same shall issue or be derived, or on the determination by any other means whatever of the interest of any such person, he or she, and his or her executors, administrators or assigns shall be entitled to a proportion of such rents, annuities, dividends and other payments, according to the time which shall have elapsed from the commencement or last period of payment thereof respectively (as the case may be), including the day of the death of such person, or of the determination of his or her interest, all just allowances and deductions on account of charges on such rents, annuities, dividends and other payments being made. 13 Hun, 147; 65 How. Pr., 81; 67 How. Pr., 161; 10 Abb. N. C., 396; 4 Dem., 156, 404; 29 Hun, 200. Remedies for recovering apportionments. § 2. Every such person, his or her executors, administrators and assigns shall have the same remedies at law and in equity for recovering such apportioned parts of the said rents, annuities, dividends and other payments when the entire amount, of which such apportioned parts shall form part, shall become due and payable and not before, as he or she or they would have had for recovering and obtaining such entire rents, annuities, dividends and other payments, if entitled thereto; but so that the persons liable to pay rents reserved by any lease or demise, and the lands, tenements and hereditaments comprised therein, shall not be resorted to for such apportioned parts as aforesaid, but the entire rents, of which such apportioned parts form parts, shall be collected and recovered by the person or persons, who, if this act had not passed, would have been entitled to such entire rents; and such portions shall be recoverable from such person or persons by the parties entitled to the same under this act in any action or suit at law or in equity. When act shall not apply. § 3. This act shall not apply to any case in which it shall be expressly stipulated that no apportionment shall be made, or to any sums made payable in policies of insurance of any description. TITLE 3. ARTICLE THIRD. [92] [93] Increase and de crease of property. OF THE DUTIES OF EXECUTORS AND ADMINISTRATORS, IN RENDERING AN ACCOUNT, AND SEC. 52-56. [Repealed.] 57. To be charged for increase ot property and allowed for decrease. 58. Rate of commission to be allowed executors, etc., besides their expenses. 59-74. [Repealed.] 75. Order of distribution of personal estate of intestates, etc., among his relatives. 76 & 77. Advancement of any child to be deducted from his portion. 78. Certain acts not to be deemed an advancement. 79. Preceding sections not to apply to estates of married women. 84. This title not to apply to public administrator in New York. [Sections 52-56 were repealed by L. 1880, ch. 245.] § 57. No profit shall be made by executors or administrators, by the increase, nor shall they sustain any loss, by the decrease, without 4 Abb. Pr., their fault, of any part of the estate; but they shall account for such increase, and shall be allowed for such decrease, on the settlement of their accounts. 273; 1 Bradf., 248; 321: 1 Redf., 266. Commis sions on sums re ceived and paid. § 58. On the settlement of the account of an executor or administrator, the surrogate shall allow to him for his service, and if there be more than one, shall apportion among them, according to the services rendered by them respectively, over and above his or their expenses, For receiving and paying out all sums of money not exceeding ART. 8. one thousand dollars, at the rate of five dollars per cent. For receiving and paying out any sums exceeding one thousand dollars, and not amounting to ten thousand dollars, at the rate of two dollars and fifty cents per cent. For all sums of above ten thousand dollars at the rate of one dollar 4 Abb. Pr., 71; Hopk., 37; 4 Bradf., 129; 3 Bradf., 424; 1 Bradf., 198, 248, 335; 1 [Sections 59-74 were repealed by L. 1880, ch. 245.] [94-96] distribu. § 75. Where the deceased shall have died intestate, the surplus Order of of his personal estate remaining after payment of debts; and where tion. the deceased left a will, the surplus remaining after the payment of debts and legacies, if not bequeathed, shall be distributed to the widow, children, or next of kin of the deceased, in manner following: 1. One-third part thereof to the widow, and all the residue by equal portions among the children, and such persons as legally represent such children, if any of them shall have died before the deceased: 2. If there be no children, nor any legal representatives of them, then one moiety of the whole surplus shall be allotted to the widow, and the other moiety shall be distributed to the next of kin of the deceased, entitled under the provisions of this section: 3. If the deceased leave a widow, and no descendant, parent, brother or sister, nephew or niece, the widow shall be entitled to the whole surplus; but if there be a brother or sister, nephew or niece, and no descendant