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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 person, 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 testator 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, 63a and parts of 22 64a, 67a, 68a and the whole of 22 68b and 69a (2 Edm. 68, 69). In re Dies, 50 N. Y. 88; Matter of Roberts, 8 Paige, 446; see Alexander's Estate, 1 Tuck. 114; Van Rensselaer v. Morris, I Paige, 13; Isham v. Gibbons, 1 Brad. 69; see Moultrie v. Iunt, 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.
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 testamentary, 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 67a.
i § 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 section; and the surrogate must record the same, and issue letters thereupon, as directed in the judgment.
§ 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 testator'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; s. c., 41 N. Y. 619; see Voorhees v. Voorhees, 39 N. Y. 463; Everitt v. Everitt, 41 Barb. 385; affi'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 disposi tion of real property situated within the State, or of an interest in such property, which would descend to the I 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 impeach, ing 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 alle gations 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, 1 (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. 68, 22 56b and 68b and part of 67a (2 Edm. 69).
GENERAL AND MISCELLANEOUS PROVISIONS.
c. 1868. Action by child born after will, or by witness to will. 1869. Receiver, as successor of surviving executor, etc. 1870. Next of kin defined.
§ 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 per sonal 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, 62-66 (2 Edm. 476). Mitchell v. Blain, 5 Paige, 588.
§ 1869. [Amended, 1895.] Receiver, as successor 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 title, 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 22 1905 and 2514, subd. 12, post.
Other special actions and rights of action.
ARTICLE 1. 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. 1873. What property may be reached.
1874. Interest of judgment debtor in land contract may be reached. 1875. Id.; how applied.
1876. Injunction may be issued.
1877. Receiver may be appointed.
1878. How discovery may be compelled.
1879. Application of this article; what property cannot be reached.
§ 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
the next section, has been returned wholly or partly unsatisfied, the judgment creditor may maintain an action against the judgment debtor, and any other person, to compel the discovery of any thing in action, or other property belonging to the judgment debtor, and of any money, thing in action, or other property due to him, or held in trust for him; to prevent the transfer thereof, or the payment or delivery thereof, to him, or to any other person; and to procure satisfaction of the plaintiff's demand, as prescribed in the next section but one. Where the execution was issued as prescribed in section 1934 of this act, and a defendant not summoned in the original action is made a defendant in an action brought under this section, personal property, owned by him jointly with the defendants summoned or with any of them, may be applied to the satisfaction of the plaintiff's demand as prescribed in this article.
2 R. S. 173, 38 (2 Edm. 180); see, also, 2 217, 713 and 827, ante. Donovan v. Finn, Hopk. 59; Hadden v. Spader, 20 Johns. 554; Produce Bank v. Morton, 67 N. Y. 199; Shand v. Hanly, 71 id. 319; McElwain v. Willis, 9 Wend. 548; Crippen v. Hudson, 13 N. Y. 161, 165; Reubens v. Joel, id. 488; M. & T. Bank of Jersey City v. Dakin, 51 id. 519, 522; Parshall v. Titlow, 13 How. 7; Payne v. Sheldon, 63 Barb. 169; McCartney v. Bostwick, 32 N. Y. 53; Lawrence v. Bank of the Republic, 35 id. 320; Durand v. Hankerson, 39 id. 287; Lewishon v. Drew, 15 Hun, 467; Dewey v. Moyer, 72 N. Y. 70; Ballou e. Boland, 14 Hun, 355; Gillett v. Staples, 16 id. 587; O'Brien v. Browning, 11 id. 179; Genesee River Nat. Bank v. Mead, 18 id. 303; Akee v. Bigler, Ct. of App., June, 1880, 24 Alb. L. J. 514; Curtis v. Fox, 47 N. Y. 299; Sloan v. Waring, 9 N. Y. Week. Dig., decided Dec. 30, 1879.
1872. To what county execution must have issued. To entitle the judgment creditor to maintain an action as prescribed in the last section, the execution must have been issued as follows:
1. If, at the time of the commencement of the action, the judgment debtor is a resident of the State, to the sheriff of the county where he resides.
2. If he is not then a resident of the State, to the sheriff of the county where he has an office, for the regular transaction of business in person; or if he has no such office within the State, to the sheriff of the county where the judgment-roll is filed, unless the execution was issued out of a court, other than the court in which the judgment was rendered; in which case, it must have been issued to the sheriff of the county where a transcript of the judgment is filed.
New. Reed v. Wheaton, 7 Paige, 663; Leggett v. Hopkins, id. 149;