TITLE 3. [87] Personal property when and 42 N. Y., 150; 34 N. ARTICLE SECOND, OF THE DUTIES OF EXECUTORS AND ADMINISTRATORS, IN THE PAYMENT OF Debts and LEGACIES. SEC. 25. When personal property to be sold, to pay debts, manner and terms of sale. 26. Certain articles to be first sold. 27. Order in which debts are to be paid. 28. Preferences not to be given in payment of certain debts. 29. Debts not due, may be paid, on deducting interest. 30. In certain cases, preference may be given by surrogate, to rents due. 31 & 32. [Repealed.] 33. When executor, etc., may retain for his debt; not entitled to preference. 34. Notice to creditors to exhibit claims may be given, its contents, etc. 35. Upon exhibition of claims, vouchers and affidavits of claimant may be required. 36. If claim doubted, may be submitted to reference. 37. Proceedings on reference; report, judgment and effect thereof. 38. [Repealed.] 39. If suit brought upon claim not presented within six months after notice to creditors; executors, etc., not to be liable for assets paid or distributed. 40-42. [Repealed.] 43. Legacies not to be paid until after one year, unless otherwise directed in 44. If directed to be sooner paid, executor, etc., may require a bond; its contents. § 25. If any executor or administrator shall discover that the debts against any deceased person, and the legacies bequeathed by how to be him, can not be paid and satisfied without a sale of the personal property of the deceased, the same, so far as may be necessary for Y., 348; 26, the payment of such debts and legacies, shall be sold. The sale may be public or private, and, except in the city of New York, may be on credit, not exceeding one year, with approved security. Such executor or administrator shall not be responsible for any loss happening by such sale, when made in good faith, and with ordinary prudence. N. Y., 60; 1 Redf., 235; R., 193; 2 Redf., 87; 23 Hun, 478; 32 Hun, 55; 98 N. Y., 318. What to be Order of payment of debts. § 26. In making such sales, such articles as are not necessary for the support and subsistence of the family of the deceased, or as are not specifically bequeathed, shall be first sold; and articles so bequeathed, shall not be sold, until the residue of the personal estate has been applied to the payment of debts. § 27. Every executor and administrator shall proceed with diligence, to pay the debts of the deceased, and shall pay the same 9 Abb. N. according to the following order of classes: S., 26; 20 N. Y., 120; 3 Edw.,347; 273;. Pr, 4 Bradf., 213, 218; 2 Bradf., 103, 212; 1 Bradf., 343; 164, 305; 1 220; 88 N. 1. Debts entitled to a preference, under the laws of the United States: 2. Taxes assessed upon the estate of the deceased, previous to his death: 3. Judgments docketed, and decrees enrolled, against the deceased, according to the priority thereof, respectively: 4. All recognizances, bonds, sealed instruments, notes, bills and unliquidated demands and accounts. 31 N. Y., 360; 19 Abb. Pr., 1; 15 Abb. Pr., 229; 42 N. Y., 30; 56 Barb., 265; 10 Bosw., ART. 2. preier abolished. § 28. No preference shall be given in the payment of any debt, over other debts of the same class, except those specified in the third Certain class; nor shall a debt due and payable, be entitled to preference ences over debts not due; nor shall the commencement of a suit for the Barb., recovery of any debt, or the obtaining a judgment thereon against P, 270; 18 the executor or administrator, entitle such debt to any preference Wedd over others of the same class. 379; 4 Abb. 17 560; 19 Abb. Pr., 1; 53 N. Y., 613; 2 Dem., 219; 3 Dem., 70; 4 Dem.,440. paid. § 29. Debts not due, may be paid by an executor or administra- Debts not tor, according to the class to which they may belong, after deducting Redf., 214. a rebate of legal interest upon the sum paid, for the time unexpired. 6 Lans., § 30. Preference may be given by the surrogate, to rents due or Rents. accruing, upon leases held by the testator or intestate, at the time of 174, 485; 10 his death, over debts of the fourth class, whenever it shall be made Bosw., 164. to appear to his satisfaction, that such preference will benefit the estate of such testator or intestate. [Sections 31 and 32 were repealed by L. 1880, ch. 245.] [88] etc., re taining. § 33. No part of the property of the deceased shall be retained Executors, by an executor or administrator, in satisfaction of his own debt or claim, until it shall have been proved to, and allowed by, the surrogate; and such debt or claim shall not be entitled to any preference 140, 478; over others of the same class. 