§ 2731. [Am'd, 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 dećedent. 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.

L. 1895, ch. 595.

§ 2732. [Am'd, 1893, 1897, 1898, 1901, 1903, 1905.] Order of distribution.

If the deceased died intestate, the surplus of his personal property after payment 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, parents, 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. [Am'd, 1903.] 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; and if all the brothers and sisters of the intestate be living, the whole surplus shall be distributed to

them; if any of them be living and any be dead, to the brothers and sisters living, and the descendants in whatever degree of those dead; so that to each living brother or sister shall be distributed such share as would have been distributed to him or her if all the brothers and sisters of the intestate who shall have died leaving issue had been living, and so that there shall be distributed to such descendants in whatever degree, collectively, the share which their parent would have received if living; and the same rule shall prevail as to all direct lineal descendants of every brother and sister of the intestate whenever such descendants are of unequal degrees.

L. 1903, ch. 367. In effect Sept. 1, 1903.

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 or descendant, father, brother, sister, or representative of a brother or sister, the mother, if there be a widow, shall take one-half; 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 apportioned 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 parent whom they represent, if living, would have been entitled. 12. [Am'd, 1898, 1905.] No representation shall be admitted among collaterals after brothers and sisters descendants.

This act shall not apply to an estate of a decedent who shall have died prior to the time this act shall take effect.

L. 1898, ch. 319; L. 1905, ch. 539. In effect May 18, 1905.

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 life-time of the deceased, and had survived him.

15. [Added, 1897.] If a woman die, leaving illegitimate chil

dren, and no lawful issue, such children inherit her personal property as if legitimate.

L. 1893. ch. 696, subd. 15; L. 1897, ch. 37. In effect March 9, 1897.

16. [Added, 1901.] If there be no husband or wife surviving and no children, and no representatives of a child, and no next of kin, then the whole surplus shall be distributed equally to and among the next of kin of the husband or wife of the deceased, as the case may be, and such next of kin shall be deemed next of kin of the deceased for all the purposes specified in this chapter; but such surplus shall not, and shall not be construed to, embrace any personal property except such as was received by the deceased from such husband or wife, as the case may be, by will or by virtue of the laws relating to the distribution of the personal property of the deceased person.

L. 1893, ch. 686; subd. 15 added by L. 1897, ch. 37; subd. 16 added by L. 901, ch. 416. In effect Sept. 1, 1901.

§ 2733. [Am'd, 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 section, 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 distribution of such surplus. If such advanceiment 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 surplus and advancement, to be equal, as near as can be 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 foregoing 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 judgment 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. L. 1893, ch. 686.

§ 2734. [Am'd, 1893.] Estates of married women.

The provisions of this article respecting the distribution of property of deceased persons apply to the personal property of married women dying, leaving descendants them surviving. The husband of any such deceased married woman shall be entitled to the same distributive share in the personal property of his wife to which a widow is entitled in the personal property of her husband by the provisions of this article and no more.

L. 1893, ch. 686.

$ 2735-2741. [Repealed, L. 1893, ch. 686.]

§ 2742. Effect of judicial settlement of account.

A judicial settlement of the account of an executor or admin

istrator, either by the decree of the surrogate's court, or upon an appeal therefrom, is conclusive evidence, against all the parties who were duly cited or appeared, and all persons deriving title from any of them at any time, of the following facts and no others:

1. That the items allowed to the accounting party, for money paid to creditors, legatees, and next of kin, for necessary expenses, and for his services, are correct.

2. That the accounting party has been charged with all the interest for money received by him, and embraced in the account, for which he was legally accountable.

3. That the money charged to the accounting party, as collected, is all that was collectible, at the time of the settlement, on the debts stated in the account.

4. That the allowances made to the accounting party, for the decrease, and the charges against him for the increase, in the value of property, were correctly made.

§ 2743. [Am'd, 1895, 1898, 1906.] distribution.

