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sively upon the real property descended or devised, or makes it payable exclusively by the heir or devisee, or out of the real property descended or devised, before resorting to the personal property, or to any other real property descended or devised. II., 82 35 and 38, amended.
$ 1860. One action, where same person is heir, de visee, etc.—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 leg. atee; 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 capaci.
would be liable in one capacity, for a demand against the decedent, after the exhaustion of the remedy against him in another capacity ; the plaintiff, in any action to charge him, which can be maintained, with, out joining with him any other person, except a person whose liability is in all respects the same, may recover any sum, for which he is liable, 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 repre sentative capacity. New. See Stuart v. Kissam, 11 Barb. 271.
ACTION TO ESTABLISH OR IMPEACH A WILL
SEC. 1861. When action to establish a will may be brought.
1862. Judgment, that will be established.
1861. When action to establish a will may be brought.-An action to procure a judgment, establishing a will, may be maintained, by any person interested in the establishment thereof, in either of the following
1. Where a will of real or personal property, or both, has been executed, in such a manner and under such circumstances, that it might, under the laws of the State, be admitted to probate in a surrogate's court; but the original will is in another State or country, under such circumstances, that it cannot be obtained for that purpose ; or has been lost or destroyed, by accident or design, before it was duly proved and recorded within the State.
2. Where a will of personal property made by a per. son, who resided without the State, at the time of the execution thereof, or at the time of his death, has been duly executed, according to the laws of the State or country in which it was executed, or in which the tes. tator resided at the time of his death, and the case is not one, where the will can be admitted to probate in a surrogate's court, under the laws of the State.
2 R. S. 67, 8 63a and parts of 22 61a, 67a, 68a and the whole of 22 65b and 69a (2 Edm. 68, 69). In re Dies, 30 N. Y. 88; Matter of Roberts, 8 Paige, 446 ; see Alexander's Estate, i Tuck. 114; Van Rensselaer v. Morris, I Paige, 13; Isham v. Gibbons, 1 Brad. 69; see Moultrie v. Ilunt, 23 N. Y. 394 ; Bowen v. Idley, 6 Paige, 46.
$ 1862. Judgment, that will be established.— If, in such an action, the facts necessary to establish the validity of the will, as prescribed in the last section, are satisfactorily proved, final judgment must be rendered, establishing the will accordingly. But where the will of a person, who was a resident of the State at the time of his death, is established as prescribed in the last section, the judgment establishing it does not affect the construction or validity of any provision contained therein ; and such a question arising with respect to any provision, must be determined in the same action, or in another action or a special proceeding, as the case requires, as if the will was executed within the State. Id., & 65a.
$ 1863. Judgment admitting the will to probate.Where the parties to the action, who have appeared or have been duly summoned, include all the persons who would be necessary parties to a special proceeding, in a surrogate's court, for the probate of the same will and the grant of letters thereupon, if the circumstances were such that it could have been proved in a surrogate's court; the final judgment, rendered as prescribed
in the last section, must direct, that an exemplified copy thereof be transmitted to the surrogate having jurisdic tion, and be recorded in his office; and that letters tes. tamentary, or letters of administration with the will annexed, be issued thereupon from his court, in the same manner, and with like effect, as upon a will duly proved in that court. Id., last part of 8 67a.
§ 1864. Contents of judgment; surrogate's duty.-A copy of the will so established, or, if it is lost or de: stroyed, the substance thereof must be incorporated into a final judgment, rendered as prescribed in the last sec. tion; and the surrogate must record the same, and issue letters thereupon, as directed in the judgment. New.
§ 1865. Proof of lost will 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 tes. tator's death, or was fraudulently destroyed in his lifetime; and its provisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness.
