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127 N. Y.296.

1 Dem. 80.

127 N.Y. 296.

thereof, at decedent's death by the mortgage, lease or salı 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.

§ 2751. [Am'd 1887.] The time, during which an action is pending in a court of record, between a creditor and an executor or administrator 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 counterclaim; 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 fourteen 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 of 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.

§ 2752. [Am'd 1894.] The petition must set forth the 144 N. 1 following matters, as nearly as the petitioner can, upon diligent inquiry, ascertain them:

6 App. Div.

527,

16 Misc. 667.

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 cach 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 describes 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,

$2753. [Am'd 1894.] If, upon diligent inquiry. any of the matters required to be set forth, as prescribed in the last section, can not 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.

$2754. [Am'd 1894.] Where the surrogate is satisfied that all the facts, specified in the last section but one, have been ascertained, as far as they can be upon diligent inquiry, and it appears to him that the debts, judgment liens

6 N. Y. Supp. 875.

1 Dem. 177. 34 Hun, 501.

5 Dem. 14.

and funeral expenses, or either, can not be paid, without resorting to the real property, or interest in real property. he must issue a citation according to the prayer of the peti tion. If, upon the inquiry, it appears to the surrogate, that any heir or devisee, or person claiming an interest in the property under an heir or devisee, is not named in the petition, the citation must also be directed to him. Unless the executor or administrator has caused to be published, as prescribed by law, a notice requiring creditors to present their claims, and the time for the presentation thereof, pursuant to the notice, has elapsed, the citation must be directed generally to all other creditors of the decedent, as well as the creditors named.

34 Hun, 501. 136 N.Y. 419.

136 N.Y. 412.

§ 2755. [Am'd 1887, 1893, 1894,] Upon the return of the citation the surrogate must proceed to hear the allegations and proofs of the parties. A creditor of the decedent. or a judgment lienor, or a person having a claim for unpaid funeral expenses, although not named in the citation, may present and prove his debt or lien, and thus make himself a party to the special proceeding. A creditor of the decedent. whose claim is not yet due, may present and prove his debt and have the same established upon a rebate of legal interest, and thus make himself a party to the special proceed. ings. An heir or devisee, or a person claiming under an heir or devisee, of the property in question, although not named in the citation, may contest the necessity of applying the property to the payment of debts, judgment liens, or funeral expenses, or the validity of a debt, due or unpaid, or of any judgment lien, represented as existing against the decedent, or the reasonableness of the funeral expenses; may interpose any defense to the whole or any part thereof; and, for that purpose, may make himself a party to the special proceeding. The admission or allowance by the exe. cutor or administrator of a claim or debt of any creditor against the decedent shall, for the purpose of such proceeding, be deemed an establishment thereof, unless objection be made thereto by a party to the special proceeding Where such a defense arises under the statute of limitation, an act or admission by the executor or administrator does not prevent the running of the statute, or revive the debt. so as to affect, in any manner, the real property or interest in real property in question.

$2756. Where a judgment or decree has been rendered against an executor or administrator, for a debt due from the decedent, the debt is, nevertheless, deemed a debt of the decedent, to the same extent, and to be established in the same manner, and, except as prescribed in the next section, subject to the same defences as if an action had not

been brought thereon. But a judgment or decree, rendered upon a trial upon the merits, is presumptive evidence of the debt upon the hearing before the surrogate.

§ 2757. The last section is subject to the following exceptions:

1 The debt, for which the judgment was rendered, cannot be allowed, as against the property in question, at any greater sum than the amount recovered, exclusive of

costs.

2. An heir or devisee of any of the property in question, or a party claiming under an heir or devisee, may interpose, in reduction of the amount claimed to be due upon a judgment or decree against the decedent, or against the executor or administrator, any payment or counterclaim which might be allowed to him, or to the person under whom he claims, in an action founded upon the debt.

§ 2758. [Am'd 1894.] The decree must determine and specify the amount of each debt established before the surrogate, as a valid and subsisting debt against the decedent's estate, or as a just and reasonable charge for funeral expenses, and must determine and specify the amount of each judgment lien established before the surrogate as a valid and subsisting lien existing upon the decedent's land, or some part thereof, at the time of his death. And the decree may also determine the amount due or remaining unpaid upon any mortgage or mortgages, existing at de cedent's death upon his real property, or any portion thereof; and the decree must, in like manner, specify what demands presented have been rejected. The vouchers presented before the surrogate, in support of each debt or lien established, must be filed and remain in the surrogate's office.

127 N.Y. 296, 133 Id. 470.

§ 2759. [Am'd 1894.] A decree directing the disposi- 34 Hun, 501. tion of real property, or of an interest in real property, can be made only where, after due examination, the following facts have been established to the satisfaction of the surrogate :

1. That the proceedings have been in conformity to this title.

2. That the debts, or liens or both, for the payment of which the decrees made, are the debts of the decedent, or are just and reasonable charges for his funeral expenses, or are liens by judgment existing at his death upon his real property, or upon some portion thereof; and are justly due.

1

16 Misc. 667.

136 N.Y. 110.

3. That they are not secured by a mortgage, or expressly charged by the will upon the decedent's real property, or interest in real property; or, if a debt is so secured or charged upon a portion of the real property, or interest in real property, that the remedies of the creditor, by virtue of that charge or security, have been exhausted.

4. That the property directed to be disposed of was not effectually devised, expressly charged with the payment of debts or funeral expenses, and is not subject to a valid power of sale for the payment thereof; or, if so devised or subject, that it is not practicable to enforce the charge, or to execute the power, and that the creditor has effectually relinquished the same.

5. That all the personal property of the decedent, which could have been applied to payment of the decedent's debts and funeral expenses, has been so applied; or that the exe cutor or administrators have proceeded with reasonable diligence in converting the personal property into money, and applying it to the payment of those debts and funeral expenses; and that it is insufficient for the payment of the same, as established by the decree,

§ 2760. [Am'd 1885.] If the facts specified in the last section are satisfactorily established, the surrogate must inquire whether sufficient money can be raised, advantageously to the persons interested in the real property, by a mortgage or lease of the real property of which the decedent died seized, or a part thereof. And to that end he shall appoint three competent disinterested persons to examine and appraise each parcel of such real property, and its rental value at its just and fair market value; they shall forthwith so appraise the same, make a report thereof, signed and verified by at least two of them, describing each parcel, and stating its value and rental value, and file the same in the surrogate's office. If he ascertains that the money can be so raised, the decree must direct the execution of one or more mortgages or leases accordingly; but a lease shall not be made for a longer time than until the youngest person interested in the property leased attains full age. A mortgage or lease, executed pursuant to such a decree, has the same effect as if it had been made by the decedent, immediately before his death.

§ 2761. [Am'd 1885, 1894.] Where it appears to the surrogate, upon the inquiry made as prescribed in the last section, that sufficient money can not be raised advantageously to the persons interested in the real property, by mortgage or lease, the decree must direct a sale of the real property, or interest in the real property, or of so much

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