$11. In case sickness, or other accident, or any reasonable cause, ART. 1. exist, to prevent the attendance of such person, upon the same being Surrogate proved to the surrogate, he may, in his discretion, allow a further time may allow for such person to appear and qualify. further time. tor deemed to of have re nounced. $12. If any person, so notified, shall not appear, according to the When execu tenor of such summons, or within the time allowed by the order the surrogate, and qualify as an executor, by taking an oath and giving a bond, if one shall have been required, he shall be deemed to have renounced the appointment of executor, and the surrogate shall thereupon enter an order, reciting the said summons, the proof of the service thereof, and such subsequent order, allowing time, if any was made, and the neglect of such person to appear and qualify, and declaring and decreeing, that such person has renounced his appointment as such executor. take oath. $13. Before any letters testamentary shall issue to any executor, Executor to he shall take and subscribe an oath or affirmation before the surrogate, or in case of sickness, or other inability to attend the surrogate, before any officer authorised to administer oaths, that he will faithfully and honestly discharge the duties of an executor; which oath shall be filed in the office of the surrogate. annexed, and $ 14. If all the persons named in a will as executors, shall renounce, When letters to be granted or after summons issued and served as aforesaid, shall neglect to quali- with the will fy, or shall be legally incompetent, then letters testamentary shall issue, to whom. and administration with the will annexed be granted, as if no executors were named in such will, to the residuary legatees, or some or one of them, if there be any; if there be none that will accept, then to any principal or specific legatee, if there be any; if there be none that will accept, then to the widow and next of kin of the testator, or to any creditor of the testator, in the same manner, and under the like regulations and restrictions, as letters of administration, in case of intestacy. not named in act. S 15. Every person named in a will as executor, and not named as Executors such in the letters testamentary, or in letters of administration with letters not to the will annexed, shall be deemed to be superseded thereby, and shall have no power or authority whatever, as such executor, until he shall appear and qualify. ecutor before $ 16. No executor named in a will, shall, before letters testamen- Power of ex tary are granted, have any power to dispose of any part of the estate letters. of the testator, except to pay funeral charges, nor to interfere with such estate in any manner, further than is necessary for its preservation. executor not $ 17. No executor of an executor, shall, as such, be authorised to Executor of administer on the estate of the first testator; but on the death of the to adminis ter. &c. TITLE 2. sole or surviving executor of any last will, letters of administration with the will annexed, of the assets of the first testator left unadministered, shall be issued in the manner and with the authority herein after provided. Complaint against ex rogate to in quire. $ 18. If after letters testamentary shall have been granted to any ecutor; sur person, named as executor, in any will, complaint shall be made to the surrogate of the county in which such letters were granted, by any person interested in the estate of the deceased, that the person so appointed executor has become incompetent by law to serve as such, or that his circumstances are so precarious as not to afford adequate security for his due administration of the estate, or that he has removed, or is about to remove, from this state, the surrogate shall proceed to inquire into such complaint. Citation to person com how to be served. $ 19. Such surrogate shall thereupon issue a citation to the person plained of, complained of, requiring him to appear before such surrogate, at a day and place therein to be specified, to show cause why he should not be superseded; which citation shall be personally served on the person to whom it may be directed, at least six days before the return thereof, if he be in the county; and if he shall have absconded from such county, it may be served by leaving it at his place of residence. Proceedings; when executor may be required to pear $20. Upon due proof of the service of such citation, the surrogate shall proceed at the day appointed, or on such other day as he shall give bond. appoint, to hear the proofs and allegations of the parties; and if it apthat the circumstances of the person so appointed, are precarious as aforesaid, or that such person has removed, or is about to remove, from this state, he shall require such person to give bond with sureties, like those required by law of administrators, within a reasonable time, not exceeding five days. When to be superseded, &c. Administra. tion