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of the decedent may be cited to attend the probate of that right. Upon the presentation of such a petition, the surrogate must issue a citation accordingly.

Am'd by chap. 115 of 1892.

§ 2655. Citation; appearance of persons interested. The citation must set forth the name of the decedent and of the petitioner; the interest or share which the petitioner claims; and a brief description of the real property. Any heir of the decedent, who has not been cited, may nevertheless appear at the hearing; and thereby make himself a party to the special proceeding. But this section does not affect a right or interest of such a person, unless he becomes a party.

2656. What facts to be ascertained; decree thereupon. Upon the return of the citation, the surrogate must hear the allegations and proofs of the parties. If it appears that there is a contest, respecting the heirship of a party, or respecting the share to which a party is entitled, as an heir of the decedent, the surrogate must dismiss the proceedings. If there is no such contest, he must inquire into the facts and circumstances of the case. The petitioner must establish, by satisfactory evidence, the fact of the decedent's death; the place of his residence at the time of his death; his intestacy, either generally, or as to the real property in question; the number of heirs entitled to inherit the property in question; the name, age, residence and relationship to the decedent, of each; and the interest or share of each in the property. The surrogate, when these facts are established, must make a decree, describing the property, and declaring that the right of inheritance thereto has been established to his satisfaction, in accordance with the facts, which must be recited in the decree.

§ 2657. Decree to be recorded; effect thereof. An exemplified copy of a decree, made as prescribed in the last section, and of the proofs taken thereupon, may be recorded in the office of the clerk, or of the regis ter, as the case requires, of each county in which the real property is situated, as prescribed by law for recording a deed, and, from the time when the exemplifications are so recorded, the decree, or the record thereof, is presumptive evidence of the facts so declared to be established thereby.

$2658. Petition to vacate or modify it. Any person, other than a party to a special proceeding, instituted as prescribed in this article, or the heir, devisee, or assignee of such a party, may, at any time within ten years after a decree establishing the right of inheritance is made therein, present to the court a written petition, duly verified, showing that he has a right, title, or interest in the real property, or a part thereof, which is injuriously affected by the decree; stating that the decree is erroneous in some material particular, specified therein and praying that the decree may be set aside or modified in that particular, and that all the persons, whose heirship was established by the decree, may be cited to show cause, why the prayer of the petition should not be granted. If an heir has since died, or has conveyed the share or interest so established, by a deed duly recorded in the county, the petition must state that fact; and must pray that the persons, who have succeeded to his interest, may be also cited. Upon the presentation of such a petition, the surrogate must issue a citation accordingly.

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2659. Id.; when granted. Where a petition is presented as prescribed in the last section, and it appears, upon the hearing, that, if the petitioner, or his ancestor, testator, or grantor, had been a party to the special proceeding, the decree or a part thereof could not have been legally made, as prescribed in this article, the surrogate must vacate or modify the decree accordingly. An exemplified copy of the decree or order, so vacating or modifying the original decree, may be recorded in the office of any clerk or register, where a copy of the original decree was recorded.

ARTICLE FOURTH.

GRANT OF LETTERS OF ADMINISTRATION.

SECTION 2660. Who entitled to letters of administration.

2661. Persons incompetent to receive letters.

2662. Application for letters

2663. Citations; proceedings upon return thereof.

2664. Administrator's bond.

2665. When county treasurer to be ex-officio public administrator.
2666. Bond; letters of administration and proceedings thereon.
2667. When authority of county treasurer superseded.

§ 2660. When entitled to letters of administration. Administration in case of intestacy must be granted to the relatives of the deceased entitled to succeed to his personal property, who will accept the same, in the following order:

1. To the surviving husband or wife.

2. To the children.

3. To the father.

4. To the mother.
5. To the brothers.
6. To the sisters.

7. To the grandchildren.

8. To any other next of kin entitled to share in the distribution of the estate.

9. To an executor or administrator of a sole legatee named in a will whereby the whole estate is devised to such deceased sole legatee.

