Слике страница

2734. [Amended, 1893.1 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.

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

SS 2735-2741. Repealed, Laws 1893, ch. 686.

§ 2742. Effect of judicial settlement of account.— A judicial settlement of the account of an executor or administrator, 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.

Id., 65, amended. McNulty v. Hurd, 72 N. Y. 518; Tucker v. Tucker, 4 Keyes, 136; Bevan v. Cooper, 72 N. Y. 317; Shakespeare v. Markham, id, 400 Magee v. Veeder, 6 Barb. 52; Disosway v. Bank of Washington, 24 id. 60; Andrews v. Wallace, 29 id. 350: Cooper v. Felter, 6 Lans. 485 Leviness v. Cassebeer, 3 Redf. 491; Matter of Leslie, id. 280; Garvey v. McCue, id. 313; Brick's Estate, 15 Abb. Pr. 12; Brown v. Brown, 53 Barb. 217; Paff v. Kinney, 1 Brad. 1; Bank of Poughkeepsie v. Hasbrouck, 6 N. Y. 216; Fulton v. Whitney, 66 id. 548; s. c., 5 Hun, 16; Johnson v. Richards, 3 id. 451; Dana's Estate, 1 Tuck. 113; Wurts v. Jenkins, 11 Barb. 546; Thayer v. Clark, 48 id. 243; s. c., 41 N. Y. 620: Brown . Brown, 53 Barb. 217; Stiles . Burch, 5 Paige, 132: Paff v. Kinney, 5 Sandf, 380; Gill v. Brouwer, 37 N.Y. 549; 31 How. 128; Churchill v. Prescott, 3 Brad. 233; Thompson v. Brown, 4 Johns. Ch. 619; Totten's Estate, 1 Tuck. 115; Sipperly v. Baucus, 24 N. Y. 46; Iood v. Hood, 19 Hun 300.

§ 2743. [Amended, 1895.] Decree for payment and distribution.- 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. 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 2727 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

tent iurisdiction

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.

In effect Sept. 1, 1895; L. 1895, ch. 595.