with the $ 21. If such person neglect to give such bond, or if it appear that he is legally incompetent to serve as executor, the surrogate shall by order supersede the letters testamentary so issued to such person, whose authority and rights as an executor shall thereupon cease; if there be no acting executor of such will, the surrogate shall grant letters of administration with the will annexed, of the assets of the deceased left unadministered, as provided in this Title. $ 22. In all cases where letters of administration with the will anwill annexed. nexed, shall be granted, the will of the deceased shall be observed and performed; and the administrators with such will, shall have the rights and powers, and be subject to the same duties, as if they had been named executors in such will." 19 (19) 1 R. L. 316, § 21. ARTICLE SECOND. Of granting Letters of Administration with the Will annexed, and in cases of Intestacy. SEc. 23. Surrogate of each county, in certain cases to have exclusive jurisdiction. 24. Jurisdiction of surrogates in regard to non-resident intestates; when exclusive. 27. Who entitled to letters of administration, and in what order. 28. Order of preference where there are several persons in same degree. 29. Administration on estate of married woman, to be granted to husband, &c. 30. If granted to another, balance of assets to be paid to husband. 31. Foreign executors, &c. when entitled to administration on estates of non-residents. 32. Certain persons declared incapable of receiving letters of administration. 33. If minor be entitled, letters to be granted to his guardian. 31. When person not entitled may be joined in letters. 35. Renunciation of persons having prior right; citation to such persons. 36. Citation how to be served. 37. Attorney-general to be cited, unless it be shewn that intestate left kindred. 38. Special letters for the collection of intestate's effects, when to be issued. 39. Authority and duties of such collector. 40. Powers of collector when to cease; his duty thereupon. 41. Every administrator or collector to take oath, before letters are issued. 42. Administrator to give bond with sureties; penalty and condition thereof. 43. Collector to give bond; penalty and condition thereof. ART. 2. when to have $23. The surrogate of each county shall have sole and exclusive Surrogates power, within the county for which he may be appointed, to grant exclusive ju letters of administration of the goods, chattels, and credits of persons dying intestate, in the following cases : 1. Where an intestate, at or immediately previous to his death, was an inhabitant of the county of such surrogate, in whatever place such death may have happened: 2. Where an intestate, not being an inhabitant of this state, shall die in the county of such surrogate, leaving assets therein: 3. Where an intestate, not being an inhabitant of this state, shall die out of the state, leaving assets in the county of such surrogate, and in no other county: 4. Where an intestate, not being an inhabitant of this state, shall die out of the state, not leaving assets therein, but assets of such intestate shall thereafter come into the county of such surrogate.20 risdiction. intestates. $24. Whenever an intestate, not being an inhabitant of this state, Non-resident shall die out of the state leaving assets in several counties, or assets of such intestate shall after his death come into several counties, the surrogate of any county in which such assets shall be, shall have power to grant letters of administration on the estate of such intestate; but the surrogate, who shall first grant letters of administration on such estate, shall be deemed thereby, to have acquired sole and exclusive jurisdiction over such estate, and shall be vested with all the powers incidental thereto.20 VOL. II. (20) 1 R. L. 445, § 3; Laws of 1823, p. 62, § 2; 1824, p. 332. 10 TITLE 2. $ 25. The persons appointed administrators, by the surrogate who shall have first granted letters of administration, in the cases specified in the last section, shall have sole and exclusive authority as such, have exclu- and shall be entitled to demand and recover from every person subse Ib. Administrator first appointed to sive authority, &c. Death of intestate to be how. quently appointed administrator of the same estate, the assets of the deceased in his hands. But all acts in good faith, of such subsequent administrator, done before notice of such previous letters, shall be valid; and all suits commenced by him, may be continued by and in the name of, the first administrators.2 21 $26. Before any letters of administration shall be granted on the proved, and estate of any person who shall have died intestate, the fact of such person's dying intestate shall be proved to the satisfaction of the surrogate; who shall examine the persons applying for such letters, on oath, touching the time, place, and manner of the death, and whether or not the party dying left any will; and he may also in