Decedent Estate Law An Act to amend chapter eighteen of the laws of nineteen hundred and nine, entitled "An Act relating to estates of deceased persons, constituting chapter thirteen of the Consolidated Laws." The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. The Decendent Estate Law is hereby amended by adding thereto the following sections: ARTICLE 4A Actions Relating to Decedent's Estate a. debt of decedent a §§ 123 123a Action for § 123. An action may be maintained, as prescribed in this article] against the surviving husband or wife of a decedent, and debt of the next of kin of an intestate, or the next of kin or legatees of decedent testator, to recover, to the extent of the assets paid or distributed to them, for a debt of the decedent, upon which an action might have been maintained against the executor or administrator. The neglect of the creditor to present his claim to the executor or administrator, within the time prescribed by law for that purpose, does not impair his right to maintain such an action. Where a joint action is brought, [as prescribed in the last section,] the whole sum, which the plaintiff is entitled to recover, must be apportioned among the defendants, in proportion to the legacy or distributive share, as the case may be, received by each of them; and the final judgment must award, against each defendant separately, the proportionate sum thus ascertained. Where an action is brought against the surviving husband or wife only, or against one only of the next of kin, or legatees, the sum, which the plaintiff is entitled to recover, cannot exceed the sum which he would have been entitled to recover from the same defendant, in [an] a joint action [brought, as prescribed in the last section.] The heirs of an intestate, and the heirs and devisees of a testator, are respectively liable for the debts of the decedent, arising by simple contract, or by specialty, to the extent of the estate, interest, and right in the real property, which descended to them from, or was effectually devised to them by, the decedent. [Note 1916.] § 123a. An action, to enforce the liability declared in section 101 Limitation of [the Decedent Estate Law] this act, cannot be maintained, of action for except in one of the following cases: 1. Where three years have elapsed since the death of the decedent, and no letters testamentary, or letters of administration, upon his estate, have been granted within the state; debt of decedent §§ 123b Stay of creditor's 2. Where three years have elapsed, since letters testamentary, 123f or letters of administration, upon his estate, were granted, within the state. [Note 1917.] action against heirs and devisees Creditor's action to charge specific property of decedent Action for residue of decedent's debt Preferences in payment debts in actions therefor § 123b. Where it appears that, at the time of the commencement of [such] an action, by a creditor of a decedent brought against his heirs or devisees, a petition, seasonably presented as prescribed by law, praying for a decree to dispose of real property of the decedent, for the payment of his debts, was pending in a surrogate's court having jurisdiction, the proceedings in the action, subsequent to the complaint, must be stayed by the court, until the petition is disposed of, unless the plaintiff elects to discontinue. [Note 1918.] § 123c. If the plaintiff in an action against heirs or devisees to recover for a debt of decedent elects to proceed under [such] an allegation that real property descended or was devised to defendants other than that included in a decree, in surrogate's court, to dispose of real property to pay debts, he is entitled to a preference in payment, out of the real property, with respect to which the allegation is made; but he cannot share, as a creditor, in the distribution of the money, arising from the disposal of the real property, described in the decree; and the judgment in the action does not charge, or in any way affect, that property. [Note 1919.] § 123d. Where the assets, applicable to the plaintiff's debt, were sufficient to pay a part thereof, or a part thereof has been collected from the executor or administrator, or from the surviving husband or wife, next of kin, or legatees, the plaintiff can recover only for the residue, remaining unpaid or uncollected; and if the action is against devisees, he can recover only for the residue, which the real estate descended, or the amount of his recovery against the heirs, is insufficient to discharge. [Note 1920.] § 123e. Where the surviving husband or wife, next of kin, legatees, heirs, or devisees, are liable for demands against the decedent, as of decedent's prescribed in this [article] act [or section 101 of the Decedent Estate Law], they must give preference in the payment thereof, and they are so liable therefor, in the order prescribed by law, for the payment of debts by an executor or administrator. Preference of payment cannot be given to a demand, over another of the same class, except where a similar preference by an executor or administrator is allowed