will revive a prior one, unless so declared expressly. Appeals from surrogates decreeing a will to be proved, may be made to the circuit judge, who is to direct an issue, if any question of fact be involved, the verdict in which is to be conclusive. Provision is made for the costs, &c., of such appeal and trial. The court of chancery may take proof of any will lost or destroyed, and is vested with full powers to restrain administrators,&c., and this provision extends to wills heretofore made; and in respect to persons dying hereafter, certain particulars are required to be proved, to establish a lost will. These provisions respecting the proof of wills, apply to all whenever made. Those in relation to the revocation of wills, apply to such only as shall be made by persons living on the first of January 1831. This title is not to affect any will made before 1st of January, 1830, or the construction of such will. The second title of chapter six of the second part, is entitled "Of granting letters testamentary and of administration." Letters testamentary are not to be granted until the expiration of thirty days after the will shall have been proved, during which time objections to the persons named as executors may be filed. Persons incapable of making contracts, (except married women,) minors, aliens who have not taken steps to be naturalized, those convicted of an infamous crime, (felony,) and those adjudged by the surrogate incompetent by reason of drunkenness, improvidence, or want of understanding, cannot serve as executors. A married woman cannot be executrix without the consent of her husband in writing, who thereby becomes responsible for her acts. Executors may be required to give the like bonds required of administrators, whenever their pecuniary circumstances are precarious. Non-residents are in all cases to give bonds. Provision is made to compel a person named as executor to appear and qualify, or that he shall be deemed to have renounced.

Executors are required to take an oath. If the persons named as executors do not qualify, letters are to issue to others. Executors are not to act, except in special cases, until they receive letters testamentary. An executor of an executor has no authority over the estate of the first testator, but letters of administration are to issue on the death of the first executor. If after a person has received the letters testamentary, he shall become incompetent to serve, or his pecuniary circumstances shall become precarious, or have removed, or be about to remove from the state, he may be required to give bonds, or may be removed, as the case may require. The cases in which surrogates are to grant letters of administration are defined, and they are to have sole and exclusive jurisdiction in such cases. And where an intestate, not an inhabitant, leaves assets in several counties, the surrogate of any such county may act, and he who first commences has exclusive jurisdiction. The persons, and the order in which they are entitled to administration, are specified. Persons incompetent to serve as executors, cannot be administrators; nor can married women, but their husbands may take letters in their right. And if the next of kin entitled be a minor, his guardian shall be preferred. Persons not entitled may be joined with those who are, upon their written consent. Temporary collectors of an estate may be appointed, when delay is produced in the granting of letters, by reason of a contest or for any other cause. The bonds of administrators are very simple-that they shall faithfully execute their trusts, and obey all the orders of the surrogate. Upon one executor, &c., becoming incompetent, dying, being removed, &c., the others are to act; and if all become incompetent, &c., new letters of administration are to issue. When a surrogate is interested in an estate, or his office is vacant, the first judge of the county is to act, and special provisions are enacted to enable him to execute the duty. And if the first judge and sur

rogate be both interested, or their offices are vacant, the district attorney is to act. The testimony taken on the proof of any will or upon any contest respecting letters of administration, &c., is to be entered in books. Executors in their own wrong, as they are called, are in effect abolished, as they are to account to the legal representatives for all property and money received, and have no right to retain for their own debts.

The third title of chap. six relates to the duties of executors, &c., in taking inventories, paying debts, accounting, and making distribution. Appraisers are to proceed with the executors, &c., after notice to the next of kin, &c., to appraise and inventory the property. The property to be included, called assets, is particularly specified. Securities for money are to be specified, and the amount collectable thereon, and specie, bank bills, &c., are to be enumerated, and if there are none, the fact is to be stated. The naming a person executor in a will, is not to discharge any debt against him, but he is to account for the debt as so much received. The discharge or bequest of any debt is not valid as against the creditors of the testator, but is to be treated as a specific legacy. Executors, &c., may be compelled to return inventories, and for disobedience may be committed and their authority may be revoked; and their bonds are to be prosecuted. Any one administrator, &c., may return an inventory, if the others neglect. Whenever assets are discovered after an inventory is returned, an account of them is to be ren dered. Administrator, &c., when necessary, may sell the personal property on a credit of not more than one year. Articles necessary for the support of a family, or specially bequeathed, are not to be sold until other property is exhausted. The order in which debts are to be paid, is declared: 1, debts having a preference under the laws of the United States; 2, taxes assessed before the death of the deceased; 3, judgments