like manner examine any other person, and may compel such person to attend as a witness for that purpose.22 Who entitled to letters of administra what order. tion, and in Order of pre ference where several in same degree. $27. Administration, in case of intestacy, shall be granted to the relatives of the deceased, who would be entitled to succeed to his personal estate, if they or any of them will accept the same, in the following order: First, to the widow; second, to the children; third, to the father; fourth, to the brothers; fifth, to the sisters; sixth to the grandchildren; seventh, to any other of the next of kin who would be entitled to share in the distribution of the estate. If any of the persons so entitled be minors, administration shall be granted to their guardians; if none of the said relatives or guardians will accept the same, then to the creditors of the deceased; and the creditor first applying, if otherwise competent, shall be entitled to a preference; if no creditor apply, then to any other person or persons legally competent; but in the city of New-York, the public administrator shall have preference after the next of kin, over creditors and all other persons; and in the other counties of this state, the county treasurer shall have preference next after creditors, over all other persons. And in the case of a married woman dying intestate, her husband shall be entitled to administration, in preference to any other person as herein after provided. 23 $28. When there shall be several persons of the same degree of kindred to the intestate, entitled to administration, they shall be preferred in the following order: First, males to females; second, relatives of the whole blood to those of the half blood; third, unmarried women to such as are married; and when there are several persons (21) 1 R. L. 445, § 3; Laws of 1823, p. 62, § 2; 1824, p. 332. (23) 1 R. L. 314, § 17; 445, § 3. (22) 1 R. L. 44, § 5. equally entitled to administration, the surrogate may, in his discretion, ART. 2 grant letters, to one or more of such persons. tion on estate woman, to be husband, &c. granted to $29. A husband, as such, if otherwise competent according to law, Administrashall be solely entitled to administration on the estate of his wife, and of married shall give bond as other persons, but shall be liable as administrator, for the debts of his wife, only to the extent of the assets received by him. If he shall not take out letters of administration on her estate, he shall be presumed to have assets in his hands, sufficient to satisfy her debts, and shall be liable therefor: and if he shall die, leaving any assets of his wife unadministered, they shall pass to his executors or administrators, as part of his personal estate, but shall be liable for her debts to her creditors, in preference to the creditors of the husband, 24 to another as sets how dis posed of. $30. If letters of administration on the estate of a married woman, Ib. If granted shall be granted to any other person than her husband, by reason of his neglect, refusal, or incompetency to take the same, such administrator shall account for, and pay over, the assets remaining in his hands, after the payment of debts, to such husband, or his personal representatives. cutors, &c. tled to admi estates of non $31. In all cases where persons, not inhabitants of this state, shall Foreign exedie, leaving assets in this state, if no application for letters of admin- when enti istration be made by a relative entitled thereto, and legally compe- nistration on tent, and it shall appear that letters of administration on the same es- residents. tate, or letters testamentary, have been granted by competent authority, in any other state of the United States, then the person so appointed, on producing such letters, shall be entitled to letters of administration in preference to creditors, or any other persons, except the public administrator in the city of New-York. sons declared receiving let nistration. $32. No letters of administration shall be granted to a person con- Certain pervicted of an infamous crime, nor to any one incapable by law of mak- incapable of ing a contract, nor to a person who is not a citizen of the United States, ters of admi nor to any one who is under twenty-one years of age, nor to any person who shall be judged incompetent by the surrogate, to execute the duties of such trust, by reason of drunkenness, improvidence, or want of understanding, nor to any married woman; but where a married woman is entitled to administration, the same may be granted to her husband in her right and behalf. to be granted $33. If any person who would otherwise be entitled to letters of Letters when administration as next of kin, or to letters of administration with the to minor. will annexed, as residuary or specific legatee, shall be a minor, such letters shall be granted to his guardian, being in all respects competent, in preference to creditors or other persons. (24) 1 R. L. 314, § 17. |