Id., 67b, amended. Harris v. Harris, 26 N. Y. 433 ; see, also, Smith v. Wait, 4 Barb. 28; Sheridan v. Houghton, 6 Abb. N. c. 234; Bowen v. Idley, 6 Paige, 46 ; s. C., 1 Edw. Ch. 148; Shultz v. Shultz, 35 N. Y. 653; Timon v. Claffy, 45 Barb. 438; 8. C., 41 N. Y. 619; see Voorhees v. Voorhees, 39 N. Y. 463; Everitt v. Everitt, 41 Barb. 385; afi'd, 6 Alb. L. J. 197; Comm, of App., Grant v. Grant, 1 Sandf, Ch. 235.
§ 1866. Action to establish, etc., will, relating to real property.- The validity, construction or effect, under the laws of the State, of a testamentary disposition of real property situated within the State, or of an interest in such property, which would descend to the heir of an intestate, may be determined, in an action brought for that purpose, in like manner as the validity of a deed, purporting to convey land, may be deter. mined. The judgment in such an action may perpetu. ally enjoin any party from setting up or from impeaching the devise, or otherwise making any claim in contravention to the determination of the court, as justice requires. But this section does not apply to a case, where the question in controversy is determined by the
decree of a surrogate's court, duly rendered upon allogations for that purpose, as prescribed in article first of title third of chapter eighteenth of this act, where the plaintiff was duly cited in the special proceeding in the surrogate's court, before the commencement of the action.
Laws of 1853, ch. 238, 21(4 Edm. 503). Knox v. Jones, 47 N. Y. 389; Marvin v. Marvin, 11 Abb. (N. S.) 102,
$ 1867. Retrospective effect of this article. The provisions of this article apply as well to wills made before, as to those made after, this article takes effect.
2R S. 58, 88 566 and 68b and part of 67a (2 Edm. 69).
GENERAL AND MISCELLANEOUS PROVISIONS
Sec. 1868. Action by child born after will, or by witness to will.
1869. Receiver, as successor of surviving executor, etc.
$ 1868. Action by child born after will, or by wit ness to will.- A child, born after the making of a will, who is entitled to succeed to a part of the real or personal property of the testator, or a subscribing witness to a will, who is entitled to succeed to a share of such property, may maintain an action against the legatees or devisees, as the case requires, to recover his share of the property ; and he is subject to the same liabilities, and has the same rights, and is entitled to the same remedies, to compel a distribution or partition of the property, or a contribution from other persons interested in the estate, or to gain possession of the property, as any other person who is so entitled to succeed. 2 R. S. 456, 02 62-66 (2 Edm, 476). Mitchell v. Blain, 5 Paige, 588.
$ 1869. [Amended, 1895.] Receiver, as cessor of surviving executor, etc.~ Where the estate of a decedent has been brought under the jurisdiction of the supreme court, by an action for partition or distribution, or for the construction or establishment of a will, the court may, upon the death of the sole surviving executor, appoint a receiver of the estate, pending the action, upon such terms and conditions,
and upon such notice to the parties interested, as the court directs, and upon such security, if any, as to the court seems proper. For the purpose of carrying into effect the judgment and orders of the court in relation to the estate, a receiver so appointed is the successor in interest of the surviving executor; and has, subject to the direction of the court, the like power, as an administrator with the will annexed. In effect Jan. 1, 1896 ; L. 1895, ch, 946.
$ 1870. Next of kin defined–The term, "next of kin,” as used in this titie, includes all those entitled, under the provisions of law relating to the distribution of personal property, to share in the unbequeathed assets of a decedent, after payment of debts and ex. penses, other than a surviving husband or wife. New. See 24 1905 and 2514, subd. 12, post.
Other special actions and rights of action.
ARMOLE1. Judgment creditor's action.
2. Action by a private person upon an official bond.
JUDGMENT CREDITOR'S ACTION.
Sec. 1871. When judgment creditor may bring action.
1872. To what county execution must have issued.
$ 1871. When judgment creditor may bring action.When an execution against the property of a judgment debtor, issued out of a court of record, as prescribed in