or parent, the widow shall be entitled to a moiety of the surplus as above provided, and to the whole of the residue where it does not exceed two thousand dollars; if the residue exceed that sum, she shall receive, in addition to her moiety, two thousand dollars; and the remainder shall be distributed to the brothers and sisters, and their representatives: 4. If there be no widow, then the whole surplus shall be distributed equally to and among the children, and such as legally represent them: 5. In case there be no widow, and no children, and no representatives of a child, then the whole surplus shall be distributed to the next of kin, in equal degree to the deceased, and their legal representatives: 6. If the deceased shall leave no children, and no representatives of them, and no father, and shall leave a widow and a mother, the moiety not distributed to the widow shall be distributed in equal shares to his mother, and brothers and sisters, or the representatives of such brothers and sisters; and if there be no widow, the whole surplus shall be distributed in like manner to the mother, and to [97] TITLE 3. the brothers and sisters, or the representatives of such brothers and sisters: Advance. ment. 61 Barb., 758; 31 4 Abb. Pr. 7. If the deceased leave a father, and no child or descendant, the father shall take a moiety, if there be a widow, and the whole, if there be no widow: 8. If the deceased leave a mother, and no child, descendant, father, brother, sister, or representative of a brother or sister, the mother, if there be a widow, shall take a moiety; and the whole, if there be no widow. And if the deceased shall have been an illegitimate and have left a mother, and no child, or descendant, or widow, such mothershall take the whole and shall be entitled to letters of administration in exclusion of all other persons, in pursuance of the provisions of this chapter. And if the mother of such deceased shall be dead, the relatives of the deceased on the part of the mother shall take in the same manner as if the deceased had been legitimate, and be entitled to letters of administration in the same order: [The foregoing subd. thus amended by L. 1845, ch. 236.] 9. Where the descendants, or next of kin of the deceased, entitled to share in his estate, shall be all in equal degree to the deceased, their shares shall be equal: 10. When such descendants, or next of kin, shall be of unequal degrees of kindred, the surplus shall be apportioned among those entitled thereto, according to their respective stocks; so that those who take in their own right, shall receive equal shares, and those who take by representation, shall receive the share to which the parent whom they represent, if living, would have been entitled: II. No representation shall be admitted among collaterals, after brothers' and sisters' children: 12. Relatives of the half-blood, shall take equally with those of the whole blood in the same degree; and the representatives of such relatives, shall take in the same manner as the representatives of the whole blood: 13. Descendants, and next of kin of the deceased, begotten before his death, but born thereafter, shall take in the same manner, as if they had been born in the life time of the deceased, and had survived him. 24 N. Y., 418; 20 N. Y., 120; 15 How. Pr. R., 183; 4 Abb. Pr., 313; 8 Paige, 578; 5 Paige, 316; 4 Paige, 328; 4 Bradf., 28, 161; 3 Bradf., 277, 415, 432; 2 Bradf., 349; 1 Bradf., 125, 300, 495; 43 Barb., 152; 1 Barb. Ch., 396, 455; 3 Lans., 378; 53 N. Y., 363; 15 How. Pr. R., 183; 51 How. Pr. R., 64; 59 N. Y. 434; 11 Hun, 344; 17 Hun, 457; 14 Hun, 551; 2 Redf., 139; 2 Dem., 394; 4 Dem., 121, 332, 436, 545; 33 Hun, 368; 36 Hun, 391; 37 Hun, 152, 254; 38 Hun, 417; 88 N. Y., 487; 46 Hun, 555. [1 R. L., 313, § 16.] § 76. If any child of such deceased person shall have been advanced by the deceased, by settlement or portion of real or personal 297; 4 Hun, estate, the value thereof shall be reckoned with that part of the surBarb, 522; plus of the personal estate, which shall remain to be distributed 3; 70 N. Y., among the children; and if such advancement be equal or superior to the amount, which, according to the preceding rules, would be 523; 4 Hun. distributed to such child, as his share of such surplus and advance69; 2 Redf., ment, then such child and his descendants shall be excluded from 18 Hun,319, any share in the distribution of such surplus. 612; 18 Hun, 217; 11 Hun, 465; 10 Hun, 614; 68 N. Y., 108; 3 [1 R. L., 313, § 16.] Redf., 28; 79 N. Y., 246; 23 Hun, 299; 4 Dem., 540; 36 Hun, 882; 37 Hun, 246. ART. 3. 