TITLE V. Disposition of the decedent's real property, for the pay ment of debts and funeral expenses. Distribution of the proceeds. SEC. 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. 2756. Proof of debt upon which judgment, etc., has been rendered. 2757. 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. 2766. Bond to be given by executor or administrator. 2767. If he refuses, freeholder to be appointed to execute decree. 2768. 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. 2772. Mode of sale; notice thereof. 2773. Distinct parcels to be sold separately. 2774. Who not to purchase. Resale. Conveyance thereupon. 2777. When conveyance not to affect purchaser or mortgagee from heir, etc. 2778. Effect of conveyance in other cases. 2779. Contract for lands; how sold. 2780. Id.; purchaser's bond for payment thereupon. 2781. Id.; when interest in part of land may be sold. 2782. Id.; effect of conveyance of decedent's interest. 2783. Id.; effect of conveyance of part. 2781. Purchaser's title not affected by certain irregularities, etc. 2785. Id.; presumption where records have been removed. 2756. 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. 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. 2749. What property subject to this title. -- Real property, of which a decedent 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, 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 thirteenth of this act. The expression, "funeral expenses," as used in this title, includes a reasonable charge for a suitable headstone. 2 R. S. 111, 103, 266, 20 (2 Edm. 115, 107); L. 1837, ch. 460, 40; L. 1874, 267, and id., 42 (4 Edm. 494, 495). Hyde v. Tanner, 1 Barb, 75; Jewett v. Keenholts, 16 id. 193; Eddy r. Traver, 6 Paige, 521; Maples v. Howe, 3 Barb. Ch. 611; 2 2779, 2793, post; Richmond . Foote, 3 Lans. 244; Goodwin r. Nelin, 2 Abb. Ct. App. Dec. 253; 35 How. 402; Hall v. Partridge, 10 id. 188: Breevort v. McJimsey, 1 Edw. 551;2797, post: Livingston e. Livingston, 3 Johns. Ch. 148; Ackley v. Dygert, 33 Barb. 176, Schneider r. McFarland, 2 N. Y. 459: Ferguson e. Broome, 1 Brad. 10, Skidmore e. Romaine, 2 id. 122; Hewitt e. Hewitt, 3 id. 265; Richmond v. Foote, 3 Lans. 244; Matter of Erlacher, 3 Redf. 8; Matter of Mount, id. 9, n; Matter of Wood, id.; Matter of Rooney, id. 15; Owens v. Bloomer, 14 Hun, 296. 2750. Petition; when and by whom presented.— At any time within three years after letters were first duly granted, within the State, upon the estate of a decedent, and executor or administrator, whether sole or joined in the letters with another, other than a temporary administrator; or a creditor of the decedent, other than a creditor by a judgment or a mortgage, which is alien 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, specified in the last section, or so much thereof as is necessary, for the payment of his debts or funeral expenses; and that the necessary parties, as prescribed in the subsequent sections of this title, may be cited to show cause, why such a decree should not be made. 2 R. S. 100, 1 (2 Edm. 104); L. 1837, ch. 460, part of 72 (4 Edm. 499); L. 1850, ch. 82, 83 (4 Edm. 507); also, R. S., 14, subd. 2. Mooers v. White, 6 Johns. Ch. 360; Butler . Emmett, 8 Paige, 12; Ackley v. Dygert, 33 Barb. 176; Jackson v. Robinson, 4 Wend. 436; Parkinson v. Jacobson, 18 Hun, 353; Slocum e. English, 2 id. 78; 4 T. & C. 266; 62 N. Y. 494; Wood v. McChesney, 40 Barb. 417; Ferguson v. Broome, 1 Bradf. 10; Hyde v. Tanner, 1 Barb, 75; Cornwell's Estate, 1 Tuck. 250; Fitch . Witbeck, 2 Barb. Ch. 161; Ball v. Miller, 17 How. Pr. 300; Patterson t. Patterson, 59 N. Y. 574. 2751. Creditor's time to apply extended in certain cases. The time, during which an action is pending in a court of record, between a creditor and an executor or administrator of the estate, is not a part of the time limited in the last section, for presenting a petition, founded upon a debt, which was in controversy in the action; if the creditor has, before the expiration of the time so limited, filed in the clerk's office of the county where the real property is situated, a notice of the pendency of the action; specifying the names of the parties, the object of the action, and, if the creditor's debt is made the foundation of a counterclaim, the nature of the counterclaim; containing a description of the property in that county to be affected thereby; and stating that it will be held, as security for any judg ment obtained in the action. A notice so filed must be recorded and indexed, and may be cancelled, as prescribed, with respect to the notice of pendency of an action, in article ninth of title first of chapter fourteenth of this act. It may also be cancelled in like manner, or a specified portion of the property affected thereby, may be discharged from the lien thereof, by the order of the court in which the action is pending, made upon the application of a person having an interest in the real prop erty, upon notice to the creditor, and upon such terms as justice requires. L. 1873, ch. 211, 1. 2752. Contents of petition. The petition must set forth the following matters, as nearly as the petitioner can, upon diligent inquiry, ascertain them: 1. The unpaid debts of the decedent, and the name of each creditor, or person claiming to be a creditor; and the amount of the unpaid funeral expenses of the decedent, if any, and the name of each person to whom any sum is due by reason thereof. 