application for 339 petition for leave to issue 340 EXECUTORS: authority of surrogate over 7 may be enjoined 15 controlled by surrogate 15 EXECUTOR : surrogate being disqualified 22 paper only naming, is a wiU 61 bow appointed 76 constructive appointment 77 power of, before probate 78 shall not dispose of estate 78 power of, at common law, before probate 79 before probate may recover goods 79 acts of, before probate legalized 80 may propound will 81 governed by law at time 81 expenses of, allowed 90 must have will recorded 105 appointment to be gathered from will 125 term includes executrix , 125 jtnay not be trustee for himself 125 letters issue to, when 125 objection to letters who may make , , 125 letters to issue on order 125 order for letters to, form of 126 official oath, who may take 126 form of 126 trial of, objections to 129 684 Index. EXECUTOE- (Cont'd) : page if objections not prosecuted letters issue 130 what is incompetency 131 when not required to give bond 132 ordinarily bonds not required of 132 when bond required of 132 when bond not required 132 penalty of, bond of 133 may renounce and retract : 133 renunciation of, form 134 selected under power 134 selection of, form of , 134 objections to, selected under power 135 failing to qualify, how treated 135 may be cited to qualify 135 failing to qualify renounces 136 order declaring renunciation of 137 renunciation may be revoked 137 foreign not recognized 137 may be appointed here 138 to suspend proceedings, when , 150 to be cited on petition for revocation 150 revocation to be published 153 joining in bond are sureties for each other 180 title to assets vests in 198 when foreign may be sued here 198 interfering with real estate what 199 one dying others to act 199 all dying successors to be appointed 199 new sureties required for 200 surety of, may ask for release 204 surrogate to settle disagreements 206 petition in case of disagreement 208 revocation of letters for disqualification 209 improvidence of, cause for revocation 209 disobedience cause for revocation 210 when letters obtained by falsehood 210 when circumstances precarious 210 about to remove 210 what are precarious circumstances 210 who may petition for removal of 211 Index. 685 BXECUTOE— (Cont'd) : [page petition for removal of, form 212 how citation served on '. 213 when required to give bond 214 improvidence of 214 when circumstances precarious 214 letters revoked for non-appearance 216 when he has absconded 216 for not returning inventory 216 for not depositing money 216 on revocation may be ordered to account 217 to pay to successor 217 account compelled by 217 on decease of, liability of his executor -. 218 of an executor, accounting by 218 of an executor : petition to compel account 219 extent of liability of 219 after revocation bond Hable 220 remaining, may sue bond 221 person interested may sue bond 221 revocation of, does not affect trusts 221 may ask revocation and settlement 222 contents of petition of 222 petition of, for revocation, etc 223 on petition for revocation, accounts 224 order that, account 224 decree revoking letters of 225 may recover assets 225 petition of, to discover assets 227 duty of, to return inventory 233 effect of, not making inventory 233 claim of decedent against, to be inventoried 248 stating claim does not discharge lien 249 appointed executor, effect of at common law 249 cannot compromise his own debt 249 may show claim erroneous 249 no defense to claim that he is insolvent 250 bequest of debt to, not valid, when 250 not concluded by error in inventory 250 duty of, as to filing inventory 252 686 Index. EXEOUTOE— (Cont'd): fage may be compelled to file 252 may have time extended 252 order that he file 254 may be attached for not filing inventory 255 how discharged from arrest 256 ■ letters of, revoked for disobedience 257 duty of, as to supplementary inventoiy '. 257 several are one 258 one may release mortgage 258 retain assets 258 whole estate vests in. 258 title of, relates back to death 258 paramount to title of trustees. 258 one cestui que trust not to have fund 265 liable for account of agent 265 when for co-executor 265 liable for co-executor only when negligent 266 ■duty to watch associate 268 delivering fund to associate liable- 268 inventory evidence against 268 permitting co-executor to act liable 268 may petition for direction 269 indorsing as such, e£Eect of 269 foreign, power of 270 cannot sue here 270 may sell in foreclosure 270 foreign can sell assets here 270 title of is from will 270 ■duty to keep insurance 270 as to collections ; . . . . 270 io collect personal securities 271 may sue in any court 271 in what court sued 271 can sue note in own name 271 collect judgment in favor of predecessor 271 contract of, no set-ofi to debt of decedent 271 to collect of former executor 272 to treat as void fraudulent transfers 272 what actions to have 273 may be sued for trespass 274 Index. 687 EXECUTOE— (Cont'd): p^«^ torts 274 sue foreign corporation 274 power of several, joint , 250 may make power of attorney 259 one may compromise ' 250 release mortgage 250 borrowing personally liable 250 one has absolute control 250 purchaser from, protected 250 all must join in sueing 260 one cannot waive just claim 260 admission of not binding 260 cannot bind estate by contract 261 not entitled to partnership estate 261 allowed for farm expenses 261 care as to expenditures ; 261 succeeds to testator's trust 262 creditor, when charged 262 have power to compromise 262 power limited 262 one can discharge obligation to several 262 sell mortgage 263 purchaser from, when not protected 263 discretionary power to, how exercised 268 duty of, as to vigilance 263 sell real estate as trustees 264 all must join in sale of real estate 264 should keep estate separate 264 subject to surrogate's control 264 time to sue extended 275 may sue for debts from negligence 275 suits by, limitation extended 275 in action security for costs may be required 276 costs may be required of, personally 276 successor of, may continue action 276 may set up counter-claim 277 pleading by, in suit 277 duty as to claims in other States 278 foreign can sell mortgage 278 can buy on foreclosure 278 688 Index. EXECUTOE— (Cont'd): page counsel of, have no claim on estate 278 may settle with surviving partner. . , 278 not to interfere with partner 278 may be personally liable 278 of deceased partner, when not liable 279 when liable 279 ■conducting business liable 279 may ask sale of partnership for cash 279 arbitrate disputed claims 279 liable for negligence to collect 279 •cannot sue co-executor to collect debt.^ 280 may ask indeninity of legatees 280 collect of legatee 280 set-off claim of legatee against legacy 280 have lien on legacy for claim 280 claims against, how renewed 281 , cannot assign claim to himself 281 power to sell personal property 282 how to make sales 282 may assign for benefit of creditors 282 sue in his own name for sales 282 when can continue partnership 283 title of purchaser from, not affected, when 283 void, if collusive 283 what is devastavit by 288 liability for sale without security 283 in making sales are trustees 284 cannot purchase at their own sale , 284 ■to pay legacy in one year 284 discharge specific legacies 285 should keep estate productive 285 time allowed to, to invest 285 should keep money for legacy invested 285 may deposit in savings bank 285 may be ordered to invest 285 when charged with interest 285 employing funds charged interest 285 care in investing 285 negligent in lending liable 28o should not invest out of State 286 Index. 689 EXECUTOR— (Cont'd) : paoi^ can only loan on real estate on U. S. bonds 286 wlien can invest out of State 287 in unauthorized securities 287 investing in personal securities must bear loss . , . . . , 287 must sell unautborized stocks 288 liable for depreciation of securities 288 bound to convert estate in reasonable time 289 foreclosing may purchase 289 may take deed as such 290 land bought by, is still personal 290 time to sell railroad stocks 290 always a trustee 290 no part of duty to scheme to avoid tax 290 duty as to legacy tax 292 care taken as to payment of claims by 299 may advertise for claims 300 must advertise as ordered 300 claims must be presented to, personally 301 may select place for presentation of claims 302 eSect on, of pubHcation for claims 302 may require vouchers and affidavit 302 how claims presented to ". 303 paying interest, waive presentation of claim 303 admission of claim final , 303 claim disputed by, barred in six months 304 paying interest keeps claim alive 304 retaining and not disputing claim admits 304 are trustees for creditors 305 may refer disputed claim 305 effect of stipulation to refer 306 refusal to pay not disputing 306 may agree to refer claim 307 agreement to refer 307 order on agreement of ., 308 may plead statute of limitations 309 claim of, not to be referred 310 duty as to reference 311 cannot divide claim before reference 312 what is disputing claim 316 87 690 IJTDEX. EXECUTOR— (Cont'd): . i-agb when may appeal on reference 316 duty to reject or admit 316 liability for funeral expenses 319 what are 320 when not liable 321 when allowed for 322 individual liability of 322 cannot charge the estate 323 note of, does not charge estate .' 323 contract of, binds them only 323 may sue as such on claim of decedent 323 carrying on business of estate 324 contracts, when void by statute 325 to be reimbursed 325 power to compromise 325 bound to compromise 325 statute for compromise 326 petition for authority 326 trustees for creditors ., 328 learn claims of creditors 328 paying before year at risk 328 subrogated to claims paid 328 when to pay debts and legacies 329 order of payment of debts 329 liability for taxes 330 estate in hands of, assessed 330 to pay debts not due 332 not protected paying outlawed debt 334 to collect rents and pay landlord 334 liability on lease to decedent. . ., 334 execution against, only by leave 335 liability of, for taxes 335 in suit against, may set up other debts 335 terms of judgment against 885 judgment in case of set-off 335 to sue, and be sued, as such 335 appointment to be set up 336 who to be joined in action 336 what actions against, may be joined 386 one sued to appear -^37 Index. 691 EXECUTOR— (Cont'd):' , page executions against, how issued 337 security required on execution against 339 account may be required before execution 339 accounting may be required from 349 may be cited to pay debt 349 have dismissal of proceeding 350 proceedings to collect legacy from 351 legacy for may be cited 353 decree conclusive against 355 judgment against not evidence of assets 856 execution against only by leave 356 may appear voluntarily 358 may distribute after notice 360 liability for costs 860 may pay after notice to creditors 360 grounds of costs against 361 when charged personally with cos,ts 361 may have costs on contest 366 attorney's service to, does not bind estate 367 additional allowance to 368 bound to plead statute of limitations 370 cannot pay claim barred by lapse of time 371 renew claims already barred 371 can, by payment, prevent statute 371 expenses of, a charge on real estate 374 cannot assign legacy and prefer it 382 may be sued for legacy 387 legacy for does not abate 388 to set up proper defense to legacy 388 may be compelled to account 392 on petition for payment must account 393 may admit assets 393 may plead statute of limitations 394 when to pay legacy within a year 396 may petition for settlement after one year 398 naay be cited after eighteen months 398 may be cited to intermediate accounting 399 may be ordered to deliver trust property 400 deceased, his representative to account 400 692 Ikdex. EXECUTOE— (Cont'd): page of deceased executor, may be cited to account for acts of decedent 400 petition for accounting by, of an executor 401 may have settlement after one year 402 cannot set up settlement with legatees 402 settlement before eighteen months discretionary 40S release to no bar to petition for account of 404 petition for order that he account 405 order that he be cited 406 can plead statute of limitations 407 ordered to account 407 ordered to account subject to attachment, etc 407 letters may be revoked 407 supplemental citation to 407 cited to account waives objections, when 408 may plead statute 408 answers to petition for accounting 408 cited to account may have settlement 409 petition of for judicial settlement 410 not objecting admits 412 settlement abates by death of 416 when to file account on settlement 416 what to state in account 416 account of in settlement 416 value of vouchers to 418 how account to be made 419 allowance to without vouchers 418 eourse when vouchers lost, etc 419 lands bought by on foreclosure 420 not necessary to charge interest, when 420 how to charge legatees, etc 421 not to charge payments disallowed , 421 who may appear on accounting 421 objections to account of, how stated 421 may be written 421 may be examined before objections 421 objections to account of 422 may be examined '. 422 need not answer certain questions 423 account of final unless surcharged > 424 Index. 698 EXECUTOE— (Cont'd) ; ^a«e taking assets pays whole value ^ 425 liable for conduct before letters 425 debt to decedent 425 bound to account for bis own debt , . . . . 