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. $29. A husband, as such, if otherwise competent according to law, Administra shall 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, granted to 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.. S32. 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. $33. If any person who would otherwise be entitled to letters of administration as next of kin, or to letters of administration with the 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. Letters when to be granted to minor. TITLE 2. $34. Administration may be granted to one or more competent persons, although not entitled to the same, with the consent of the not entitled person entitled, to be joined with such person; which consent shall ed in letters. be in writing, and be filed in the office of the surrogate. When person may be join Renunciation of persons right; cita tion to such persons. Citation how so be served. $35. When any person shall apply for administration, either with having prior the will annexed, or in case of intestacy, and there shall be any other person having prior right to such administration, the applicant shall produce, prove, and file with the surrogate, a written renunciation of the persons having such prior right. If he fail to do so, before any such letters shall be granted, a citation shall be issued to all persons having such prior right, to show cause at a day to be therein specified, why administration should not be granted to such applicant.25 $ 36. If any person to whom such citation shall be directed, shall reside within the county of such surrogate, such citation shall be served personally, or by leaving a copy at the residence of such person, at least six days before the return day thereof; if any such person reside out of such county, but within the state, and such residence can be ascertained, service shall be made in the same manner, at least forty days before the return day of the citation if any such person reside out of the state, or his residence can not be ascertained, such citation may be personally served without the state, forty days before its return, or may be published once in each week, for six weeks successively, in the state paper.25 Attorney-go neral to be it be shown left kindred. $37. In all cases of application for letters of administration in cases cited, unless of inte tay, a citation to show cause as aforesaid, shall be issued to tha intestate and served on, the attorney-general, at least twenty days before the return day thereof, previous to granting such letters, unless it shall be shown to the surrogate, by the affidavit of the applicant, or other written proof, that the intestate left kindred entitled to his estate, specifying the names of such kindred, and their places of residence, as far as the same can be ascertained.24 Collector when to be appointed. Authority and duties of such colJector. $38. In case of a contest relative to the proof of a will, or relative to the right to letters testamentary, or when by reason of the absence from this state of any executor named in a will, or by any other cause, a delay is necessarily produced, in granting such letters, the surrogate authorised to grant the same may, in his discretion, issue special letters of administration to one or more persons, authorising the collection and preservation of the goods of the deceased. $39. Every collector so appointed, shall have authority to collect the goods, chattels, personal estate, and debts of the deceased; and to secure the same, at such reasonable expense as the surrogate shall allow; and for those purposes may maintain suits as an administra (25) 1 R. L. 445, § 6. tor. Under the direction of the surrogate, he may sell such of the ART. 2. said goods as shall be perishable, after the same shall have been appraised. collector cease; his upon. $40. Upon letters testamentary, or of administration, being grant- Powers of ed, the power and authority of such collector shall cease; but any when to suit brought by him may be continued by the executor or administra- duty theretor, in the name of such collector, which he shall not have power to discontinue or release. And such collector shall, on demand, deliver to the executor or administrator, all the property and money of the deceased in his hands, and shall render an account, on oath, to the surrogate, of all his proceedings, upon being cited for that purpose, or without such citation. Such delivery and account may be enforced by an order of the surrogate, and by attachment to be issued by him as in other cases of administrators. nistrator or take oath. S41. Before any letters of administration with the will annexed, Every udini or in cases of intestacy, shall be issued to any administrator or col- collector to lector, 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 well, honestly and faithfully, discharge the duty of administrator or collector, as the case may be, according to law. tor to give sureties; po condition thereof. $42. Every person appointed administrator shall, before receiving Administraletters, execute a bond to the people of this state, with two or more bond with competent sureties, to be approved by the surrogate, and to be jointly nalty and and severally bound. The penalty in such bond shall not be less than twice the value of the personal estate of which the deceased died possessed, which value shall be ascertained by the surrogate, by the examination on oath of the party applying, and of every other person he may think proper to examine. The bond shall be conditioned, that such administrator shall faithfully execute the trust reposed in him as such, and also that he shall obey all orders of such surrogate, touching the administration of the estate committed to him.26 give bond; condition thereof. $43. Every collector appointed by special letters, shall execute a collector to bond, with sureties, to be approved as aforesaid, in the same penal- penalty and ty as in the case of an administrator, and the same proceedings shall con be had to ascertain such penalty. The condition of such bond shall be, that he will make a true and perfect inventory of such of the assets of the deceased, as shall come to his possession or knowledge, and return the same within three months, to the office of the surrogate granting such letters; that he will faithfully and truly account for all property, money, and things in action, received by him as such collector, whenever required by the said surrogate, or any other court of competent authority, and will faithfully deliver up the same, to the (26) 1 R. L. 447, § 10. TITLE 2. person or persons who shall be appointed executors or administrators of the deceased, or to such other person as shall be authorised to receive the same by such surrogate. One execu tor, &c. becoming incompetent, &c. ARTICLE THIRD. General Provisions relating to Letters Testamentary and of Administration; Miscellaneous Provisions respecting the Duties of Surrogates, and the Recording of Wills and Letters. SEC. 44. When one of several executors, &c. becomes incompetent, the others to proceed. 