650; 6 Paige, 167; 2 Bradf., 116; 1 Redf., 232; 59 N. Y., 140; 23 Hun, 251; 5 Redf., 14, 186; 89 N. Y., 352; 93 N. Y., 484; 96 N. Y., 92; 85 § 34. Any executor or administrator, at any time, at least six months after the granting of the letters testamentary or of administration, may insert a notice once in each week for six months, in a newspaper printed in the county, and in so many other newspapers, as the surrogate may deem most likely to give notice to the creditors. of the deceased, requiring all persons having claims against the deceased, to exhibit the same with the vouchers thereof, to such executor or administrator, at the place of his residence or transaction of business, to be specified in such notice, at or before the day therein named, which shall be at least six months from the day of the first publication of such notice. 1 Abb. Ct. App. Dec., 541; 9 Bosw., 692; 2 Abb., N. S., 208; 50 N. Y., 538; 43 N. Y., 3 Hun, 458; 1 Tucker, Notice to creditors. be re § 35. Upon any claim being presented against the estate of any Vouchers, deceased person, the executor or administrator may require satis- etc., may factory vouchers in support thereof, and also the affidavit of the quired. claimant that such claim is justly due, that no payments have been made thereon, and that there are no offsets against the same to the knowledge of such claimant; which oath may be taken before any justice of the peace, or other officer authorised to administer oaths. 32 Barb., 356; 26 Barb., 334; 25 Barb., 132; 1 Barb., 523; 1 Barb. Ch., 301; 6 Hill, 389; § 36. If the executor or administrator doubt the justice of any Reference claim so presented, he may enter into an agreement, in writing, with claims. to settle [89] TITLE 8. the claimant, to refer the matter in controversy to three disinterested persons, or to a disinterested person, to be approved by the surrogate, and upon filing such agreement and approval of the surrogate in the office of the clerk of the supreme court in the county in which the parties, or either of them, reside, a rule shall be entered by such clerk, either in vacation or term, referring the matter in controversy to the person or persons so selected. [Thus amended by L. 1859, ch. 261.] Proceedings. Executors, &c., not lia 45 N. Y., 806; 4 Abb. Ct. App. Dec., 430; 3 Daly, 244; 9 Abb., N. S., 208; 32 Barb., 356; 30 Barb., 111; 29 Barb., 351; 25 Barb., 132; 10 Barb., 312; 9 Barb., 388; 1 Barb., 523; 12 Abb. Pr., 79; 4 Abb. Pr., 136; 20 How. Pr. R., 60; 17 How. Pr. R., 24; 16 How. Pr. R., 314; 14 How. Pr. R., 511; 9 How. Pr. R., 349, 434; 6 How. Pr. R., 77; 6 Hill, 388; 2 Duer, 160; 16 Wend., 479; 43 Barb., 129; 41 Barb., 612; 24 How. Pr. R., 88; 17 Abb. Pr., 375; 16 Abb. N. Č., 210; 1 Dem., 212; 2 Dem., 17; 16 J. & S., 470; 60 N. Y., 106; 32 Hun, 56; 40 Hun, 74; 41 Hun, 9; 88 N. Ý., 453; 102 N. Y., 599; 42 Hun, 164; 45 Hun, 401. § 37. The referees shall thereupon proceed to hear and determine the matter, and make their report thereon to the court in which the rule for their appointment shall have been entered. The same proceedings shall be had in all respects, the referees shall have the same powers, be entitled to the same compensation, and subject to the same control, as if the reference had been made in an action in which such court might by law, direct a reference; and the court may set aside the report of the referees, or appoint others in their places, and may confirm such report, and adjudge costs, as in actions against executors; and the judgment of the court thereupon shall be valid and effectual in all respects, as if the same had been rendered in a suit commenced by the ordinary process. 