425 when debt of to be settled 426 may show debt erroneous 426 when chargeable with interest 426 when negligent charged interest 427 not investing charged interest 427 time allowed to invest , 427 counsel fees paid by, proof on 428 may call claimant paid as witness 429 can be charged with more assets 429 prove assets his own 429 bound to plead statute 430 may present his own claim 431 must verify claim 432 cannot retain for his own debt 438 claim of, proof required 433 allowance for property lost 436 no profit to by increase 437 charged with interest 437 liable for uncollected demands 438 accounts to be settled equitably 438 allowed for expenses of next of kin 438 commissions, not at common law 439 surrogate to fix commissions of 439 cannot have commissions in advance 441 not to have extra compensation 442 when counsel fee not allowed to 443 commissions of, how computed 448 when there are several 443 not allowed on specific legacies . , 448 commissions of discussed 445 when allowed extra compensation 445 allowed commissions or legacy .■ 445 conamissions on successive letters 446 not to have commissions, when 447 allowed expenses 447 . oath as to items less than $20 447 691 Index. EXECUTOR— (Cont'd) . pag.b may be examined , 447 allowed for agent, when 447 not allowed for clerical services, when 447 allowed counsel fees 448 what expenses allowed for travelling 448 allowed travel expenses 448 not allowed for own horse '. 448 expenses allowed proving will in another State 449 expenses paid experts allowed 449 decree on settlement directs distribution . „ 450 allowed costs paid , . , 450 not allowed loss on foreclosure, when 450 to distribute assets iu specie 450 when to pay legacies 452 charged with interest on legacies 454 to pay legacies by decree 463 when to pay to State treasurer 465 county treasurer 465 may renounce and act as trustee 468 trust, duties of separated 468 continues until settlement 468 trust of begins on settlement 468 cannot set aside stocks for trust 473 when not allowed commissions as trustees 477 when becomes trustee 479 effect of settlement of 494 charged with assets not stated, after decree 496 discovered after decree 496 decree protests as to payments under it 497 personal liability for decree 497 bond of sued to collect decree 504 when attached for non-payment 509 imprisonment no bar to action on bond 509 when not liable to attachment 511 attachment against 515 when indicted for non-payment 517 fined 517 when charged with real estate 520 petition of for disposition of real estate 527 accounting by, when ordered „ 528 Index. 695 EXEOUTOE— (Cont'd) : page may be ordered to account , 532 bond of on sale, etc., of real estate 540 on failure to give bond freeholder appointed 547 not to buy at his own sale 552 to make report of sale 554 deed of on sale, etc., of real estate 560 to sell decedent's contract 561 sum due to, paid out of real estate 568 allowance to on sale of real estate 570 expenses and per diem 570 reimbursed out of proceeds of real estate 575 covenants of, do not bind estate 578 may be forced to execute power of sale 578 sales of real estate by, under will 578 selling land not bound to covenant 578 power to sell for debts terminates when debts are paid . . 579 cannot sell to pay outlawed debt 579 sales of real estate public or private 579 qualifying, empowered to sell 580 one lunatic, others sell 580 cannot sell to invest in stocks 580 for fraudulent sales forfeits double 580 of infant, may cite guardian to account 613 EXECUTIOlSr : will not issue, in case of no assets 841 for recovery of real property 341 after five years 341 leave for, after five years 341 leave on judgment against decedent 342 leave to issue, how had in supreme court 343 motion for against real estate 343 petition for against real estate 345 practice on petition for 346 leave for to be granted, when 346 absolutely void without leave 347 costs on petition for 347 on judgment against executor 356 order for to specify sum 356 to issue only on leave 356 696 Index. EXECUTION— (Conc'd) : pa&e practice on proceeding 356 not to issue on certain judgments 356 order for issue appealable, when 356 petition for 357 notice of application indorsed 358 how served 358 not to issue in case of appeal 358 not to issue against real estate 358 not to be issued in certain, case 359 decree for issue of 359 issues for pro rata sum 359 will not issue in case of no assets 359 EXPENSES : executor or administrator allowed 261 care as to 261 of administration real estate liable for , 374 charged in account 419 allowed to executor or administrator 447 trustee may be allowed 469 allowed to trustees 476 EXTENSION: of time to sell real estate, how made 522 EVIDENCE : taken, how certified 21 to be bound 21 FALSE IMPKISONMBNT : action for does not survive 274 FAMILY : temporary administrator may provide for ; 193 FATHER : when to be served 32 entitled to administration 165 distribution, when made to 460 may appoint guardian 582 iNflEK. 697 FEES : PAGE surrogate not to dein?Tid m receive 3 see Commissions , 439 FINDING: either party may >"eqiiest 55 exceptions may he taken 54 PINAL ACCOUNTING: not necessarily last 403 (See Judicial Seiilement.) decree cd final 403 PINAL SETTLEMENT: tBere may be several 497 (See Judicial Settlement.') f IXTUEES : what are 244 FOEEIGN COEPORATION: not restricted as to wUls 59 PORECLOSUEE : executors or administrators can buy on 278 lands bought on, how treated 420 not to affect proceedings unless 573 surplus on, how treated 574 surplus on, when paid to county treasurer 575 how distributed 576 petition for distribution of surplus on 577 FEAUD: court will open decree for 498 FEAUDULENT: conveyance of decedent set aside , 272 how done 273 purchase by executor is 552 FEEEHOLDBE : appointed to sell real estate, when 547 order appointiag 548 698 Index. FREEHOLDEE— (Cont'd) : page to make report of sale 554 allowance to on sale, etc ■ 570 FUNDS : . how separated 43 FUNEEAL EXPENSES: goods may be sold to pay 78 reasonable preferred 319 what are reasonable ' ?19 burial lot is 820 tombstones are 320 administrator to pay 320 when executor not liable/. 321 surrogate no power as to 322 charged in account 419 real estate sold to pay 520 includes tombstones 521 contract of decedent sold to pay 561 paid out of proceeds 568 GIFTS : fraudulent to be set aside ' 273 discussed 378 what necessary to valid 378 inter vivos when title passes 378 causa mortis, when effectual 378 different distinguished 380 inter vivos irrevocable 380 causa mortis revocable 380 when made 380 surrogate may decide on 451 GOVEENOE: may recommend removal of surrogate 2 GEANDCHILDEEN : entitled to administration 165 GROUNDS : surrogate may be required to state of decision. ........ 101 Index. 699 GUAEDIAN : ' fagb may be enjoined 15 surrogate being disqualified 22 when to be served 32 ■when entitled to administer ; . . .. 165 when entitled to administration 168 surety of may ask for release 204 to be appointed to receive legacy 285 additional allowance to 368 representative of to account 400 to have care and custody of infant 581 authority local 581 if more than one, survivor acts 581 by relation, who are 581 power of in socage 582 may be appointed by supreme court 582 surrogate 582 in socage, when superseded 582 may lease lands 582 sue for trespass 582 ceases at fourteen 582 may be appointed by father 582 mother 582 what appointment by will 583 appointed by father not defeated by another 583 continues during minority 583 by will or deed subject to court 583 limited to this State 583 appointed by foreign court no power here 584 authority of several joint 584 responsible for joint acts 584 supreme court will appoint 584 powers and duties of 599 statutory powers 603 liability for waste 603 liability for investments , 604 using money liable to compound interest 604 when liable for interest 604 allowed for board, etc 604 father not allowed for board 604 when allowed part of expense 604 700 Index. GUARDIAN— (Cont'd): p^™ non-resident may have letters here 605 not to expend capital 605 may apply to expend income 605 bound to fidelity 605 ancillary, how appointed 606 petition for ,. 606 effect of ancillary letters 607 legacy paid to under decree 608 distributive share paid lo 608 by deed not subject to surrogate 608 must account annually 608 must file annual account 609 inventory 609 affidavit to be made 609 account and inventory, form of 610 surrogate to examine account, etc., of '611 new account may be ordered 612 may petition for leave to spend principal 612 may be cited to settlement, how. 613 judicial settlement of account of 613 successor may have him cited 613 when settlement with ward allowed 614 on removal of, settlement of course 614 of person, when may have settlement 614 may ask settlement and discharge 614 may petition for discharge 614 proceedings thereon 615 ward to be cited 615 proceedings for settlement 615 allowances to on settlement 616 commissions to 616 should file vouchers 617 decree against , 617 how collected 617 how discharged 617 may settle with ward 618 settlement not presumed 618 removed for misconduct 618 who may petition for remowal of 618 grounds of removal 618 Index. 701 GUAEDIAN— (Cont'd) : page female, removed on marriage 619 hearing on petition 619 petition for removal, form 619 order for citation on 620 may be restrained from action 621 decree revoking letters of 621 new sureties required of 622 petition for new sureties by 622 when new sureties required of 623 order for new sureties 623 decree revoking letters of ' 624 decree removing for not giving sureties 624 sureties of may apply for release 624 sureties released new, required 625 may apply fot leave to resign 625 his petition for revocation 626 ground for resignation 626 proceeding^ on petition for leave 627 accounting had from 627 may deliver assets to surrogate 628 decree revoking letters of 628 new accounting may be had from 629 testamentary may resign '. 633 successor to 633 GENERAL GUAEDIAN: when legacy payable to 463 to give bonds for legacy 464 to account to ward 464 surrogate appoints 585 infant over fourteen choses 585 petition of infant for 588 infant may petition for 589 when appointment to be made 590 decree appointing 590 how appointed, infant under fourteen 591 petition for on behalf of infant 591 surrogate, discretion as to 592 term of office of 592 before appointment inquiry 593 702 Index. GENEEAL GUARDIAN— (Cont'd) : page takes oath of office and gives bond 593 bond of, form 595 bond of, how forfeited 596 execution against, when . .' 596 sureties of, how made liable 596 who to be appointed discussed 597 sole executor not proper 597 interests of infant paramount 597 day to be fixed for hearing on 598 once appointed valid 598 jurisdiction to appoint 598 letters to, how tested 599 entitled to custody and control 599 not liable for necessaries to ward 599 charging for board must allow services 599 will be removed for abuse of power 599 power as to personal estate 599 may arbitrate 600 settle for legacy 600 assign mortgage 600 sue for ward 600 collect and receipt 600 satisfy mortgage 600 extend time for payment 600- sue on debt to ward 600 lease real estate ' 600 collect rent 600 repair houses 600 when not liable for rent 600 sue for trespass 601 not purchase from himself 601 ward's property 601 must provide for support, etc 601 purchase by on foreclosure by 601 should not exceed income 602 cannot expend insurance in rebuilding ; . 602 contracts of bind only themselves 602 cannot mortgage or sell 602 when not liable to repair 60S liable to interest 604 Index. 703 GENEEAL GUAEDIAN— (Cont'd) : i-^™ allowed for board 604 father, what allowed 604 not to have proceeds of lands 603 statute as to duties of 603 when not to employ an attorney 604 not to expend capital 605 may have leave to expend capital 605 hound to fidelity 605 from another State has no power 605 to file annual account, etc 610 form of account of 610 surrogate to examine accounts of 611 new account may be had 612 may petition for leave to expend principal 612 settlement by 613 of person may have settlement 614 may petition for settlement and discharge 614 ward to be cited 615 account, how verified 615 .citation, how served 615 appearance of ward cures defects 615 on accounting special guardian named 615 account same as by executor 615 allowances to guardian 616 no pay for personal services 616 commissions to 616 should file vouchers 617 decree against 617 how collected 617 discharged 617 Temoved, grounds of 618 petition for removal of 619 may be enjoined 621 decree revoking letters of 621 new sureties required of 622 petition for new sureties 622 when new sureties required of 623 order for new sureties 623 decree removing 624 new bond required of 625 704 Index. GENEEAL GUAEDIAN— (Cont'd) . page may apply for leave to resign 625 grounds of resignation 626 petition for leave , 626 accounting required from 627 decree revoking letters of 628 new accounting, when 629 GUAEDIANS TESTAMBNTAEY : accounting by ". 