ARTICLE FOURTH. Probate of heirship; definitions, and application of other sections to this Sec. 2765. 2766. 2767. 2768. 2769. 2770. 2771. chapter. Heir, et cetera, may apply to establish heirship. Definition of expressions used in this chapter. Application of chapter; confirmation of previous acts. Certain provisions made applicable to proceedings in surrogate's courts. Effect of this chapter on laws applicable to certain counties. § 2765. Heir, etc., may apply to establish heirship. Where a person, seized in fee of real property within the state, dies intestate, or without having devised his real property, his heirs, or any of them, or any person deriving title from or through such heirs, or any of them, may present to the surrogate's court which has acquired jurisdiction of the estate, or, if no surrogate's court has acquired such jurisdiction, then to the surrogate's court of the county where the real property, or any part thereof is situated, a petition, describing the real property, setting forth the facts upon which the jurisdiction of the court depends, and the interest or share of the petitioner, and of each other heir of the decedent, in the real property, and praying for a decree establishing the right of inheritance thereto, and that all the heirs of the decedent may be cited to show cause why the prayer of the petition should not be granted. Upon the presentation of such a petition a citation must be issued accordingly, except in a case where the petitioner was a party to a judicial settlement, the decree upon which determined • the rights of the parties to such real estate. Derivation.- Former § 2654, as amended by L. 1892, ch. 115; originally revised from L. 1873, ch. 552, §§ 1, 2, in part. Revisers' note.- Right is given by the revision to determine heirship on judicial settlement (new § 2735), hence the last three lines. § 2766. What facts to be ascertained; decree thereupon. Upon the return of the citation, the surrogate's court must hear the allegations and proofs of the parties and determine all the issues raised. The petitioner must establish the fact of the decedent's death; the place of his residence at the time of his death; his intestacy, either generally, or as to the real property in question; the heirs entitled to inherit the property in question; the name, age, residence and relationship to the decedent, of each; and the interest or share of each in the property. The surrogate, when these facts are established, must make a decree, describing the property, and declaring that the right of inheritance thereto has been established to his satisfaction, in accordance with the facts, which must be recited in the decree. Derivation.- Former § 2656; origlnally revised from L. 1873, ch. 552, §§ 1 and 2, in part, as amended by L. 1874, ch. 127. Revisers' note.- Provision is now made for trial of such questions by jury so that the proceeding need not be dismissed in event of contest. § 2767. Decree to be recorded; effect thereof. A certified copy of a decree, made as prescribed in the last section may be recorded in the office of the clerk, or of the register, as the case requires, of each county in which the real property is situated, as prescribed by law for recording a deed, and, from the time when such copy is so recorded, the decree, or the record thereof, is conclusive evidence of the facts so declared to be established thereby against all parties to such proceeding. Derivation.- Former § 2657; originally revised from L. 1873, ch. 552, §§ 1 and 2, in part, as amended by L. 1874, ch. 127. Revisers' note. As provision is made for trial by jury, the decree should be conclusive. There is no need for recording the proofs. § 2768. Definition of expressions used in this chapter. In construing the provisions of this chapter, the following rules must be observed, except where a contrary intent is expressly declared in the provision to be construed, or plainly apparent from the context thereof: 1. The word "intestate," signifies a person who died without leaving a valid will; but where it is used with respect to particular property it signifies a person who died without effectually disposing of that property by will whether he left a will or not. 2. The word" assets," signifies personal property applicable to the payment of the debts of a decedent. 3. The word "debts " includes every claim and demand, upon which a judgment for a sum of money, or directing the payment of money, could be recovered in an action; and the word "creditor " includes every person having such a claim or demand, any person having a claim for expense of administration, or any person having a claim for funeral expenses. 4. The word, "will," signifies a last will and testament, and includes all the codicils to a will. 5. The expression, "letters of administration," includes letters of temporary administration. 6. The expression, "testamentary trustee," includes every person, except an executor, an administrator with the will annexed, or a guardian, who is designated by a will, or by any competent authority, to execute a trust created by a will; and it includes such an executor or administrator, where he is acting in the execution of a trust created by the will, which is separable from his functions as executor or administrator. 7. The word, "surrogate," where it is used in the text, or in a bond or undertaking, given pursuant to any provision of this chapter, includes every officer or court vested by law with the functions of surrogate. 8. The expression, "judicial settlement," where it is applied to an account, signifies a decree of a surrogate's court, whereby the account is made conclusive upon the parties to the special proceeding, either for all purposes, or for certain purposes specified in the statute; and an account thus made conclusive is said to be "judicially settled." 9. The expression, "intermediate account," denotes an account filed in the surrogate's office, for the purpose of disclosing the acts of the person accounting, and the condition of the estate or fund in his hands, and not made the subject of a judicial settlement. 10. The expression, "upon the return of a citation," where it is used in a provision requiring an act to be done in the surrogate's court, relates to the time and place at which the citation is returnable, or to which the hearing is adjourned; includes a supplemental citation, issued to bring in a party who ought to be but has not been cited; and implies that before doing the act specified, due proof must be made, that all persons required to be cited have been duly cited. 