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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 How. 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 construing 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 chargeable 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 sanie, 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 title 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 office, 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. 31 (6 Edm. 654), 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 letters 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
cated 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 same 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 territory, 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 letters, 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 judge or the clerk of such court, or the signature of such officer, authenticated by a certificate under such great or principal seal of uch state or territory, and the signature of the officer having the custody thereof, to the effect that the Seal of the court or officer affixed to such certificate concerning 1. roofs is genuine, and that such officer making such certificate under such seal of such state or territory, verily believes that the signature to such certificate concerning proofs is genuine. New.
§ 2705. [Repealed by L. 1888, ch. 495.]
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.
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.
2708. Order; service of citation and order; officers who may
SEC. 2710. Security to prevent decree; warrant to seize property. 2711. Appointment of appraisers and appraisal.
2712. What shall be deemed assets.
2713. Exemption for widow and children.
2714. Contents of inventory.
2715. Return of inventory.
2719 Payment of debts.
2720. Apportionment of rents, annuities and dividends.
2722. Petition to compel payment; hearing; decree.
§ 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, May 31, 1893; Laws 1893, ch. 680.
§ 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 verified, setting forth, on knowledge or infor mation 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 possession, 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 complained 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
oral, tending to support the allegations thereof. If the surrogate is satisfied, on the papers so presented, that there are reasonable grounds for the inquiry, he must issue a citation accordingly; which may be made returnable forthwith, or at a future time fixed by the surrogate, and may be served at any time before the hearing. Where the person or any of the persons, to be cited, does not reside, or is not within the county of the surrogate, the citation, in the surrogate's discretion, may require him to appear at a specified time, at a place within the county where he resides or is served, before a judge, a justice of the peace, or a referee, designated in the citation, or before the surrogate of that county. In effect, as amended May 31, 1893; Laws 1893, ch. 686
§ 2708. [Amended, 1893.] Order; service of citation and order; officers who may act in surrogate's absence. The surrogate must annex to or indorse upon the citation, an order, requiring the party cited to attend personally, at the time and place therein specified. The citation and order must be personally served; and service thereof is ineffectual, unless it is accompanied with payment or tender of the sum, required by law to be paid or tendered to a witness, who is subpoenaed to attend a trial in the supreme court. A failure to attend, as required by a citation and order personally served, may be punished as a contempt of the court. If the surrogate is absent, the petition may be presented to the county judge, the special county judge, or the special surrogate, or to a justice of the supreme court, or, except in New York or Kings county, to the mayor or recorder of a city within the surrogate's county. The officer, to whom it is so presented, has the same power as the surrogate, with respect to all the proceedings, and must issue a citation and an order, returnable before him, as prescribed in this and the last section. He may, at any stage of the proceedings, make an order transferring them to the surrogate, who must complete them, in like manner, as if he had issued the citation.
In effect, as amended, Jan. 1, 1896; L. 1895, ch. 946.