and decrees; 4th, all other debts, by which the preference heretofore given to sealed instruments over other debts, is abolished. Debts due are not to be preferred to debts not due; nor does the commencement of a suit, or the obtaining a judgment (by confession or otherwise) entitle a debt to any preference. In certain cases the surrogate may authorize the payment of rent in preference to other debts of the same class. Execution is not to issue against an administrator, &c.,without the order of the surrogate, or until his account is settled, and in the latter case the proportion of assets belonging to the debt only is to be collected. Executors, &c., cannot retain for their own debts until they shall have been allowed by the surrogate, and then it is to be paid only in proportion with other debts of the same class. Executors, &c., may give notice to creditors to exhibit their demands, and may require them to be verified on oath; and if they be doubted, may agree to refer the controversy; which, by a very short proceeding, is to be referred, and the report, if not set aside by the court, is to have the same effect as a judgment on a trial. If a rejected claim be not referred, the creditor must bring a suit within six months after a right of action has accrued, or he is to be for ever barred from recovering the demand. If a demand be not presented within six months after the publication of the notice to that effect, and a suit be brought on it, the administrator, &c., is not to be liable for any money he has paid in satisfaction of other debts, or for any legacies paid by him, or any sum distributed to the next of kin ; but the legatees and the next of kin are to be liable for the property received by them. In suits or demands not presented as before mentioned, no costs can be recovered against the defendants, nor can costs be recovered in any case, unless it appear that the demand was presented within the time before specified; that its payment was resisted or neglected; or that the defendant refused to refer the con

the creditors. He is first to satisfy any claim of dower upon the land sold, and if it cannot be done, he is to vest a sufficient sum to produce an income equal to the dower, which is to be paid to the widow. Notice of the distribution is to be published, and the debts are to be ascertained. Securities taken on the sale, or on the investment of the dower found, are to remain with the surrogate, to be collected and applied by him. If there is any surplus, it is to be distributed to the heirs and devisees of the deceased. Executors and administrators may be compelled by creditors to apply for orders for sale, and in case of refusal to perform the necessary acts, the surrogate may appoint a freeholder to proceed and sell. Suits against heirs and devisees are not to be brought, until after three years from the granting letters of administration; and they may then be stayed, if an application is pending for an order of sale. Sales by executors under a will, are to be made upon like notice and in the same manner as those ordered by a surrogate; and they may be compelled to account for the proceeds of such sales and to make distribution. Special provision is made for the sale, by order of the surrogate, of the interest which a deceased purchaser had, in a contract for the sale of land, and the contract is to be assigned to the purchaser thareof. The proceeds are to be paid to the surrogate, who is first to pay the money due on the contract, then to pay debts, and to distribute the surplus among the heirs of the deceased. A portion of the land under contract may be sold, when it will be sufficient to pay the amount due upon it and the creditors of the estate. And the vender of the land may be compelled specifically to perform his contract, for the benefit of the purchaser.

