TITLE 2. [78-81] Executors in their own wrong. [Sections 44-59 were repealed by L. 1880, ch. 245.] § 60. Every person who shall take into his possession any of the assets of any testator or intestate, without being thereto duly authorized as executor, administrator or collector, or without authority 2 Hill, 226; from the executor, administrator or collector, shall be liable to account for the full value of such assets, to every person entitled thereto, and shall not be allowed to retain or deduct from such assets, for any debt due to him. 17 W. D 181; 18 J. & S., 234; 42 Hun, 330; 44 Hun,461. [1 R. L., 313, § 13.] L. 1851, Chap. 175 – An act to provide for the election of a separate officer to perform the duties of the office of surrogate in certain coun-ties, and to increase his powers and duties. [Section 1 amends L. 1847, ch. 276, § 13. Section 2 will be found on p. 443, ante.] Bonds, with whom to be filed. §3. All bonds given by any executor or administrator, or any other person, which by law are required to be filed with the surrogate or in the surrogate's office of any county, shall be proved or acknowledged by the parties executing the same as deeds are now required by law to be proved or acknowledged, before the same shall be received by the surrogate or person performing the duties of surrogate. L. 1863, Chap. 362– An act in relation to proceedings in surrogates' courts, and to the fees of surrogates, and the compensation of executors and administrators, and to a clerk for surrogates. [Sections 1 and 2 were repealed by L. 1880, ch. 245.] [Sections 3 and 4 amend the Revised Statutes.] [Sections 5 and 6 were repealed by L. 1880, ch. 245.] In what case surrogate to charge no fees. § 7. In all cases where the inventory of personal property of any testator or intestate, filed in the office of the surrogate, shall not exceed the sum of one thousand dollars, no fees for any service done or performed by the surrogate shall be charged to or received from the executor or administrator; and if the petition for letters testamentary or of administration shall allege that, in the belief of the petitioner, the said inventory will not exceed in amount the sum aforesaid, no fees shall be received until it appears from the said inventory, when filed, that the personal property does not exceed that sum ; and in all cases of the appointment of guardians, where it shall appear that the application is made for the purpose of enabling the minor or minors to receive bounty, arrears of pay, or prize money, or pension due, or other dues or gratuity from the federal or state government, for the services of the parent or brother of such minor or minors in the military or naval service of the United States, no surrogate's fees shall be charged or received. [Thus amended by L. 1866, ch. 784. } 43 Hun, 196. [See Code Civ. Proc., § 2567.] [Section 8 amends the Revised Statutes.] [Section 9 was repealed by L. 1880, ch. 245.] [Section 10 is omitted as local.] L. 1867, Chap. 782 – An act in relation to the powers and jurisdictions. of surrogates' courts. [Section 1 was repealed by L. 1880, ch. 245.] Married women capable of being executrixes, etc. § 2. Married women are hereby declared to be capable of acting as executrixes, administratrixes and guardians of minors, and of receiving letters testamentary, or of administration, or of guar dianship, as though they were single women; and their bonds, given upon the granting of such letters, shall have the same force and effect as though they were not married. 2 Dem., 1; 89 N. Y., 401; 100 N. Y., 328. [Section 3 and 4 amend the Revised Statutes.] Surrogates can refuse letters testamentary. §5. Any surrogate may, in his discretion, refuse the application for letters testamentary, or letters of administration, of any person unable to read and write the English language. [Section 6 amends the Revised Statutes.] [Section 7-10 were repealed by L. 1880, ch. 245.] [Section 11 amends the Revised Statutes.] Repeal. § 12. The thirtieth section of chapter six, title two of the second part of the Revised Statutes is hereby repealed. [Section 13 of this act is on p. 2559, post; section 14 is on p. 2567, post.] [Section 15 was repealed by L. 1886, ch. 593.] [Section 16 was repealed by L. 1880, ch. 245.] TITLE III. Of the duties of Executors and Administrators in taking and returning Inventories, in the Payment of Debts and Legacies, in accounting, and in making distribution to Next of Kin. ART. 1.—Of their duties in taking and returning inventories. ART. 2.-Of the duties of executors and administrators, in the payment of debts and legacies. ART. 3.-Of the duties of executors and administrators, in rendering an acconnt, and in making distribution to the next of kin. ARTICLE FIRST. OF THEIR DUTIES IN TAKING AND RETURNING INVENTORIES. SEC. 1. Appraisers of property to be appointed; their compensation. 2. Appraisal to be made by them and executor or administrator. 5. Proceedings of appraisers. 6. Assets enumerated, which go to executors. 7. Things which are not assets. 8. Rights of heirs to descendible property, not affected by section six. 9. Certain other articles not assets, to be included in inventory, in certain cases. 10. To whom such articles belong, and with whom to remain. 11. Mortgages, bonds, etc., to be particularly stated in inventory. 12. Money and bank-bills received, to be stated; if none the fact to be mentioned. 