2. Taxes assessed on the property of the deceased previous to his death.

3. Judgments docketed, and decrees entered against the deceased according to the priority thereof respectively.

4. All recognizances, bonds, sealed instruments, notes, bills and unliquidated demands and accounts.

Preference shall not be given in the payment of a debt over other debts of the same class, except those specified in the third class. A debt due and payable shall not be entitled to a preference over debts not due. The commencement of a suit for the recovery of a debt or the obtaining a judgment thereon against the executor or administrator shall not entitle such debt to preference over others of the same class. Debts not due may be paid according to the class to which they belong, after deducting a rebate of legal interest on the sum paid for the unexpired term of credit without interest. An executor or administrator shall not satisfy his own debt or claim out of the property of the deceased until proved to and allowed by the surrogate; and it shall not have preference over others of the same class. Preference may be given by the surrogate to rents due or accruing on leases held by the testator or intestate at the time of his death, over debts of the fourth class, if it appear to his satisfaction that such preference will benefit the estate of the testator or intestate. The surrogate may authorize the executor or administrator to compromise or compound a debt or claim, on application, and for good and sufficient cause shown, and to sell at public auction on such notice as the surrogate prescribes, any uncollectible, stale or doubtful debt or claim belonging to the estate; but any party interested in the final settlement of the estate may show on such settlement that such debt or claim was fraudulently or negligently compromised or compounded.

L. 1893, ch. 686.

§ 2720. [Am'd, 1893.] Apportionment of rents, annuities and dividends.

All rents reserved on any lease made after June seventh, eighteen hundred and seventy-five, and all annuities, dividends and other payments of every description made payable or becoming due at fixed periods under any instrument executed after such date, or, being a last will and testament that takes effect after such date, shall be apportioned so that on the death of any person interested in such rents, annuities, dividends or other such payments, or in the estate or fund from or in respect to which the same issues or is derived, or on the determination by any other means of the interest of any such person, he, or his

executors, administrators or assigns, shall be entitled to a proportion of such rents, annuities, dividends and other payments, according to the time which shall have elapsed from the commencement or last period of payment thereof, as the case may be, including the day of the death of such person, or of the determination of his or her interest, after making allowance and deductions on account of charges on such rents, annuities, dividends and other payments. Every such person or his executors, administrators or assigns shall have the same remedies at law and in equity for recovering such apportioned parts of such rents, annuities, dividends and other payments, when the entire amount of which such apportioned form part, become due and payable and not before, as he or they would have had for recovering and obtaining such entire rents, annuities, dividends and other payments, if entitled thereto; but the persons liable to pay rents reserved by any lease or demise, or the real property comprised therein shall not be resorted to for such apportioned parts, but the entire rents of which such apportioned parts from parts, must be collected and recovered by the person or persons who, but for this section, or chapter five hundred and forty-two of the laws of eighteen hundred and seventy-five, would have been entitled to the entire rents; and such portions shall be recoverable from such person or persons by the parties entitled to the same under this section. This section shall not apply to any case in which it shall be expressly stipulated that no apportionment be made, or to any sums made payable in policies of insurance of any description.

L. 1893, ch. 686.

§ 2721. [Am'd, 1893.] Payment of legacies.

No legacy shall be paid by an executor or administrator until after the expiration of one year from the time of granting letters testamentary or of administration, unless directed by the will to be sooner paid. If directed to be sooner paid, the executor or administrator may require a bond, with two sufficient sureties, conditioned, that if debts against the deceased duly appear, and there are not other assets sufficient to pay other legacies, then the legatees will refund the legacy so paid, or such ratable portion thereof with the other legatees, as may be necessary for the payment of such debts, and the proportional parts of such other legacies, if there be any, and the costs and charges incurred by reason of the payment to such legatee, and that if the probate of the will, under which such legacy is paid, be revoked, or the will declared void, that such legatee will refund the whole of such

So in the original.

legacy, with interest, to the executor or administrator entitled thereto. After the expiration of one year, the executors or administrators must discharge the specific legacies bequeathed by the will and pay the general legacies, if there be assets. If there are not sufficient assets, then an abatement of the general legacies must be made in equal proportions. Such payment shall be enforced by the surrogate in the same manner as the return of an inventory, and by a suit on the bond of such executor or administrator whenever directed by the surrogate.

