of them, then one-half of the whole surplus shall be allotted to the widow, and the other half distributed to the next of kin of the deceased, entitled under the provi-ions of this section. 3. If the deceased leaves a widow, and no descendant, parent, brother or sister, nephew or niece, the widow shall be entitled to the whole surplus; but if there be a brother or sister, nephew or niece, and no descendant or parent, the widow shall be entitled to one-half of the surplus as above provided, and to the whole of the residue if it does not exceed two thousand dollars; if the residue exceeds that sum, she shall receive in addition to the one-half, two thousand dollars; and the remainder shall be distributed to the brothers and sisters and the r representatives. 4. If there be no widow, the whole surplus shall be distributed equally to and among the children, and such as legally represent them. 5. If there be no widow, and no children, and no representatives of a child, the whole surplus shall be distributed to the next of kin, in equal degree to the deceased, and their legal representatives. 6. If the deceased leave no children and no representatives of them, and no father, and leave a widow and a mother, the half not distributed to the widow shall be distributed in equal shares to his mother and brothers and sisters, or the representatives of such brothers and sisters; and if there be no widow, the whole surplus shall be distributed in like manner to the mother, and to the brothers and sisters, or the representatives of such brothers and sisters. 7. If the deceased leave a father and no child or descendant, the father shall take one-half it there be a widow, and the whole, if there be no widow. 8. If the deceased leave a mother and no child, descendant, father, brother, sister, or representative of a brother or sister, the mother, if there be a widow, shall take one-half; and the whole, if there be no widow. 9. If the deceased was illegitimate and leave a mother, and no child, or descendant, or widow, such mother shall take the whole and sha'l be entitled to letters of administration in exclusion of all other persons. If the mother of such deceased be dead, t'e relatives of the deceased on the part of the mother shall take in the same manner as if the deceased had been legitimate, and be entitled to letters of administration in the same order. 10. Where the descendants, or next of kin of the deceased, entitled to share in his estate, are all in equal degree to the deceased, their shares shall be equal. 11. When such descendants or next of kin are of unequal degrees of kindred, the surplus shall be apportioned determine to whom it is payable, the sum to be paid by reason thereof and all other questions concerning the same. With respect to the matters enumerated in this section the decree is conclusive as a judgment upon each party to the special proceeding who was duly cited or appeared, and upon every person deriving title from such party. § 2744. In either of the following cases, the decree may direct the delivery of an unsold chattel, or the assign ment of an uncollected demand, or any other personal property, to a party or parties entitled to pay ment or distribution, in lieu of the money value of the property: 1. Where all the parties interested, who have appeared. manifest their consent thereto by a writing filed in the sur rogate's office. 2. Where it appears that a sale thereof, for the purpos of payment or distribution, would cause a loss to the parties entitled thereto. The value must be ascertained, if the consent does not fix it, by an appraisement under oath, made by one or more persons appointed by the surrogate for the purpose. 2745. Where an admitted debt of the decedent is not yet due, and the creditor will not accept present payment with a rebate of interest; or where an action is pending be tween the executor or administrator, and a person claiming to be a creditor of a decedent; the decree must direct that a sum, sufficient to satisfy the claim, or the proportion to which it is entitled, together with the probable amount of the interest and costs, be retained in the hands of the accounting party; or be deposited in a safe bank, or trus company, subject to the surrogate's order; or be paid into the surrogate's court, for the purpose of being applied to the payment of the claim, when it is due, recovered, or settled; and that so much thereof, and is not needed for that purpose, be afterwards distributed according to law. $ 2746. [Am'd 1886.] When a legacy or distributive share is payable to an infant, the decree may, in the discre tion of the surrogate's court, direct it, or so much of it as may be necessary, to be paid to his general guardian, to be applied to his support and