32 Barb., 356; 10 Barb., 312; 4 Abb. Pr., 136; 14 How. Pr. R., 509, 511; 6 How. Pr. R., 77; 4 How. Pr. R., 134; 13 Wend., 456; 10 Wend., 601; 7 Wend, 522; 37 Barb., 223; 24 How. Pr. R., 404; 14 Abb. Pr., 86; 45 N. Y., 846; 53 Barb., 490; 44 How. Pr. R, 25; 9 Abb., N. S., 208; 18 Hun, 105; 23 Hun, 249; id., 393; 81 N. Y., 629; 13 Abb. N. C., 373; 15 Abb. N. C., 455; 16 Abb. N. C., 220; 4 Dem., 180, 517; 27 Hun, 366; 32 Hun, 54, 481; 40 Hun, 74; 102 N. Y., 597; 103 N. Y., 680; 42 Hun, 413. [Section 38 was repealed by L. 1880, ch. 245.] § 39. In case any suit shall be brought upon a claim, which shall ble for cer- not have been presented to the executor or administrator of a detain assets. ceased person, within six months from the first publication of such [90] Legacies, when to be paid. Bond. 9 How. Pr. R., 434; 5 notice, as hereinbefore directed, such executor or administrator shall not be chargeable for any assets or monies, that he may have paid in satisfaction of any claims of an inferior degree or of any legacies, or in making distribution to the next of kin, before such suit was commenced. [Thus amended by L. 1880, ch. 245.] 43 N. Y., 524; 26 Barb., 334; 16 Barb., 294; 4 Abb. Pr., 273, 313; 15 How. Pr. R., 184; 12 How. Pr. R., 284; 25 Wend., 416; 27 Wend., 569; 2 Duer, 160; 1 Bradf., 485; 6 Lans., 489; 9 Bosw., 694; 1 Robt., 426; 9 Abb., N. S., 208; 2 Abb., N. S., 130; 10 Bosw., 305; 42 Hun, 164. [Sections 40-42 were repealed by L. 1880, ch. 245.] § 43. No legacies shall be paid by any executor or administrator, until after the expiration of one year from the time of granting letters testamentary or of administration, unless the same are directed by the will to be sooner paid. 12 N. Y., 474; 4 Bradf., 129; 2 Bradf., 74; 1 Bradf., 356: 31 How. Pr. R., 179; 19 Abb. Pr., 210; 36 N. Y., 23; 1 Redf., 415; 5 Redf., 419; 1 Dem., 493; 3 Dem., 151, 446; 28 Hun, 506. § 44. In case a legacy is directed to be sooner paid, the executor or administrator may require a bond, with two sufficient sureties, conDem., 458. ditioned, that if any debts against the deceased shall duly appear, and which there shall be no other assets to pay, and there shall be no other assets to pay other legacies, or not sufficient, that then the legatee ART. 2. shall refund the legacies so paid, or such rateable proportion thereof, with the other legatees, as may be necessary for the payment of the said debts, and the proportional parts of such other legacies, if there be any, and the costs and charges incurred by reason of the payment to such legatee; and that if the probate of the will, under which such legacy is paid, shall be revoked, or the will declared void, then that such legatee shall refund the whole of such legacy, with interest, to the executor or administrator entitled thereto. [1 R. L., 314, § 18.] legacies. 211; 2 Barb, 553; § 45. After the expiration of one year from the granting of any Payment of letters testamentary or of administration, the executors or adminis- 1 trators shall discharge the specific legacies bequeathed by any will, Barb, Ch., and pay the general legacies, if there be assets; and if there be not 87; 14 sufficient assets, then an abatement of the general legacies shall be made in equal proportions. Such payment may be enforced by the surrogate in the same manner as the return of an inventory, as herein before provided; and also by a suit on the bond of such executor or administrator, whenever directed by the surrogate. [Sections 46 to 51 revealed by L. 1886, ch. 358.] 1 Redf.,215; 3 Dem., 349, 21 Hun, 481; 433 [91] L. 1847, Chap. 80-An act to authorize executors and administrators to compromise and compound debts due to their testators, or intes tates. Debts may be compromised or compounded. SECTION 1. Executors and administrators may be authorized by the surrogate, or the officer authorized to perform the duties of surrogate, in the county where their letters testamentary, or of administration were issued, on application, and good and sufficient cause shown therefor, and on such terms as said surrogate or officer shall approve, to compromise or compound any debt or claim, or to sell at public vendue, on such notice of sale as said surrogate or officer may prescribe, any uncollectible, stale or doubtful debt or claim, belonging to the estate of their testator or intestate. [Thus amended by L. 1888, ch. 571.] 