When monies may be retained. Order of distribution. $73. Every person to whom any such securities may be assigned, may sue and recover upon the same, at his own costs and charges, in the name of the executor or administrator making such assignment, or otherwise, in the same manner as such executor or administrator might have done. $74. If upon the representation of an executor or administrator, or otherwise, it shall appear to the surrogate, that any claim exists against the estate of the deceased, which is not then due, or upon which a suit is then pending, he shall allow a sum sufficient to satisfy such claim, or the proportion to which it may be entitled, to be retained for the purpose of being applied to the payment of such claim when due, or when recovered, or of being distributed according to law. The sum so retained may be left in the hands of the executor or administrator, or may be directed by the surrogate to be deposited in some safe bank, to be drawn only on the order of the surrogate. $75. Where the deceased shall have died intestate, the surplus of his personal estate remaining after payment of debts; and where the deceased left a will, the surplus remaining after the payment of debts and legacies, if not bequeathed, shall be distributed to the widow, children, or next of kin of the deceased, in manner following: 1. One-third part thereof to the widow, and all the residue by equal portions among the children, and such persons as legally represent such children, if any of them shall have died before the deceased: 2. If there be no children, nor any legal representatives of them, then one moiety of the whole surplus shall be allotted to the widow, and the other moiety shall be distributed to the next of kin of the deceased, entitled under the provisions of this section: 3. If the deceased leave a widow, and no descendant, parent, brother or sister, nephew or niece, the widow shall be entitled to the whole surplus; but if there be a brother or sister, nephew or niece, and no descendant or parent, the widow shall be entitled to a moiety of the surplus as above provided, and to the whole of the residue where it does not exceed two thousand dollars; if the residue exceed that sum, she shall receive, in addition to her moiety, two thousand dollars; and the remainder shall be distributed to the brothers and sisters, and their representatives: 4. If there be no widow, then the whole surplus shall be distributed equally to and among the children, and such as legally represent them : 5. In case there be no widow, and no children, and no representatives of a child, then the whole surplus shall be distributed to the next of kin, in equal degree to the deceased, and their legal representatives: 6. If the deceased shall leave no children, and no representatives of them, and no father, and shall leave a widow and a mother, the moiety not distributed to the widow shall be distributed in equal shares to his mother, and brothers and sisters, or the representatives TITLE 3. of such brothers and sisters; and if there be no widow, the whole surplus shall be distributed in like manner to the mother, and to the brothers and sisters, or the representatives of such brothers and sis ters: 7. If the deceased leave a father, and no child or descendant, the father shall take a moiety, if there be a widow, and the whole, if there be no widow: 8. If the deceased leave a mother, and no child, descendant, father, brother, sister, or representative of a brother or sister, the mother, if there be a widow, shall take a moiety, and the whole, if there be no widow : 9. Where the descendants, or next of kin of the deceased, entitled to share in his estate, shall be all in equal degree to the deceased, their shares shall be equal: 10. When such descendants, or next of kin, shall be of unequal degrees of kindred, the surplus shall be apportioned among those entitled thereto, according to their respective stocks; so that those who take in their own right, shall receive equal shares, and those who take by representation, shall receive the share to which the parent whom they represent, if living, would have been entitled: 11. No representation shall be admitted among collaterals, after brothers' and sisters' children: 12. Relatives of the half-blood, shall take equally with those of the whole blood in the same degree; and the representatives of such relatives, shall take in the same manner as the representatives of the whole blood: 13. Descendants, and next of kin of the deceased, begotten before his death, but born thereafter, shall take in the same manner, as if they had been born in the life time of the deceased, and had survived him.44 ment. $76. If any child of such deceased person shall have been ad- Advancevanced by the deceased, by settlement or portion of real or personal estate, the value thereof shall be reckoned with that part of the surplus of the personal estate, which shall remain to be distributed among the children; and if such advancement be equal or superior to the amount, which, according to the preceding rules, would be distributed to such child, as his share of such surplus and advancement, then such child and his descendants shall be excluded from any share in the distribution of such surplus. 