voucher for every payment, except in one of the following cases:

1. He may be allowed, without a voucher, any proper item of expenditure, not exceeding twenty dollars, if it is supported by his own uncontradicted oath, stating positively the fact of payment, and specifying when and to whom the payment was made; but all the items so allowed against an estate, on all the accountings of all the executors or administrators, shall not exceed five hundred dollars.

2. If he proves, by his own oath or another's testimony, that he did not take a voucher when he made the payment; or that the voucher then taken by him has been lost or destroyed; he may be allowed any item, the payment of which he satisfactorily proves by the testimony of the person to whom he made it; or, if that person is dead, or cannot, after diligent search, be found, by any competent evidence, other than his own oath, or that of his wife. But an allowance cannot be made, as specified in this section, unless the surrogate is satisfied that the charge is correct and just. The surrogate may, at any time, make an order requiring the accounting party to make and file his account; or to attend and be examined under oath, touching his receipts and disbursements; or touching any other matter relating to his administration of the estate, or any act done by him under color of his letters, or after the decedent's death, and before the letters were issued; or touching any personal property, owned or held by the decedent, at the time of his death. No profit shall be made by an executor or administrator by the increase, nor shall he sustain any loss by the decrease, without his fault, of any part of the estate; but he shall account for such increase, and be allowed for such decrease on the settlement of his accounts. On the judicial settlement of the account of an executor or administrator, the surrogate may allow the accounting party, for property of the decedent, perished or lost without the fault of the accounting party.

In effect May 31, 1893. Laws 1893, ch. 686.

§ 2730. [Amended, 1895.] Commissions of executor or administrator.- On the settlement of the account of an executor or administrator, the surrogate must allow to him for his services, and if there be more than one, apportion among them according to the

services rendered by them respectively, over and above his or their expenses:

For receiving and paying out all sums of money not exceeding one thousand dollars, at the rate of five per

centum.

For receiving and paying out any additional sums not amounting to more than ten thousand dollars, at the rate of two and one-half per centum.

For all sums above eleven thousand dollars, at the rate of one per centum.

In all cases such allowance must be made for their necessary expenses actually paid by them as appears just and reasonable. If the value of the personal property of the decedent amounts to one hundred thousand dollars, or more, over all his debts, each executor or administrator is entitled to the full compensation on principal and income allowed herein to a sole executor or administrator, unless there are more than three, in which case the compensation, to which three would be entitled, must be apportioned among them according to the services rendered by them, respectively, and a like apportionment shall be made in all cases where there shall be more than one executor or administrator.

Where the will provides a specific compensation to an executor or administrator, he is not entitled to any allowance for his services, unless, by a written instrument filed with the surrogate, he renounces the specific compensation.

Where successive or different letters are issued to the same person on the estate of the same decedent, including a case where letters testamentary or letters of general administration, are issued to a person who has been previously appointed a temporary administrator, he is entitled to compensation in one capacity only, at his election, except that where he has received compensation in one capacity, he is entitled to the excess, if any, of the compensation allowed by law, above the sum which he has already received in the other capacity. In effect Sept. 1, 1895; L. 1895, ch. 595.

§ 2731. [Amended, 1895.] Determination of claim by surrogate; suspension of statute of limitations in certain cases.-On the judicial settlement of the account of an executor or administrator, he may prove any debt owing to him by the decedent. Where a contest arises between the accounting party

and any of the other parties, respecting property alleged to belong to the estate, but to which the accounting party lays claim either individually or as the representative of the estate, or respecting a debt, alleged to be due by the accounting party to the decedent, or by the decedent to the accounting party, the contest must, except where the claim is made in a representative capacity, in which case it may, be tried and determined in the same manner as any other issue arising in the surrogate's court.

From the death of the decedent, until the first judicial settlement of the accounts of the executor or administrator, the running of the statute of limitations, against a debt due from the decedent to the accounting party, or any other cause of action in favor of the latter against the decedent, is suspended, unless the accounting party was appointed on the revocation of former letters issued to another person, in which case, the running of the statute is so suspended, from the grant of letters to him, until the first judicial settlement of his account. After the first judicial settlement of the account of an executor or administrator, the statute of limitations begins again to run against a debt due to him from the decedent, or any other cause of action in his favor against the decedent.

In effect, as amended, Sept. 1, 1895; L. 1895, ch. 595.]