ARTICLE SECOND.

Accounting and settlement of the estate.

Sec. 2722. Petition to compel payment; hearing; decree.

2723. Decree for payment of legacy, etc., on giving security.

2724. Proceedings for neglect to set apart exempt property; proceedings upon

Judicial settlement.

2725. Intermediate accounting.

2726. When surrogate may require judicial settlement of account.

2727. Citation; order to account, and proceedings thereon.

2728. Executors, etc., may petition for judicial settlement;

thereupon.

2729. Affidavit to account; vouchers; examination of accounting party.

2730. Commissions of executor or administrator.

citation

2731. Determination of claim by surrogate; suspension of statute of limitations in certain cases.

2732. Order of distribution.

2733. Advancements.

2734. Estates of married women.

2735-2741. [Repealed, L. 1893, ch. 686.]

2742. Effect of judicial settlement of account.

2743. Decree for payment and distribution.

2744. Id.; when specific property may be delivered.

2745. Id.; when money may be retained.

2746. Id.; share of infant.

2747. Legacy, etc., to unknown person to be paid into State treasury.

2748. When legacy, etc., to be paid to county treasurer.

§ 2722. [Am'd, 1893.] Petition to compel payment; hearing; decree.

In either of the following cases a petition may be presented to the surrogate's court, praying for a decree directing an executor or administrator to pay the petitioner's claim, and that he be cited to show cause why such a decree should not be made:

1. By a creditor, for the payment of a debt, or of its just proportional part, at any time after six months have expired since letters were granted.

2. By a person entitled to a legacy, or any other pecuniary provision under the will, or a distributive share, for the payment or satisfaction thereof, or of its just proportional part, at any time after one year has expired since letters were granted.

On the presentation of such a petition, the surrogate must issue a citation accordingly; and, on the return thereof, he must make such a decree in the premises as justice requires. But in either of

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the following cases the decree must dismiss the petition without prejudice to an action or an accounting, in behalf of the petitioner:

1. Where the executor or administrator files a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner's claim is valid and legal, and denying its validity or legality absolutely, or on information and belief.

2. Where it is not proved, to the satisfaction of the surrogate, that there is money or other personal property of the estate applicable to the payment or satisfaction of the petitioner's claim, and which may be so applied without injuriously affecting the rights of others entitled to priority or equality of payment or satisfaction.

Old sections 2717 and 2718 consolidated; L. 1893, ch. 686.

§ 2723. [Am'd, 1893.] Decree for payment of legacy, etc., on giving security.

In a case specified in subdivision second of the last section, the surrogate may, in his discretion, entertain the petition at any time after letters are granted, although a year has not expired. In such a case, if it appears, on the return of the citation, that a decree for payment may be made, as prescribed in the last section; and that the amount of money, and the value of the other property, in the hands of the executor or administrator, applicable to the payment of debts, legacies and expenses, exceed, by at least one-third, the amount of all known debts and claims against the estate, of all legacies which are entitled to priority over the petitioner's claim, and of all legacies or distributive shares of the same class; and that the payment or satisfaction of the legacy, pecuniary provision, or distributive share, or some part thereof, is necessary for the support or education of the petitioner, the surrogate may, in his discretion, make a decree, directing payment or satisfaction accordingly, on the filing of a bond, approved by the surrogate, conditioned as prescribed by law, with respect to a bond which an executor, or an administrator with the will annexed, may require from a legatee, on payment or satisfaction of a legacy, before the expiration of one year from the time when letters were issued, pursuant to a direction to that effect, contained in the will.

L. 1893, ch. 686.

§ 2724. [Am'd, 1893.] Proceedings for neglect to set apart exempt property; proceedings upon judicial settlement. Where an executor or administrator has failed to set apart property for a surviving husband, wife or child, as prescribed by law, the person aggrieved may present a petition to the surrogate's court, setting forth the failure, and praying for a decree, requiring such executor or administrator to set apart the property accordingly; or, if it has been lost, injured, or disposed of, to pay the value thereof, or the amount of the injury thereto; and