« PreviousContinue »
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 satisfaction, the decree so directs.
L. 1863, ch. 403, & 1 (6 Edm. 144). Despard v. Churchill, 53 N. Y. 192. § 26 78. Petition; citation.- An application for an cillary letters testamentary, or ancillary letters of ad. ministration, 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 creditors, 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 proceeding. L. 1363, ch. 403, 88 2 and 3 (6 Edm. 144). Matter of Hanover, 3 Redf. 91.
$ 2699. Hearing ; security.–Upon the return of the citatiou, 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. Be. fore ancillary letters are issued, the person, to whom they are awarded must qualify, as prescribed in article fourth of this title, for the qualification of an adminis. trator upon the estate of an intestate; except that the penalty of the bond inay, in the discretion of the surrogate, be in such a sum, not exceeding twice the amount which appears to be due from the decedent to resideuts of the State, as will, in the surrogate's opinion, effectually secure the payment of those debts; or the ouins which the resident creditors will be entitled to receive, from the persons to whom the letters are issued, upon an accounting and distribution, either within the State, or within the jurisdiction where the principal letters were issued. Id., part of 81.
$ 2700. Persons acting under ancillary letters must transmit assets. -The person to whom ancillary letters are issued, as prescribed in this article, must, unless
otherwise directed in the decree awarding 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 action to which that person is a party ; transmit the money and other personal property of the decedent, received by him, after the letters 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.
New. Despard v. Churchill, 53 N. Y. 192; Cummings v. Banks, 2 Barb. 602 ; Trimble v. Dzieduzyiki, 57 How. 208; Parsons v. Lyman, 20 N. Y. 103; 18 low. 193; Cooley's Estate, 14 Abb. 461; 1 Redf. 405; Sherwood v. Wooster, 11 Paige, 441; Ordronoux v. Helie, 3 Sandf. Ch. 512; Kohler v. Knapp, 1 Bradf. 241.
$ 2701. Id. ; when they may be directed to pay, etc., without transmission. - The surrogate's court, or any court of the State, which has jurisdiction of an action to procure an accounting, or a judgment constru. ing 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 charge able 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 personal property, applicable thereto, to pay such a sum to each creditor, 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 dis. pose of the same, as justice requires,
New. Stone v. Scripture, 4 Lans. 186; Lawrence v. Elmendorf, A Barb. 73; Parsons v. Lyman, 20 N. Y. 103; Despard v. Churchill, 53 id. 192; Suarez v. Mayor, etc., of New York, 2 Sandf. Ch. 173.
$ 2702. Id.; general powers and duties. --- The pro visions 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 ir titlo fifth thereof; or where special provision is other.
wise made in this article; or where a contrary intent is expressed in, or plainly to be inferred from, the context.
$ 2703. (Amended, 1888.] Recording will proved in other States, etc. - Where real property, situated within this State, or an interest therein, is devised or made subject to a power of disposition, by a will, duly executed in conformity with the laws of this State, of a person who was, at the time of his death, a resident elsewhere within the United States, and such will has been admitted to probate within the state or territory where the decedent so resided, and is filed or recorded in the proper office as prescribed by the laws of that state or territory, a copy of such will or of the record thereof and of the proofs or of the record thereof, or, if the proofs are not on file or recorded in such office, of any statement, on file or recorded in such oflice, of the substance of the proofs, authenticated as prescribed in this article, or if no proofs and no statement of the substance of the proofs be on file or recorded in such office, a copy of such will, or of the record thereof, authenticated as prescribed in this article, accompanied by a certificate that no proofs or statement of the substance of proofs of such will, are or is on file, or recorded in such office, made and likewise authenticated as prescribed in this article, may be recorded in the office of the surrogate of any county of this State where such real property is situated; and such record in the office of such surrogate, or an exemplified copy thereof, shall be presumptive evidence of such will, and of the execution thereof, in any action or special proceeding relating to such real property.
