Page images
PDF
EPUB

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. 2 R. S. 72, 82 20 and 21 (2 Edm. 74). Schofield v. Church, 72 N. Y. 515.

$ 2688. Decree not to affect testamentary trusts.Where an executor or an administrator is also a testa. mentary trustee, a decree revoking his letters does not affect his er or authority as testamentary trustee, except in the case specially prescribed for that purpose, in title sixth of this chapter.

New. Settles conflict between Matter of Crossman, 20 IIow. 350, and Matter of Bull, 45 Barb. 334 ; 31 How. 69.

8 2689. Application by executor, etc., for revocation of letters. — An 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 inay thereupon be made, revoking his letters, and discharging him accord. ingly; and that the same persons inay 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 prescribed 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 pray. ing for a judicial settlement of the account of an executor or administrator. The surrogate may, in his discretion, entertain or decline to entertain the applican tion,

L. 1870, ch. 359, 83. Flinn v. Chase, 4 Denio, 85.

$ 2690. 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 for a judicial settlement of the petitioner's account; except that, upon the bearing, the surrogate must first determine, whether sufficient reasons exist for granting the prayer of the petition. If he determines that they exist, he must make an order accordingly, and allowing the petitioner to account, for the purpose of being discharged. Upon his fully accounting, and paying over all money which is found to be due from him to the estate, and delivera ing 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 discharg. ing him accordingly. Id, part of 83. Matter of Bernstein, 3 Redf. 20.

$ 2691. In what cases letters may be revoked with out a citation. - In either of the following cases, the surrogate must make a decree, revoking letters testan mentary 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 cara be made.

2. Where a citation, issued to such a person, in a case prescribed by law, cannot be personally served upon : him, by reason of his having absconded or concealed himself.

3. Where, by reason of his default in returning an inventory, such a person has remained, for thirty days, committed to jail, under the surrogate's order, granted in proceedings taken as prescribed in section 2715 of this act.

4. In the case of a temporary administrator, where are 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 attachment, issued thereupon, has been returned not served upon him. L. 1846, ch. 288, part of 21 (4 Edm. 503); 2 R. S. 85, 19 (2 Edm. 87).

$ 2692. Remaining executors may act, where leto ters of one revoked. Where one of two or more executors or administrators dies, or becomes a lunatic, or is convicted of an infamous offence, or becomes otherwise incapable of discharging the trust reposed in him; or i where letters are revoked with respect to one of them,

a successor to the person, whose letters are revoked, shall not be appointed, except where such an appointment is necessary, in order to comply with the express terms of a will, but the others may proceed and complete the administration of the estate, pursuant to the letters, and may continue any action or special proceeding, brought by or against all. 2 R. S. 78, 8 44 (2 Edm. 79); L. 1837, ch, 460, 33 (4 Edm. 493).

$ 2693. In other cases, successor to be appointed.When all the executors 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 successors, in like manner as if the former letters had not been issued; and the proceedings to procure the grant of such letters, are the same, and the same security shall be required, as in a case of intestacy, except that the surrogate may, in his discretion in case where the estate has been partially administered upon by the former representative or representatives, fix as the penalty of the bond to be given by such successor or successors, a sum not less than twice the value of the assets of the estate remaining unadministered.

Id., 845. Schultz v. Dambman, 3 Bradf. 379; Casoni v. Jerome, 58 N. Y. 315.

ARTICLE SEVENTH.

FOREIGN WILLS; ANCILLARY LETTERS.
BEC. 2694. Testamentary dispositions; what law governs.

2695. Ancillary letters upon foreign probate.
2696. Id.; upon foreign grant of administration.
2697. To whom anci.lary letters granted.
2698. Petition ; citation.
2699. Hearing; security.
2700. Persons acting under ancillary letters must transmit assets.
2701. Id.; when they may be directed to pay, etc., withou, trans

mission.
2702. Id,; general powers and duties.
2703. Recording wills proved in other states, etc.

2704, 2705. Papers recorded, etc. ; how authenticated $ 2694. Testamentary dispositions; what law gov erns.— The validity and effect of a testamentary dispa

sition 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 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,

New. Bascom v. Albertson, 34 N. Y. 584 ; 8. c., 1 Redf. 340; Chanı. berlain v. Chamberlain, 43 N. Y. 424 ; White v. Howard, 49 id. 144; S. C., 52 Barb. 294; Churchill v. Prescott, 3 Bradf. 233; Suarez v. Mayor, 2 Sandf. Ch. 173; Lawrence Elmendorf, 5 Barb. 73; Sherwood v. Judd, 3 Bradf. 419.

$ 2695. (Amended, 1888.] Ancillary letters upon foreign probate.- 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 adınitted to probate, within the foreign country, or within the state, or the territory of the United States, where it was executed, or where the testator resided at the time of his death; the surrogate's court, having jurisdiction of the estate, must, upon an application made as prescribed in this article, accompanied by 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 foreign letters, and issue there. upon ancillary letters testainentary, or ancillary letters of administration with the will annexed, as the case requires.

2 R. S. 67, 268a. (2 Edm. 68); L. 1840, ch. 384. & 2 (4 Edm. 501). See Moultrie v. Hunt, 23 N. Y. 394 ; Ishani v. Gibbons, 1 Brad. 69; Ex parte McCormick, 2 id. 169; Crum v. Bliss, 1 Law Bulletin, 68; Sullivan v. Fosilick, 10 Ilun, 173; Beers v. Shannon, 73 N. Y. 292; Hart v. Russell, 9 Week. Dig. 55; Levy's Estate, 1 Tuck. 20; Despard v. Churchill, 53 N. Y. 192; De Diemar v. Van Wagenen, 7 Johns. 404; Ordronoux v. IIelie, 3 Sandf. Ch. 512; Cummings v. Ban!:s, 2 Barb. 603; Parsons v. Lyman, 20 NY. 103; 28 Barb. 564; Suarez v. New York, 2 Sandf, Ch. 173; Trimble v. Dzieduzyiki, 57 Ilow. Pr. 205.

$ 2696. (Amended, 1888.] Id. ; upon foreign grant of administration. — Upon application by the party entitied, 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 this state, but within the United States, granted within the stato or territory where the decedent so resided; or in cases where the decedent, at the time of his death, resided without the United States, upon the presentation to such surrogate's court of satisfactory proof that the party so applying either personally or by such attorney in fact, is entitled to the possession in the foreign country of the personal estate of such decedent, the surrogate's court to which such a copy of such foreign letters so authenticated, or such proof is so presented, must issue ancillary letters of administration, in accordance therewith ; except in the following cases:

1. Where ancillary letters have been previously issued, as prescribed in the last section.

2. Where 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 the State, having jurisdiction to grant the same; and letters have been granted accordingly or the application has not been finally disposed of. 2 R. S. 75, 831 (2 Edm. 77). Matter of Jones, 2 Redf, 257.

$ 2697. [Amended, 1881.] 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,orancillary letters of administration, issued as prescribed in this article, must be directed to the per. son 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 othere wise entitled as aforesaid ; 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 vained in the foreigo letters, or in an instrument executed as prescribed in this section, the ancillary letters may be directed to

« PreviousContinue »