attorney in fact, made as prescribed in this article, to a surrogate's court having jurisdiction of the estate; and upon the presentation of a copy, authenticated as prescribed in this article, of letters of administration upon the estate of a dece dent who resided, at the time of his death, without this State, but within the United States, granted within the state or territory where the decedent so resided; or in cases where the decedent, at the time of his death, resided without the United States, upon the presentation to such surrogate's court of satisfactory proof that the party so applying either personally or by such attorney in fact, is entitled to the possession in the foreign country of the personal estate of such decedent, the surrogate's court to which such a copy of such foreign letters so authenticated, or such proof is so presented, must issue ancillary letters of administration, in accordance therewith; except in the following cases:

1. Where ancillary letters have been previously issued, as prescribed in the last section.

2. Where an application, for letters of administration upon. the estate, has been made by a relative of the decedent, who is legally competent to act, to a surrogate's court of the State, having jurisdiction to grant the same; and letters have been granted accordingly or the application has not been finally disposed of.

2 R. S. 75, 231 (2 Edm. 77). Matter of Jones, 2 Redf, 257.

2697. [Amended, 1881.] To whom ancillary letters granted. Where the will specially appoints one or more persons as the executors thereof, with respect to personal property situated within the State, the ancillary letters testamentary must be directed to the persons so ap pointed, or to those who are competent to act and qualify. If all are incompetent, or fail to qualify, or in a case where such an appointment is not made, ancillary letters testamentary,orancillary letters of administration, issued as prescribed in this article, must be directed to the person named in the foreign letters, or to the person other wise entitled to the possession of the personal property of the decedent, unless another person applies therefor. and files with his petition, an instrument, executed by the foreign executor or administrator, or person other wise entitled as aforesaid; or if there are two or more, by all who have qualified and are acting; and also acknowledged or proved, and certified, in like manner as a deed to be recorded in the county, authorizing the petitioner to receive such ancillary letters; in which case, the surrogate must, if the petitioner is a fit and competent person, issue such letters directed to him. Where two or more persons are named in the foreign tters, or in an instrument executed as prescribed in is section, the ancillary letters may be directed to

either or any of them, without naming the others, if the others fail to qualify, or if, for good cause shown, to the surrogate's satisfaction, the decree so directs.

L. 1863, ch. 403, 1 (6 Edm. 144). Despard v. Churchill, 53 N. Y. 192.

§ 2698. Petition; citation.- An application for ancillary letters testamentary, or ancillary letters of administration, as prescribed in this article, must be made by petition. Upon the presentation thereof, the surrogate must ascertain, to his satisfaction, whether any creditors, or persons claiming to be creditors, of the decedent reside within the State; and if so, the name and residence of each creditor, or person claiming to be a creditor, so far as the same can be ascertained. He must thereupon issue a citation, directed to each person whose name and residence have been so ascertained; and also directed generally to all creditors, or persons claiming to be creditors, of the decedent. Any such person, although not cited by his name, may appear and contest the application, and thus make himself a party to the special proceeding.

L. 1863, ch. 403, ?? 2 and 3 (6 Edm. 144). Matter of Hanover, 3 Redf. 91.

Be

2699. Hearing; security.-Upon the return of the citation, the surrogate must ascertain, as nearly as he can do so, the amount of debts due, or claimed to be due, from the decedent to residents of the State. fore ancillary letters are issued, the person, to whom they are awarded must qualify, as prescribed in article fourth of this title, for the qualification of an adminis trator upon the estate of an intestate; except that the penalty of the bond may, in the discretion of the surrogate, be in such a sum, not exceeding twice the amount which appears to be due from the decedent to residents of the State, as will, in the surrogate's opinion, effectually secure the payment of those debts; or the sums which the resident creditors will be entitled to receive, from the persons to whom the letters are issued, upon an accounting and distribution, either within the State, or within the jurisdiction where the principal letters were issued.

Id., part of 1.

§ 2700. Persons acting under ancillary letters must transmit assets.-The person to whom ancillary letters are issued, as prescribed in this article, must, unless

otherwise directed in the decree awarding the letters; or in a decree made upon an accounting; or by an order of the surrogate, made during the administration of the estate; or by the judgment or order of a court of record, in an action to which that person is a party; transmit the money and other personal property of the decedent, received by him, after the letters are issued, or then in his hands in another capacity, to the State, territory, or country, where the principal letters were granted, to be disposed of pursuant to the laws thereof. Money or other property, so transmitted by him, at any time before he is so directed to retain it, must be allowed to him upon an accounting.

New. Despard v. Churchill, 53 N. Y. 192; Cummings v. Banks, 2 Barb. 602; Trimble v. Dzieduzyiki, 57 How. 208; Parsons v. Lyman, 20 N. Y. 103; 18 How. 193; Cooley's Estate, 14 Abb. 461; 1 Redf. 405; Sherwood v. Wooster, 11 Paige, 441; Ordronoux v. Helie, 3 Sandf. Ch. 512; Kohler v. Knapp, 1 Bradf. 241.