13. The appointment of a debtor executor, not to discharge debt. 14. Discharge of any debt in a will, to be deemed a specific bequest. 15. Duplicates of inventory to be made; one to be returned to surrogate. 16. Oath to be taken by executor or administrator, to be endorsed on inventory. 17-22. [Repealed.] 23. Inventory may be returned by one executor; those refusing, to forfeit their appointment. 24. New assets discovered, to be appraised and inventoried; inventory to be returned. ART. 1. [82] SECTION 1. Upon the application of an executor or administra- Surrogate tor, the surrogate who granted letters testamentary or of adminis- to appoint tration shall, by writing, appoint two disinterested appraisers as often 1Tucker, as occasion may require, to estimate and appraise the personal prop- c., 492. appraisers. 111; 3 T. & tion of. erty of a deceased person, and such appraisers shall be entitled to Compensa- receive a reasonable compensation for their services, to be allowed by the surrogate, but not exceeding for each appraiser the sum of five dollars for each day actually employed in making an appraisement or inventory, in addition to his actual expenses necessarily incurred; the number of days' services so rendered, and the amount. of such expenses to be verified by the affidavit of the appraiser performing such services, to be made and delivered to the executor or administrator before payment of such fees, and to be adjusted by the surrogate. And no clerk or employee in a surrogate's office shall act as appraiser in any matter before such surrogate. [Thus appraiser. amended by L. 1873, ch. 225.] Surrogate's clerk not to act as Appraisal. 20 N. Y., 120; 16 18 How. § 2. The executors and administrators of any testator or intestate, within a reasonable time after qualifying, and after giving the notice in the next section required, with the aid of appraisers so appointed Pr. R. 206; by the surrogate, shall make a true and perfect inventory of all the goods, chattels, and credits of such testator, or intestate, and where Redf., 278; the same shall be in different and distant places, two or more such inventories, as may be necessary. 37 Barb., 542; 38 N. Y., 398; 1 2 Dem., 263, 4 Dem., 401. 15 How. Pr. R., 184; 4 [1 R. L., 311, § 1.] § 3. A notice of such appraisement shall be served, five days pre4 Abb., 313; vious thereto, on the legatees and next of kin, residing in the county where such property shall be; and it shall also be posted in three of the most public places of the town. In every such notice, the time and place at which such appraisement will be made shall be specified. Dem., 177; 88 N. Y., 487. Oath of appraisers. 24; 4 Dem., 402. § 4. Before proceeding to the execution of their duty, the ap18 Barb., praisers shall take and subscribe an oath, to be inserted in the inventory made by them, before any officer authorised to administer oaths, that they will truly, honestly and impartially appraise the personal property, which shall be exhibited to them, according to the best of their knowledge and ability. Proceedings. 36 Barb., 418; 4 [1 R. L., 311, § 2.] § 5. The appraisers shall, in the presence of such of the next of kin, legatees, or creditors of the testator or intestate as shall attend, Dem., 402. proceed to estimate and appraise the property which shall be exhibited to them; and shall set down each article separately, with the value thereof in dollars and cents, distinctly, in figures, opposite to the articles respectively. Assets. 3 Dem., 171; 33 § 6. The following property shall be deemed assets, and shall go 129; 25 Hun, to the executors or administrators, to be applied and distributed as part of the personal estate of their testator or intestate, and shall be 41 Hun, 186. included in the inventory thereof: Hun, 263; 37 Hun, 13; [83] 1. Leases for years; lands held by the deceased from year to year; and estates held by him for the life of another person: [1 R. L., 365, § 4.] 2. The interest which may remain in the deceased at the time of his death, in a term for years, after the expiration of any estate for years therein, granted by him or any other person: 3. The interest in lands devised to an executor for a term of years, for the payment of debts: 4. Things annexed to the freehold, or to any building, for the purpose of trade or manufacture, and not fixed into the wall of a house, so as to be essential to its support: 5. The crops growing on the land of the deceased, at the time of his death: 6. Every kind of produce raised annually by labor and cultivation, excepting grass growing and fruit not gathered: 7. Rent reserved to the deceased, which had accrued at the time. of his death: [1 R. L., 439, § 18; 443, § 27.] 8. Debts secured by mortgages, bonds, notes or bills; accounts,. money, and bank bills, or other circulating medium, things in action, and stock in any company, whether incorporated or not: 9. Goods, wares, merchandise, utensils, furniture, cattle, provisions and every other species of personal property and effects, not hereinafter excepted. 34 N. Y., 348; 35 N. Y., 199; 48 N. Y., 284, 42 N. Y., 150; 1 Abb. Ct. App. Dec., 240; 9 ART. 1. not assets. § 7. Things annexed to the freehold, or to any building, shall not what are go to the executor, but shall descend with the freehold to the heirs 18 N. Y., or devisees, except such fixtures as are mentioned in the fourth sub- 28; 1 Barb.,. division of the last section. 