Title five of the sixth chapter of the second part, treats of the rights and duties of executors and administrators. The new provisions on this subject are chiefly the following. Executors, &c., may maintain actions

for trespass committed on the lands of their testator, &c., in his lifetime. Suits commenced by executors, &c., are not to abate by their death, removal, &c., but may be continued by the co-executor, &c. if there be any, or by the successor. Suits against them may be continued against successors, or the party may proceed against the administrator,&c.,removed, to charge him personally, but no judgment in such case is to affect the estate. The surrogate has power to decree the payment of debts after the expiration of six months from the granting of the letters of administration, &c.; and after one year, he may decree payment of legacies or distribution among the relatives. Upon a creditor obtaining a judgment at law against an executor, &c., he may apply to the surrogate for an order to issue execution; upon which the executor, &c,. is to be cited to appear, and if assets be found in his hands applicable to the judgment, an order for execution is to be made, which is to be conclusive evidence that there are assets; and the mode of appealing from such orders is regulated. Such orders are to be made from time to time, as often as may be necessary. The surrogate of the county in which letters are granted, is entitled to act in all matters relating to the estate on which such letters were granted.

The sixth title relates to public administrators: the first article of which concerns that officer in the city of New York. Many new and important provisions are introduced, having in view chiefly the securing the, estates of deceased strangers for the benefit of their relatives, mostly confined in their operation to New York. The powers of the public administrator in New York are to cease, 1st, when a will has been proved, and letters have been granted thereon, either before or after he has taken letters; 2d, when letters of administration have been granted to any other person, before he received them; 3d, when such letters shall be granted by any surrogate having jurisdiction.

within six months after the public administrator became vested with the power of administering on the estate: and if within three months after that time any relative of the deceased applies, and shows that he was not a resident of New York, or being such a resident he was not notified, he is to be entitled to letters of administration. An annual account is to be exhibited to the common council, showing the name of every person on whose estate the public administrator has administered, his addition, the place of his residence at the time of his death, and the place or country from which he came, and the total amount of receipts and expenditures in each case; which statement is to be published for three weeks in the state paper; and a penalty of $500 and forfeiture of office, is imposed for neglecting to render or publish such statement. Every keeper of a boarding or lodging house in New York is to report to the public administrator within twelve hours, the death of every transient person, under a penalty of $100 for each neglect; provided a copy of the section is served within one year previously, on such keeper of a lodging house, &c.

The second article of this title relates to public administrators, in other counties besides New York. County treasurers are authorized to take charge of estates amounting to $100 or more, of intestates, where letters shall not have been granted, 1st, when the intestate dies in the county, leaving no widow or relative in the county, entitled or competent to take letters; 2d, when assets of any person dying intestate shall come into the county, and there shall be no one entitled to take letters. He may be empowered by the surrogate to secure the effects of any estate, although there be a widow and relative, if there are creditors residing more than 100 miles distant, and there is danger of the effects being wasted. Ample provision is made, to enable him to seize property concealed or withheld. The property taken by him in charge, is VOL. II.

to be appraised, and an inventory returned in twenty days at the utmost, (under a penalty of $500, and forfeiture of office,) when he is to give the bond required of other administrators. Notice to relatives and others to claim administration, is to be given; when the persons entitled to letters are to receive them, and the treasurer is to account to them. If no one appears entitled to letters, and no previous administration has been granted by any other surrogate, the treasurer is to be appointed administrator upon giving bends. His powers may be superseded, 1st, by the production of letters testamentary upon a will, granted before or after his appointment; 2d, by producing letters of administration granted before he was appointed; 3d, by producing such letters granted by the surrogate of a county, of which the deceased was a resident at the time of his death; and upon being superseded, the treasurer is to account. Within a year after receiving letters, the treasurer is to account, and he is entitled to his expenses and to double the commissions allowed to other executors. He is to render an annual statement to the comptroller, and to publish it for three weeks in his county and in the state paper, under a penalty of $100; and the balance of money in his hands is to be paid into the state treasury, from which it may be drawn on the application of any creditor, legatee, or next of kin of the deceased, to the court of chancery, by an order of that court, but without any interest thereon, and after deducting all expenses incurred.

The seventh chapter of the second part relates to fraudulent conveyances and contracts. A grantee in a fraudulent conveyance of land, who was not privy to the fraud intended, is not to be divested of his title at the instance of a subsequent purchaser, who at the time of his purchase had actual or legal notice of the fraudulent conveyance. This provision settles a very important principle, which has been long altercated in the courts in England and in this country. If a