468 to qualify 630 father may appoint 630 holds during minority 630 bond required of, when 630 required to file inventory, etc 631 settlement by 631 may be removed , 632 HABITUAL DEUNKAED: how citation served on 32 will of, how treated 118 to have special guardian 413 HANDWEITING: of deceased witness proved 96 PEADSTONES : legacy for does not abate, 383 HEIES : unknown, how served 30 at law, surrogate being disqualified 22 who are , , , 83 purchaser protected in case of will 103 HEIESHIP : probate of, petition for 157 proceedings on 159 decree on 160 may be modified 160 HEIES AT LAW: evicted to pay debts 199 Index. 705 HEIES AT LAW— (Cont'd) : page claims collected from 318 liable for decedent's debt 372 time for action against for debt 374 ground of recovery of 375 restitution to, bow made 578- take land free from liability after tbree years 522 may contest debts 534 exonerated from debts, how far 564 HOMESTEAD: not liable to sale during minority 521 HOP POLES : not to be inventoried 239 HOUSEHOLD: furniture to be set apart to widow, etc 246 HUSBAND AND WIPE: statute of limitations runs between. . . . .' 371 HUSBAND : surviving may be sued for decedent's debt 372 rights of in estate of deceased wife 463- IDIOCY: a congenital defect 113 distinguished from imbecility 113 IDIOT: how citation served on 32 special guardian for on settlement 413 ILLEGITIMATE : heirs and next of kin of 83 how estate of distributed 460 IMBECILITY: , defined 113 distinguished from idiocy 113 IMPROVIDENCE : what constitutes 214 89 706 Index. IMPEOVIDBNT: page person not entitled to letters 167 IMPEISONMENT: no bar to action on bond 509 IlSrCOMPBTBNT : person, how citation served on 32 INCEEASB : on inventory to be credited 419 not profit to executor from 437 mCOME : guardian should not exceed ' 602 INDBMNITY : executor may ask for from legatees 280 INDBX: books to have. .' 19 IlSrFANCT: does not suspend action, when 377 INFANTS : not precluded in case of disqualification of surrogate ... 4 not concluded by omission of guardian 22 how citation served on 26, 32 under fourteen, how served 32 jurisdiction acquired only by service 33 order for service on 33, 34 order to show cause as to special guardian 36 how served 88 how surrogate gets jurisdiction of 90 time extended in behalf of 148 special guardians for to be appointed 151 when guardian entitled to administration 165 ■entitled to letters, guardian takes 168 not entitled to administration 167 duty of executor, when legatee is 285 legacy to payable to guardian 388 duty of surrogate in case of, as to account 403 Index. 707 INFANTS- (Cont'd): page special guardian for on settlement 413 notice to of appointment 414 duty of surrogate as to 414 administrator allowed for support of 438- when allowance made 439 legacy, etc., to, how paid 463 legacy to be paid to general guardian 463 guardian to apply legacy to support of 463 may authorize guardian to expend for 464 to have legacy on coming of age 464 guardian to account to 464 to executor of 464 legacy to, when paid into court 464 securities for, how kept 464 application in behalf of for settlement of trustee 472 opening decree in behalf of 498 special guardian for in real estate proceedings 534 appearance of, jurisdictional 634 effect of sale on right of 564 interest in proceeds, how invested 573 who are guardians by relation 581 power of guardian of in socage 583 father may appoint guardian 582 mother may appoint guardian 582 guardian of, how appointed 583 liability of 584 appointed by surrogate 585 non-resident, guardian for 585 residence of determines court 586- parent is of infant 58& how changed 58& how petitions for guardian 587 relatives of to be summoned 587 petition of for guardian 588 when appointment of guardian to be made 590 decree appointing guardian for 590 guardian for, how appointed, being under fourteen 591 petition of mother in behalf of, for guardian 591 property of, inquired of 593 guardian of to give bond, etc 593 708 Index. INFANTS— {Cont'd): page who to be appointed guardian for 597 sole executor of father's will not proper 597 interests of paramount 597 special guardian appointed to sell land of 606 duty of parent to support , . 605 allowance to father of, when 605 petition for leave to expend principal for 613 INHERITANCE: tax by State, and rate 291 INJUNCTION : surrogate may grant 15 INSANITT: opinions of witnesses on 107 term broader than lunacy 116 partial 118 INSURANCE : when to be inventoried 242 duty of executor to keep 270 INTEREST : in lands, what to be inventoried w 239 executor or administrator may be ordered to invest at. . 285 when runs against executor or administrator 285 estate ought to be kept at 285 when not necessary to charge 420 rate against executors 426 when charged 426 compound charged 426 charged for breach of trust 427 when money not invested 427 when charged, must be allowed 428 compound against executor 428 charged as received 428 may be charged to executor 437 charged on commissions taken 441 legacies draw generally 452 legacy to child draws from decree 453 widow 453 Index, 709 INTEREST— (Cont'd): page ■when estate not collected 453 runs from time legacy is to be paid 453 when begins on legacy on land 454 when begins on annuity 454 when does not run on legacy 454 when testamentary, trustees liable for 474 liability of guardian for 604 INTERMEDIATE : accounting, when made 399 when compulsory 399 INTERROGATIONS: to subscribing witness 49 INTESTACY: administration, order of 164 distribution, how made in case of 459 INTERVENTION : on petition proper 92 petition for 92 on petition for administration 173 INVENTORY: letters revoked for not filing 216 duty to make 233 advantages of making 233 what to contain 233 fees of appraiser on 234 clerk not to make 234 order for appraiser on 234 statute requiring 235 notice of 235 form of 236 what to contain 238 to include estate wherever it is 243 how to state partnership estate 243 to have articles set off to widow 244 fixtures, when not assets 244 not conclusive 250 710 Index. INVENTOEY— (Cont'd): page duplicates to be made . . .' 251 oath to 251 return of, how compelled 251 time to file, how extended . - 252 surcharged on accounting 253 will cannot dispense with filing 253 who may demand filing , 254 affidavit to procure order to file 254 order for filing of 254 attachment for not filing 256 supplementary, when proper 257 when not to be filed 258 time filing to be stated in account 419 amount of to be included 419 loss on to be stated 419 increase of to be charged 419 prima facie evidence of value 425 may be surcharged 425 benefits from filing 437 when may surcharged 437 annual of guardian 610 testamentary guardian to file 631 INVESTMENTS: executor or administrator to make 285 time, allowed, for 285 surrogate's approval to be had, when 285 may be made in savings bank 285 on mortgage, except first, wrong 286 out of State not allowed 286 in, what lawful 286 permanent only on mortgage and bonds 286 out of State considered 287 will may extend rule as to 287 in personal security, executor bears loss 287 except in securities, allowed risk of 288 time allowed to make 427 duty of trustee as to 474 in stocks is wrong 474 by court 43 Index. 711 ISSUE : PAGE born, partial revocation 74 JAILOR: to obey process 21 JOINT : liability of executors and administrators 265 JUDGMENT : against executor, assets 249 executor or administrator to watch and collect 271 preferred on debts 330 docketed preferred 332 not docketed, not preferred 332 of other States not preferred 332 terms of in suit for debt 335 separate dockets on 337 execution, how issued 337 on issue of execution, when security 339 against heirs, etc., when barred 341 execution on, against decedent 341 after five years 341 how collected against decedent 342 leave for execution on 343 not traversable before surrogate * 343 leave to collect in supreme court 344 effect of for debt 350 not evidence of assets 356 not to be impeached 358 against surviving partners, effect of 374 to specify real estate charged 376 not to affect title, when 376 when land aliened 377 surrogate can try certain questions 431 against executor conclusive as to claim 497 docketed decree has force of 508 force of on real estate 534 on offer, not evidence 535 not- to include costs 535 counter-claim against 535 what on appeal •- 640 712 Index. JUDICIAL SETTLEMENT: page reference on 56 additional allowance on 368 may be had after one year 402 after revocation 402 sale of real estate 402 wlien may be required 402 who may petition for 40S may be had after one year 409 petition for, what to contain 409 petition for, form 410 who to be cited on 409' citation for, when returnable 411 unknown parties, how stated 411 in case party interested dies 411 special guardian ou 41S proceedings on 415 one not cited may appear on 415 who may object on 415 executor to account on 416 what account to contain 416 account on, form 416 abates by death of executor 416 vouchers to be filed on 418 allowance on. without vouchers 418 claim of executor presented on , 431 statute runs from against executor 436 allowance for losses on 436 commissions fixed on 440 decree, how made on 450 settles rights of creditors 450 next of kin 450 disputed claims, how treated on , , 451 specific property may be distributed 452 money retained for debt not due 452 advancements adjusted on 454 decree on to contain summary 465 decree on, form 466 trustees may have 469 may be had of trustee 471 who may apply for 472 Index. 713 JUDICIAL SETTLEMENT— (Cont'd) : page on petition of trustee 472 of trustee after resignation 480 to settle controversies 480 sum may be retained on 480 effect of decree on 480 after it action may be had 496 decree conclusive on 494 effect of 494 decree does not conclude wbat 495 void to those not cited 495 conclusive as to infants 495 decree on, when opened 498 of guardian, when 613 JURISDICTION : of surrogate's court 1 to prove wills 1 to issue letters 1 general, to take proof of costs 7 grant letters 7 revoke letters 7 control accounts > 7 •enforce debts 7 legacies 7 distribution 7 •control executors ' 7 administrators 7 trustees 7 surrogate has common law 8 how exercised 8 extended by Code 8 when appearance does not give 9 when appearance gives 9 exclusive of court 9 not questioned collaterally 10 exclusive to prove wills. 10 presumed in other proceedings 10 not lost 10, 11 may be concurrent 11 90 • 714 Index. JUEISDICTION— (Cont'd) : pagb of supreme court as to legacies 283 petition to surrogate given .^ . • . 283 JUEY TRIAL: may be ordered 57 may be ordered on debts 536 court may order on 640 LAPSE : when legacy does not 282 legacy to child does not • 382 LEASE : duty of executor as to, held by decedent 334 for years, to be inventoried 239 petition for, etc., form of 527 when ordered of real estate 540 of real estate, to pay debts, etc 579 duty of guardian to 600 LEGACIES : surrogate to enforce payment of 7 when do not lapse 282 surrogate may direct payment of 283 collected by petition to surrogate 283 what courts can compel payment 283 when payable by law 281 payable before year, bond may be had 284 to be paid after year 329 defined 380 not invalidated by error in name 380 are general and specific 381 demonstrative 381 wben vested , 381 absolute and conditional 381 general, subject to abatement 381 specific are not 381 validity of depends on local law 382 to children do not lapse by death 382 executors cannot prefer 382 to be reduced by debt to decedent .' 382 Index. 715 LEGACIES- (Cont'd): p^™ charged on real estate, when payable 386 proceedings by petition for 387 for dower entitled to preference 388 for maintenance do not abate 388 education 388 when they will abate 388 executor bound to set up proper defense 388 petition for payment, what to show 389 ordered paid only when title undisputed 391 account necessary on petition for 391 statute of limitations, defense to 394 charged on land not subject to statute 394 how collected before year 396 when statute has run on, petition for dismissed 406 surrogate not to settle title of denied 407 not chargeable with commissions 444 interest, rule on 452 when to be paid 452 ■draw interest from time when due 453 interest rule on, to child 453 widow 453 when draw interest from decease of testator 453 ■charged on land when interest begins 454 to infants paid to general guardian 463 ■court may direct expenditure of 464 to be invested by general guardian 464 paid or handed to ward 464 general guardian to account for 465 legacy to infants paid into court, when 464 testamentary trustees may be cited to pay 470 io. witness to will does not disqualify 54 «£Eect .of 54 does not disqualify witness 59 to subscribing witness, when void 95 .specific, when to be paid 285 to creditor, when not payment 283 tax by State, and rate 291 petition of executor for appraiser 296 tax, order for appraiser of 297 security before execution for 339 716 Index. LEGACIES— (Cont'd): page petition for payment of, when 347 petition, when not entertained 351 payment decreed only when claim undisputed 352 bond on decree, when required 358 decree for, only in case of assets 354 payment of decree for, how enforced 355 bond on payment of 384 collected by petition or by action 386 suit after one year '. 387 petition for payment of 390 what answer to petition, not good 393 receipt for 394 decree for , 395 answer on petition for 395 bond to be given on payment within a year 396 to be paid for education 396 maintenance , 396 when to be ordered paid 397 as rule, not charged on real estate 397 when charged on real estate 398 when paid to county treasurer 465 to unknown person, how paid '. . 