45. If all become incompetent, &c. new letters to issue, and effect thereof. 46. Upon will being proved, administration to be revoked, and letters to be issued. 47. What acts of executors, &c. removed or suspended, to be valid. 48. In what cases surrogate not to act in proving will or granting letters. 49. In such cases, first judge of county to act; his powers. 50. First judge of county to act when surrogate's office is vacant. 51. Powers of first judge in the cases provided. 52. To use seal of the common pleas, and to deposit papers with county clerk. 53. To record wills and letters in surrogate's books, and to certify them. 54. If surrogate and first judge interested, or offices vacant, district attorney to act. 55. Letters testamentary, &c. how to be issued, tested, signed and sealed. 56. Effect of letters testamentary, &c. as evidence. 57. Testimony on proof of will, &c. how taken, entered and preserved. 58. Wills proved and letters granted to be recorded; record, &c. to be evidence. 59. Copies of certain wills to be sent to secretary of state; expense how paid. 60. Unauthorised persons interfering with estates, to account, and not to retain for debts due them. S44. In case any one of several executors or administrators, to whom letters testamentary or of administration shall have been granted, shall die, become lunatic, convict of an infamous offence, or otherwise become incapable of executing the trust reposed in him, or in case the letters testamentary or of administration shall be revoked or annulled according to law, with respect to any one executor or administrator, then the remaining executors and administrators shall proceed and complete the execution of the will or the administration, according to law. All becoming $45. If all such executors or administrators shall die, or become incompetent, incapable, as aforesaid, or the power and authority of all of them &c. Administra shall be revoked according to law, the surrogate having authority to grant letters originally, shall issue letters of administration upon the goods, chattels, credits and effects of the deceased left unadministered, with the will annexed, or otherwise, as the case may be, to the widow or next of kin, or creditors of the deceased, or others, in the same manner as herein before directed, in relation to original letters of administration; which administrator shall give bonds in the like penalty, with like sureties and conditions, as herein before required of administrators, and shall have the like power and authority. And such letters shall supersede all former and other letters testamentary, and of administration, upon the same estate. $ 46. If after granting any letters of administration on the ground of be revoked. intestacy, any will shall be subsequently proved, and letters testamen tion when to tary or of administration, with the will annexed, be thereupon issued, ART. 3. a revocation of such letters of administration shall be made by the surrogate; and until the same be made and served on such administrator, his acts done in good faith shall be valid; and the executors to whom letters testamentary shall be issued, shall be entitled to demand, collect, and sue for, the goods, chattels, and effects remaining unadministered.27 cutors, &c. $47. All sales made in good faith, and all lawful acts done, either Acts of exeby administrators before notice of a will, or by executors or adminis- when valid. trators, who may be removed or superseded, or who may become incapable, shall remain valid, and shall not be impeached, on any will afterwards appearing, or by any subsequent revocation or superseding of the authority of such executors or administrators.27 gate shall not $48. No surrogate shall admit to probate any will, or grant let- When surroters testamentary or of administration, in any case, or upon any estate, act. where he shall be interested as next of kin to the deceased, or as a legatee or devisee under such will, or where such surrogate shall be named as executor in such will.28 S49. When any surrogate who would otherwise be authorised to First judge to act, shall be so precluded from acting, upon a representation and due act. proof thereof, to the first judge of such county, such judge shall be vested with all the powers and authority of the surrogate, in relation to the proof of any such will, and the granting of letters testamentary or of administration thereon, and the granting of letters of administration, in case of intestacy; and shall retain jurisdiction in such cases, for all the purposes contemplated by this Chapter. $50. When the office of surrogate in any county shall be vacant, I. the first judge of the county shall act as surrogate, until such vacancy be supplied. $51. Whenever the first judge of any county shall act as surrogate, His powerspursuant to the foregoing provisions, he shall possess all the powers and authority of a surrogate, in the same manner, under the same restrictions, as are herein prescribed, in relation to such surrogate; and his orders and decrees, shall in like manner be subject to appeal. &c. S52. Whenever it becomes necessary for the first judge to use a What seal to seal in the execution of any of his duties or powers as surrogate, use, he shall be authorised to use the seal of the court of common pleas of his county, without any charge therefor. All papers, vouchers and documents received by him, and which are required to be retained by the surrogate, shall be deposited in the office of the clerk of the county. (27) 1 R. L. 313, § 15. (28) 1 R. L. 449, § 16. |