objection against him has been established to the satisfaction of the surrogate: 1. Where the objection is, that his circumstances are such, that they do not afford adequate security to the creditors, or persons interested in the estate, for the due administration of the estate. 2. Where the objection is that he is not a resident of the state; and he is a citizen of the United States. But a person against whom there is no objection, except that of non-residence, is entitled to letters testamentary, without giving a bond, if he has an office within the state, for the regular transaction of business in person; and the will contains an express provision, to the effect that he may act without giving security. Such a § 2639. Renunciation; retraction thereof. A person, named as executor in a will, may renounce the appointment by an instrument in writing, signed by him, and acknowledged or proved, and certified, in like manner as a deed to be recorded in the county, or attested by one or more witnesses, and proved to the satisfaction of the surrogate. renunciation may be retracted by a like instrument, at any time before letters testamentary, or letters of administration with the will annexed, have been issued to any other person in his place; or, after they have been so issued, if they have been revoked, or the person to whom they were issued has died, or become a lunatic, and there is no other acting executor or administrator. Where a retraction is so made, letters testamentary may, in the discretion of the surrogate, be issued to the person making it. An instrument specified in this section must be filed and recorded in the surrogate's office. § 2640. Selection of an executor under a power. Where the will contains a valid power, authorizing the selection, as executor thereof, of a person not named therein, the selection must be made, by the person appointed for that purpose, within thirty days after making the decree admitting the will to probate; in default whereof, the power of selection is deemed to have been renounced. Such selection must be made by an instrument in writing, designating the person selected, signed by the proper person, and acknowledged or proved, and certified, in like manner as a deed to be recorded in the county, or proved to the satisfaction of the surrogate, and filed in the surrogate's office. Where the will authorizes the person, so to be selected, to act with the executor or executors named therein, the issuing of letters must be delayed until the expiration of the period, fixed in this section for the exercise of the power of selection and if the selection is so made, for five days thereafter. Within five 2641. Objection to such a person, how taken, etc. days after a selection is made, as prescribed in the last section, any person may file an affidavit, verified as prescribed in section 2636 of this act, showing that he is a creditor of the decedent, or a person interested in the estate, and setting forth specifically one or more legal objections to granting letters to the person selected. The proceedings to be taken thereupon are the same, as prescribed in sections 2637 and 2638 of this act. If letters are not issued to the person so selected, the power of selection is deemed to be exhausted. § 2642. Executor failing to qualify or renounce, how excluded. If a person, named as executor in a will, does not qualify or renounce, within thirty days after probate thereof; or if a person, chosen by virtue of a power in the will, does not qualify or renounce within thirty days after the filing of the instrument designating him; or, in either case, if objections are filed, and the executor does not qualify or renounce, within five days after they are determined, in his favor, or, in a case specified in section 2638 of this act, within five days after an objection has been established; the surrogate must, upon the application of any other executor, or any creditor or person interested in the estate, make an order requiring him to qualify within a time therein specified; and directing that, in default of so doing, he be deemed to have renounced his appointment. Where it appears, by affidavit, or other written proof, to the satisfaction of the surrogate, that such an order cannot, with due diligence, be served personally within the state, upon the person therein named, the surrogate may prescribe the manner in which it must be served, which may be by publication. If the person, so appointed executor, does not qualify within the time fixed, or within such further time as the surrogate allows for that purpose. an order must be made and recorded, reciting the facts, and declaring that he has renounced his appointment as executor. Such an order may be revoked by the surrogate in his discretion, and letters testamentary may be issued to the person so failing to renounce or qualify, upon his application, in a case where he might have retracted an express renunciation, as prescribed in section 2639 of this act. And where any powers to sell, mortgage or lease real estate, or any interest therein, are given to executors as such, or as trustees, or as executors and trustees, and any such persons named as executors shall neglect to qualify, then all sales, mortgages and leases under said powers made by the executors who shall qualify, shall be equally valid as if the other executors or trustees had joined in such sale. Am'd chap. 401 of 1883. § 2643. Letters of administration with will annexed; when and to whom. If no person is named as executor in the will, or selected by virtue of a power contained therein; or if, at any time, by reason of death, incompetency adjudged by the surrogate, renunciation in either of the methods prescribed in sections two thousand six hundred and thirty-nine and two thousand six hundred and forty-two of this act, or revocation of letters, there is no executor, or administrator with the will annexed, qualified to act; the surrogate must, upon the application of a creditor of the decedent, or a person interested in the estate of the decedent, or having a lien upon any real property upon which the decedent's estate has a lien, and upon such notice to the other creditors and persons interested in the estate, as the surrogate deems proper, issue letters of administration with the will annexed, as follows: 1. To one or more of the residuary legatees, who are qualified to act as administrators. 2. If there is no such residuary legatee, or none who will accept, then to one or more of the principal or specific legatees, so qualified. 3. If there is no such legatee, or none who will accept, then to the husband, or wife, or to one or more of the next of kin, or to one or more of the heirs or devisees, so qualified. 4. If there is no qualified person, entitled under the foregoing subdivisions, who will accept, then to one or more of the creditors who are so qualified, except that in the counties of New York and Kings the public administrator shall have preference, after the next of kin, over creditors and all other persons. 5. If there is no qualified creditor who will accept, then to any proper person designated by the surrogate. [AM'D BY CH. 734 of 1895. In effect Sept. 1, 1895.]. 