465 guardian to give extra bond for. 594 guardian may settle for 600 when paid to guardian 608 LEGATEE : surrogate being disqualified 22 n;iay propound will 81 when necessary to cite 86 not cited, may intervene 92 residuary entitled to letters, when 185 when entitled to letters 185 debt of, set-off against legacy 280 claims may be collected from 318 cannot, by assigning legacy, get preference 382 misnomer of in will not fatal 380 debt of to be set-off 389 petition of, when dismissed 389 release by, no bar to petition of, for account 404 Index. 717 LEGATEE— (Cont'd): page may petition for account after assignment 404 petition of, for order that executor account 405 may appeal from probate 63S LEGATEES : unknown, how served 30 to be cited on proceedings for revocation 150 notice to, of appraisal 299 may be sued for debt of decedent 372 payments to, charged in account 419 decree directs payment to 450 may take real estate without sale 578 LETTEES : when void from issue 3 surrogate to issue 7 of collection (see Special Letters of Administeation), 168 private, not assets 241 LETTEES OE ADMINISTEATION : surrogate's court to issue 1 on goods of resident 9 non-resident 9 omission to take bond, not fatal 11 clerk may sign 14 on estate of non-resident 138 ancillary, when issued 138 ancillary, petition for 140 foreign, how certified 106 three kinds of 161 on estates of intestates 161 special 161 with will annexed 161 exclusive jurisdiction of court to grant 162 when issue on estate of non-resident 1, ;2 issue in county of domicil 163 issues to whom 165 males preferred 166 on estate of an illegitimate 166 when several entitled to, how issued , 166 husband, when entitled 166 718 Index. LETTEES OF ADMINISTEATIOlSr— (Cont'd) : page divorced wife not entitled to 167 not interested, entitled 167 right to a personal one 167 not granted to convict 167 infant. . . .- 167 drunkard 167 spendthrift 167 fool 167 may be refused to ignorant person 167 "when infant entitled to 168 third party may be joined in 168 who may apply for 168 petition for, what to show 168 when issued to guardian 169 will not issue'in every case 169 ^ facts on petition for 169 petition for, form of 169 consent to be joined, form of 170 citation on petition i 171 renunciation of, how made 171 may be retracted 172 form of 172 citation on petition 172 order for citation on 172 citation on 173 hearing on , 174 when to issue 174 when parties equally entitled to claim 174 decree for 175 oath on 176 issue under seal 180 cannot be attacked collaterally 180 cannot be signed in blank 181 presumption as to 181 to attack onus on party 181 seal may be attached 181 relate back to decree 181 validate acts before 181 issued in name of people 181 must be signed by surrogate 182 Index. 719 LETTEES OF ADMESTISTEATION— (Cont'd) : i-age conclusive evidence till revoked 182 cannot be attacked collaterally 182 acts in good faith made good 182 witli will annexed, considered '. . 184 to wliom issued 184 with will annexed to, when 185 with will annexed, petition for 186 with will annexed : petition forj what to show 187 who to be cited on 188 )ower of administrator under 188 are territorial .• • • • 1^8 give no power over real estate 199 revoked on probate 200 revoked for cause 209 revoked on failure to give new bond 203 revoked for disobedience 257 liability for acts before .' 425 LETTERS TESTAMENTARY: surrogate's court to issue 1 on will of resident 9 non-resident 9 clerk may sign 14 power of executor before 78 foreign, how certified 106 considered 124 may issue lo person named by executor 124 issue, unless objected to 125 who may object to issue , 125 how objection taken 125 what not valid objection to 125 issue on order , . 125 order for issue, form of 126 how framed 126 may be sealed after issue 127 void, when issued by clerk 127 evidence of authority 127 affidavit of objections to 128 form of objections to 129 720 Index. LETTEES TESTAMENTARY— (Cont'd): page answer to objections to 131 on will of non-resident 187 are territorial ., 198 give no power over real estate 199 revoked, on failure to give bond 203 revoked for cause > . . . 209 revoked for disobedience 257 liability for acts before 425 XIABILITY: of executors for eacb other 265 of all on same bond 267 XIBEL: action for, does not survive 274 LIEN: against executor not discharged 249 executor maj release 258 LIMITATIONS : extended in favor of executors 275 against executors 275 of action, extended in favor of executors 281 ' against decedent 281 when commences on reference 281 when executor waives on claim 281 short statute on claims 304 six months on disputed claim 304 short statute of 315 statute of, executor bound to plead 370 who can raise 371 executor cannot waive 371 payment by executor prevents 371 applies to claims of wife 371 defense in proceeding for legacy ; 388 statute of, executor may plead 394 six years extended three, when 538 LITERAEY SOCIETIES: when cannot take by will 359 Index. 721 LOSS : PAGE on assets to be explained 420 allowance for to executor 436 LUCID : intervals, wills made in, good 116 not favored 116 LUNACY : surrogate- disqualified by 5 opinions as to 107 LUNATIC . new citation served on 32 defined 115 special guardian for on settlement 413 MANDAMUS: surrogate liable to 13 MAINTENANCE : legacy for does not abate 388 MAREIED WOMEN: may make wills 58 administration on estate of 166 unmarried preferred 171 estate of, how distributed 463 may be trustee 491 MARRIAGE : and issue revokes will 74 with issue, revokes will 74 of woman revokes will 75 of woman is revocation 166 to prove, co-habitation must be matrimonial 167 MARK: subscription by good 61 MARINER: may make unwritten will 70 91 722 Index. MINOE CHILDEEN"; page articles set apart for 245 $150, set ofiE for 246 MISNOMER. does not avoid legacy 380 MISSIONARY SOCIETIES: limited as to power to take 59 MONEY: paid into court, how disposed of 42 to be inYentoried 241 MONOMANIA : may not affect will 118 MORTGAGE: one executor may satisfy ; 258 release debt 259 to be inventoried 241 foreign executor can foreclose 270 foreign administrators can assign 278 loan on out of State wrong 286 loan on by executor, how enforced 286 interest on not a debt 331 no preference in payment of 333 to be paid by devisee or heir : 333 when may be paid 333 petition for, etc., form of 527 when ordered of real estate 540 requisites of, decree for 544 decree for of real estate 541 proceeds of paid to county treasurer 564 surplus on foreclosure paid to county treasurer 575 how distributed 576 of real estate to pay debts, etc 579 guardian may assign 600 satisfy 600 extend 600 guardian cannot 602 Index. 723 MOTION : PAGE notice of to confirm report 312 for leave to issue execution 343 MOTHER: distribution, when made to 460 when to be served 32 may oppoint guardian 582 NAME: of testator may be written by another 61 NEGLIGENCE ■ of executoi causes hability for co-executor 266 interest charged for „ . . . 427 injury or death caused by, suit ,. 275 liability of trustee for 474 NEPHEW . rights to intestate estate 400 NEW COUNTY: proceedings transferred to. 13 NEWSPAPER:, citation published in 29 notice for claims published in. , . ., 300 NEW TRIAL . power of court to grant 498 application for. how defeated. . , 17 NEXT OF KIN. surrogate being disqualified 22 unknown, how served. 30 who are 83 rights of, secured only by law 162 at common law 162 order of, as to administration . r , 165 claim may be collected from 318 may be sued for decedent's debt 372 payments to, charged in account , 420 decree directs payment to 450 724 Index. NEXT OP KIN— (Cont'd): page take jier stirpes, when . .,., 462 per capita, when 462 NIECE: rights to intestate estate 460 NON-RESIDENTS : service on by publication. 29 personal service on „ 31 how estate of distributed-. . , = 145 letters issue on estate of, when 162 concurrent jurisdiction of courts as to 164 jurisdiction in case of, how conferred 164 guardian may obtain letters here 605 NOTES: to be inventoried 241 NOTICE : of examination of sick witness 51 to present claims, form , 301 to set aside report, how made , 314 of petition for execution , . . 339 of motion for leave to issue execution 344 of motion to confirm sale , 556 of distribution of proceeds of real estate. , . . 565 NONGUPATIVE WILL: when 70 OATH: official of executor who may administer 126 form of 126 of administrator, form of 176 of appraiser 286 OATH OE OFFICE: trustee to take i92 guardian to take 593 OBJECTIONS ■ to probate, form of 91 to issue of letters, who may make '125 Index. 725 OBJECTIONS— (Cont'd) : taqm how made 125 what not valid 125 affidavit proposing to file 128 to issue of letters, form of 129 surrogate to inquire into 129 citation on ... 130 if not prosecuted, fail 130 to issue of letters, answer to . . , 131 answer to 13l to executor selected, how made 135 who may file on settlement . . o 415 should be made specifically ' 421 in writing 421 before filing executor may be examined 421 on contest of account 422 additional may be filed 422 should be filed with court 423 on trial of, affidavit sufficient 424 OBLITERATING: revokes will 73 OFFICIAL OATH: surrogate to file ; . 1 of administrator. . , 176 OFFICIAL DESIGNATION: of acting surrogate 2 OFFICE : trustee may hire, when " 476 OLD AGE: no presumptions against wUl made in 115 OMISSION: to take bond not jurisdictional defect 11 OPENING OF DECREE : power of court as to 498 720 Index. OPINIONS : PAGE rule in this State 110 of witnesses discussed 107 m coinmon law courts 110 value of 112 OPTIONS : when assets 242 ORDER. for publication, form of 30 for special guardian, form 36 for commission , 47 for examination of sick witness. 52 of execution immaterial 68 for citation, form 85 that party may intervene , 93 that executor qualify or renounce 186 declaring renunciation 137 for citation on ancillary letters 143 for citation on petition for administrators, form 172 when sureties are insufficient 201 for new sureties, form of . ., 202 for citation m petition for release', . , 205 that executor account, form 224 for citation to discover assets 228 appointing appraisers 234 extending time to file inventory 252 that inventory ba filed 254 for appraiser of legacy 298 for advertisement for daims 301 for reference on claims 808 confirming report of referee 313 permitting compromise 327 for citation oii petition of creditor 349 for citation on petition tor legacy 391 that executor be cited 406 for reference of account 424 for citation on petition for resignation 483 court should set aside, when 499 remedy for ex parte 499 Index. 727 ORDEE— (Cont'd); page jurisdiction of court raised on 499 for citation on petition to open decree. • 502 Tacating only method to correct mistakes 502 ex parte vacated for mistake '502 for citation, real estate 531 that executor account „ 532 appointing freeholder to sell 548 directing sale after decree 548 for citation on petition for guardian 589 vacating sale , 557 confirming sale 558 for removal of guardian .* 620 for additional sureties by guardian 623 for citation on petition for guardian 627 delivery to successor : . . . . 628 PAPERS- to be kept 19 how served on attorney 45 service by maU . . - , , 45 when served on clerk , . 46 production of compelled 46 PAETITION ' does not prevent sale for debts 559 does not afEect proceedings for sale 573 PARTIAL INSANITY: distinguished 118 PARTNER ; not to practice before surrogate 8 PARTIES: appearance by sufficient 34 executor or administrator may sue 273 duty of surviving 243 surviving entitled to property 243 PARTNERSHIP: property, how stated in inventory 243 estate partner can retain 261 728, Index. PARTNERSHIP— (Coat'd): page executor or admmistrator can settle. = . . = 278 death is dissolution 278 executor not to interfere in . 278 when executors not liable in 279 surviving partner's liability , 279 executors rnay ask sale for cash 279 executors may unite in assignment of 282 ' terminated by death of one partner , . 283 when executor can continue 283 PEEJTJRY . witness may be committed for 18 PAYMENT . into court regulated 42 when legacy is not -. , 288 surrogate may direct, of legacy 283 when made of legacy .,..,,.. 284 ' bond on before year , . . , 284 of debts, how enforced ,....,...,, o ... . 327 order of preference of.. 329 petition of creditor for 348 how enforced after judgment 356 of decedent's debts enforced against heirs, etc 372 preference in by heirs, etc , , . . 377 of legacy, how enforced.. 386 petition for, of legacy, what to show . , ,..,..., 389 petition for, of legacy 390 : ordered on petition for ... 391 of legacy, proceedings only when undisputed 391 when decreed , 394 decree for 395 of legacy within a year 896 to be made only when title is clear , „ 397 who may apply for 397 to be asked for on petition 404 petition of legatees for , .... 