education; or when it does not exceed fifty dollars, the decree may order it to be paid to his father, and if his father be dead, then to his mother, 107 the use and benefit of such infant. Said court may, in it discretion, by its decrce, direct any legacy or distributive share, or art of a legacy or distributive share, not paid or applied as aforesaid, which is payable to an infant, to be paid to the general guardian of such infant, upon his excuting and depositing with the surrogate in his office, a bond running to such infant, with two or more sufficier sureties, duly acknowledged and approved by the surrogat, in double the amount of such legacy or distributive share, conditioned that such general guardian shall faithful apply such legacy or distributive share, and render a tru and just account of the application thereot, in all respects, to any court having cognizance thereof, when thereunto required, the sureties in which bond shall justify as required in this act. The said court may, in its discretion, from time to time, authorize or direct such genetal guardian to expend such part of such legacy or distributive share, in the support, maintenance and education of such infant as it deems necessary. On such infant's coming twenty-one years of age, he shall be entitled to receive, and his general guardian shall pay or deliver to him, under the direction of the surrogate's court, the securities so taken, and the interest or other moneys that may have been paid to or received by such general guardian, after deducting therefrom such amounts as have been paid or expended in pursuance of the orders and decrees of said court, so made as aforesaid and the legal commissions of such guardian; and the said general guardian shall be liable to account in and under the direction of the surrogate's court, to his ward, for the same; in case of the death of said infant, before coming of age, the said securities and moneys, after making the deductions aforesaid, shall go to his executors or administrators, to be applied and distributed according to law, and the general guardian shall in like manner be liable to account to such administrator or executor. If there be no general guardian, or if the surrogate's court do not order or decree the payment or disposition of the legacy or distributive share in some of the ways above described, then the legacy or distributive share, or part of the same not disposed of as aforesaid, whether the same consists of money or securities, shall, by the order or decree of the surrogate's court, be paid and delivered to and deposited in said court, by paying and delivering the same to and depositing it with the county treasurer of the county, to be held, managed, invested, collected, reinvested and disposed of by him, as prescribed and required by section two thousand five hundred and thirty-seven of this act. The regulations' contained in the general rules of practice, as specified in section seven hundred and forty-four of this act, and the provisions of title three of chapter eight of this act apply to money, legacies and distributive shares paid to and securities depos ited with the county treasurer, as prescribed in this section; except that the surrogate's court exercises with respect thereto, or with respect to a security in which any of the money has been invested, or upon which it has been loaned, the power and authority conferred upon the supreme court by section seven hundred and forty-seven of this act. Sections forty-six, forty-seven, forty-eight, forty-nine, fifty and fiftyone of part two, chapter six, title three, article two, of the Revised Statutes, are repealed. 2747. Where the person entitled to a legacy or dis- 101 N.Y.682 tributive share is unknown, the decree must direct the executor or administrator to pay the amount thereof into the treasury of the State, for the benefit of the person or persons who may thereafter appear to be entitled thereto. 15 Abb. N. C. 139n. The surrogate, or the supreme court, upon the petition of a person claiming to be so entitled, and upon at least fourteen days' notice to the Attorney-General, accompanied with a copy of the petition, may by a reference, or by directing the trial of an issue by a jury, or otherwise, ascertain the rights of the persons interested, and grant an order directing the payment of any money, which appears to be due to the claimant, but without interest, and deducting all expenses incurred by the State with respect to the decedent's estate. The comptroller, upon the production of a certified copy of the order, must draw his warrant upon the treasury, for the amount therein directed to be paid; which must be paid by the State treasurer, to the person entitled thereto. § 2748. The decree must also direct the executor or administrator to pay to the county treasurer a legacy or distributive share, which is not paid to the person entitled thereto, at the expiration of two years from the time when the decree is made, or when the legacy or distributive share is payable by the terms of the decree. The money, so paid to the county treasurer, can be paid out by him only by the special direction of the surrogate; or pursuant to the judgment of a court of competent jurisdiction TITLE V. Disposition of the decedent's real property, for the payment of debts and funeral expenses. Distribution of the proceeds. 