44 $77. But if such advancement be not equal to such amount, such Tb. child, or his descendants, shall be entitled to receive so much only, as shall be sufficient to make all the shares of all the children, in such surplus and advancement, to be equal, as near as can be estimated.44 (44) 1 R. L. 313, § 16. 13 VOL. П. TITLE 3 $78. The maintaining or educating, or the giving of money to a child, without a view to a portion or settlement in life, shall not be deemed an advancement, within the meaning of the two last sections; nor shall those sections apply in any case where there shall be any real estate of the intestate, to descend to his heirs. Ib. Exception. Shares of minors. When sur plus to be paid into treasury. Advance of cies and shares. $79. The preceding provisions respecting the distribution of estates, shall not apply to the personal estates of married women; but their husbands may demand, recover, and enjoy the same, as they are entitled by the rules of the common law.45 $80. Where a distributive share is to be paid to a minor, the surrogate may direct the same to be paid to the general guardian of such minor, and to be applied to his support and education; or he may direct the same to be invested in permanent securities, as herein before provided, in respect to legacies to minors, with the like authority to apply the interest, and subject to the same obligations. $81. When administration is granted to any person not the widow of, or next of kin to, a deceased person, and no one shall appear to claim the personal estate of the deceased within two years after such letters granted, the surplus of such estate which would be distributed as aforesaid, shall be paid into the treasury of this state, for the benefit of those who may thereafter appear to be entitled to the same.46 $82. Any person entitled to any legacy, or to a distributive share parts of lega- of the estate of a deceased person, at any time previous to the expiration of one year from the granting of letters testamentary or of administration, may apply to the surrogate, either in person or by his guardian, after giving reasonable notice to the executor or administrator, to be allowed to receive such portion of such legacy or share, as may be necessary for his support. Ib. $83. If it appear to the surrogate that there is at least one-third more, of assets, in the hands of such executor or administrator, than will be sufficient to pay all debts, legacies, and claims against the estate, then known, he may, in his discretion, allow such portion of the legacy or distributive share to be advanced, as may be necessary for the support of the person entitled thereto, upon satisfactory bonds being executed for the return of such portion, with interest, whenever required. $ 84. The provisions in this Title contained, shall not be applicable to any letters testamentary or of administration, granted to the public administrator in the city of New-York, nor in any respect to the said public administrator. (45) 1 R. L. 314, § 17. (46) Ib. 316, § 22. TITLE IV. OF THE POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS, SEC. 1. When executors, &c. may apply for authority to dispose of real estate. 2. Contents of the petition for that purpose. 3. If there are any devisees or heirs, minors, guardians to be appointed for them. 4. Minors in certain cases to be notified. 5. When surrogate to grant order to show cause. 6. How order to be published and served. 7. If heirs, &c. cannot be found in the county or in the state, order how to be served. 8. When surrogate to hear proofs and allegations of parties. 9. Executors, &c. to be examined on oath; process for witnesses. 10. What may be shown by claimants of the real estate. 11. Surrogate may award issue to try contested facts; prcoeedings thereon. 12. Costs of the issue by whom paid. 13. The demands ascertained, to be entered by surrogate in a book. 14. What must appear to justify order for disposition of real estate. 15. When to direct a lease or mortgage to be made. 16. Length of time for which lease may be made. 17. Effect of lease or mortgage executed under order of surrogate. 18. When portions of real estate may be ordered to be sold. 19. When whole of real estate may be sold. 20. Order in which real estate shall be directed to be sold. 21. Before granting order to lease or mortgage, bond to be taken. 22. Before granting order to sell, bond to be taken, 23. If executor, &c. neglect to give bond, freeholder to be appointed to lease or sell, &c. 24. Upon such person executing bond, to be authorised to sell, &c. ; his duty. 25. Notice of sale how published; its contents. 