21 N. Y., 184; 1 Hun, 73; 6 T. & C., 211; 16 Abb. Pr., 23; 4 Hun, 7; 3 Hun, 458. Saving clause. § 2. Nothing in this act contained shall prevent any party, interested in the final settlement of said estate, from showing, on the final settlement of the accounts of said executor or administrator, that such debt or claim was fraudulently, or negligently compromised or compounded. L. 1875, Chap. 542 – An act to provide for the apportionment of rents, annuities, dividends and other payments. Rule of apportionment. SECTION 1. All rents reserved on any lease granted after the passing of this act, and all annuities, dividends and other payments of every description, made payable or becoming due at fixed periods under any instrument executed after the passing of this act, or (being a last will and testament) that shall take effect after the passing of this act, shall be apportioned, so that on the death of any person interested in any such rents, annuities, dividends or other payments as aforesaid, or in the estate or fund from or in respect of which the same shall issue or be derived, or on the determination by any other means whatever of the interest of any such person, he or she, and his or her executors, administrators or assigns shall be entitled to a proportion of such rents, annuities, dividends and other payments, according to the time which shall have elapsed from the commencement or last period of payment thereof respectively (as the case may be), including the day of the death of such person, or of the determination of his or her interest, all just allowances and deductions on account of charges on such rents, annuities, dividends and other payments being made. 13 Hun, 147; 65 How. Pr., 81; 67 How. Pr., 161; 10 Abb. N. C., 396; 4 Dem., 156, 404; 29 Hun, 200. Remedies for recovering apportionments. § 2. Every such person, his or her executors, administrators and assigns shall have the same remedies at law and in equity for recovering such apportioned parts of the said rents, annuities, dividends and other payments when the entire amount, of which such apportioned parts shall form part, shall become due and payable and not before, as he or she or they would have had for recovering and obtaining such entire rents, annuities, dividends and other payments, if entitled thereto; but so that the persons liable to pay rents reserved by any lease or demise, and the lands, tenements and hereditaments comprised therein, shall not be resorted to for such apportioned parts as aforesaid, but the entire rents, of which such apportioned parts form parts, shall be collected and recovered by the person or persons, who, if this act had not passed, would have been entitled to such entire rents; and such portions shall be recoverable from such person or persons by the parties entitled to the same under this act in any action or suit at law or in equity. When act shall not apply. § 3. This act shall not apply to any case in which it shall be expressly stipulated that no apportionment shall be made, or to any sums made payable in policies of insurance of any description. TITLE 3. ARTICLE THIRD. OF THE DUTIES OF EXECUTORS AND ADMINISTRATORS, IN RENDERING AN Account, and SEC. 52-56. [Repealed.] 57. To be charged for increase ot property and allowed for decrease. 58. Rate of commission to be allowed executors, etc., besides their expenses. 59-74. [Repealed.] 75. Order of distribution of personal estate of intestates, etc., among his relatives. 76 & 77. Advancement of any child to be deducted from his portion. 78. Certain acts not to be deemed an advancement. 79. Preceding sections not to apply to estates of married women. 84. This title not to apply to public administrator in New York. [Sections 52-56 were repealed by L. 1880, ch. 245.] § 57. No profit shall be made by executors or administrators, by the increase, nor shall they sustain any loss, by the decrease, without their fault, of any part of the estate; but they shall account for such increase, and shall be allowed for such decrease, on the settlement of their accounts. § 58. On the settlement of the account of an executor or administrator, the surrogate shall allow to him for his service, and if there be more than one, shall apportion among them, according to the services rendered by them respectively, over and above his or their expenses, |