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TITLE VII.

Proceedings for the disposition of the real property of an infant, lunatic, idiot, or habitual drunkard.

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§ 2345. In either of the following cases, an action may 136 N.V. 10 be maintained against an infant, or a person incompetent to manage his affairs by reason of lunacy, idiocy, or habitual drunkenness, to procure a judgment, directing a conveyance of real property, or of an interest in real property:

1. Where the infant or incompetent person is seized or possessed of the real property, or interest in real property, by way of mortgage, or only in trust for another.

2. Where a valid contract for the sale or conveyance of the real property, or interest in real property, has been made; but a conveyance thereof cannot be made, by reason of the infancy or incompetency of the person in whom the title is vested.

§ 2346. [Am'd 1882.] An action may be maintained, in a case specified in the last section, by a person entitled to the conveyance; and also in a case specified in subdivision second of that section, by the executor or administrator of the person who made the contract, or of a person who died seized or possessed of the real property, or interest in real property, or by an heir or devisee of either of those persons, to whom the real property has descended, or was devised, The action may be maintained by the committee of the lunatic or other incompetent person; but in that case the court must appoint a special guardian for the incompetent person, as required by law, where an infant is defendant, and the proceedings are the same as in a like action against an infant.

2347. A judgment, directing such a conveyance, shall not be rendered, unless the court, after hearing the parties, is satisfied that the conveyance ought to be made. Upon rendering final judgment to that effect, the court has power to direct the guardian of the infant's property, or the com mittee of the property of the lunatic or other incompetent person, or a special guardian appointed in the action, to execute any conveyance, or to do any other act, which is nec essary, in order to carry the judgment into effect.

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23 Abb. N. C. 15.

17 Misc. 244.

§§ 2348-2350 § 2348. [Am'd 1890, 1893.] In either of the following cases real property, or a term estate or other interest in re. I 21 App. Div. property, or an inchoate right of dower in real property, belonging to an infant or a person incompetent to manage his affairs by re ison of lunacy, idiccy or habitual drunken. ness, may besi, conveyed, mortgaged, released or leased, as prescribe in the following sections of this title:

183.

28 Id. 7.

157 N.Y. 259,

5 Dem. 272.

1. Where the personal property, and the income of the real property, of the infant or incompetent person are, together, insufficient for the payment of his debts, or for the maintenance and necessary education of himself and his family.

2. Where the interests of the infant or incompetent person require or will be substantially promoted by such disposition, on account of the real property or term, or estate, or other interest in real property being exposed to waste or dilapi lation; or being wholly unproductive, or for the purpose of raising funds to preseive or to improve the same, or for other peculiar reasons, or on account of other peculiar circumstances.

3. Where an action wight be maintained against the infant or incompetent person, to procure a judgment, directing the conveyance of the real property or interest in real property, as prescribed in sections twenty-three hundred and forty-five and twenty-three hundred and forty-six of this

act.

33 App. Div.

615.

$2349. An application, in either of the cases prescribed in the last section, must be made by the petition of the general guardian, or the guardian of the property of the iutant; or by the committee of the property of the lunatic or other incompetent person; or by any relative, or other person, in behalf of either. Where the application is in behalf of an infant of the age of fourteen years or upwards, the infant must join therein. Where the application is made to the supreme court, the petition must be presented at a term held within the judicial district, in which the property or a part thereof, is situated.

$2350. [Am'd 1893.] The petition must be verified in like manner as a verified pleading in an action in the supreme court. It must set forth the grounds of the application; and in a case specified in subdivisions first and second of the last section but one, other than a case where the applica

§§ 2351-2352 tion is made for the sale of an undivided interest of the infant or incompetent person in one or more parcels of land in order to avoid an action of partition on the part of his co-tenants, it must also state the particulars and value of the real and personal property, and the amount of the incon.e of the infant or incompetent person; the disposition which has been made of his personal property, and an account of the debts or demands, if any, existing against his estate. In the case above specified where the application is made for the sale of an undivided interest of the infant or incom petent person, the petition must state the particulars and value of the real property in respect to which a sale is desired.

§ 2351. [Am'd 1893.] An application to sell, mortgage, or lease real property, or an interest in real property, of a lunatic, idiot, or habitual drunkard, cannot be granted, unless a committee of his property has been appointed. Upon such an application, if it is made by the committee, the court must make an order, directing him to file with the clerk a bond, in such an form, in such a amount, and with such sureties, as it directs, conditioned for the faithful discharge of his trust; for the paying over and investing of, and accounting for, all money received by him in the special proceeding, according to the direction of any court having authority to give directions in the premises; and for the observance of the directions of the court, in relation to the trust. If the application is made by any other person, an order must be made thereupon, requiring the committee to show cause why he should not file such a bond. If, after hearing the committee, the court is of opinion, that there is probable cause for granting the application, it may make an order, requiring the committee to file such a bond; or, if the committee so elects, or fails to file the bond as directed in the order, it may appoint a suitable person to be the special guardian of the incompetent person, with respect to the proceedings; who must thereupon file such a bond. Where an application is made to release an inchoate right of dower, application must be made by the husband of the lunatic, idiot or habitual drunkard and may be made before or after a committee has been appointed. The court may appoint the husband special guardian, and he must file a bond as herein provided.

