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 general 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 deposited 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. 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. 2712. Mode of sale; notice thereof. 2773. Distinct parcels to be sold separately. 2774. Who not to purchase. 2775. Order to vacate sale. Resale. 2776. Order to confirm sale. Conveyance thereupon. 2777. When conveyance not to effect purchaser or mortgagee from beir, etc. 2778. Effect of conveyance in other cases. 2779. Contract for lands; how sold. SS 2749–2751 2780. Id.; purchaser's bond for payment thereupon. 2784. Purchaser's title not affected by certain irregularities, etc. 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. 2791. Decree for distribution. 2792. Id.; county treasurer to distribute. 2793. Distribution; how made. 2794. Dower in lands under contract; how computed. 2797. Effect, upon proceedings under this title, of an action to fore- 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. § 2749. 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 exempt 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 à reasonable charge for a suitable headstone. § 2750. [Am'd 1885.] 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 creditor of the decedent, other than a creditor by a judgment or 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 a 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, by the mortgage, lease or sale at public or private sale thereof; and that the parties named in the petition and all other 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. § 2751. [Am'd 1887.] The time, during which an action 127 N.Y. 296, 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, 1 Dem. 80 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 judgment obtained in the action. A notice so filed must be recorded and indexed, and may be canceled, as prescribed, with respect to the notice of pendency of an action, in article ninth of title first of chapter fourteen of this act. It may also be canceled 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 property, upon notice to the creditor and upon such terms as justice requires. Whenever an executor, administrator, or creditor of a deceased person shall have commenced, or shall hereafter commence, an action in any court of competent jurisdiction of this state for the purpose of setting aside any fraudulent conveyance of, or incumbrance upon, any real estate of such deceased person, and such action shall have been decided in favor of such executor, administrator, or creditor, such executor, administrator or creditor, may, at any time within three years after the final determination of such action, have and maintain an action of proceeding against the proper parties, in any court of competent jurisdiction of this state, for a sale of such real estate, and for a distribution of the proceeds of such real estate among the creditors of such deceased person and other persons entitled to the same as may be directed by the judgment in such action. 2752. The petition must set forth the following mat127 N.Y. 296. ters, 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 two thousand seven hundred and forty-nine 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. 2753-2755 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 co-administrators, if any; the application thereof, and the amount which may yet be realized therefrom. Supp. 875. § 2753. If, upon diligent inquiry, any of the matters 6 N. Y. required to be set forth, as prescribed in the last section, 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. § 2754. Where the surrogate 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 1 Dem. 177. 34 Hun, 501 5 Dem. 14. § 2755. [Am'd 1887, 1893.] Upon the return of the ci- 34 Hun, 501, tation, 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. A creditor of the decedent, whose claim is not yet due, may present and prove his debt, and have the same established upon a rebate of legal interest, and thus make himself a party to the special proceeding. An heir or devis-e, 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 due or undue, represented as existing against the decedent or the reasonableness of the funeral expenses, may interpose any de |