2749. What property subject to this title. 2750. Petition; when and by whom presented. 2751. Creditor's time to apply extended in certain cases. 2752. Contents of petition. 2753. Proceedings where some of the facts are unknown. 2754. Citation thereupon. 2755. Hearing. 2:56. Proof of debt upon which judgment, etc., has been rendered. 2:57. The last section qualified. 2758. Decree to recite debts. 2759. What proof necessary for a decree. 2760. Decree to mortgage or lease. 2761. Decree to sell. 2762. Id.; when title is in controversy. 2763. Id. order in which different parcels are to be sold. 2764. Id. where undivided interest or precedent estate is created by the will, etc. 2765. Form of decree. 2.66. Bond to be given by executor or administrator. 2767. If he refuses, freeholder to be appointed to execute decree. 2:65. Order directing execution of decree. 2769. Id; as to distinct parcels after appeal. 2770. Id. not affected by death, etc. 2771. What credit allowed on sale. 2712, Mode of sale; notice thereof. 2:73. Distinct parcels to be sold separately. 2774. Who rot to purchase. 2773. Order to vacate sale. Resale, 2776. Onder to confirasle. Conveyance thereupon. 2777. When conveyance not to effect purchaser or mortgagee from Leir, etc. 9778. Effect of convorare in other cases. 2779 Contract frion ~, how sold. 2780. Id; purchaser's bond for payment thereupon. 2781. Id.; when interest in part of laud may be sold. 2782. Id.; effect of conveyance of decedent's interest. 2783. Id.; effect of conveyance of part. 2784. Purchaser's title not affected by certain irregularities, etc. 2785. Id.; presumption where records have been removed. 2786. Proceeds to be paid into court. Effect thereof. 2787. Notice of distribution of proceeds. 2788. Hearing: proof of further debts. 2789. When sale of unsold property may be directed. 2790. Proof of claims to surplus money. 2791. Decree for distribution. 2792. Id.; county treasurer to distribute. 2793. Distribution; how made. 2794. Dower in lands under contract; how computed. 2.95. Fund set apart for dower; how invested, etc. 2796. Id.; share belonging to infant, etc. 2797. Effect, upon proceedings under this title, of an action to foreclose, etc 2798. Surplus money on foreclosure and other sales; when paid to surrogate. 2799. Id.; how distributed. 2800. Securities and leases; surrogate's duty respecting the same. 2801. Restitution, for assets subsequently discovered. 10 Civ. Pro. 175. 136 N.Y. 106. 24 Misc. 350. § 2749. [Am'd 1894.] Real property, of which a decedent 34 Hun, 501. died seized, and the interest of a decedent in real property, held by him under a contract for the purchase thereof, made either with him, or with a person from whom he derived his interest, may be disposed of, for the payment of his debts and funeral expenses, or for the payment of judgment liens existing thereon at his death, as prescribed in this title; except where it is devised, expressly charged with the payment of debts or funeral expenses, or is exempted from levy and sale by virtue of an execution, as prescribed in title second of chapter thirteen of this act. The expression "funeral expenses," as used in this title, includes a reasonable charge for a suitable headstone. § 2750. [Am'd 1885, 1894.] At any time within three years after letters were first duly granted within the state, upon the estate of a decedent, an executor or administrator, whether sole or joined in the letters with another other than a temporary administrator, or a person holding a judgment lien upon decedent's real property at the time of his death, or any other creditor of the decedent, other than a creditor by a mortgage which is a lien upon the decedent's real property, may present to the surrogate's court, from which letters were issued, a written petition, duly verified, praying for a decree directing the disposition of the decedent's real property, or interest in real property, specitied in the last section, or so much thereof as is necessary for the payment of his debts or funeral expenses, or, if so decreed as hereinafter provided, for the payment of any judgment liens existing upon such land, or some portion |