If a person entitled is a minor, administration must be granted to his guardian, if competent, in preference to creditors or other persons. If no relative, or guardian of a minor relative, will accept the same, the letters must be granted to the creditors of the deceased; the creditor first applying, if otherwise competent, to be entitled to preference. If no creditor applies, the letters must be granted to any other person or persons legally competent. Letters of administration shall also be granted to an executor or administrator of a deceased person named as sole legatee in a will. The public administrator in the city of New York has preference, after the next of kin and after an executor or administrator of a sole legatee named in a will whereby the whole estate is devised to such deceased sole legatee over creditors and all other persons. In other counties, the county treasurer shall have preference next after creditors over all other persons. If several persons of the same degree of kindred to the intestate are entitled to administration, they must be preferred in the following order: First, men to women; second, relatives of the whole blood to those of the half blood; third, unmarried women to married. If there are several persons equally entitled to administration, the surrogate may grant letters to one or more of such persons, and administration may be granted to one or more competent persons, although not entitled to the same, with the consent of the person entitled to be joined with such person or persons; which consent

must be in writing, and filed in the office of the surrogate. If a surviving husband does not take out letters of administration on the estate of his deceased wife, he is presumed to have assets in his hands sufficient to satisfy her debts, and is liable therefor. A husband is liable as administrator for the debts of his wife only to the extent of the assets received by him. If he dies leaving any assets of his wife unadministered, except as otherwise provided by law, they pass to his executors or administrators as part of his personal property; but are liable for her debts in preference to the creditors of the husband. [AM'D BY CH. 503 OF 1894. To take effect September 1, 1894.]

§ 2661. Persons incompetent to receive letters. Letters of administration shall not be granted to a person convicted of an infamous crime, nor to any one incapable by law of making a contract, nor to a person not a citizen of the United States, unless he is a resident of the state, nor to a person under twenty-one years of age, or who is adjudged incompetent by the surrogate to execute the duties of such trust by reason of drunkenness, improvidence or want of understanding.

Am'd by chap. 686 of 1893.

§ 2662. Application for letters. A person entitled absolutely or contingently, to administration on the estate of an intestate, may present to the surrogate's court having jurisdiction, a written petition, duly verified, praying for a decree awarding letters of administration, either to him, or to such other person or persons, having a prior right, as is entitled thereto, or in the alternative, as the petitioner elects; and if necessary, that the persons required to be cited, as prescribed in the next section, be cited to show cause why such a decree should not be made. The petition must set forth the petitioner's title; the facts on which the jurisdiction of the court to grant letters of administration upon the estate depends; and the names of the husband or wife, if any, and of the next of kin of the decedent, so far as they are known to the petitioner, or can be ascertained by him with due diligence. A citation shall not be issued, and a decree shall not be made, where a citation is not necessary, until the petitioner presumptively proves, by affidavit or otherwise, to the satisfaction of the surrogate, the existence of all the jurisdictional facts, and particularly that the decedent left no will. For the purpose of the inquiry touching any of these matters, the surrogate may issue a subpoena, requiring any person to attend and be examined as a witness.

Am'd by chap. 686 of 1893.

Code, § 2660, 2661, consolidated.

§ 2663. Citations; proceedings upon return thereof. Every person, being a resident of the state, who has a right to administration, prior or equal to that of the petitioner, and who has not renounced, must be cited upon a petition for letters of administration. The surrogate may, in his discretion, issue a citation to non-residents, or those who have renounced, or to any or all other persons interested in the estate, whom he thinks proper to cite. Where it is not necessary to cite any person, a decree, granting to the petitioner letters, may be made on presentation of the petition. Where the surrogate is unable to ascertain, to his satisfaction, whether the decedent left, surviving him, any person entitled to succeed to his estate, a citation must be issued, directed generally to all creditors of, and persons interested in the estate, and also to the attorney-general, and the public administrator of the proper county, requiring them to show

cause why administration should not be granted to the petitioner. Any person who has a right to administration, prior or equal to that of the petitioner, may renounce his right by a written instrument, acknowledged or proved and certified in like manner as a deed to be recorded in the county, or otherwise proved to the satisfaction of the surrogate; which must be filed in the surrogate's office. Where a citation is issued, any creditor of the decedent, or any person interested in the personal estate, although not cited, may appear and make himself a party to the special proceedings, in like manner and with like effect, as a devisee or legatee, who is not cited on an application for probate. On the return of a citation, issued as prescribed in this article, the surrogate must make such a decree in the premises as justice requires. The decree may award administration to any party to the special proceeding who appears to be entitled thereto. The surrogate, in his discretion, may award administration without a personal examination of the person to whom it is awarded.

Am'd by chap. 686 of 1893.

Code, § 2662, 2663, 2664, 2665 and 2666, consolidated.