405 value of vouchers on settlement . . „ 418 under twenty dollars need no voucher , 424 decree on settlement directs 450 of proceeds of real estate to county treasurer 564 Index. t^^ PENALTY: page of executor's bond 133 PENDENCY : of action, creditor may file 522 form, notice of 523 PEOPLE : bond runs to 133 are trustees of trust 133 PERSONAL PROPERTY: wbo may bequeath 58 any person may take bequest 59 domicil governs execution 60 will of, executed by testator's residence 80 proof conclusive on 102 to be inventoried 241 PETITION : presentation of gives jurisdiction 11 for proof, what to sbow 82 for proof, form of 83 to- be verified 85 supplementary for new citation 88 for leave to intervene, form 92 for ancillary letters testamentary 139 letters of administration 140 for revocation of probate, form of 149 for proof of heirship 157 for administratidii, what to show 168, 169 who inay make 168 facts on 169 ' form of 169 consent "to be joined on, form 170 citation or consent oh 171 de bonis non 183 with will annexed 186 of surety for release, form of 204 in case of disagreement of executors 208 who can for revocation 211 when circumsta,nces precarious 212 92 730 Index. PETITION— (Cont'd): ^^«= for revocation, what to state 213 for accounting by executor of an executor 219 for revocation and settlement 223 for discovery of assets 227 for appraiser of legacy tax 296 for leave to issue execution 340 of creditor for payment 348 for leave to issue execution 357 for payment to be dismissed, wben 389 for payment of legacy, what to show 389 for account and payment of legacy 390 for payment, what held good 391 for payment of legacy, when dismissed 392 answer to, for legacy 395 for account by executor of executor 401 who may make for settlement 403 citation to be issued on 403 for accounting, what to state 404 prayer for relief characterizes 405 for order that executor account 405 of legatee' for accounting and payment 405 for judicial settlement, form 410 to be allowed to resign, of trustee 482 order thereon 483 decree thereon 1 484 for removal of trustee 489 for appointment of trustee 491 to open decree 501 form of, for attachment '513 for sale, etc., of real estate discussed 524 for mortgage, lease, etc., form of 527 of creditor for sale of real estate 529 for distribution of surplus 577 by infant, what to state 587 form of 588 who to be cited on 588 for ancillary guardianship 602 for guardian in behalf of infant 591 for removal of guardian 619 that guardian give new sureties 622 Index. 731 PLEADINGS: page surrogate controls ' 39 written may be required 39 when verified 39 verification, who attaches, and how 40 complaint of executor, what to show 277 allegation of death not necessary 276 POST-OFFIOB : citation deposited in 30 POWBE OF ATTOENBY- executor or administrator may make 259 PEECARIOUS : circumstances, what are 214 PEBFBEENCE : what on petition for administration 174 in discretion of surrogate 174 order of, of debts 329 none in same class 331 may be given by court 332 in claims paid by heir, etc 877 PRIOEITY: as to letters 173 PEINCIPAL: when of infant may be expended 612 petition for leave 613 PEOBATB: definition of term 78 power of executor before . . , 79 order for citation to 85 citation to attend 87 petition for supplementary citation on 88 citation for, when unnecessary 82 appointment of special guardian on 90 costs of special guardian on 91 objections to, form of 91 intervention on 92 7§2 Index. PEOB ATE— (Cont'd) : page deposition on, form 96 costs on 100 construction may be.required on 101 decree on, form of , 102 how far conclusive 102 of will, form of 104 may be revoked within a year 146 who may apply for revocation of 147 when application to be made 147 time to apply extended, when 148 petition for rehearing 149 proceedings oa petition for revocation of 150 hearing on petition for revocation of 151 when revoked 151 decree revoking , 152 revocation of, effect of 152 of heirship considered 157 petition for 157 order on , 158 citation on 159 decree on 159 to be rescinded 160 decree may be modified 160 administration revoked on 200 PEOCESS: how executed and returnable 24 PEOCEEDS: of sale paid to county treasurer 564 PEODUCE : when to be inventoried 240 PEODUCTION : of paper compelled 46 PEOFIT : none to executor 437 trustee to have none 474 Index, 733, PROOF : PAGE how made of service 37 necessary for noncapative will ' 72 petition for, form of 83 objections on , 91 proponent has burden of 99 of service of citation 25 of will, deposition on commission 49 interrogatories on 49 testimony of sick, etc., witness, how taken 50 according to law at time 81 effect of death of parties 89 intervention on 92 deposition on, form 96 PEOPONENT: may discontinue 93 PUBLICATION: when made of citation 29 order for, of citation 30 in what newspapers 41 when in State paper 41 how made 63 word declare not essential 64 PURCHASER : from executor protected 263 when not protected ^ 263 surrogate cannot compel to take deed 263 QUARANTINE : widow's, what is 244 right to absolute 244 RAILROAD STOCKS: when executor. not liable for loss on 290 REAL ESTATE : who may devise 58 will of in this State, how executed 80 power of administrator with will annexed on. 188 when administrator meddles with 199 734 Index. EBAL ESTATE— (Cont'd): ^^«^ must be devised by law of this State 200 when execution not to issue against 338 motion for execution against 344 petition for execution against 345 not affected by judgment, when 347 judgment against executor does not affect 358 liability for expenses of administration 374 judgment to charge, to specify 376 legacy charged on, when payable 386 legacy charged on, not barred by statute 394 rule as to charging legacies on 397 sale of to be accounted for 420 advancement in, how treated > 456 when legacy charged on draws interest 454 disposition of, to pay debts, etc 519 what may be disposed of 519 title in heirs, etc., until sale 520 devise for sale vests no title 520 heirs to, liable for debts 520 what may be sold 520 sale of, not ordered when devised to pay debts 521 sale on petition after three years void 523 partition no bar to sale of 523 contents of petition for sale of 524 petition for disposition of, form 527 petition of creditor for sale of 529 what sufficient petition for sale of 533 special guardian on sale 534 .debts, how proved on sale 533- what debts may be proved against 535 all interested in, may resist debts 535 debt disputed, barred when 535 when sale not ordered 539 when to be mortgaged, etc 540 to be appraised 540 surrogate's decree for sale, effect of 541 decree for mortgage of 541 when to be sold §42 entire interest sold 543 order of the sale 543 Index. 735 REAL ESTATE— (Cont'd): page undivided estate sold 543 sale postponed when a controversy 543 bond on disposition of 546 second order for sale granted 547 freeholder appointed to sell 547 order for freeholder to sell 548 when sale delayed by appeal 549 sale of, not affected by death 549 credit allowed on sale of 550 court cannot compel purchaser 550 mode of sale and notice 550 notice of sale of published, etc 551 contract of administrator for sale void , 551 penalty for irregularity of sale of 551 distinct parcels sold separately 551 executor or administrator not to purchase 552 notice of sale, form 553 sale of to creditor 553 report of sale to be made 554 sale of, may be vacated 554 report of sale of, form 555 motion to confirm sale 555 sale may be confirmed 556 sale of, may be vacated 656 when sale to be impeached 556 practice on resale of 557 order vacating sale of 557 sale of, when confirmed 558 order confirming sale of 558 purchaser takes crops on sale. 559 decedent's contract for, how sold 561 purchaser's title not affected 563 sale of, not impeached 563 entire proceeds paid into court 565 proceeds of sale, how distributed 665 pro'ceeds, how distributed 666 on distribution of proceeds claims settled 666 decree for distribution of proceeds of 566 order of payment of proceeds 567 'dower adjusted on distribution 567 786 Index. EEAL ESTATE— (Cont'd): page partition doe's not prevent sale, etc 559 parchaser takes crops on sale, etc 559 when sale of invalid 559 deed on sale of 560 burden of impeaching sale of 564 proceeds of paid to county treasurer 564 allowance to executor on sale, etc 570 interest of infants in, how invested 573 supplementary decree on sale 574 sales of by executors under, power 578 legatees may take without sale 578 sales of public or private 579 power of executors 580 duty of guardian to lease, etc 600 guardian cannot 602 special guardian may sell 602 EEAL PEOPEETY: surrogate's power to dispose of 8 every citizen may take devise 59 place of governs execution 60 proof conclusive on parties 103 purchaser from heirs, how protected 103 wills to be recorded where it lies 104 wills of, recorded in county 105 (See Ileal Estate.) EEASOJSTABLE TIME: what is to convert estate 289 EECEIPT : for legacy 394 for share no bar to petition for account 404 EECOED : copy of evidence 104 llECOVEEY: of assets, petition for 227 order for citation on 228 of assets, proceedings for 225 Index. 737 EEFERENCE : page when may be ordered ..'.... 55 how regulated 5& supreme court rules apply to 56- may be had of disputed claims 305 agreement for 307 order for .' 308 may be to one or three referees 309' no judgment for set-off 309 statute of limitations on 309 order for must be. entered 309' stands in place of action 309 entry of order commencement, , 309 when claim is reported unfounded 310- proceedings on SIO' executor need not give notice to next of kin 311 what to prove on 311 court must confirm report 312 notice of motion to confirm 312 order confirming report on 313 motion to set aside report 313 judgment follows report 316 order for, of account. 424 EEr EREE : may be appointed to in discovery 46' power of 55 compensation of , ,■■■■■ 55 notice of motion to confirm report of 312 has no power to award costs 362 may be appointed on accountmg 423 proceedings before 423 may be ordered in real estate proceedings 336 REFUSAL : to refer, ground for costs 361 REGISTRAR . OE DEEDS : wills may be-deposited with 59 RELEASE: legatee good witness after 67 93 738 Index. EELEASB— (Cont'd): page petition of surety for, form 204 decree for 205 not bar to petition for accounting . . . . , 404 for satisfaction of decree, form of 519 guardian's sureties may ask 627 EBLIGIOtrS SOCIETIES: wills to, invalid m certain cases 59 REMOVAL : grounds of • 209 wlio can petition for 210 hearing on petition for 214 grounds of 214 decree for, when made 214 when of trustee ■'. 486 , grounds for 487 petition for, of trustee 489 of trustee and executor 493 of guardian for misconduct 618 grounds of, of guardian 619 petition for 620 decree for, of guardian 621 decree for not giving sureties 624 of testamentary guardian, wheuj 632 EENT: when to be inventoried 240 not preferred debt 332 executor to collect on lease to decedent 334 when not assets 334 when executor liable for 334 guardian may collect 600 occupying, when not liable for 600 RENUNCIATION : executor need not renounce, when 67 executor may make 133 may retract 133 form of 134 revoked by failure to qualify 135 Index. 739' EENUNCIATION— (Cont'd): page order declaring 137 executor may withdraw, when 137 of administration, how made 171 may be retracted 172: form of .' 172 of administration 172 retraction of 174 EBPEESBNTATION : how allowed in distribution 461 discussed 461 EEPOET : notice of motion to confirm 812' of referee may be set aside 313 case to be made 314 of referee to be confirmed 424 to be made of sale of real estate ' 554 of sale, form of 555 notice of motion on 555 EEPAIE: when guardian not liable for , 603' EEQUEST : witnesses must sign at request 66' how made 6& EESIDENT : jurisdiction of court as to 9 of county before when will proved 9' how citation served on 26' proof service on, form 26 substituted service on 26' EESIDENCE : distinguished from domicU 9 EESIG-NATION : of testamentary trustee may be permitted. 480 of trustee not without cause 481 estate to be considered 481 740 Index. EESIGNATION— (Cont'd): page petition for ! 482 costs on 482 surrogate may refuse 483 who to be cited on petition for 483 order for citation on 483 decree accepting of trustee 484 guardian may ask for leave. 625 petition for leave for 626 grounds of. 626 of, guardian, decree for. 628 testamentary guardian may have 633 EESIDUAEY LEGATEE : entitled to administer 185 EEVERSAL: what necessary to secure 55 EEVOCATIOJf; by burning, . etc 73 in law 74 by marriage and birth of issue 74 ■ ••;bii'th'(3fchilff.°..'.' 74 marriage of woman 75 partial, when 76 •of wills ••.••• •■ 72 by another will 72 -when express 73 m.ust be with -intent 73 partial, obliteration is not 74 marriage-and issue is 74 issue after, born is partial 74 marriage of woman works 75 change of property is not 75 mortgage, etc., is not , 75 partial; ■wfhen 76 -of probate within a year 147 who may apply for 157 when applica,tipn must be made 147 -who to be cited on 148 Index. 741 REVOCATION— (Cont'd) : page petition for, of probate 149 citation on 150 hearing on petition for 151 when granted 151 decree for 152 effect of 152 supreme court, no case in 152 hearing on petition for 151 special guardians to be appointed on 151 notice of, to be published 153 of letters, decree for, form 203 of letters, grounds of 209 petition for, form of 212 how citation seiTed on petition for. 213 hearing on petition for 214 peremptory, when ordered. 