by law. The commencement of an action, under any provision of this [article] act [or section 101 of the Decedent Estate Law], does not entitle the plaintiff's demand to preference over another of the same class, except as otherwise specially prescribed by law. [Note 1921.] Prior or equal claims to that of plaintiff § 123f. Where it appears, in an action [brought as prescribed in this article,] by a creditor against his debtor's next of kin, legatees, heirs or devisees that there are unsatisfied demands against the decedent's estate, of a class prior to that of the plaintiff's demand, the defendant is entitled to judgment, if the value of the property, which was received, devised, or inherited, as the case may be, by the class DEBT OF DECEDENT 193 124 to which he belongs, does not exceed the amount of the valid demands §§ 123gof a prior class. If it exceeds the amount of those demands, the judgment against the defendant cannot exceed such a proportion of the plaintiff's demand, as the total amount of the valid demands of his class bears to the excess. Where a defendant, or a person belonging to his class, has paid a demand against the decedent's estate, of a class prior to that of the plaintiff's demand, or has paid a demand of the same class, the amount of the demand so paid must be estimated, in ascertaining the amount to be recovered, as if it was outstanding and unpaid. [Note 1922.] Infancy as affecting action for § 123g. An action against heirs or devisees to recover for a debt of the decedent, [brought as prescribed in this article] is not delayed, nor is the remedy of the plaintiff suspended, by reason of the infancy decedent's of any of the parties. [Note 1923.] debt decedent's § 123h. Where a person, who takes real property of a decedent by Action for devise, and also by descent; or who takes personal property as next debt where of kin, and also as legatee; or who takes both real and personal same person property in either capacity; or who is executor or administrator, takes in and also takes in either of the before mentioned capacities; would different be liable, in one capacity, for a demand against the decedent, after capacities the exhaustion of the remedy against him in another capacity; the plaintiff, in any action to charge him, which can be maintained, without joining with him any other person, except a person whose liability is in all respects the same, may recover any sum, for which he is liable, although the remedy against him in another capacity Iwas not exhausted. But this section does not increase the sum, which the plaintiff is entitled to recover against him, in the capacity in which he is actually liable; nor does it charge a defendant individually, who is liable only in a representative capacity. [Note 1924.] Action against executor, etc., barred by § 123i. A final judgment against an heir or devisee bars an action against the executor or administrator of the decedent, for the same cause, and every other remedy to enforce payment thereof out of the decedent's property; unless an execution against property, issued judgment upon the judgment, has been returned wholly or partly unsatisfied, against heir or sufficient real property to satisfy the judgment has not descended, or devisee or been devised, to the judgment debtor. But, if the judgment was recovered for a debt or legacy, expressly charged upon the estate descended or devised, the bar is absolute. [Note 1925.] b. recovery of property recover per § 124. Where an action by an executor or administrator to recover Limitation personal property, taken after the death of a testator or intestate, and of action to before the issuing of letters testamentary or letters of administration, sonal propor to recover damages for taking, detaining or injuring personal property taken erty within the same period, is barred, [by this section] any of the after death next of kin, legatees, or creditors, who, at the time of the transaction of testator or upon which it might have been founded, was within the age of intestate §§ 124a Limitation twenty-one years, or insane, or imprisoned on a criminal charge, 125 may, within five years after the cessation of such a disability, main of action by executor, etc., personal property, etc. to recover Limitation of action on claim in litigation Action to establish will tain an action to recover damages by reason thereof; in which he may recover such sum, or the value of such property, as he would have received upon the final distribution of the estate, if an action had been seasonably commenced by the executor or administrator. [Note 1926.] § 124a. For the purpose of computing the time, within which an action must be commenced in a court of the state, by an executor or administrator, to recover personal property, taken after the death of a testator or intestate, and before the issuing of letters testamentary or letters of administration; or to recover damages for taking, detaining, or injuring personal property within the same period; the letters are deemed to have been issued, within six years after the death of the testator or