2701. Id.; when they may be directed to pay, etc., without transmission. The surrogate's court, or any court of the State, which has jurisdiction of an action to procure an accounting, or a judgment constru ing the will, may, in a proper case, by its judgment or decree, direct a person, to whom ancillary letters are issued as prescribed in this article, to pay, out of the money or the avails of the property, received by him under the ancillary letters, and with which he is charge. able upon his accounting, the debts of the decedent, due to creditors residing within the State; or, if the amount of all the decedent's debts, here and elsewhere, exceeds the amount of all the decedent's personal property, applicable thereto, to pay such a sum to each creditor, residing within the State, as equals that creditor's share of all the distributable assets, or to distribute the same among legatees or next of kin, or otherwise dispose of the same, as justice requires.

New. Stone v. Scripture, 4 Lans. 186; Lawrence v. Elmendorf, 5 Barb. 73; Parsons v. Lyman, 20 N. Y. 103; Despard v. Churchill, 53 id. 192; Suarez v. Mayor, etc., of New York, 2 Sandf. Ch. 173.

§ 2702. Id.; general powers and duties. The provisions of this chapter, relating to the rights, powers, duties, and liabilities of an executor or administrator, apply to a person to whom ancillary letters are granted, s prescribed in this article; except those contained in tle fifth thereof; or where special provision is other

wise made in this article; or where a contrary intent is expressed in, or plainly to be inferred from, the con

text.

New.

§ 2703. [Amended, 1888.] Recording will proved in other States, etc.- Where real property, situated within this State, or an interest therein, is devised or made subject to a power of disposition, by a will, duly executed in conformity with the laws of this State, of a person who was, at the time of his death, a resident elsewhere within the United States, and such will has been admitted to probate within the state or territory where the decedent so resided, and is filed or recorded in the proper office as prescribed by the laws of that state or territory, a copy of such will or of the record thereof and of the proofs or of the record thereof, or, if the proofs are not on file or recorded in such office, of any statement, on file or recorded in such office, of the substance of the proofs, authenticated as prescribed in this article, or if no proofs and no statement of the substance of the proofs be on file or recorded in such office, a copy of such will, or of the record thereof, authenticated as prescribed in this article, accompanied by a certificate that no proofs or statement of the substance of proofs of such will, are or is on file, or recorded in such office, made and likewise authenticated as prescribed in this article, may be recorded in the office of the surrogate of any county of this State where such real property is situated; and such record in the office of such surrogate, or an exemplified copy thereof, shall be presumptive evidence of such will, and of the execution thereof, in any action or special proceeding relating to such real property.

L 1864, ch. 31 (6 Edm. 654), amended; L. 1872, ch. 680 (9 Edm. 420), amended; L. 1878, ch. 324.

§ 2704. [Amended, 1888.] Papers recorded, etc. ; how authenticated. To entitle a copy of a will admitted to probate or of letters testamentary or of letters of administration, granted in any other state or in any territory of the United States, and of the proofs or of any statement of the substance of the proofs of any such will, or of the record of any such will, letters, proofs or statement, to be recorded or used in this State as provided in this article, such copy must be authenti

cated by the seal of the court or officer by which or whom such will was admitted to probate or such letters were granted, or having the custody of the same or of the record thereof, and the signature of a judge of such court, or the signature of such officer and of the clerk of such court or officer, if any; and must be further authenticated by a certificate under the great or principal seal of such state or territory, and the signature of the officer who has the custody of such seal, to the effect that the court or officer by which or whom such will was admitted to probate or such letters were granted, was duly authorized by the laws of such state or territory to admit such will to probate, or to grant such letters; that the will, or letters, or records, the accompanying copy of which is so authenticated, is or are kept pursuant to those laws, by such court or by the officer who authenticated such copy; that the seal of such court or officer affixed to such copy is genuine, and that the officer making such certificate under such seal of such state or territory verily believes that each of the signatures attesting such copy is genuine; and to entitle any certificate concerning proofs accompanying the copy of the will or of the record so authenticated, to be recorded or used in this State, as provided in this article, such certificate must be under the seal of the court or officer by which or whom such will was admitted to probate, or having the custody of such will or record, and the signature of a judge or the clerk of such court, or the signature of such officer, authenticated by a certificate under such great or principal seal of such state or territory, and the signature of the officer having the custody thereof, to the effect that the seal of the court or officer affixed to such certificate concerning proofs is genuine, and that such officer making such certificate under such seal of such state or territory, verily believes that the signature to such certificate concerning proofs is genuine. New.

2705. [Repealed by L. 1888, ch. 495.]

TITLE IV.

Proceedings by or against an executor or administrator, touching the administration and settlement of the estate. ARTICLE 1. Aid, supervision, and control of an executor or administrator. 2. Accounting; and settlement of the estate.

ARTICLE FIRST.

AID, SUPERVISION, AND CONTROL OF AN EXECUTOR OR ADMINISTRATOR.

SEC. 2706. Proceedings to discover property withheld, etc. 2707. Id where person withholding is in another county.

2708. Order accompanying citation; how citation and order served. 2709. Id.; certain officers may act in surrogate's absence.