216 decree and efiect of 217 accounting may foUow 217 after bond may be sued 220 and settlement on petition of executor or administrator, 222 grounds of - 222 discretionary with court 222 petition of executor for, etc. 223 order for account on petition 224 decree for 225 may be for disobedience 257 for not accounting 407 of letters and removal of trustee 493 of letters to guardian 618 of guardian's letters, grounds of 618 petition for 320 decree for, of letters of guardian 621 petition of guardian for 626 decree for, of guardian's letters 628 of letters of, testamentary guardian 682 EOOMS: supervisors to provide 13 RULING : exceptions may be taken to 54 742 Index. SAILOES : page may make unwritten will 70 SALE OP EBAL ESTATE: for debts, stays action 375 jury trial may be ordered on 435 executor repaid on 436 referee may be ordered on 436 to pay debts, etc 519 history of proceedings for. , 520 what property subject to 520 what may be sold 529' who may petition for 521 within what time 521 time for, how extended 522 contents of petition for 524 petition gives jurisdiction for 524 petition for, discussed 524 decree for, conclusive . . . ; , 526 petition for, form of 526 petition for, by executor 527 on petition for account ordered, when 528 partition no bar to 529 petition of creditor for 529 accounting on, when 532 all executors should join in 533 what sufficient petition for 533 hearing on petition for 533 special guardian 534 proof necessary for decree for 538 decree to recite debts 538 not to be made to reimburse executor 559 appraisal before 541 decree for conclusive 541 order of sale 543 when to be decreed 542 entire interest to be sold 543 whether all to be sold 543 requisites of decree. 544 decree for 544 • what description good 544 Index. 743 SALE OF EEAL ESTATE— (Cont'd) i"^ge bond on sale, etc 546 freeholder appointed for 547 order appointing freeholder for. 548 order directing execution of decree for 548 when delayed by appeal 549 not affected by death of executor, etc 549 credit allowed on 550 mode of and notice. 550 to be published 551 posted 551 how property described on • 551 penalty for irregularity 551 ■distinct parcels sold 551 •contract by administrator for, void . . , 551 executor not to buy at 552 notice of 653 creditor may buy at 553 report of to be made '. 554 may be vacated 554 necessity of report of 554 report of, form 555 motion to confirm. 555 may be confirmed • 556 vacated 556 grounds of impeaching 556 practice on re-sale. 557 order vacating 557 order confirming 558 purchaser takes crops, etc 559 when invalid 559 deed on 560 conclusive, and not to be impeached 503 effect of, on infant 564 burden of impeaching 564 proceeds of, paid to county treasurer 564 proceeds, how distributed 565 notice of distribution 565 charges on, first paid 567 then dower 667 allowance to executor on 570 744 Index. SALE OF EBAL ESTATE— (Cont'd) : page notice to widow to elect 570 interest of irifahts on, how invested 573 supplementary decree on 574 surplus moneys, petition for 577 SATISFACTION: of decree, how made 518 form of 519^ SAVINGS BANK: when deposit assets 242 to credit of husband and wife 242 deposit for children, how treated 248 surrogate may require deposit in 264 executor or administrator may deposit in 285 SCIENTIFIC SOCIETIES: limited as to power to take 59 SEAL: may be attached to letters afterwards. 182 SECUEITIES : deposited with county treasurer 42 may be deposited to reduce bond 177 unauthorized to be sold 288 SECUKITY: on issue of ancillary letters 144 to prevent removal 214 what executor gives. 215 when required on execution 339 on decree for legacy, when required 353 when legacy paid before a year 396 when requited of trustee 486 when by trustee 592 when required of testamentary guardian 630 what required. 631 SENATE : may remove surrogate 2 Index. 745 SENILE : page imbecility considered 122 SERVICE : of citation substituted , 27 how made on infant 32 trustee • 32 idiot 32 Habitual d'ruiikard . . . . ' 32 corporations 32 proof of, how made 38 affidavit of, form 38 admission of, form 38 of papers on attorney; 45 SET-OFF: how effectual on reference 309 . judgment on, when set up 335 executors right to, as to debt 389 debt of legatee good, though barred by statute 389 surrogate cannot order 431 ..SETTLEMENT r petition for; and rev{3ca;tion 233 decree on .' ; 466 by guardian and discharge 615 allowance to guardian on 616 SHAEES : of stock to be sold - 288 SHEEIFF : to obey process 21 how to execute attachment 24 SIGNATUEE : proof of form of 38 of testator, another may write 61 must be at end of will 61 SISTEES : entitled to administration 165 rights to intestate estate 460 94 ' 746 Index. SOCAGE : page guardian in, when superceded 682 SOLDIEES: may make unwritten will 70 SOmSTDNESS OF MIND: must be proven 100 SPECIAL COUNTY JUDGE: when to act 2 SPECIAL SUEEOGATE: when to act 2 provision for & SPECIAL GUAEDIAK: on return of citation 35 only after service 35 person fit for 35 consent to be appointed, form 36 notice before appointment 3& order to show cause for 36 notice of application for. 87 to be appointed on probate 90 costs of on probate. 91 must appear in person 91 when entitled to costs 366 costs to. 367 to be appointed, when 413 notice of appointment of 413 appointed on consent 414 duty to examine accounts 414 notice to infant for. 414 for infants on trustee's account. 484 in real estate proceedings , 534 allowance to out of real estate 569 appointed to sell infant's land 602 SPECIFIC BEQUEST: rule as to debt of executor 250 Index. 747 SPECIFIC LEGACIES: page payable in one year 285 diity of executor in case of minor 285 case of increase 286 SPECIFIC PEOPEETY: may be distributed on settlement. 451 STATE : will out of, how executed 70 STATE TEEASUEEE: legacy, when paid to 465 STATE PAPEE: when citation published in 41 STATUTE OF LIMITATIONS : effect of citation on 24 extended ^ 275 defense on reference. 309 must be insisted on 309 debt barred by not to be paid. 334 short on rejected claim 315 runs on legacy 407 Tnay be pleaded on accounting 408 executor or administrator bound to plead 430 -when suspended 430 any one may plead 430 not available on claim against 434 extended three years , 538 STENOGEAPHEE : when appointed, etc 20 duty pf 54 minutes of, to be bound 54 STOCKS : executor or administrator cannot hold 288 of corporations discussed 288 SUBSCEIBING WITNESS: (See Witness and Witnesses.) 748 Index. SUBSCEIBING WITNESS— (Cont'd) : page surrogate being disqualified 22 interrogations to 4& deposition of 96 when both deny execution 97 SUBSCEIPTTONS : by mark good 61 by testator, where made 61 in presence of witnesses 62 acknowledged to witnesses 62 SUPPLBMENTAEY CITATION: petition for 88 SUBPOENA : surrogate may issue 15 officer may serve 21 for jury to be issued 90 fees of witness on 90 proof service, how made 37 SUBEOGATION: sureties have, by payment 595 SUBSTITUTED SEEVICE: how made 27 how procured 27 affidavit to procure . ., 27 order for 28 order for S3, 34. SUCCBSSOE: of surrogate who has died 2 may compel accounting 218 may prosecute bond 220 may continue action 276 when appointed as trustee 490 petition for appointment of 491 SUMMAEY: decree to contain 465 Index. 749 SUPERVISOES: page may appoint temporary surrogate 6 to provide rooms, etc 13 SUPPLEMENTAEY : citation, wlien issued 88 decree, distribution 574 SUPPOET: legacy may be collected for. 353 guardian to furnish 601 SUPREME COUET: to appoint surrogate. 4 may prove will in equity 10 jurisdiction as to legacies 283 SUEETIES : in action against jurisdiction not in question 10 liability of, for money received before letters 127 cannot dispute jurisdiction 180 liability of 179 liable for money received before letters 179 failure to obey order 180 decree conclusive as to 180 may buy claims against estate 180 liability of, of temporary administrator 197 on removal of, new required 200 , when insufficient, new required 200 ' additional required, when 201 petition for new, form of 201 order for new, form of 201 liability of, for former laches 202 may ask to be released 204 petition of, for release, form 204 decree valid as to 204 proceeding on petition of 205 former, when released 205 decree releasing, form of 205 on failure to give, revocation 206 of deceased executor or administrator, how concluded . . 400 750 Index. SUEETY : ' page on bond may petition for settlement 403 of trustee can ask for settlement 472 decree conclusive as to. 496 •extent of liability of. 496 liable for each principal 496 -when not" liable. 496 not Habile for insolvent executor, when, 497 suit against on bond 504 liability of. 506 ■decree binding on. 509 imprisonment of administrator no bar to suit against. . . 509 accounting, when not necessary before sueing 594 on general bonds, how to justify 594 not liable for counsel fees 594 for several liable for each 594 when not liable for real estate sold 594 liable for moneys on hand 594 paying decree, own it , 595 how liability fixed 596 when may be sued 596 of guardian, how charged 618 petition that guai'dian gives new 622 order for new 623 decree for not giving new 624 may apply for decree 624 released, new required 625 .6UEPLUS: when assets 242 how paid, of real estate 568 on foreclosure when paid to county treasurer 578 how distributed 578 SURPRISE : decree opened for 498 SURROGATE'S COURT: original jurisdiction of 1 provided for by constitution 1 is a court of record 1 held by county judge 1 Index. 751 SUEROGATE'S COUET— (Cont'd) : page attorneys in 1 {See.Surrogaie.) county judge acts as 1 to file oath and bond 1 holds office, how long 1 salary of 1 senate may remove 2 vacancy in office of, how filled 2 vacancy in New York and Kings 4 special, how designated 2 special, when to act 2 county judge, when to act 2 district attorney, when to act 2 disqualified having been attorney 2 disqualified by consanguinity -7 not to be interested in costs 2 partner not to practice before 8 clerk not to practice before. 3 shall not receive fees 3 grant of letters by, when void 3 money placed in hands of, no disqualification. 3 being former attorney 3 of adjoining county, when to act ^ supreme court to appoint 4 court of common pleas to appoint 4 attorney for executor not to act 4 acts void 4 appointed by court, hdw ; 5 authority of, how superseded 5 lunacy case of 5 special provision for 6 temporary provision for 6 SURROGATE'S : court may transfer business to 6 common law jurisdiction of 8 may grant naturalization. 8 statutory and incidental power 8 temporary compensation of 7 acts of, recorded 7 k 752 Index. SUEltOGATE'S— (Cont'd) : page to prove wills '^ grant letters ' to revoke letters ' - control accounts • ' enforce payments '^ legacies ' distribution ' control executors 6 administrators 7 trustees 7 power as to real property" 8 to appoint and remove gnardians 8 power extended . . 8 inferred, if necessary 8 has common-law jurisdiction 8 may grant naturalization 8 history of court of 8 supervisors t-o provide rooms, etc., for. 13 liable to mandamus 13 always open 13 .surrogate must attend, when 13 when and where to hold court 14 :seal of court 14 may appoint and remove clerks 14 clerk of court, how appointed 14 powers 14 may issue process 15 may enjoin parties 15 control executors, etc 15 open or vacate decree. 15 grant new trial 15 punish for contempt 15 incidental power of. ... 15 may complete unfinished business 15 exercise incidental powers. 16 what books to keep 18 to index books , 19 to keep books and papers 19 report fees 19 liable for clerk's acts 20 Index. 753 SURROGATE'S— (Cont'd): page not to be counsel, etc. 21 disqualified, when 21 son not to practice before 22 pleadings before ." 22 proceedings, how commenced before 24 process, how executed 24 may require written pleadings " 39 of another county to take testimony 53 wills may be deposited with 59 may be required to state grounds 101 TAXES: executor has no duty to evade 290 State on legacies and inheritances ' 291 petition of executor for appraiser of legacy. 296 appraiser of legacy, order for 296 preferred debts 329 when a debt 330 to be levied where estate held 330 preferred debt 332 when estate liable to pay. 335 assessments for, when void 335 TEARING: revokes will 73 TEMPORARY SURROGATE: provision for. 6 compensation of 7 acts of, recorded . . ; 7 TEMPORARY ADMINISTRATOR: when granted 190 for absentee 190 how appointed 192 general power of 192 may pay debts 192 may dispose of real estate 193 may provide for family 193 deposits money 193 95 / 754 Index. TEMPOEARY ADMESTISTRATOE— (Cont'd) : page removed for neglect 194 how draws deposits 194 to account , 197 may be attached .' 197 commissions of 198 sureties of, Uabihty 197 letters revoked, when 216 settlement required of 403 TESTAMENTARY TRUSTEES: authority of surrogate over 7 may be enjoined 15 controlled by surrogate 15 not affected by revocation of letters 221 decree conclusive against 355 additional allowance to 368 commissions on value 441 when commissions annually 442 when not to have commissions 444 accounting by 468 distinct from executor 468 may disclaim trust 468 presumption of acceptance by 468 begins on settlement 468 naay account 469 may have judicial seitlement 469 same compensation as executors 469 may file intermediate account 469 may be allowed expenses 469 compelled to account 469 should give information 470 may be cited to pay legacy 470 citation, to issue to 470 may answer to petition 470 citation to, may be dismissed 470 may be ordered to account 470 who to be cited on accounting of 471 judicial settlement of 471 may ask for settlement 472 proceedings therein 472 Index. 