61 Barb., § 77. But if such advancement be not equal to such amount, such child, or his descendants, shall be entitled to receive so much only, Id. as shall be sufficient to make all the shares of all the children, in 297; 4 such surplus and advancement, to be equal, as near as can be estimated. [1 R. L., 313, § 16.] a Dem., 540. Id. [98] 31 Barb., Barb., 635; § 78. The maintaining or educating, or the giving of money to child, without a view to a portion or settlement in life, shall not be 522; 28 deemed an advancement, within the meaning of the two last sections; 10 Barb.,69, nor shall those sections apply in any case where there shall be any real estate of the intestate, to descend to his heirs. 72; 4 Abb. Barb., 297. 28 Barb., Bradf., 64; § 79. The preceding provisions respecting the distribution of Exception. estates shall apply to the personal estates of married women dying, 355; 1 leaving descendants them surviving; and the husband of any such 100 N. Y., deceased married woman shall be entitled to the same distributive 336. share in the personal estate of his wife to which a widow is entitled in the personal estate of her husband, by the provisions of this. chapter, and no more. [Thus amended by L. 1867, ch. 782.] [1 R. L., 314, § 17.] [Sections 80-83 were repealed by L. 1880, ch. 245.] of title. § 84. The provisions in this title contained, shall not be applicable Limitation to any letters testamentary or of administration, granted to the public administrator in the city of New York, nor in any respect to the said public administrator. L. 1864, Chap. 71-An act in relation to special administrators or collectors of the goods of deceased persons. [Sections 1-11 were repealed by L. 1880, ch. 245.] Interest to be paid over. § 12. All interest received by any special administrator, on any moneys which may come to his hands, shall be accounted for and paid over by him in the same manner as the principal sum in his hands. L. 1867, Chap. 782-An act in relation to the powers and jurisdictions of surrogates' courts. Time of rendering account. § 14. An executor or administrator, after the expiration of one year from the date of his appointment, may render his final account before the surrogate, pursuant to the provisions of article third, title third, chapter sixth of the second part of the Revised Statutes, and the same proceedings and decree may be had thereon on such application and accounting, as though the account had been rendered at the expiration of eighteen months from the grant of letters testamentary or of administration. [Although this section has not been expressly repealed, it is, doubtless, superseded by Code Civ. Proc., § 2729. As to the remaining sections of the act of 1867, see the note on p. 2555, ante.] Sales by one of sev eral execu tors. 19 N. Y.. 349; 21 Wend., Of the Powers and Duties of Executors and Administrators, in Relation to the Sale and Disposition of the real Estate of their Testator or Intestate. SEC. 1-54. [Repealed.] 55. Sales of real estate made under a will, by one or more of several executors, when valid. 56 & 57. [Repealed.] 58. Penalty for selling real estate contrary to foregoing provisions. 59-75. [Repealed.] [Sections 1-47 were repealed by L. 1880, ch. 245.] [Section 48 was repealed by L. 1837, ch. 460.] [Sections 49-54 were repealed by L. 1880, ch. 245.] § 55. Where any real estate or any interest therein, is given or devised by any will legally executed, to the executors therein named, or any of them, to be sold by them or any of them, or 4551NY, where such estate is ordered by any last will to be sold by the executors, and any executor shall neglect or refuse to take upon him the execution of such will, then all sales made by the executor or 1 Redf,284; executors, who shall take upon them the execution of such will, shall be equally valid, as if the other executors had joined in such sale. 433; 15 id., 610; 2 Paige; 197; 1 Barb Ch, 559; 4 Ch., 87. [111-113] [1 R. L., 366, § 11.] [Section 56 was repealed by L. 1835, ch. 264, and by L. 1837, ch. 460.] § 58. Any executor or administrator, or other person, appointed as herein directed, who shall fraudulently sell any real estate of his testator or intestate contrary to the foregoing provisions, shall forfeit double the value of the land sold, to be recovered by the person entitled to an estate of an inheritance therein. [1 R. L., 452, § 25.] [Sections 59-75 were repealed by L. 1880, ch. 245.] L. 1883, Chap. 65-An act in relation to sales of real estate made and to be made by executors under authority given them by will. Sales may be private or public. SECTION 1. Sales of real estate situate in the city and county of New York, or at any other place within the state of New York, made by executors in pursuance of an authority given by any last will, unless otherwise directed in such will, may be public or private and on such terms as in the opinion of the executor shall be most advantageous to those interested therein. Certain former sales legalized. § 2. All such sales made since the first day of September, eighteen hundred and eighty, are hereby ratified and confirmed and declared to be as valid in every respect as if section one of this act had been in force on and at all times since said first day of September, eighteen hundred and eighty. |