§ 2732. [Amended, 1893.1 Order of distribution. If the deceased died intestate, the surplus of his personal property after payments of debts; and if he left a will, such surplus, after the payment of debts and legacies, if not bequeathed must be distributed to his widow, children, or next of kin, in manner following:

1. One-third part to the widow, and the residue in equal portions among the children, and such persons as legally represent the children if any of them have died before the deceased.

2. If there be no children, nor any legal representatives of them, then one-half of the whole surplus shall be allotted to the widow, and the other half distributed to the next of kin of the deceased, entitled under the provisions of this section.

3. If the deceased leaves a widow, and no descendant, parent, brother or sister, nephew or niece, the widow shall be entitled to the whole surplus; but if there be a brother or sister. nephew or niece, and no descendant or parent, the widow shall be entitled to one-half of the surplus as above provided, and to the whole of the residue if it does not exceed two thousand dollars: if the

residue exceeds that sum, she shall receive in addition to the one half, two thousand dollars; and the remainder shall be distributed to the brothers and sisters and their representatives.

4. If there be no widow, the whole surplus shall be distributed equally to and among the children, and such as legally represent them.

5. If there be no widow and no children, and no representatives of a child, the whole surplus shall be distributed to the next of kin, in equal degree to the deceased, and their legal representatives.

6. If the deceased leave no children, and no representative of them, and no father, and leave a widow and a mother, the half not distributed to the widow shall be distributed in equal shares to his mother and brothers and sisters, or the representatives of such brothers and sisters; and if there be no widow, the whole surplus shall be distributed in like manner to the mother, and to the brothers and sisters, or the representatives of such brothers and sisters.

7. If the deceased leave a father and no child or descendant, the father shall take one-half if there be a widow, and the whole, if there be no widow.

8. If the deceased leave a mother, and no child descendant, father, brother, sister, or representative of a brother or sister, the mother, if there be a widow, shall take onehalf; and the whole, if there be no widow.

9. If the deceased was illegitimate and leave a mother, and no child, or descendant, or widow, such mother shall take the whole and shall be entitled to letters of administration in exclusion of all other persons. If the mother of such deceased be dead, the relatives of the deceased on the part of the mother shall take in the same manner as if the deceased had been legitimate, and be entitled to letters of administration in the same order.

10. Where the descendants, or next of kin of the deceased, entitled to share in his estate, are all in equal degree to the deceased, their shares shall be equal.

11. When such descendants or next of kin are of unequal degrees of kindred, the surplus shall be appor tioned among those entitled thereto, according to their respective stocks; so that those who take in their own right shall receive equal shares, and those who take by representation shall receive the share to which the par ent whom they represent, if living, would have been entitled.

12. No representation shall be admitted among collaterals, after brothers' and sisters' children.

13. Relatives of the half-blood shall take equally with those of the whole blood in the same degree; and the representatives of such relatives shall take in the same manner as the representatives of the whole blood.

14. Descendants and next of kin of the deceased, begotten before his death, but born thereafter, shall take in the same manner as if they had been born in the lifetime of the deceased, and had survived him.

Added Laws 1893, ch. 686; in effect May 31, 1893.

§ 2733.

[Amended, 1893.] Advancements. -If any child of such deceased person have been advanced by the deceased, by settlement or portion of real or personal property, the value thereof shall be reckoned with that part of the surplus of the personal property, which remains to be distributed among the children; and if such advancement be equal or superior to the amount, which, according to the preceding sec tion, would be distributed to such child, as his share of such surplus and advancement, such child and his descendants shall be excluded from any share in the dis tribution of such surplus. If such advancement be not equal to such amount, such child, or his descendants, shall be entitled to receive so much only, as is sufficient to make all the shares of all the children, in such su plus and advancement, to be equal, as near as can le estimated. The maintaining or educating, or the giving of money to a child, without a view to a portion or settlement in life, shall not be deemed an advancement, within the meaning of this section, nor shall the forego. ing provisions of this section apply in any case where there is any real property of the intestate to descend to his heirs. Where there is a surplus of personal property to be distributed, and the advancement consisted of personal property, or where a deficiency in the adjustment of an advancement of real property is chargeable on personal property, the decree for distribution, in the surrogate's court, must adjust all the advancements which have not been previously adjusted by the judg ment of a court of competent jurisdiction. For that purpose, if any person to be affected by the decree, is not a party to the proceeding, the surrogate must cause him to be brought in by a supplemental citation.

Added, Laws 1893, ch. 686. In effect May 31, 1893.