§ 2664. Administrator's bond. A person appointed administrator, before letters are issued to him, must file his official oath, execute to the people of the state, and file with the surrogate, the joint and several bond of himself and two or more sureties, in a penalty fixed by the surrogate, not less than twice the value of the personal property of which the decedent died possessed and of the probable amount to be recovered by reason of any right of action, granted to an executor or administrator, by special provision of law. The sum to be fixed as the amount of the penalty must be ascertained by the surrogate, by the examination on oath of the applicant or any other person, or otherwise, as the surrogate thinks proper. The bond must be conditioned that the administrator will faithfully discharge the trust reposed in him as such and obey all lawful decrees and orders of the surrogate's court touching the administration of the estate committed to him. But where a right of action is granted to an executor or administrator by special provision of law, if it appears to be impracticable to give a bond sufficient to cover the probable amount to be recovered, the surrogate may, in his discretion, accept modified security, and issue letters limited to the prosecution of such action, but restraining the executor or administrator from a compromise of the action, and the enforcement of any judgment recovered therein, until the further order of the surrogate on additional further satisfactory security. In cases where all the next of kin to the intestate consent, the penalty of the bond need not exceed double the amount of the claims of creditors, against the estate, presented to the surrogate, pursuant to a notice to be published twice a week for four weeks in the official state paper, and in two newspapers published in the city of New York, and once a week for four weeks in two newspapers published in the county where the intestate usually resided, and in the county where he died, reciting an intention to apply for letters under this provision, and notifying creditors to present their claims to the surrogate on or before a day to be fixed in such notice, which shall be at least thirty days after the first publication thereof; but no bond so given shall be for less than five thousand dollars; and such bond may be increased by order of the surrogate for cause shown. Pending such application, no temporary administrator shall be appointed, except on petition of such next of kin.

Am'd by chap. 686 of 1893.

Code, § 2667, unchanged.

§ 2665. When county treasurer to be ex-officio public administrator. The county treasurer of each county, except New York and Kings, by virtue of his office, has authority to collect and take charge of the assets of every person dying intestate, amounting to one hundred dollars or more, on which letters of administration are not granted, in the following

cases:

1. When such persons leave assets in the county of the treasurer and there is no widow or relative in the county entitled or competent to take letters of administration on the estate.

2. When assets of any such person, after his death, come into the county of the treasurer and there is no person in the county entitled and competent to take administration of the estate.

In such cases intestacy is presumed until a will is proved and letters testamentary issued thereon. For the purpose of collecting and preserving such estates, the county treasurer may maintain suits in his name of office, and without any other authority, in the same manner as an executor may by law. If there is a widow or relative of such intestate entitled to administration on his estate in the county and if due proof is made to the surrogate in the county that there are creditors or relatives of the deceased, residing more than one hundred miles distant from the residence of the surrogate, who are interested in the distribution of the estate, and that the effects of the deceased are in danger of waste or embezzlement, he may grant an order to the treasurer of the county, authorizing him to seize and secure the said effects, or any part thereof, which order shall vest in him all the powers given in this section. When any county treasurer is authorized, pursuant to the provisions of this section, to take charge of any property of an intestate, he shall have the same powers and be entitled to take the same proceedings which an administrator of the estate of a deceased person may have or be entitled to take, for the discovery of any property of the intestate, which may be concealed or withheld, and for the sale of any that may be perishable; and to cause an inventory of the property of the intestate to be made by appraisers appointed by the surrogate, executed by the county treasurer and filed with the surrogate. Such inventory shall be returned to the surrogate within ten days after the county treasurer takes charge of such property; and the time for making the return may, for good cause shown, be extended by the surrogate ten days longer. If the county treasurer neglects to make the return within the time prescribed, he shall forfeit the sum of five hundred dollars, to be sued for and recovered by the county superintendent of the poor, for the use of the poor of the county, and also forfeit his office. The treasurer of the county of Richmond shall not act in any case where the public administrator of the city of New York has jurisdiction.

Am'd by chap. 686 of 1893.

§ 2666. Bond; letters of administration and proceedings thereon. When the inventory is returned, the county treasurer must give the bond required by law to be given by a temporary administrator appointed by a surrogate, with such sureties and in such penalty as the surrogate approves, and the surrogate must then issue letters to such county treasurer, authorizing him to collect and preserve the estate of the deceased. The surrogate must immediately thereafter cause notice thereof to be published once in each week for three months, in a newspaper printed in his county, and in the official state paper, requiring all persons claiming a right to administer on such estate to appear and interpose such claim before the surrogate within.

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