755 TESTAMENTAEY TRUSTEBS^(Coiit'd) : page not to invest in certain stocks 474 to keep estate invested 474 liability of, for interest 474 liability for negligence 474 to have commissions 474 to make no profit , 474 cannot deal in estate 475 use estate 475 buy from bimself 475 purchase by, when void 475 acts of, ratified 475 subject to court 476 can be compelled to sell 476 dealers with, not responsible for 476 allowed for expenses 476 may employ clerk, when 476 hire office, when 476 may retain costs of attorney 476 liable for costs 476 commissions of 477 also executor's commissions 477 commissions on real estate 478 computation of 478 amount of commissions 478 commissions, how computed 478 when not allowed 478 to three 478 annually 479 generally 479 effect of decree of settlenaent 480 may petition to be allowed to resign 480 surrogate may permit or refuse 480 permitted to have settlement 480 resignation regulated 480 must show cause for resignation 481 powers of supreme court 481 petition for leave to resign 482 surrogate may declare 483 persons interested cited 483 order for accounting 483 756 Index. TBSTAMENTAEY TRUSTEES— (Cont'd): page order on- petition of 483 accounting b j 484 decree on resignation of 484 ground of- resignation 485 " too busy,'' not ground 486 to give security, when 486 proceedings on petition for 486 may be removed 486 ground'of removal of 487 may remove one only 489 petition for removal of 489 successor appointed, when 490 one dying, others to act 490 married woman may be 491 powers of substitute 491 petition for appointment of 491 to take oath of office 492 to give bond 492 estate of 492 when one refuses 492 power of, ho^ fixed 493 when he iS"alSo executor 493 may resign as eS:ecutor and 493 TESTAMENT AEY GUARDIAN: power as to person and estate 599 to take out letters 629 to qualify 630 father may appoint 630 holds during minority 630 bond required of, when 630 required to file inventory, etc •, 631 surrogate may compel settlement of 631 may be removed 632 may resign 633 successor may be appointed 633 TESTATOR : in some cases,, must read will 69 ' Index. 757 TESTIMONY : page taken, how authenticated 21 stenographer's to be bound 21 commission to take 44 papers to procure commission 47 of sick or aged witness, how taken 50 proceedings to take, of sick witness 51 of sick witness in another county 52 of sick witness in another county, how taken 51 order for taking 52 return of, as taken . 53 taken by stenographer, how kept 54 TITLE : to legacy, surrogate cannot settle, if desired 407 TOMBSTONES.: reasonable funeral expense 320 funeral expenses include 521 TEANSOEIPT: of decree may be docketed 503 each creditor may have 503 necessary to execution — ..... 504 of decree for docket 506 TEESPASS : ■ - executor or administrator may sue for 273 guardian may sue for 601 TEIAL: exception on 54 before referee regulated ; 56 costs of, in contest ■ 367 TEIAL BY JUEY: ' when ordered - 57 how reviewed 57 appeal from 57 costs on 367 may be ordered on debts 436 order for, form 437 758 Index. TRIAL BY JURY— (Cont'd): page how reviewed f . • ■ 437 appeal from 437 order for 537 TRUSTEES: testamentary, authority of surrogate over 7 surrogate being disqualified 22 executor may not be, for himself , 125 to act together 264 how far executors are 264 executor or administrator buying at his own sale is ... . 284 one announcing purchase for children becomes 284 loans in another State by, considered 287 ' deceased, his representative to account 400 designation of as, does not constitute 468 one assuming to be, held as 473 TRUST : when constituted 478 UNDERTAKING: on appeal 636 what additional 637 when party committed 638 amount of, how fixed 638 UNDUE INFLUENCE : will destroyed through proved 98 when presumed 119 in favor of physician presumed 120 presumption of, burdensome 120 proved by circumstance 121 however little vitiates wiU 122 opium eater subject to 122 imKNOWN PARTIES : how cited 24 UNKNOWN PERSONS: service on, by publication 29 UNREASONABLE NEGLECT : carries costs 366 Index. 759 TJNEEASONABLE EESISTANCE: page carries costs 361 UNSOUNDNESS OF MIND : considered 112 UNWKITTEN WILL: \ may be made 70 VACANCY: how filled by election 2 who to act in case of 2 how filled, when no officer competent 3 VACATING SALE : order for 557 VALIDITY: change of residence not to affect validity of will 80 of legacy determined by local law 382 VEEIFICATION: to account 418 how made, and by whom 40 VIGILANCE: duty of executor or administrator as to 263 VOUCHEES: executor or administrator may require, with claim 302 prima facie evidence 418 allowance without 418 when lost, etc , 419 statute requiring, imperative 419 prima facie sufficient 428 when proof additional to, necessary 428 guardian should file 517 WAIVEE : appearance is, of citation 89 WAEEANT : to take assets 232 appointing appraisers 234 ?60 Index. WASTE : PAGE liabUityfox 267 WIDOW : , will does not cut off dower of 58 entitled to administration 165 failure to cite irregularity 171 provision for forty days for 244 her quarantine 244 right of, absolute 24i entitled to use of supplies 244 articles to be set apart to 245 one hiindred and fifty dollars for 246 allowance in lieu of property : 247 . legacy to, for dower, interest rule 453 when legacy draws no interest 454 distribution to 459 divorced is not 461 divorce of, on distribution 567 dower of, how computed 569 fund for, how invested 570 notice to elect 5T0 consent of, to accept a sum in gross 571 table to compute dower of 572 bound under contract as executrix 579 WIFE : . . divorced, not entitled to administration 16 i . surviving, may be §ued for husband's debt 372 Wills : jurisdiction of surrogate as to 1 surrogate to prove 7 what court to prove, of resident 9 of non-resident, how proved 9 ' supreme court may prove, when , 10 commission on proof of 47, 49 interrogatories on proof 49 bequest to witness of, does not disqualify 54 what is will 57 may be on several papers 58 power to make 58 Index. 761 WILLS— (Cont'd) : ~ pagb' who may make 58 married women may make 58 males above eighteen may make 58 females above sixteen may make 58 to be in writing, except 58 sailor may make, by word of mouth 58 soldier may make by word of mouth 58 cannot deprive widow of dower 58 when invalid not two months before death 59 to charitable or religious societies 59 valid as to one-half ill certain cases 59 may be deposited with surrogate 59 county clerk 59 register of deeds 59 must not be opened 59 to whom delivered 60 how executed 60 place of real property governs as to 60 domicU controls as to personalty 60 form of indifferent 60 execution essential 60 may be in number of papers 60 joint will valid 60 may be conditional 61 paper only naming executors is a 61 shall be subscribed 61 name may be written by another 61 may be signed by mark 61 must be at end 61 must be signed or acknowledged to witness 62 publication on execution 63 acknowledgment of signature 63 publication of 63 holographic execution of 65 must be two witnesses to 66 how witnesses shall sign 66 witnesses in New England States 66 executor may witness 67 legatee good witness to 67 96 762 Index. WILLS— (Cont'd): fagb seal not necessary to 68 may be re-published 69 out of State, bow executed 69 . not invalidated by cbange of domicil 70 nuncupative or unwritten 70 soldiers and sailors may make 70 under what circumstances 71 proof of 71 two witnesses required 72 revocation of 72 by another will , 72 proving, etc 74 marriage and issue .■ 74 marriage of woman 75 partial, when 76 executors of, how appointed 76 of rfeal property executed by pur law may be proved. . . 80 , of property executed by law of residence may be proved 80 change of residence not to affect 80 who may propound for probate 81 petition for proof, what to contain 82 execution governed by law of time 81 citation for proof, when unnecessary 82 petition for proof of, form 83 who to be cited on proof 86 citation on proof of, contents 86 attorney-general to be cited as proof 86 citation on proof of form of 87 appearance on proof, effect of 88 supplementary citation on proof 88 infants, how served on proof of 88 all parties may appear on proof 89 objections to proof 91 witnesses required on proof of 94 who disqualified, when 94 absent witness of, to be accounted for 94 deposition on proof of . , 96 where Witnesses deny execution 97 lost or destroyed, how proved 98 Index. 763 WILLS— (Cont'd) : i"a«b two witnesses required 98 by undue influence 98 lost, search must be proved 98 surrogate must be satisfied of genuineness 99 burden of proof on probate 99 on proof, costs on 100 on proof, surrender must be proved 100 decree on proof, to establisb construction 101 on proof, surrogate must state grounds 101 decree admitting 102 probate of, conclusive, how far 102 decree on proof, determines execution 102 court of equity, cannot revoke 103 certificate on, evidence 103 recorded in counties where real estate lies 104 ancient, evidence 104 copy of, /proved before 1840, evidence 104 certificate of probate 104 to be recorded as deed 105 fees of clerk recording 105 surrogate to retain a year 105 executed in other States how 106 proved in other States, how recorded 106 who may make 112 burden of proof, on proving 113 capacity necessary for execution 114 made in old age, no presumption against 115 delusion may not affect 118 drunkenness, effect on 118 of habitual drunkard, how treated 118 undue influence will invalidate , 119 when presumed 119 in favor of beneficiary not good 119 change in, of ?ick man invites remark 120 in favor of physician, undue influence imputed 120 procured by fraud, etc., set aside 120 undue influence may be rebutted 121 one may persuade to make 122 what influence avoids 122 order for letters, on proof of 126 764 Index. WILLS— (Cont'd): ^^™ new hearing of procrf on 146 revocation of probate of 1'^'^ when to be applied for 147 time extended for, when 148 who to be cited on 148 petition for re-hearing on 149 petition for revocation of probate of 149 citation on same 150 hearing on petition of probate - 151 probate, when rendered 151 l_ decree rendering probate of 152 revocation, effect of 152 form of 153 attestation clause of 155 several special clauses in 155 codicil to 156 if one propounded, administration stayed 174 letters of administration, with, annexed 184 on proof of administration, revoked 200 on revocation of probate, letters revoked 200 of real estate governed by law of this State 200 of personal estate, law of residence 200 may authorize investments in bonds 287 does not change rights of creditors 328 formula for payment of debts surplusage 833 may be construed on settlement 451 sales of real estate under 578 appointing guardian, to be recorded 629 WITNESS: proceedings to obtain commissions for 47 commission to examine 49 sick, aged, how testimony of taken 50 affidavit as to sickness, etc., of 51 I affidavit of illness of 51 sick in another county, how examined 52 order for examination of 52 in another county, return of testimony 54 bequest to does not disqualify 54 , , to will, legacy to does not disqualify 59 Index. 765 WITNESS— (Cont'd) : i-^ge to will, subscription in presence of 62 acknowledgment to 62 need not sign in presence of testator 62 must know it is a will 63 must be two to will 66 must sign at request of testator 66, 67 how many in New England States 66 when they forget or deny execution 65 declaration to, how made 66 a legatee competent after release 67 executor may be 67 shall sign on request 67 fees of : 90 non-attendance is punishable 90 bequest to, when void 95 deposition of, form 96 required on proof 94 absent, to be accounted for 94 testimony of aged, how taken 94 legacy to, does not disqualify 94 wills proved against testimony of 97 handwriting of, proved 96 opinions of 107 opinions in common-law courts 110 claimant paid is a good 429 executor not competent on his claim 433 INDEX OF FORMS. ABSENTEE : page petition for administrator for 192 ACCOUNT : petition for, by administrator of executor 219 order for before revocation 224 petition for order to 390 on settlement 416 {allegations contesting , 422 order that executor, before sale, etc 532 annual, of guardian 610 ACCOUNTINGFr by executor of executor, petition for 401 petition for, by legatee ._. 405 ADMINISTEATOE : oatli of 176 bond of ;. .v.". 178 petition for new sureties for 201 account of 416 temporary, notice of application for 192 petition for, in case of absentee 192 ADMINISTRATION : petition for ancillary letters of 142 petition for letters of 169 consent to be. joined in, 170 renunciation of 172 petition for, de- bonis non 183 petition for, with will annexed 188 ADMISSION: of service of citation 26 768 ISTDEX TO FOEMa AFFIDAYIT : page of service of citation 26 to procure order for substituted service 27 of service of citation "° as to signature S° to procure commission 47 to procure examination of sick witness ^1 of intention to lile objections to letters 128 to annex to claim 303 for motion for execution 343 AGEBEMENT : to refer claim 307 ANNUITY TABLE: to compute value life estate 672 ANSWEE: to objections to letters 131 of executor to petition for legacy 395 ANCILLAEY LBTTEES : petition for 141, 142 ANCILLAEY GUAEDIAN: petition for. 606 APPEAL: , notice of 636 undertaking on 636 APPOINTMENT OF TEUSTEE: petition for 491 APPEAISEES: order appointing 234 warrant to 234 petition for, of collateral tax 296 order for 298 oath of 298 notice of 299 order for, of real estate 540 Index to Forms. 