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3. In every other case, he must give at least four months' notice.
Notice may be given, as required by this section, by serving it as prescribed in this act for the service of a paper upon an attorney, in an action in the supreme court.
§ 2314. The commissioner or commissioners possess the same powers, and must proceed in the same manner, as a referee, appointed by an order requiring the production of the tenant for life, or proof of his existence; except that they cannot proceed, unless a person is produced before them, as being the person whose death is in question. The return to the commission must expressly state whether any person was or was not so produced. The testimony, respecting the identity of a person so produced, must be taken, unless otherwise specially directed by the court, as prescribed in chapter ninth of this act, for taking the depositition of a witness upon oral interrogatories; except that it is not necessary to give any other notice of the time and place of examination, than that prescribed in the last section.
2315. Upon the return of the commission, the proceedings are the same as upon the report of a referee, as prescribed in sections two thousand three hundred and nine and two thousand three hundred and ten of this act; but the court may, in its discretion, receive additional proofs from either party.
§ 2316. Where costs of a special proceeding, taken as prescribed in this title, are awarded, they must be fixed by the court at a gross sum, not exceeding fifty dollars, in addition to disbursements. Where provision is not specially made in this title for the award of costs, they may be denied, or awarded to or against either party, as justice requires
$2317. The possession of real property, which has been awarded to the petitioner, as prescribed in this title, upon the presumption of the death of the perso, upon whose life the prior estate depends, must be restored, by the order of the court, to the person evicted, or to his heirs or legal representatives, upon the petition of the latter, and proof, to the satisfaction of the court, that the person presumed to be dead 18 living. The proceedings upon such an application are the same, as prescribed in this title, upon the application of the person to whom possession is awarded.
§ 2318. A person evicted, as prescribed in this title, may, if the presumption, upon which he is evicted, is erroneous, maintain an action against the person who has occupied the property, or his executor or administrator, to recover the rents and profits of the property, during the occupation, while the person, upon whose life the prior estate depends, is or was living.
§ 2319. A final order, made as prescribed in this title, awarding to the petitioner the possession of real property, is presumptive evidence only, in an action of ejectment,
determine to whom it is payable, the sum to be paid by reason thereof and all other questions concerning the same. With respect to the matters enumerated in this section the decree is conclusive as a judgment upon each party to the special proceeding who was duly cited or appeared, and upon every person deriving title from such party.
2744. In either of the following cases, the decree may direct the delivery of an unsold chattel, or the assign ment of an uncollected demand, or any other personal property, to a party or parties entitled to pay ment or dis tribution, 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 paitis 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. 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 be tween the executor or administrator, and a person claiming to be a creditor of a 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, and is not needed for that purpose, be afterwards distributed according to law.
$ 2746. [Am'd 1886.] When a legacy or distributive share is payable to an infant, the decree may, in the discre tion 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 decrce, direct any legacy or distributive share, or art 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 exe cuting and depositing with the surrogate in his office, a bond running to such infant, with two or more sufficient sureties, 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 thereot, 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 of 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 decree 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 fiftyone of part two, chapter six, title three, article two, of the Revised Statutes, are repealed.
2747. Where the person entitled to a legacy or dis- 101 N.Y.682 tributive 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.
15 Misc. 662.
and to the officer in charge of the institution in which such person is an inmate. Upon the presentation of such petition, and proof of the service of such notice, the court or justice may, if satisfied of the truth of the facts required to be stated in such petition, immediately a point a committee of the person or property, or both, of such incompetent person or may require any further proof which it or he may deem necessary before making such appointment.
§ 2323 (b). [Added 1895.]-Upon the presentation of a petition and the appointment of a committe, as provided in section three thousand three hundred and twenty-three (8), the court or justice may award costs of the proceeding, not exceeding twenty-five dollars in addition to necessary disbursements, to the petitioner, payable from the estate of the incompetent person, and upon denial of an application to set the same aside, costs as of a motion.
§ 2324. Where the incompetent person has property, which may be endangered in consequence of his incompetency, and no relative or other person applies for the ap. pointment of a committee of his property, the overseer or superintendent of the poor of the town, district, county, or city, in which he resides, or, where there is no such officer, the officer or officers performing corresponding functions under another official title, must apply to the proper court, for the appointment of such a committee. The expenses of conducting the proceedings thereupon must be audited and allowed, in the same manner as other official expenses of those officers are audited and allowed.
§ 2325. [Am'd 1891.] The petition must be in writing, and verified by the affidavit of the petitioner, or his attorney, to the effect that the matters of fact therein stated are true. It must be accompanied with proof, by affidavit, that the case is one of those specified in this title. It must set forth the names and residences of the husband or wife, if any, and of the next of kin and heirs of the person alleged to be incompetent, as far as the same are known to the petitioner, or can, with reasonable diligence, be ascertained by him, and also the probable value of the property pos sessed and owned by the alleged incompetent person, and what property has been conveyed during said alleged incompetency and to whom, and its value and what consideration was paid for it, if any, or was agreed to be paid. The court must, unless sufficient reasons for dispensing therewith are set forth in the petition or accompanying affidavit, require notice of the presentation of the petition to be given to the husband or wife, if any, or to one or more relatives of the person alleged to be incompetent, or to an officer specified in the last section. Wher notice is required, it may be given
2780. Id; purchaser's bond for payment thereupon.
2783. Id.; effect of conveyance of part.
2784. Purchaser's title not affected by certain irregularities, etc.
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.
2791. Decree for distribution.
2792. Id.; county treasurer to distribute.
2793. Distribution; how made.
2794. Dower in lands under contract; how computed.
2796. Id.; share belonging to infant, etc.
2797. Effect, upon proceedings under this title, of an action to fore-
2798. Surplus money on foreclosure and other sales; when paid to
2799. Id.; how distributed.
2800. Securities and leases; surrogate's duty respecting the same.
§ 2749. [Am'd 1894.] 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 pay. ment 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.
§ 2750. [Am'd 1885, 1894.] At any time within three years after letters were first duly granted within the state, 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 crediter 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, specitied 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