2644. Id.; renunciation or exclusion of persons having prior right. But where a person applies for letters of administration with the will annexed, as prescribed in the last section, and another person has a right to the administration, prior to that of the petitioner, the application must be made by petition, unless a written renunciation of every person having such a prior right is filed with the surrogate, and the execution thereof is proved to his satisfaction. The petition must pray that all persons having a prior right, who have not renounced, be cited to show cause, why administration should not be granted to the petitioner. The proceedings thereupon are the same as upon an application for administration upon the estate of an intestate. § 2645. Executor or administrator to qualify. An executor, from whom a bond is required, as prescribed in this article, or an administrator with the will annexed, must, before letters are issued to him qualify as prescribed by law, with respect to an administrator upon the estate of an intestate; and the provisions of article fourth of this title, with respect to the bond to be given by the administrator of an intestate, apply to a bond given pursuant to this section; except that, in fixing the penalty thereof, the surrogate must take into consideration the value of the real property, or of the proceeds thereof, which may come to the hands of the executor or administrator, by virtue of any provision contained in the will. § 2646. Effect of certain provisions limited. This article does not vary the effect of a decree for probate, made before this chapter takes effect, as declared in the statutes then in force. ARTICLE SECOND. REVOCATION OF PROBATE. SECTION 2647. Persons interested may apply to revoke probate. 2648. When application must be made. 2649. Citation thereupon. 2650. Executor, etc., to suspend proceedings. 2651. Hearing. 2652. Decree. 2653. Notice of decree of revocation. 2653a. Determining validity of a will. A per § 2647. Persons interested may apply to revoke probate. son interested in the estate of the decedent may, within the time specified in the next section, present to the surrogate's court, in which a will of personal property was proved, a written petition duly verified, containing allegations against the validity of the will, or the competency of the proof thereof; and praying that the probate thereof may be revoked, and that the persons, enumerated in the next section but one, may be cited to show cause why it should not be revoked. Upon the presentation of such a petition, the surrogate must issue a citation accordingly. § 2648. When application must be made. A petition must be presented, as prescribed in the last section, within one year after the recording of the decree admitting the will to probate; except that, when the person entitled to present it is then under a disability specified in section 396 of this act, the time of such disability is not part of the year limited in this section, unless such person shall have appeared by general or special guardian or otherwise on said probate. But this section does not affect an application made pursuant to subdivision sixth of section 2481 of this act. Am'd by chap. 535 of 1881. § 2649. Citation thereupon. A petition, presented as prescribed in the last two sections, must pray that the citation may be directed to the executor, or administrator with the will annexed; to all the devisees and legatees named in the will; and to all other persons, who were parties to the special proceeding in which probate was granted. If a legatee is dead, his executor or administrator must be cited, if one has been appointed; if not, such persons must be cited as representing him, as the surrogate designates for the purpose. § 2650. Executor, etc., to suspend proceedings. After service upon him of a citation, issued as prescribed in the last three sections, the executor, or administrator with the will annexed, must suspend, until a decree is made upon the petition, all proceedings relating to the estate; except for the recovery or preservation of property, the collection and payment of debts, and such other acts as he is expressly allowed to perform, by an order of the surrogate, made upon notice to the petitioner. § 2651. Hearing. Upon the return of the citation, the surrogate must proceed to hear the allegations and proofs of the parties. The testimony, taken upon the application for probate, of a witness who is dead, or without the state, or who, since his testimony was taken, has become a lunatic, or otherwise incompetent, must be received in evidence. $2652. Decree. If the surrogate decides that the will is not sufficiently proved to be the last will of the testator, or is, for any reason invalid, he must make a decree revoking the probate thereof; otherwise he must make a decree confirming the probate. $2653. Notice of decree of revocation. Where the decree revokes the probate of a will, as prescribed in this article, the surrogate must cause notice of the revocation to be immediately published, for three successive weeks, in a newspaper published in his county. § 2653a. Determining validity of a will. Any person interested in a will or codicil admitted tc probate in this state, as provided by the Code of Civil Procedure, may cause the validity of the probate thereof to be determined in an action in the supreme court for the county in which such probate was had. All the devisees, legatees and heirs of the testator and other interested persons, mcluding the executor or administrator, must be parties to the action. Upon the completion of service of all parties, the plaintiff shall forth with file the summons and complaint in the office of the clerk of the court in which said action is begun, and the clerk thereof shall forthwith certify to the clerk of the surrogate's court in which the will has been admitted to probate, the fact that an action to determine the validity of the probate of such will has been commenced, and on receipt of such certificate by the surrogate's court, the surrogate shall forth with transmit to the court in which such action has been begun a copy of the will, testimony and all papers relating thereto, and a copy of the decree of probate, attaching the same together, and certifying the same under the seal of the court. The issue of the pleadings in such action shall be confined to the question of whether the writing produced is or is not the last will and codicil of the testator, or either. It shall be tried by a jury, and the verdict thereon shall be conclusive, as to the real or personal property, unless a new trial be granted or the judgment thereon be reversed or vacated. On the trial of such issue the decree of the surrogate admitting the will or codicil to probate shall be prima facie evidence of the due attestation, execution and validity of such will or codicil. A certified copy of the testimony of such of the witnesses examined upon the probate, as are out of the jurisdiction of the court, dead, or have become incompetent since the probate, shall be admitted in evidence on the trial. The party sustaining the will shall be entitled to open and close the evidence and argument. He shall offer the will in probate and rest. The other party shall then offer his evidence. The party sustaining the will shall then offer his other evidence; and rebutting testimony may be offered as in other cases. When final judgment shall have been entered in such action, a copy thereof shall be certified and transmitted to the clerk of the surrogate's court in which such will was admitted to probate. The action brought as herein provided shall be commenced within two years after the will or codicil has been admitted to probate, but persons within age of minority, of unsound mind, imprisoned, or absent from the state, may bring such action two years after such disability has been removed. Added by chap. 591 of 1892; not retroactive. SECTION 2654. Heir, etc., may apply to establish heirship. 2654. Heir or his assignee 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 to specific persons, 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 written petition, duly verified, 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 |