TITLE 2. Provisions as to revocations. Prior wills not affected. "Wills" to include codicils. [69] well to wills made previous, as to those made subsequent, to the time, when this Chapter shall take effect. 20 N. Y., 120; 5 N. Y., 312; 18 How. P. R., 208. $69. The provisions of this Title, in relation to the revocation of wills, shall apply to all wills made by any testator, who shall be living, at the expiration of one year, from the time this Chapter shall take effect. 5 N. Y., 312; 8 Pai., 446. $ 70. The provisions of this Title shall not be construed to impair the validity of the execution of any will made before this Chapter shall take effect, or to affect the construction of any such will. 5 N. Y., 312; 8 Pai., 304; 4 H., 139; 11 B., 332. $71. The term "will," as used in this Chapter, shall include all codicils, as well as wills. 1 R. L., 368, § 20; 6 N. Y., 120; 5 N. Y., 128; 3 S. S. C., 82; 3 Brad., 48; 1 Brad., 252, 291. See Laws of 1837, ch. 460; 1840, ch. 384; 1841, ch. 129; 1830, ch. 320. TITLE II. OF GRANTING LETTERS TESTAMENTARY AND OF ADMINIS- ART. 1. Of granting letters testamentary. ART. 2.-Of granting letters of administration with the will annexed, and in cases of intestacy. ART. 3.-General provisions relating to letters testamentary and of administration; miscellaneous provisions respecting the duties of surrogates, and the recording of wills and letters. ARTICLE FIRST. OF GRANTING LETTERS TESTAMENTARY. SEC. 1. Will being proved, surrogate to issue letters to executors. 2. (Repealed.) 3. Who incompetent to serve as executors; proceedings if all incompetent. 4. Married woman entitled to letters, if husband consent. 5. After disability removed, supplementary letters to be issued. 6. If creditor, &c. object to executor, surrogate may require bond. 7. Bond to be given by non-resident executor. 8. Executor may renounce by instrument in writing. 9. Person named as executor, when to be summoned to appear. 10. How such summons is to be served. 11. Surrogate may allow further time to appear and qualify. 12. When such person deemed to have renounced. 13. Before letters issue, executor to take an oath. 14. When letters to be granted with the will annexed. 15. Executors named in will, but not in letters, superseded till they qualify. 16. Before letters, executor not to interfere, except to pay funeral charges, &c. 17. Executor of executor not to administer. 18. If complaint be made against executor, surrogate to inquire. 19. Citation to person complained of, how to be served. 20. Proceedings upon citation, when executor may be required to give bond. 21. Executor when to be superseded; new letters when to be granted. 22. Where letters with the will annexed are granted, will to be observed. ART. 1. When let issued. $1. When any will of personal estate shall have been duly admitted to probate, the surrogate who took such proof, shall ters to be issue letters testamentary thereon, to the persons named therein as executors, who are competent by law, to serve as such, and who shall appear and qualify. 1 R. L., 445, § 3; 2 Brad., 32. Sec. 2 repealed by Laws of 1837, ch. 460, § 71. 53. No person shall be deemed competent to serve as an executor, who, at the time the will is proved, shall be, 1. Incapable in law of making a contract, (except married women :) 2. Under the age of twenty-one years: 3. An alien not being an inhabitant of this state: 4. Who shall have been convicted of an infamous crime: 5. Who upon proof shall be adjudged incompetent by the surrogate to execute the duties of such trust, by reason of drunkenness, improvidence, or want of understanding. If any such person be named as the sole executor in any will, or if all the persons named therein as executors, be incompetent, letters of administration, with the will annexed shall be issued, as hereinafter provided, in the case of all the executors renouncing. Laws of 1830, ch. 320, § 17; 14 N. Y., 449; 14 B., 660. Persons in competent to serve as executors. men, when $ 4. No married woman shall be entitled to letters testa- Married wo mentary, unless her husband consent thereto, by a writing to entitled to be filed with the surrogate; and by giving such consent he letters. shall be deemed responsible for her acts jointly with her. 8 Pai., 39. [70] tary letters issued. $5. If the disability of a person under age, or being an Supplemenalien, or a married woman, named as executor in any will, when to be shall be removed, before the execution of such will is completed, such person shall be entitled on application, to supplementary letters testamentary, to be issued in the same manner as the original letters, and shall thereupon be authorised to join, in the execution of such will, with the persons previously appointed. 9 B., 446; 4 B., 242. &c. object surrogate to inquire; bond when required. $6. If objections be made by any creditor of the testator, If creditor, or any legatee, relative, or other person interested in his estate to executor, against granting letters testamentary, to one or more of the persons named in the will as executors, the surrogate shall inquire into such objections; and if it appear that the circumstances of any person named as such executor, are such, that in the opinion of the surrogate they would not afford adequate security to the creditors, legatees and relatives of the deceased, for the due administration of the estate, he may refuse letters testamentary to any such person, until he shall give the like bond as is required by law, of administrators in case of intestacy. Pai., 303. TITLE 2. Non-resi S7. If any person applying for letters testamentary, shall dent execu- be a non-resident of the state, such letters shall not be granted until the applicant shall give the like bond. tor to give bond. Executor may renounce. Summons to person named as executor, &c. How served [71] Surrogate may allow S8. Any person named as executor in a will, may renounce such appointment, by an instrument in writing under his hand, attested by two witnesses, and on the same being proved to the satisfaction of the surrogate, who took proof of the will, it shall be filed and recorded by him. 1 R. L., 449, § 16; 3 Pai., 420. 