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§ 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 hearing, 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 deliver. 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 3. Matter of Bernstein, 3 Redf. 20.
§ 2691. In what cases letters may be revoked without a citation.- In either of the following cases, the surrogate must make a decree, revoking letters testa 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 ap. pear 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 can 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 a 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 letters 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 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, 244 (2 Edm. 79); L. 1837, ch. 460, 2 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., 45. Schultz v. Dambman, 3 Bradf. 379; Casoni v. Jerome, 58 N. Y. 315.
FOREIGN WILLS; ANCILLARY LETTERS.
SEC. 2694. Testamentary dispositions; what law governs.
2695. Ancillary letters upon foreign probate.
2696. Id.; upon foreign grant of administration.
2697. To whom ancillary 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
2702. Id.; general powers and duties.
2703. Recording wills proved in other states, etc.
§ 2694. Testamentary dispositions; what law gove erns. The validity and effect of a testamentary dispo
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; s. c., 1 Redf. 340; Cham berlain v. Chamberlain, 43 N. Y. 424; White v. Howard, 46 id. 144; S. C., 52 Barb. 294; Churchill v. Prescott, 3 Bradf. 233; Suarez v. Mayor, 2 Sandf. Ch. 173; Lawrence v. 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 admitted 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 thereupon ancillary letters testainentary, or ancillary letters of administration with the will annexed, as the case requires.
2 R. S. 67, 68a. (2 Edm. 68); L. 1840, ch. 384. 2 (4 Edm. 501). See Moultrie v. Hunt, 23 N. Y. 394; Isham v. Gibbons, 1 Brad. 69; Ex parte McCormick, 2 id. 169; Crum v. Bliss, 1 Law Bulletin, 68; Sullivan v. Fosdick, 10 Hun, 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. Ielie, 3 Sandf. Ch. 512; Cummings v. Banks, 2 Barb. 602; Parsons v. Lyman, 20 NY. 103; 28 Barb. 564; Suarez v. New York, 2 Sandf. Ch. 173; Trimble v. Dzieduzyiki, 57 How. Pr. 208.
§ 2696. [Amended, 1888.] Id.; upon foreign grant of administration. Upon application by the party entitled, 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 state 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 sc 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, 31 (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, or ancillary letters of administration, issued as prescribed in this article, must be directed to the person 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 otherwise 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 named in the foreign letters, or in an instrument executed as prescribed in this section, the ancillary letters may be directed to
either or any of them, without naming the others, if the others fail to qualify, or if, for good cause snown, to the surrogate's satisfaction, the decree so directs.
L. 1863, ch. 403, § 1 (6 Edm. 144). Despard v. Churchill, 53 N. Y. 192.
§ 2698. 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. 1863, ch. 403, ?? 2 and 3 (6 Edm. 144). Matter of Hanover, 3 Redf. 91.
2699. Hearing; security.-Upon the return of the citation, 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. Before 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 administrator upon the estate of an intestate; except that the penalty of the bond may, 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 residents of the State, as will, in the surrogate's opinion, effectually secure the payment of those debts; or the sums 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 1.
§ 2700. Persons acting under ancillary letters must transmit assets. The person to whom ancillary letters are issued, as prescribed in this article, must, unless