TITLE 2. Ib. Administrator first appointed to sive authority, &c. $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 subsequently 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. Death of intestate to be how. 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 $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. (22) 1 R. L. 44, § 5. (23) 1 R. L. 314, § 17; 445, § 3. 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, 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, 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 $30. If letters of administration on the estate of a married woman, 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. Ib. If granted to another as sets how dis posed of. 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 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 receiving leting a contract, nor to a person who is not a citizen of the United States, ters of adminor 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. 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 to 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-ge neral to be $37. In all cases of application for letters of administration in cases cited, unless of intestacy, a citation to show cause as aforesaid, shall be issued to that intestate and served on, the attorney-general, at least twenty days before the left kindred. return day thereof, previous to granting such letters, unless it shall be it be shown Collector when to be appointed. Authority and duties of such collector. 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.25 $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. $ 41. Before any letters of administration with the will annexed, Every admior 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; pe condition $42. Every person appointed administrator shall, before receiving Administra letters, 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 thereof. 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 $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 thereof. 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. All becoming 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. 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. $45. If all such executors or administrators shall die, or become incompetent, incapable, as aforesaid, or the power and authority of all of them 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. Administra $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 |