9. If any person named as executor, shall not appear to qualify, and take upon himself the execution of a will, within thirty days after the same was proved, and shall not have renounced, the surrogate shall, on application of any other executor, or of the widow, or any of the next of kin, or any legatee, or creditor of the testator, issue a summons directed to such executor, requiring him to appear and qualify, within a certain time therein to be limited, or that, in default thereof, he will be deemed to have renounced the said appointment. $10. If the person to whom such summons is directed, reside within this state, it shall be served personally on him, at least fourteen days before the time limited therein for him to appear. And if he reside, or be, out of the state, or his residence be unknown, such summons may be served by publishing it in the state paper, for at least six weeks before the time therein specified for such person to appear. S 11. In case sickness, or other accident, or any reasonable cause, exist, to prevent the attendance of such person, upon further time the same being proved to the surrogate, he may, in his discretion, allow a further time for such person to appear and qualify. When executor have re nounced. S 12. If any person, so notified, shall not appear, accorddeemed to ing to the tenor of such summons, or within the time allowed by the order of 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 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. Executor to S 13. Before any letters testamentary shall issue to any executor, 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. When letters to be granted $ 14. If all the persons named in a will as executors, shall renounce, or after summons issued and served as aforesaid, Setterave William Sulli ART. 1. nexed, and shall neglect to qualify, or shall be legally incompetent, then with the 4 J. C. R., 550; 2 Brad., 22. not named not to act. $15. Every person named in a will as executor, and not Executors named as such in the letters testamentary, or in letters of in letters administration with 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. 19 N. Y., 455; 14 B., 379; 3 B. Ch., 74; Pai., 420; 7 How. P. R., executor ters. $16. No executor named in a will, shall, before letters Power of testamentary are granted, have any power to dispose of any before let part of the estate of the testator, except to pay funeral charges, nor to interfere with such estate in any manner, further than is necessary for its preservation. 21 B., 316; 16 W., 579; 1 How. P. R., 207; 3 H., 444; 4 D., 85. executor minister, &c. $17. No executor of an executor, shall, as such, be autho- Executor of rised to administer on the estate of the first testator; but on not to adthe death of the 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. 23 B., 231; 19 B., 653; 18 B., 360. 1721 against ex quire. $ 18. If after letters testamentary shall have been granted Complaint 14 N. Y., 449; 6 N. Y., 447; 8 Pai., 478; 19 B., 653: 14 B., 658; 1 person com how to be served. $19. Such surrogate shall thereupon issue a citation to the Citation to person complained of, requiring him to appear before such plained of, 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 II. - 10 TITLE 2, Proceed ings; when executor may be required to county; and if he shall have absconded from such county, it may be served by leaving it at his place of residence. 14 N. Y., 449; 4 D., 552. S20. 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 appoint, to hear the proofs and allegagive bond. tions of the parties; and if it appear that 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. Adminis tration with nexed. 14 N. Y., 449; 2 B. Ch., 427; 4 Pai., 303. S21. 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; and 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. 14 N. Y., 449; 14 B., 658. S22. In all cases where letters of administration with the the will an- Will annexed, 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. 1 R. L., 316, § 21; 23 N. Y., 303; 13 N. Y., 587; 27 B., 292; 14 B., 652; 25 W., 234; 21 W., 433; 4 S. S. C., 401. [73] ARTICLE SECOND. OF GRANTING LETTERS OF ADMINISTRATION WITH THE WILL ANNEXED, SEC. 23. Surrogate of each county to have exclusive jurisdiction. 24. Jurisdiction of surrogates in regard to non-resident intestates. 26. Before letters granted, death of intestate to be proved. 27. Who entitled to letters of administration. 28. Order of preference where there are several in same degree. 29. Administration on estate of married woman to be granted to husband. 30. If granted to another, balance of assets to be paid to husband. 31. Foreign executors, when entitled to administration. 32. Certain persons incapable of receiving letters. 33. If minor be entitled, letters to be granted to his guardian. 34. When person not entitled may be joined. 35. Renunciation of persons having prior right. 36. Citation how to be served. 37. Attorney-general to be cited, unless it be shewn that intestate left kindred. 38 & 39. (Repealed.) 40. Powers of collector, when to cease. 41. Every administrator or collector to take oath. 42. Administrator to give bond with sureties. 43. Collector to give bond; penalty and condition thereof. |