Decree for payment and

Where an account is judicially settled, as prescribed in this article, and any part of the estate remains and is ready to be distributed to the creditors, legatees, next of kin, husband, or wife of the decedent, or their assigns, the decree must direct the payment and distribution thereof to the persons so entitled, according to their respective rights. In case of whole or partial intestacy the decree must direct immediate payment and distribu tion to creditors, next of kin, husband or wife of the decedent, or their assigns, where the executor or administrator has petitioned voluntarily for judicial settlement of his account as, and in the case provided in subdivision two of section twenty-seven hundred and twenty-eight of this article; but such decree shall not direct the payment of any legacy prior to the expiration of one year after the granting of letters upon such estate, unless the will otherwise directs. If any person, who is a necessary party for that purpose; has not been cited or has not appeared, a supplemental citation must be issued, as prescribed in section twenty-seven hundred and twenty-seven of this act. Where the validity of the debt, claim or distributive share is admitted or has been established upon the accounting or other proceeding in the surrogate's court or other court of competent jurisdiction, the decree must determine to whom it is payable, the sum to be paid by reason thereof and all other questions concerning the same. With respect to the matters enumerated in this section the decree is conclusive as a judgment upon each party to the special proceeding who was duly cited or appeared, and upon every person deriving title from such party.

L. 1895, ch. 595: L. 1898, ch. 565; L. 1906, ch. 515. In effect Sept. 1, 1906.

§ 2744. Id.; when specific property may be delivered.

In either of the following cases, the decree may direct the delivery of an unsold chattel, or the assignment of an uncollected demand, or any other personal property, to a party or parties. entitled to payment or distribution, in lieu of the money value of the property:

1. Where all the parties interested, who have appeared, manifest their consent thereto by a writing filed in the surrogate's office.

2. Where it appears that a sale thereof, for the purpose of payment or distribution, would cause a loss to the parties entitled

thereto.

The value must be ascertained, if the consent does not fix it, by an appraisement under oath, made by one or more persons appointed by the surrogate for the purpose.

2 R. S. 95, § 72 (2 Edm. 99), am'd; L. 1870, ch. 30.

§ 2745. Id.; when money may be retained.

Where an admitted debt of the decedent is not yet due, and the creditor will not accept present payment, with a rebate of interest; or where an action is pending between the executor or administrator and a person claiming to be a creditor of the decedent; the decree must direct that a sum, sufficient to satisfy the claim, or the proportion to which it is entitled, together with the probable amount of the interest and costs, be retained in the hands of the accounting party; or be deposited in a safe bank, or trust company, subject to the surrogate's order; or be paid into the surrogate's court, for the purpose of being applied to the payment of the claim, when it is due, recovered or settled; and that so much thereof, as is not needed, for that purpose, be afterwards distributed according to law.

2 R. S. 96, § 74 (2 Edm. 99).

§ 2746. [Am'd, 1886, 1900.] Id.; share of infant.

When a legacy or distributive share is payable to an infant, the decree may, in the discretion of the surrogate's court, direct it, or so much of it as may be necessary, to be paid to his general guardian, to be applied to his support and education; or when it does not exceed fifty dollars, the decree may order it to be paid to his father, and if his father be dead, then to his mother, for the use and benefit of such infant. Said court may, in its discretion, by its decree, direct any legacy or distributive share, or part of a legacy or distributive share, not paid or applied as aforesaid, which is payable to an infant, to be paid to the general guardian of such infant, upon his executing and depositing with the surrogate in his office, a bond running to such infant, with two or more sufficient sureties, duly acknowledged and approved by the surrogate, in double the amount of such legacy or distributive share, conditioned that such general guardian shall faithfully apply such legacy or distributive share, and render a true and just account of the application thereof, in all respects, to any court having cognizance thereof, when thereunto required, the sureties in which bond shall justify as required in this act, unless the surrogate shall determine that the general bond given by the guardian is ample and of sufficient amount to cover such legacy or distributive share. The said court may, in its discretion, from time to time, authorize or direct such general guardian to expend such part of such legacy or distributive share, in the support, maintenance and education of such infant as it deems necessary. On such infant's coming twenty-one years of age, he shall be entitled to receive, and his general guardian shall pay or deliver to him, under the direction of the surrogate's court, the securities so taken, and the interest or other moneys that may have been paid to or received by such general guardian, after deducting therefrom such amounts as have been paid or expended in pursuance of the orders and decrees of said court, sq made as aforesaid and the legal commissions of such guardian;