intestate. [Note 1927.] § 124b. The time during which an action is pending in a court of record between a person or persons and an executor or administrator, wherein the person or persons claim to recover from the executor or administrator any money or other property claimed by said executor or administrator to belong to the estate of the decedent, or is embraced in the inventory of the assets of said decedent's estate, is not a part of the time limited for the commencement of an action against an executor or administrator, for a claim against the estate of the decedent until the final determination of the action brought to recover said or other property claimed by said executor or administrator to belong to said decedent's estate: 1. Where the claim against the estate of the decedent is liquidated by the recovery of a judgment thereon against an executor or administrator after trial on the merits, in an action in a court of record or [under section 2718 of this code] pursuant to a reference thereof by agreement to one or more disinterested persons where the executor or administrator doubts the justice of the claim; 2. Where a legatee brings an action, or institutes a proceeding, against an executor or administrator with the will annexed, to enforce the payment of a legacy. [Note 1928.] c. establishment of will § 125. An action to procure a judgment, establishing a will, may be maintained, by any person interested in the establishment thereof, in either of the following cases: 1. Where a will of real or personal property, or both, has been executed, in such a manner and under such circumstances, that it might, under the laws of the state, be admitted to probate in a surrogate's court; but the original will is in another state or country, under such circumstances that it cannot be obtained for that purpose; or has been lost or destroyed, by accident or design, before it was duly proved and recorded within the state; ESTABLISHMENT OF WILL 195 126 2. Where a will of personal property, made by a person, who §§ 125aresided without the state, at any time of the execution thereof, or at the time of his death, has been duly executed, according to the laws of the state or country in which it was executed, or in which the testator resided at the time of his death, and the case is not one, where the will can be admitted to probate in a surrogate's court, under the laws of the state. [Note 1929.] will § 125a. Where the parties to the action to establish a will who have Establishing appeared or have been duly summoned, include all the persons, who would be necessary parties to a special proceeding, in a surrogate's court, for the probate of the same will and the grant of letters thereupon, if the circumstances were such that it could have been proved in a surrogate's court; the final judgment [,] rendered [as prescribed in the last section], must direct, that an exemplified copy thereof be transmitted to the surrogate having jurisdiction, and be recorded in his office; and that letters testamentary or letters of administration with the will annexed, be issued thereupon from his court, in the same manner, and with like effect, as upon a will duly proved in that court. A copy of the will so established, or, if it is lost or destroyed, the substance thereof must be incorporated into [a final] the judgment [rendered as prescribed in the last section]. [Note 1930.] § 125b. Where the will of a person, who was a resident of the state Construction at the time of his death, is established [as prescribed in the last of will as section] by an action brought for that purpose, the judgment establish- affected by judgment ing it does not affect the construction or validity of any provision establishing contained therein; and such a question arising with respect to any will provision, must be determined in the same action, or in another action or a special proceeding, as the case requires, as if the will was executed within the state. [Note 1931.] § 125c. An action to establish a will must be commenced within six years after the cause of action has accrued. Where the will has been lost, concealed, or destroyed, the cause of action is not deemed to have accrued, until the discovery, by the plaintiff, or the person under whom he claims, of the facts upon which its validity depends. [Note 1932.] d. construction of will Limitation of action to establish will § 126. The validity, construction or effect, under the laws of Action to the state, of a testamentary disposition of real property situated determine within the state, or of an interest in such property, which would testamentary descend to the heir of an intestate, may be determined, in an action of real propbrought for that purpose, in like manner as the validity of a deed, erty purporting to convey land, may be determined. The judgment in such an action may perpetually enjoin any party, from setting up or from impeaching the devise, or otherwise making any claim in contravention to the determination of the court, as justice requires. But this [action] section does not apply to a case, where the ques |