376; 1 Redf., 278. heirs. § 8. The right of an heir to any property not enumerated in the Rights of preceding sixth section, which by the common law would descend 10 Barb., to him, shall not be impaired by the general terms of that section. 432. § 9. Where a man having a family shall die, leaving a widow or a Articles to minor child or children, the following articles shall not be deemed ed in inassets, but shall be included and stated in the inventory of the estate, without being appraised: 1. All spinning-wheels, weaving-looms, one knitting machine, one sewing-machine, and stoves put up or kept for use by his family. 2. The family bible, family pictures, and school-books, used by or in the family of such deceased person, and books not exceeding in value fifty dollars, which were kept and used as part of the family library before the decease of such person. be includ but not ventory, appraised. Enumera tion. 796 Hill, 643; 218; 2 Sandf. S.C., Bradf., 258; 46 Barb., 191; 2 Redf., 87; 2 268; 3Dem., 109; 27 3. All sheep to the number of ten, with their fleeces, and the yarn and cloth manufactured from the same, one cow, two swine De65, and the pork of such swine, and necessary food for such swine, 72; 24 Hun, sheep or cow for sixty days, and all necessary provisions and fuel for such widow or child or children for sixty days, after the death of such deceased person. 4. All necessary wearing apparel, beds, bedsteads and bedding, necessary cooking utensils, the clothing of the family, the clothes of the widow and her ornaments proper for her station; one table, six chairs, twelve knives and forks, twelve plates, twelve tea-cups and saucers, one sugar dish, one milk pot, one tea-pot and twelve spoons, and also other household furniture which shall not exceed one hundred and fifty dollars in value. [Thus amended by L. 1874, ch. 470.] [L. 1824, 32.] Hun, 54; 92 N. Y., 235; 18 Abb. N. C., 468. TITLE 3. Where to 679; 6 Hill, 643; 46 Barb., 191. Mortgages, bonds, etc. 20 N. Y., 120; 3 § 10. The said articles shall remain in the possession of the widow, if there be one, during the time she shall live with, and provide for, such minor child or children. When she shall cease so to do, she shall be allowed to retain as her own, her wearing apparel, her ornaments and one bed, bedstead and the bedding for the same; and the other articles so exempted, shall then belong to such minor child or children. If there be a widow, and no such minor child, then the said articles shall belong to such widow. [L. 1824, 32.] § 11. The inventory shall contain a particular statement of all bonds, mortgages, notes and other securities for the payment of Dem., 807. money, belonging to the deceased, which are known to such executor or administrator; specifying the name of the debtor in each security; the date; the sum originally payable; the endorsements thereon, if any, with their dates and the sum which, in the judgment of the appraisers, may be collectible on each security. Money and § 12. The inventory shall also contain an account of all monies, whether in specie or bank bills, or other circulating medium, belongWend., 303. ing to the deceased, which shall have come to the hands of the executor or administrator; and if none shall have come to his hands, the fact shall be so stated in such inventory. Debts of executors not discharged. 53 Barb., 517; 2 T. & C., 464; 74 13. The naming of any person executor in a will, shall not operate as a discharge, or bequest, of any just claim, which the testator had against such executor, but such claim shall be included among the credits and effects of the deceased, in the inventory, and NY, 539; such executor shall be liable for the same, as for so much money in his hands, at the time such debt or demand becomes due; and he 4 Dem.,107; shall apply and distribute the same in the payment of debts and 277; 89 N. legacies, and among the next of kin, as part of the personal estate of the deceased. 59 N. Y., 140; 3 Dem., 213; 39 Hun, 67, Y., 1; 95 N. Y., 340; 24 Hun, 335; 45 Hun, 482. Discharge of debts by will, in valid as to creditors. Inventory to be re turned, &c. 26 Barb., §14. The discharge or bequest in a will, of any debt or demand of the testator, against any executor named in his will, or against any other person, shall not be valid as against the creditors of the deceased; but shall be construed only as a specific bequest of such debt or demand; and the amount thereof shall be included in the inventory of the credits and effects of the deceased, and shall, if necessary, be applied in the payment of his debts; and if not necessary for that purpose, shall be paid in the same manner and proportion as other specific legacies. § 15. Upon the completion of the inventory, duplicates thereof shall be made and signed by the appraisers; one of which shall be 332; 3 retained by the executor or administrator, and the other shall be reBraaf, 228; turned to the surrogate within three months from the date of such letters. 37 542; 2 Dem., 352. Oath of ex- Barb., 332; [85] 37 Barb., 542; 38 N. [1 R. L., 311, § 1, L. 1821, 46.] § 16. Upon returning such inventory, the executor or administrator shall take and subscribe an oath, before the surrogate or any officer within the state, who is authorized to take an affidavit to be used in the supreme court, stating that such inventory is in all respects just and true, that it contains a true statement of all the personal |