11. The expression, "persons interested," where it is used in connection with an estate or fund, includes every person entitled, either absolutely or contingently, to share in the estate or the proceeds thereof, or in the fund, as husband, wife, legatee, next of kin, heir, devisee, assignee, grantee or otherwise except as a creditor. Where a provision of this chapter prescribes that a person interested may object to an appointment or may apply for an inventory, an account, or increased security, an allegation of his interest, duly verified, suffices, although his interest is disputed; unless he has been excluded by a judgment, decree, or other final determination, and no appeal therefrom is pending. 12. The term, "" 'next of kin," includes all those entitled, under the provisions of law relating to the distribution of personal property, to share in the unbequeathed residue of the assets of a decedent after payment of debts and expenses, other than a surviving husband or wife. 13. The expression, "real property," includes every estate, interest, and right, legal or equitable, in lands, tenements, or hereditaments, except those which are determined or extinguished by the death of a person seized or possessed thereof, or in any manner entitled thereto, and except those which are declared by law to be assets. The word, "inheritance," signifies real property as defined in this subdivision, descended as prescribed by law. The expression," personal property,' signifies every kind of property which survives a decedent, other than real property as defined in this subdivision, and includes a right of action conferred by special statutory provision upon an executor or administrator. 14. The word "guardian" refers to a guardian of an infant's person or property, or both, appointed by the surrogate's court or the supreme court, and includes a guardian appointed by will or deed. 15. Whenever in this chapter a paper or instrument is required to be "acknowledged, or proved, and duly certified," the same shall be acknowledged or proven in the same manner as a deed is required to be acknowledged or proved and certified to be recorded in that county, except that when executed within the state of New York, no certificate of the county clerk shall be required. 16. The word" respondent" when used in this chapter signifies every party to a special proceeding, except the petitioner. 17. The words " surrogate's court and surrogate where they refer to jurisdiction mean the particular court or surrogate having jurisdiction of the estate or fund. 18. Whenever in this chapter a citation, order, notice or paper is directed to be deposited in the "post-office" or in a 66 specified postoffice," such deposit may be made or directed to be made in any postoffice, branch post-office, sub-station or letter box maintained and exclusively controlled by the United States government. (Subd. am. by L. 1916, ch. 447.) Derivation.- Former 8 2514, as amended by L. 1900, ch. 120. Mostly new; but subd. 4 was originally revised from R. S., pt. 2, ch. 6, tit. 1, § 71, and subd. 13 from R. S., pt. 2, ch. 2, § 27. "Judicial settlement."- Pattee V. Harper, 183 App. Div. 88, 170 N. Y. "Persons interested."- Matter of § 2769. Application of chapter; confirmation of previous acts. Each provision of this chapter, relating to the jurisdiction of the surrogate's court, to take the proof of a will, and to grant letters testamentary or letters of administration or regulating the mode of proceeding in any manner connected with the estate of the decedent applies, unless otherwise expressly declared therein, whether the will was made, or the decedent died, before or after this chapter takes effect. All acts hitherto of surrogates and officers acting as such in completing by certifying in their own names any uncertified wills, and by signing and certifying in their own names any uncertified records of wills and of other proofs and examinations taken in the proceedings of probate thereof, before their predecessors in office, are hereby confirmed and declared to be valid and in full compliance with the pre-existing statutory requirements. Derivation.- Former § 2482. as amended by L. 1893, ch. 686; origi nally revised from R. S., pt. 2, ch. 6, tit. 1, § 67-b. § 2770. Certain provisions made applicable to proceedings in surrogates' courts. Except where a contrary intent is expressed in, or plainly implied from the context of, a provision of this chapter, all other portions of this act, and the general rules of practice apply to surrogates' courts and to the proceedings therein, so far as they can be applied to the substance and subject matter of a proceeding without regard to its form. Derivation Former § 2538; section new as originally inserted in Code of Civ. Proc. Revisers' note. On account of enlarged jurisdiction, jury, trial, etc., we omit specification of certain parts, and include all the Code, as limited by the language used. Commission to take testimony.Matter of Shannon, 180 App. Div. 214, § 2771. Effect of this chapter. 167 N. Y. Supp. 472. Examination before trial; physical examination- Matter of Leland, 175 App. Div. 56, 161 N. Y. Supp. 315. Jury trial. Matter of Dorsey, 94 Misc. 566, 157 N. Y. Supp. 662. Cross-application of other provisions of Code.- Matter of Zimmerman (1918), 104 Misc. 516. Nothing in this chapter shall repeal, amend or modify any existing law specially applying to any county, which is inconsistent with any section of this chapter, nor in any manner affect any litigation, action or special proceeding pending at the time when this act takes effect, except as hereinafter stated, and such pending action or special proceeding shall proceed under the practice established, the same as though not affected by this act; provided, however, that the provisions of this chapter relating to the trial by jury of controverted questions of fact shall apply to all such pending actions or special proceedings. (Am. by L. 1915, ch. 274.) Derivation.- New. Application.- Matter of Kent, 169 App. Div. 388, 155 N. Y. Supp. 891. Effect on jurisdiction.-Matter of Silverman, 87 Misc. 571, 151 N. Y. Supp. 382. Pending litigation.- Matter of Iovinella, 166 App. Div. 460, 151 N. Y. Supp. 1007; Raught v. Weed, 170 App. Div. 188, 155 N. Y. Supp. 1053; Mat 1017 ter of Cutter, 175 App. Div. 647, 162 N. Y. Supp. 545; Matter of Spooner, 87 Misc. 170, 150 N. Y. Supp. 136; Matter of Iovinella, 88 Misc. 224, 150 N. Y. Supp. 689; Matter of Scovill, 88 Misc. 364, 150 N. Y. Supp. 1070. Taxation of costs.- Matter of Cunningham, 87 Misc. 172, 150 N. Y. Supp. 431. |