2. A general description of all the decedent's real property, and interest in real property, within the State, which may be disposed of as prescribed in this title; a statement of the value of each distinct parcel; whether it is improved or not; whether it is occupied or not; and, if occupied, the name of each occupant. Where the petition describes an interest in real property, specified in section 2749 of this act, the value of the interest must be stated, and also the value of, and the other particulars, specified in this section, relating to, the real property to which the interest attaches. 3. The names of the husband or wife, and of all the heirs and devisees of the decedent, and also of every other person claiming under them, or either of them, stating who, if any, are infants; the age of each infant, and the name of his general guardian, if any; and also, if the petition is presented by a creditor, the name of each executor or administrator. 4. If the petition is presented by an executor or administrator, the amount of personal property which has come to his hands, and those of his co-executors or coadministrators, if any, the application thereof, and the amount which may yet be realized therefrom. 2 R. S. 100, 22 (2 Edm. 104). Schneider v, McFarland, 4 Barb. 136; s. c., 2 N. Y. 459: Seldom . Wright, 5 id. 497; Bostwick r. Atkins, 3 id. 53; Forbes r. Halsey, 26 id.: Van Nostrand v. Wright, Hill & Den. Supp. 260; Woodruff . Cook, 2 Edw. 259; 2784, post; Sibley v. Wottle, 16 N. Y. 180; Richmond . Foote, 3 Lans. 244; Atkins v. Kinnan, 20 Wend. 241 Jackson e. Irwin, 10 id. 441: Jackson v. Robinson, 4 id. 436; Farrington . King, 1 Bradf. 182; Corwin v. Merritt, 3 Barb. 341; Jackson 2. Crawford, 12 Wend. 533. $2753. Proceedings where some of the facts are unknown.-If, upon diligent inquiry, any of the matters required to be set forth, as prescribed in the last sec tion, cannot be ascertained by the petitioner, that fact must be shown to the surrogate's satisfaction, and the surrogate must thereupon inquire into the matter, as prescribed in article first of title second of this chapter. If the petition is presented by a creditor, the surrogate may, by order, require the executor or administrator to render such an account or other statement, as he deems necessary for the purpose of the inquiry. New. Where the surrogate § 2754. Citation thereupon. is satisfied that all the facts, specified in the last section but one, have been ascertained, as far as they can be upon diligent inquiry, and it appears to him that the debts and funeral expenses, or either, cannot be paid, without resorting to the real property, or interest in real property, he must issue a citation according to the prayer of the petition. If, upon the inquiry, it appears to the surrogate that any heir or devisee, or person claiming an interest in the property under an heir or devisee, is not named in the petition, the citation must also be directed to him. Unless the executor or administrator has caused to be published, as prescribed by law, a notice requiring creditors to present their claims, and the time for the presentation thereof, pursuant to the notice, has elapsed, the citation must be directed, generally, to all other creditors of the decedent, as well as to the creditors named. 2 R. S. 101, 102, 5 and 6 (2 Edm. 102, 105); L. 1837, ch. 460, § 41 (4 Edm. 494); L. 1850, ch. 82, 12 (4 Edm. 507). Havens v. Sherman, 42 Barb. 636; Corwin v. Merritt, 3 id. 341; Schneider e. McFarland, 2 N. Y. 459; Sheldon v. Wright, 3 id. 497; 7 Barb. 39; Rigney e. Cowles, 6 Bosw. 476; Ackley v. Dygert, 33 Barb. 176; Bloom v. Burdick, 1 Hill, 1.30. § 2755. Hearing. Upon the return of the citation, the surrogate must proceed to hear the allegations and proofs of the parties. A creditor of the decedent, or a person having a claim for unpaid funeral expenses, although not named in the citation, may present and prove his debt, and thus make himself a party to the special proceeding. An heir or devisee, or a person claiming under an heir or devisee, of the property in question, although not named in the citation, may contest the necessity of applying the property to the payment of debts or funeral expenses, or the validity of a debt represented as existing against the decedent, or the reasonableness of the funeral expenses; may interpose any defence to the whole or any part thereof; and, for that purpose, may make himself a party to the special proceeding. Where such a defence arises under the statute of limitations, an act or admission by an executor or administrator does not prevent the running of the statute, or revive the debt, so as to affect in any manner the real property, or interest in real property, in question. Id., 8 and 10, amended. Wood v. Byington, 2 Barb. Ch. 387; Jackson . Holladay, 3 Redf. 379; Barnett v. Kincaid, 2 Lans. 320; Mooers e. White, 6 Johns. Ch. 360; Gilchrist v. Rea, 9 Paige, 66; Renwick r. Renwick, 1 Brad. 234; Lawrence r. Brown, 5 N. Y. 394; Lawrence v. Miller, 2 id. 245; Skidmore r. Romaine, 2 Brad. 122; Wood . Byington, 2 Barb. Ch. 387; Richardson r. Judah, 2 Bradf. 157; Farrington r. King, 1 Brad. 182; Barnett v. Kincaid, 2 Lans. 320; Cleveland . Whiton, 31 Barb. 544. § 2756. Proof of debt upon which judgment, etc., |