Id., 871. Fowler v. Lockwood, 3 Redf. 465; Matter of Pollock, 8 id. 100; Hoskin v. Teller, id. 316; Fowler v. Lockwood, id. 465; Adair v. Brem mer, 74 N.Y. 539; Nichols v. Chapman, 9 Wend. 452; Clayton v. Wardell, 2 Bradf. 1; Johnson v. Corbett, 11 Paige, 265; Wilcox v. Smith, 26 Barb. 316; Isenhart v. Brown, 2 Edw. 341; Tradesmen Nat. Bank v. McFeely, 61 Barb. 552; Salter v. Neaville, 1 Bradf. 488; Babcock v. Lillis, 4 Brad.218: 4 Abb. 272; Payne v. Matthews, 6 Paige, 19; Johns' Estate,1 Tuck. 126; Mount v. Mitchell, 31 N. Y. 356; 19 Abb. 1; Bernes v. Weisser, 2 Brad. 212; Hovey v. Smith, 1 Barb. 372; Cooper v. Felter, 6 Lans. 485; Harris v. Meyer, 3 Redf. 450; Goodyear v. Watson, 14 Barb. 481; Barlow v. Yeomans, 50 id. 187; Brown v. Public Administrator, 2 Bradf. 103; Ainslie v. Radcliff, 7 Paige, 439; Stevenson v. Weisser, 1 Brad. 343; Johnson v. Corbett, 11 Paige, 265. Payment of legacies. Orton v. Orton, 3 Abb. Ct. App. Dec. 411; 3 Keyes, 486; Matter of Williams, 12 N. Y. Leg. Obs. 179; Ex parte McComb, 4 Brad. 151; Bath v. Ammerman, id. 129; Boughton v. Flint, 74 N. Y. 476; 5 Abb. N. C. 215; Clark v. Bogardus, 2 Edw. 387; Stagg v. Beekman, id. 89; Matter of Leslie, 3 Redf. 280; Soverhill v. Suydam, 59 N. Y. 140; Clapp v. Meserole, 1 Abb. Ct. App. Dec. 361; 1 Keyes, 281; Wilcox v. McCarthy, 3 Bradf. 284; Wilkes v. Harper, IN.R. 586; McLoskey v. Reid, 4 Bradf. 334; Dustan v. Dustan, 1 Paige, 509; Campbell v. Cowdrey, 31 How. 172; Bradner v. Faulkner, 12 N. Y. 474; Lawrence v. Embre, 3 Brad. 364; Morris v. Kent, 2 Edw. 175; Williamson v. Williamson, 6 Paige, 293; Van Brammer v. Hoffman, 2 Johns. Cas. 200; Cookev. Mecker, 42 Barb. 533; Pierce v. Chamberlain, 41 How. 501; Fish's Estate, 19 Abb. 209; Pierpont v. Edwards, 25 N. Y. 128; 24 How. 419; Trustees of Harvard Coll. v. Quinn, 3 Redf. 514; Matter of Pollock, id. 100. Assets; how distributed.-2 R. S. 96, 275, and following sections; Black's Estate, 1 Tuck. 145; Burr v. Sherwood, 3 Brad. 85; Furniss v. Furniss, 51 How. 64; Ferrie v. Public Administrator, 3 Bradf. 249; Hill v. Nye, 17 Hun, 457; Suckley's Estate, 11 id. 344; Adee v. Campbell, 20 Alb. L. J. 454; S. c., 14 Hun, 551; Gazlay v. Corn well, 2 Redf. 139; Sweezey v. Willis, 1 Bradf. 495; Wood v. Keyes, 8 Paige, 365; Shultz v. Pulver, 3 id. 182; 11 Wend. 361; Thomson v. Car michael, 3 Sandf. Ch. 120; Terry v. Dayton, 31 Barb. 519; Hays v. Hibbard, 3 Redf. 28; Hine v. Hine, 39 Barb. 507; Sandford v. Sandford, 5 Lans. 486; 61 Barb. 293; Bruce v. Briscom, 9 Hun, 280; 70 N. Y. 612; Camp v. Camp, 18 Hun, 217; Langdon v. Astor, 16 N. Y. 9; Dougherty v. Dougherty, 7 Alb. L. J. 347. Powers of surrogate on accounting.Pavne v. Matthews, 6 Paige, 19; Jumel v. Jumel, 7 id. 591; Stevens v. Stevens, 2 Redf. 265; Stilwell v. Carpenter, 59 N. Y. 414; Peck v. Sherwood, 56 id. 615; Bloodgood v. Sears, 64 Barb. 71; Everts v. Everts, 62 id. 577; Townsend v. Whitney, 75 N. Y. 425; Bevan v. Cooper, 72 id. 317; Dubois v Sands, 43 Barb. 412.

2744. Id.; when specific property may be deliv. ered. 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 per sons appointed by the surrogate for the purpose.

§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 in terest; 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 afterward distributed according to law.

2 R. S. 96, 274 (2 Edm. 99). Harman v. Durham, 3 Wend. 367; Close v. Van Husen, 19 Barb.1505; Howland v. Hecksher, 3 Sandf. Ch. 519; Downing v. Marshall, 1 Abb. Ct. App. Dec. 525; Hoyt v. Bonnett, 50 N, Y. 538.

2746. [Amended, 1886.] 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 securities, 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. 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 to the orders and decrees of said court, so made as aforesaid and the legal commissions of such guardian; and the said general guardian shall be liable to account in and under the direction of the surrogate's court, to his ward, for the same; in case of the death of said infant, before coming of age, the said securities and moneys, after making the deductions aforesaid, shall go to his executors or administrators, to be applied and distributed according to law, and the general guardian shall in like manner be liable to account to such administrator or executor. If there

be no general guardian, or if the surrogate's court do not order or decree the payment or disposition of the legacy or distributive share in some of the ways above described, then the legacy or distributive share, or part of the same not disposed of as aforesaid, whether the same consists of money or securities, shall, by the order or decree of the surrogate's court, be paid and delivered to and deposited in said court, by paying and delivering the same to and depositing it with the county treasurer of the county, to be held, managed, invested, collected, reinvested and disposed of by him, as prescribed and required by section two thousand five hundred and thirty-seven of this act. The regulations contained in the general rules of practice, as specified in section seven hundred and forty-four of this act, and the provisions of title three of chapter eight of this act apply to money, legacies and distributive shares paid to and securities deposited with the county treasurer, as prescribed in this section; except that the surrogate's court exercises with respect thereto, or with respect to a security in which any of the money has been invested, or upon which it has been loaned, the power and authority conferred upon the supreme court by section seven hundred and forty-seven of this act. Sections fortysix, forty-seven, forty-eight, forty-nine, fifty and fifty-one of part two, chapter six, title three, article two, of the Revised Statutes, are repealed.