L 1864, ch. 3!1 (6 Edm. 651), amended; L. 1872, ch. 680 (9 Edm. 420), amended; L. 1878, ch. 324.
$ 2704. (Amended, 1888.) Papers recorded, etc.; how authenticated.-- To entitle a copy of a will admitted to probate or of letters testamentary or of leto ters of administration, granted in any other state or in any territory of the United States, and of the proofs or of any statement of the substance of the proofs of any such will, or of the record of any such will, letters, proofs or statement, to be recorded or used in this State as provided in this article, such copy must be authenti.
čated by the seal of the court or officer by which or whom such will was admitted to probate or such letters were granted, or having the custody of the game or of the record thereof, and the signature of a judge of such court, or the signature of such officer and of the clerk of such court or officer, if any; and must be further authenticated by a certificate under the great or principal seal of such state or terris tory, and the signature of the officer who has the custody of such seal, to the effect that the court or officer by which or whom such will was admitted to probate or such letters were granted, was duly authorized by the laws of such state or territory to admit such will to probate, or to grant such letters; that the will, or ietters, or records, the accompanying copy of which is so authenticated, is or are kept pursuant to those laws, by such court or by the officer who authenticated such copy; that the seal of such court or officer affixed to such copy is genuine, and that the officer making such certificate under such seal of such state or territory verily believes that each of the signatures attesting such copy is genuine : and to entitle any certificate concerning proofs accompanying the copy of the will or of the record so authenticated, to be recorded or used in this State, as provided in this article, such certificate must be under the seal of the court or officer by which or whom such will was admitted to probate, or having the custody of such will or record, and the signature of a jidge or the clerk of such court, or the signature of such officer, authenticated by a certificate under such great or principal seal of state or territory, an the signature of the officer having the custody thereof, to the effect that the Sal of the court or officer affixed to such certificate concerning j.roofs is genuine, and that such officer making such certificate under such seal of such state or territory, verily believes that tie signature to such certificate concerning proofs is genuine.
$ 2705. [Repealed by L. 1888, ch. 495.)
TITLE IV. Proceedings by or against an executor or administrator,
touching the administration and settlement of the estate. ARTICLE 1. Aid, supervision, and control of an executor or administrator,
2. Accounting; and settlement of the estate. 1
ARTICLE FIRST. AID, SUPERVISION, AND CONTROL OF AN EXECUTOR OR
ADMINISTRATOR. SEC: 2706. Liability of persons unauthorized to act as executors
or administrators. 2707. Proceedings to discover property withheld. 2748. Order; service of citation and order; officers who may
act in surrogate's absence. 2709. Examination and decree.
SEC. 2710. Security to prevent decree; warrant to seizo property.
2711, Appointment of appraisers and appraisal.
& 2706. LAmended, 1893.] Liability of persons unauthorized to act as executors or administrators:---Every person becoming possessed of property of a testator or intestate, without being thereto duly authorized as executor or administrator, or without authority from the executor or administrator, is liable to account for the full value of such property to every person entitled thereto, and shall not be allowed to retain or deduct therefrom any debt due to him.
In effect, as amended, diay 31, 1893; Laws 1893, ch. 686.
E 2707. (Amended, 1893.) Proceedings to discover property withheld, etc.-- An executor or administrator may present to the surrogate's court, from which letters were issued to him, a written petition, duly veritied, setting forth, on knowledge or information and belief, any facts, tending to show that money or other personal property, which should be delivered to the petitioner, or which ought to be included in an inventory or appraisal, is in the possessioli, under the control, or within the knowledge or information, of a person, who withholds the same from him; or who refuses to impart knowledge or information he may have concerning the same, or to disclose any other fact which will aid such executor or administrator in making discovery of such property, so that it cannot be inventoried or appraised; and praying an inquiry respecting it, and that the person com plained of may be cited to attend the inquiry, and to be examined accordingly. The petition may be accom panied with an affidavit or other evidence, written or