769 ATTACHMENT : page for not filing inventory. 256 petition* for 513 preliminary proofs for 514 decree for 514 form for ....."/....'.. 515 BOND: of administrator. . ...... .'.V. 178 petition of surety for relief from 204 on payment of legacy 384 on disposition of real estate 546 of guardian 595 on appeal 636 OBETIFICATE: on will proved 104 of decree for docket 506 CITATION: admission of service of 26 proof of service of 26 affidavit to procure substituted service 27 order for substituted service of 28' order for publication of 30 order for substituted service on infant 33 affidavit of service of 38 admission of service of ^ . . . 38 order for, on probate 85 form of, to probate 87 petition for supplementary 88 on objections to letters 130 order for, for re-hearing _. 150 order for, to next of kin 172 to next of kin 173 to pay debt, or sbow cause. 349 order for, for account and payment 391 to accbunt, order for 406 order for, on petition to open decree 502 97 770 Index to FoBMa CLAIMS: FAGE order for notice for "^1 oath to 303 agreement to refer 307 CODICIL 156 COLLATERAL TAX: petition for appraisers 296 COMPROMISE: petition for allowance of - . - 326 order allowing 327 COMMISSION : affidavit to procure 37 notice of publication for 47 order for 48 interrogatories annexed to 49 CONSENT: to appointment as special guardian 36 of widow to accept gross sum 571 to be joined in administration 170 CONFIRMATION: notice of motion' for 312 notice of motion for 556 order for 658 CONTEST : allegations on, of accounts 422 CREDITORS: notice to, to present claims 301 petition by, for payment 348 petition of, for sale, etc 529 DEBT: petition for payment of *..... 348 DEED: on sale of real estate 560 Index to FoBMa 771 13iiiGxl£i£j : PAGE admitting will to probate 102 revoking probate 152 of probate of heirship 159 for issue of administration 175 for revocation of letters 203 revoking letters on resignation 225 directing delivery of assets 231 for execution 359 for payment of legacy 395 on settlement 466 accepting resignation 484 petition for opening of 501 order on petition for opening of 502 certifiate of, for docket 506 execution on 507 for attachment 514 discharge of , . . , 519 for mortgage 541 for sale of real estate 544 order directing execution of 548 supplemental, distribution, etc 6V4 appointing guardian .^ 590' for removal of guardian 621 removing guardian for not giving sureties 624 revoking guardian's letters 628 DEPOSITION": on proof of will 96 DISAGEEEMENT: petition showing 208 DISCHAEGE: of decree 519 DISCOVEEY: petition for citation on 227 order for citation on 228 decree directing deliveiy 231 warrant to take assets 232 772 Index to Foems. DISTEIBUTION: pagb of proceedsreal estate, prdei: for . , 565 notice of. . .,. .,...,. . . .... .- ^65 supplemental decree for 574 petition for, of ,siirplua 577 DOCKET: certificate for 506 DOWEE: notice to widow to elect 570 consent of widow to accept in lieii of 571 consent of Widow to accept sum for 571 annuity table to compute value of 572 ELECTION : notice to widow to make 570 EXECUTION;, affidavit for motion.for 343 notice. of motion for . , 344 decree for.-, 359 notice of .application, for 339 petition for 340 on docketed decree 507 petition for leave to issue 357 notice of application for. 358 EXECUTOE : account of 416 official oath, of 126 selection of, under power 134 order j;o„qTjalify, of r,ep,punce. .,.,., 136 petition by, for revocation \ 228 petition for revocation of letters to 212 petition of,, showing disagreement .. . ., 208 petition of, to be allowed to resign 482 petition that he account 405 renunciation of 134 FEEEHOLDBE. order appointing to act 548 Index to Fobms. 773 GUARDIAN:' page petition of infant for allowance of 588 decree appointing 590 petition of mother for appointment of 591 bond of 596 petition for ancillary 606 annual account, etc 610 petition of, for leave to expend capital 613 to remove 619 decree for removal of 621 petition that, give sureties 622 order that he give additional sureties 623 decree removing, for not giving sureties 624 petition of to be removed 627 order that he deliver assets to surrogate 628 decree revoking letters of 628 HABITUAL DRUNKAED: order for substituted service on 33 HEIRSHIP r petition for probate of 157 decree of probate of 159 INFANT : order for substituted service on 33 order to show cause for appointment of special guard- ian 36 notice of application for special guardian for 414 petition of, for allowance of guardian 588 decree for guardian of 590 petition for guardian for, under fourteen 591 INTERROGlATORIES : to subscribing witness 49 INTERVENTION: petition for leave for 92 order admitting 93 INVENTORY: appointment of appraisers for 234 warrant appointing , • 234 774 Index to Foems. INVENTORY— (Cont'd): pagk notice of taking 235 form of 236 oath to annex to 251 order extending time to file 252 affidavit to procure filing 254 order that executor file 254 attachment for not, filing 256 of guardian, annual 610 JUDICIAL SETTLEMENT: petition for 410 decree on 466 JURY TRIAL: order for, on debts real estate 537 LEGACY: bond on payment of 384 petition for accounting and payment of 390 receipt for 394 answer to petition for 395 decree for payment of 394 tax, petition for appraisers 296 LEGATEE : petition of, that executor account 405 LETTERS : decree revoking 225 LETTERS OE ADMINISTRATION: petition for ancillary 142 petition for 169 decree for 175 decree revoking „ 203 LETTERS TESTAMENTARY: order for issue of 126 objections to 138 petition for ancillary 141 MORTGAGE : decree for 541 Index to Forms. 775 MOTION": PAGE notice of, for confirmation 312 to set aside report, notice 314 notice of, for execution 344 NOTICE : of examination of sick witness 51 of appraisement .' 235 of appraiser, collateral tax 299 to creditors to present claims 301 of motion to confirm report 312 of motion to set aside report 314 of application for execution 389 of motion for execution 344 of application for leave to issue execution 358 of application for special guardian 414 to extend time for sale of real estate , 523 of sale of real estate 553 of confirmation of sale 556 of distributfon, real estate 565 of appeal 636 to widow to elect 570 OATH: official of executor 126 to annex to inventory 251 OBJECTIONS: to probate 91 affidavit of, as to letters 128 to issue of letters 129 answer to 131 OFFICIAL OATH: of executor 128 of administrator , ■ 176 OEDBR : for substituted service of citation 28 for publication, ete 30 to show cause for appointment 36 776 Index to Forms. OEDER— (Cont'd): page for examination in another county ^2 for citation to attend probate 85 allowing intervention 93 for issue of letters testamentary 126 for citation on objections 130 that exedutor qualify or renounce 136 declaring 1-enunciatibn 137 for citation to re-hearing . . 150 for citation as to heirship 158 for citation to next of kin 172 requiring further sureties 202 that executor account before revocation 224 for citation on discovery. i 228 for appraisers 244 extending time to file inventory 252 for attachment for not filing inventory 255 for appraiser, collateral tax 298 for publication of notice to creditors 301 to confirm report and costs 313 allowing compromise 327 for citation to pay debt 349 for citation to accounting and payment 891 for citation to account 406 for reference 424 that trustee account 483 for citation on petition to open decree 502 referring claim 508 for citation on petition for sale 531 that executor account, etc., real estate 532 for jury trial, real estate 537 for appraisers of real estate 540 appointing freeholder to act 548 directmg execution of decree 548 vacating sale 557 confirming sale 658 for publication of notice distribution 565 for citation, on petition for removal 620 for citation,- on petition of guardian for removal 627 delivery of assets to 628 Index to Forms.' 777 OPENING : page of decree, petition for 501 PAYMENT: of legacy, decree for 395 PETITION: for proof of will 83 for supplementarj citation 88 for leave to intervene on probate , . 92 for ancillary letters testamentary 141 for ancillary letters of administration 142 for revocation of probate within one year 149 for probate of heirship 157 for administration 169 for administration de bonis non 183 for administration, with will annexed 186 for administration, in case of absentee 192 for new sureties of administrator 201 of surety for relief ". '. 204 of exectitor showing disagreement , 208 for revocation, circumstances precarious 212 that administrators or executors account 219 I)y executor for settlement and revocation 223 ior discovery of assets . , 227 for appraisers of legacy 296 to be allowed to compromise 326 for leave to issue execution 340 for leave to issue execution 345 by creditor for payment of debt 348 for leave to issue execution 357 for account and legacy 390 for account by executor of executor 401 in judicial settlement 410 for leave to resign 482 for removal of trustee 489 for appointment of trustee 491 for opening of decree 501 for attachment 513 for mortgage, lease or sale of real estate 527 -of creditor for sale, etc., real estate 529 98 778 IiTDEx TO FoEMa PETITIOlSr— (Cont'd): pagk for distribution of surplus on sale 577 of infant for allowance of guardian 58S of mother for appointment of guardian 591 for ancillary guardianship 606 of guardian for leave to expend principal 613 for removal of guardian 619 that guardian give new sureties 622 of guardian to be removed 626 PEOBATE : decree admitting will to 102 petition to contest within one year 149: citation on ISC' petition for, of heirship 157 of heirship, decree of 159 PEOOF : objections to ., 91 deposition on, of will 96 PUBLICATION: order for, of citation 80^ order for notice to creditors 4 301 EBAL ESTATE: notice to extend time for sale of 523 petition for disposition of 527 petition of creditor for sale of 529 order for citation on petition 531 executor to account 582 order for jury trial in proceeding 587 appointing appraisers of 540 decree for mortgage of 541 decree for sale of 544 order directing sale under decree 548 bond on disposition of 546 order appointing freeholder to act 548 notice of sale of 553. report of sale of 555 order vacating sale of 557 confirming sale of 558- Index to Forms. 779 EEAL ESTATE— (Cont'd) : page deed on sale 560 supplemental decree, distributing, etc 574 order for distribution of proceeds 565 petition for distribution of surplus of 577 EEOEIPT : for legacy 394 EEFERENCB: of claims 808 order for 424 EELEASE: to discharge decree 519 EEMOVAL: of trustee, petition for 619 petition for, of guardian 489 decree for, of guardian 621 of guardian for not giving sureties 624 EENUNCIATION: of executor. 134 order declaring 437 of administration 172 EEPORT: notice of motion to confirm 312 order to confirm 343 notice of motion to set aside 314 of sale of real' estate 555 notice of confirmation of 556 EESIGN ATION : petition of executor for leave 223 petition for allowance of 482 petition of guardian for allowance of 626 EEVOC ATION : of probate, decree for 152 decree for, of letters 203 780 Index to Forms. EEVOCATION— (Cont'd) : page petition for, circumstances precarious 212 petition of executor for 223 decree for 225 of guardia,nsMp, decree for 621 of guardianship for not giving sureties 624 of decree for, of guardian's letters 628 SALE: petition for, of real estate 527 of citation for'. 529' decree for 544 notice of 553 report of 555 notice of confirmation of 556 order vacating 557 confirming 558 deed on 560 SECUEITY: on appeal ; 636 SELECTION: of executor under power 134 SEEVICE : proof of, of citation 26 affidavit to procure substituted 27 order for, substituted 28 proof of substituted service 29 affidavit of, of citation 38 admission of ^ 38 SPECIAL GUAEDIAJST: consent to appointment 36 notice of application for 414 SUBSCEIBING WITNESS : affidavit to procure examination of sick 51 in another county, examination of 52 commission to examine 49 return of examination of 53 Index to Forms. 781 SUEETIES: page petition for ne^iv 201 order requiring further 202 petition for, for relief 204 petition that guardian give new 622 order for additional 62S decree removing guardian for not giving 624 SUEPLUS : on sale, petition for distribution of 57T TEUSTEB : petition of, for leave to resign 482 order that he account 483 decree accepting resignation of 484 petition for removal of 489 petition for appointment of 491 UNDERTAKING: on appeal 636 WAEEANT: to appraisers 234 WIDOW : notice of, to elect 570 consent of, to accept gross sum 571 WELL: petition for proof of 83 objections to proof of 91 petition for leave to intervene on proof 92 petition to intervene on proof of 92 deposition on proof of 98 decree admitting, to probate 102 certificate of proof of 104 petition for re-hearing, within one year 149 decree revoking probate of 182 attestation clauses 155