Id.. 80, amended.

2747. Legacy, etc., to unknown person to be paid into State treasury - Where the person entitled to a

legacy or distributive share is unknown, the decree must direct the executor or administrator to pay the amount thereof into the treasury of the State, for the benefit of the person or persons who may thereafter appear to be entitled thereto. The surrogate, or the supreme court, upon the petition of a person claiming to be so entitled, and upon at least fourteen days' notice to the attorney-general, accompanied with a copy of the petition, may by a reference, or by directing the rial of an issue by a jury, or otherwise, ascertain the rights of the persons interested, and grant an order directing the payment of any money, which appears to be due to the claimant, but without interest, and deducting all expenses incurred by the State with respect to the decedent's estate. The comptroller, upon the production of a certified copy of the order, must draw his warrant upon the treasury, for the amount therein directed to be paid; which must be paid by the State treasurer, to the person entitled thereto.

id., 81, amended; L 1877, ch. 456.

$2748. When legacy, etc., to be paid to county treasurer. The decree must also direct the executor or administrator to pay to the county treasurer a legacy or distributive share, which is not paid to the person entitled thereto, at the expiration of two years from the time when the decree is made, or when the legacy or distributive share is payable by the terms of the decree. The money, so paid to the county treasurer, can be paid out by him only by the special direction of the surrogate; or pursuant to the judgment of a court of competent jurisdiction.

Id.. part of 2 81.


Disposition of the decedent's real property, for the payment of debts and funeral expenses. Distribution of the proceeds.

SEC. 2749. What property subject to this title.
2750. Petition; when and by whom presented.
2751. Creditor's time to apply extended in certain cases.

2752. Contents of petition.

2753. Proceedings where some of the facts are unknown.
2754. Citation thereupon.

2755. Hearing.

2756. Proof of debt upon which judgment, etc., has been rendered. 2757. The last section qualified.

2758. Decree to recite debts and liens.

2759. What proof necessary for a decree.

2760. Decree to mortgage or lease.

2761. Decree to sell.

2762. 1d.; when title is in controversy.

2763. Id.; order in which different parcels are to be sold.

2764. Id.; where undivided interest or precedent estate is created by the will, etc.

2765. Form of decree.

2766. Bond to be given by executor or administrator.

2767. If he refuses, freeholder to be appointed to execute decree.

2768. Order directing execution of decree.

2769. Id.; as to distinct parcels after appeal.

2770. Id.; not affected by death, etc.

2771. What credit allowed on sale.

2772. Mode of sale; notice thereof.

2773. Distinct parcels to be sold separately.

2774. Who not to purchase.

2775. Order to vacate sale.


2776. Order to confirm sale. Conveyance thereupon.

2777. When conveyance not to affect purchaser or mortgagee from heir, etc.

2778. Effect of conveyance in other cases.

2779. Contract for lands; how sold.

2780. Id.; purchaser's bond for payment thereupon.

2781. Id.; when interest in part of land may be sold.

2782. Id.; effect of conveyance of decedent's interest.

2783. Id.; effect of conveyance of part.

2784. Purchaser's title not affected by certain irregularities, etc.

2785. Id.; presumption where records have been removed.

2786. Proceeds to be paid into court; effect thereof.

2787. Notice of distribution of proceeds.

2788. Hearing; proof of further debts or liens.

2789. When sale of unsold property may be directed.

2790. Proof of claims to surplus money.

2791. Decree for distribution.

2792. Id.; county treasurer to distribute.

2793. Distribution; how made.

2794. Dower in lands under contract; how computed.
2795. Fund set apart for dower; how invested, etc.
2796. Id.; share belonging to infant, etc.

2797. Effect upon proceedings under this title, of an action to fore

close, etc.

2798. Surplus money on foreclosure and other sales; when paid to surrogate.

2799. Id.; how distributed.

2800. Securities and leases; surrogate's duty respecting the same. 2801. Restitution, for assets subsequently discovered.

« ПретходнаНастави »