§ 2744. Id.; when specific property may be delivered. 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 persons 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 interest; 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 afterwards distributed according to law.

§ 2746. Infant's share. 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 decrce 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 forty-six, 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.

Am'd by chap. 358 of 1886.

560r

§ 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 trial 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.

§ 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 legaey 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.

TITLE V.

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

SECTION 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.

2759. What proof necessary for a decree.

2760. Decree to mortgage or lease.

2761. Decree to sell.

2762. Id.; 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.

560s

SECTION 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.

Resale.

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.

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 foreclose, 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.

2749. What property subject to this title. Real property, of which a decedent died seized, and the interest of a decedent in real property, held by him under a contract for the purchase thereof, made either with him, or with a person from whom he derived his interest, may be disposed of, for the payment of his debts and funeral expenses, or for the payment of judgment liens existing thereon at his death, as prescribed in this title; except where it is devised, expressly charged with the payment of debts or funeral expenses, or is exempted from levy and sale by virtue of an execution, as prescribed in title second of chapter thirteen of this act. The expression "funeral expenses," as used in this title, includes a reasonable charge for a suitable headstone. [AM'D BY CH. 735 OF 1894. Took effect May 21, 1894.]

2750. Petition; when and by whom presented. At any time within three years after letters were first duly granted within the estate, upon the estate of a decedent, an executor or administrator, whether sole or joined in the letters with another other than a temporary administrator, or a person holding a judgment lien upon decedent's real property at the time of his death, or any other creditor of the decedent, other than a creditor by a mortgage, which is a lien upon the decedent's real property, may present to the surrogate's court, from which letters were issued, a written petition, duly verified, praying for a decree directing the disposition of the decedent's real property, or interest in real property, specified in the last section, or so much thereof as is necessary for the payment of his debts or funeral expenses or, if so decreed as hereinafter provided, for the payment of any judgment liens existing upon such land, or some portion thereof, at decedent's death, by the mortgage, lease or sale at public or private sale thereof; and that the parties named in the petition and all other necessary parties as prescribed in the subsequent sections of this title, may be cited to show cause why such a decree should not be made. [AM'D BY CH. 735 OF 1894. Took effect May 21, 1894.]

§ 2751. Creditor's time to apply. The time, during which an action is pending in a court of record, between a creditor and an executor or admistrator of the estate, is not a part of the time limited in the last section, for presenting a petition, founded upon a debt, which was in controversy in the action; if the creditor has, before the expiration of the time so limited, filed in the clerk's office of the county where the real property is situated, a notice of the pendency of the action specifying the names of the parties, the object of the action and if the creditor's debt is made the foundation of a counterclaim, the nature of the counter-claim; containing a description of the property in that county to be affected thereby; and stating that it will be held, as security for any judgment obtained in the action. A notice so filed must be recorded and indexed, and may be canceled, as prescribed, with respect to the notice of pendency of an action, in article ninth of title first of chapter fourteenth of this act. It may also be canceled in like manner, or a specified portion of the property affected thereby, may be discharged from the lien thereof, by the order of the court in which the action is pending, made upon the application of a person having an interest in the real property, upon notice to the creditor and upon such terms as justice requires. Whenever an executor, administrator or creditor of a deceased person shall have commenced, or shall hereafter commence an action in any court of competent jurisdiction of this State for the purpose of setting aside any fraudulent conveyance of, or incumbrance upon, any real estate of such deceased person, and such action shall have been decided in favor of such executor, administrator or creditor, such executor, administrator or creditor may, at any time within three years after the final determination of such action, have and maintain an action or proceeding against the proper parties, in any court of competent jurisdiction in this State, for a sale of such real estate, and for a distribution of the proceeds of such real estate among the creditors of such deceased person and other persons entitled to the same as may be directed by the judgment in such action. [Aм'D CH. 423 OF 1887.]

$2752. Contents of petition. The petition must set forth the following matters, as nearly as the petitioner can, upon diligent inquiry, ascertain them:

1. The unpaid debts of the decedent, and the name of each creditor or person claiming to be a creditor; and the name of each person holding, or claiming to hold, a lien by judgment docketed against decedent before his decease, and also the several dates of docket of all or any of such judgment liens, and whether such judgment lien or liens affect the whole or part of the decedent's real property; and the amount of the unpaid funeral expenses of the decedent, if any, and the name of any person to whom any sum is due by reason thereof.

2. A general description of all the decedent's real property, and interest in real property, within the state, which may be disposed of as prescribed in this title; a statement of the value of each distinct parcel; whether it is improved or not; whether it is occupied or not; and, if occupied, the name of each occupant; whether it is encumbered by a mortgage lien or liens together with a statement of the amount due or claimed to be due thereon. Where the petition prescribes an interest in real property, specified in section two thousand seven hundred and forty-nine of this act, the value of the interest must be stated, and also the value of, and the other particulars, specified in this section, relating to the real property to which the interest attaches.

3. The names of the husband or wife, and of all the heirs and devisees of the decedent, and also of every other person claiming under them, or either of them, stating who, if any, are infants; the age of each infant, and the name of his general guardian, if any; and also, if the petition is presented by a creditor or judgment lienor, the name of each executor or administrator.

4. If the petition is presented by an executor or administrator, the amount of personal property which has come to his hands, and those of his co-executors or co-administrators, if any; the application thereof, and the amount which may yet be realized therefrom. [AM'D BY CH. 735 OF 1894. Took effect May 21, 1894.]

$2753. Proceedings where some of the facts are unknown. If, upon diligent inquiry, any of the matters required to be set forth, as prescribed in the last section, cannot be ascertained by the petitioner, that fact must be shown to the surrogate's satisfaction, and the surrogate must, thereupon, inquire into the matter, as prescribed in article first of title second of this chapter. If the petition is presented by a creditor or judgment lienor the surrogate may, by order, require the executor or administrator to render such an account or other statement, as he deems necessary for the purpose of the inquiry. [AM'D BY CH. 735 OF 1894. Took effect May 21, 1894.]