26. Time and place of sale. 27. Executors not to purchase, nor guardians, except for their wards. 28. Surrogate may allow credit to be given on sale; how secured. 29. Proceedings to be returned; in what cases sale may be vacated. 30. When order confirming sale and directing conveyances to be made. 31. Contents of conveyances, and effect thereof. 32. Sale subject to certain judgments and mortgages. 33. Heirs and devisees how far exonerated from debts of ancestor, by sale. 34. Executors, &c. to account for proceeds of sale of real estate sold, &c. 35. Monies arising from sale of whole or part of real estate, to be paid to surrogate. 36 & 37. Surrogate to pay expenses of sale and satisfy dower in the lands sold. 38. Balance to be distributed among creditors in proportion. 39. Debts not due to be paid, after deducting rebate of interest. 40. Notice of distribution how to be made and published. 41. Surrogate to ascertain debts, and hear proofs of parties relating to them. 42. Debts how established. 43. Surplus after payment of debts, to be paid to heirs, devisees, &c. 44. Securities taken on sale, to be delivered to surrogate; his duty in respect to them. 45. Securities taken on investment to satisfy dower, to be kept by surrogate, &c. 46. Principal thereof when to be collected and how applied. 47. Surplus, if any, how distributed. 48. When and how creditors to proceed to compel sale of real estate by executors, &c. 49. Order to show cause how and when served on executors, &c. 50. When surrogate to order lease, mortgage or sale of the real estate. 51. Proceedings of executors, &c. under such order. 52. If executors, &c. refuse, &c. another to be apppointed; his authority. 53 & 54. Suits against heirs and devisees, when to be brought; consequences thereof. 55. Sales of real estate made under a will, by one or more of several executors, when valid. 56. Sales of real estate under will, how to be conducted. ' 57. Proceeds of such sales to be accounted for and distributed, &c. TITLE 4. TITLE 4. SEC. 62. Reference to be made to a master to report on certain matters. 63. Notice to oppose confirmation of sale, how to be published. Application to sell, &c. 64. In what cases such notice to be served personally, &c. 65. In what cases chancellor to confirm sales. 66. Interest of deceased in contracts for purchase of lands, how to be sold. 67. Conditions of sale, and bond to be required of purchaser. 68. In what case, bond not to be required. 69. Assignment of contract, when and by whom to be executed; its effect. 70. In what cases part of land contracted may be sold. 71. Monies arising from sales of such interest to be paid to surrogate and how applied. 72. Extent of dower claim on such interest declared. 73. Proceeds of sales how applied, as to vendor of land, creditors, heirs, &c. 74. When a part of land sold, conveyance to be made; its effect. 75. Rights of executors, &c. in such case to enforce contract of sale; deeds to them to be in trust. $1. After the executors or administrators of any deceased person, real estate. shall have made and filed an inventory according to law, and shall have rendered an account of their proceedings to the surrogate, and the same shall have been allowed and settled, if they discover the personal estate of their testator or intestate, to be insufficient to pay his debts, they may, at any time within three years, after the granting of their letters testamentary or of administration, apply to the surrogate for authority to mortgage, lease or sell so much of the real estate of their testator or intestate, as shall be necessary to pay such debts.47 $ 2. The petition shall set forth, Contents of petition. Guardians for minors. Ib. 1. The amount of personal property which has come to the hands of the executor or administrator: 2. The application thereof: 3. The debts outstanding against the testator or intestate, as far as the same can be ascertained: 4. A description of all the real estate of which the testator or intestate died seized, with the value of the respective portions or lots, and whether occupied or not, and if occupied, the names of the occupants; and, 5. The names and ages of the devisees, if any, and of the heirs of the deceased: And such petition shall be verified by the oath of the party presenting the same. $3. If it shall appear to the surrogate by such petition, or by other competent evidence, that any of the devisees or heirs of the deceased are minors, the surrogate shall immediately, and before any other proceeding, appoint some disinterested freeholder, guardian of such minors, for the sole purpose of appearing for them, and taking care of their interest in the proceedings. 48 S 4. If any such minors are within the county of such surrogate, they shall be personally served with notice, ten days previously, of the intention to apply for the appointment of a guardian, that they may be heard in the selection of such guardian. (47) 1 R. L. 450, § 23; 453, § 26. (48) Ib. 454, § 31. |