§ 2352. [Am'd 1893.] Upon an application to sell, mortgage or lease real property or an interest in real property of an infant, the court must appoint a suitable person to be the special guardian of the infant with respect to the pro

23 Abb. N.

C. 15.

§§ 2353-2356 ceedings, who must thereupon file with the clerk a bond as prescribe in the last section. Any trust e mpany authorized by the laws of this State to act as general guardian of estate of an infant without giving security may be appointed such special guardian and in such case the court in the order of appointment may dispense with the giving and filing of any such bonds.

$2353. Upon a breach of the condition of a bond, given as prescribed in either of the last two sections, the court must direct it to be prosecuted for the benefit of the person injured.

$ 2354. [Am'd 1893] Upon the presentation of the petition, and the filing of the bond, where the filing of such a bond shall be necessary, the court must make an order appointing a suitable person a referee to inquire into the merits of the application. The referee must examine into the truth of the allegations of the petition; hear the allegations and proofs of all persons interested in the property, or otherwise interested in the application; and report his opinion thereupon, together with the testimony with all convenient speed.

$ 2355. [Am'd 1893.] Upon the filing of the referee's report, and after examining into the matter, the court must make a final order upon the application. In a proper case a final order, confirming the referes's report, must direct that the real property or term, estate or other interestin real property, or a part thereof or an inchoate right of dower therein, as is necessary, or as justice requires, the mortgage, let for a term of years, sold, released, or conveyed by the special guardian appointed, as prescribed in this title, or by the committee of the property of the lunatic or other incompetent person. The final order must also contain such directions respecting the time, manner and conditions of the sale, release or conveyance directed thereby as the court thinks proper to insert therein.

$ 2356. [Am'd 1893.] Before a sale, mortgage, release, or lease can be made pursuant to the final order, the special guardian or the committee must enter into an agreement therefor, subject to the approval of the court; and must report the agreement to the court under oath. Upon the confirmation thereof by the order of the court, he must execute, as directed by the court, a deed, mortgage, release or lease. Where the final order directs the execution of a conveyance in the first instance, for the purpose of fulfilling a contract, or because the property is held by way of mortgage, or in trust only, the guardian or committee, exe

$$ 2357-2359
eu ing the conveyance must report the conveyance to the
court, under oath.

$2357. Real property, or an interest in real property, shall not be sold, leased, or mortgaged, as prescribed in this title, contrary to the provisions of a will, by which it was devised, or of a conveyance or other instrument, by which it was transferred, to the infant or incompetent person.

$ 2358. [Am'd 1893.] A deed, mortgage, release of an inchoate right of dower, or lease made, in good faith, as prescribed in this title either upon an application in behalf of the infant or an incompetent person, or pursuant to the directions contained in a judgment rendered against him, has the same validity and effect, as if executed by the person, in whose behalf it was executed, and as if the infant was of full age or the lunatic, idiot, or habitual drunkard was of sound mind and competent to manage his or her affairs; and a release of an inchoate right of dower as authorized by this title shall have the same effect as if the wife haljined with the husband in a deed or conveyance of the property affected thereby and had duly acknowledged the same in the manner required by law to pa-s the estate of married womeu.

$2359. [Am'd 1892.] A sale of real property or of an interest in real property of an infant or incompetent person, made as prescribed in this title, does not give to the infant or incompetent person any other or greater interest in the proceeds of the sale than he or she had in the property or interest sold. Those proceeds are deemed property of the same nature as the est te or interest sold, until the infant arrives at full age or the incompetency is removed. If the infant should die before arriving at full age, or the incompetent person should die before the incompetency is removed not leaving any personal property or not leaving sufficient personal property to pay funeral expenses and expenses that may be necessary or necessarily incurred, then in either or each case the proceeds are to be deemed personal property so far as may be necessary to pay the funeral and other necessary expenses. The proceeds are to be paid upon order of the surrogate's court or court having jurisdiction of the estate of deceased, to an administrator appointed by the surrogate to administer upon decedent's estate, and after paying all funeral expenses and expenses of administration and any indebtedness, the remainder, if any there be, shall upon the order of the surrogate, be paid into the hands of the trustee who held the same to be distributed as the law directs. This act is to include the said proceeds of any infant or incompetent person that has died prior to this amendment, the proceeds now remaining in the hands of a trustee.

140 N. Y. 182

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