페이지 이미지
PDF
ePub

136 N. Y. 58.

79 N. Y. 527.

fifty-three-a of this act to vieiermine the va idity or invalı iiy of such will; and except that a determination, made under section twenty-six hundred and twenty-four of this act, is conclusive only upon the petitioner, and each party who was duly cited or appeared, and every person claiming from, through, or under either of them.

$ 2627. [Am d 1881.) A decree, admitting to probate a will of real property, made as prescribed in this article. establishes, presumptively only, all the matters determined by the surrogate, pursuant to this article, as against a party who was duly cited, or a person claiming from, ihrough, or under him; or upon the trial of an action, or the hearing of a special proceeding, in which a controversy arises concerning a will, or where the decree is produced in evidence, in favor of or against a person, or in a case specified in this section, the testimony taken in the special proceeding, wherein it was made, may be read in eridence, with the same force and effect as if it was taken upon the trial of the action, or the hearing of the special proceeding, wherein the decree is so produced.

$ 2628. The title of a purchaser in good faith and for a valuable consideration, from the heir of a person who died seized of real property, shall, not be affected by a devis of the property made by the latter, unless within four years after the testator's death, the will devising the same is either admitted to probate and recorded as a will of real property in the office of the surrogate having jurisdiction, or estab. lished by the final judgment of a court of coinpetent jurisdiction of the State, in an action brought for that purpose. But if, at the time of the testator's death, the devisee is either within the age of twenty-one years, or insane, or imprisoned on a criminal charge, or in execution upon conviction of a criminal offence, for a term less than for life; or without the State ; or, if the will was concealed by one or more of the heirs of the testator, the limitation created by this section does not begin until after the expiration of one year from the removal of such a disability, or the delivery of the will to the devisee or his representative, or to the proper surrogate.

$ 2629. [Am'd 1882.] The surrogate must cause to be indorsed upon, or annexed to the original will admitted to probate, or the exemplified copy, or statement of the tenor of a will, which was admitted without production of an original written will, a certificate, under his hand, or the hand of the clerk of his court, and his seal of office, stating that it has, upon due proof, been admitted to probate, as a will valid to pass real or personal property, or both, as the case may be.

The will, or the copy or statement, so authenticaied, the record thereof, or an exemplified copy of the record, may be read in evidence, as proof of the origi. Dal will, or of the contents or tenor thereof, without further evidence, and with the effect specified in the last three sec

80 Dun, 220.

by the justice, or by the written agreement of the parties, and indorsed upon or annexed to the commission ; to take and certify the deposition of the witness; and to return the same by mail, addressed to the justice.

$ 2981. If both parties expressly consent, a commission granted as prescribed in this article may issue without written interrogatories, and the

may be taken upon oral questions. In that case, section nine hundred of this act applies to the execution of the commission ; and a copy of that section must be annexed thereto. Notice of the time or place of the examination of a witness, by virtue thereof, need not be given.

$ 2982. The commission may be granted by the justice without notice, upon the application of the plaintiff, made at the return of the summons, or upon the application of either party, made at the time of the joinder of issue. It may also be granted at any time after the joinder of issue, upon the application of either party, accompanied with proof, by affidavit, that six days' written notice of the application has been served upon the adverse party, either personally, or by service upon the attorney, who appeared for him before the justice,

§ 2983. Where a commission is granted upon the 46 Hun, 870 application of the plaintiff, he is entitled to one or more adjournments of the trial, as may be necessary to procure the commission to be executed and returned ; not exceed. ing the length of time for which the trial might be ad. journed upon the application of the defendant.

$ 2984. The commission must be executed and returned, as prescribed in section nine hundred and one of this act; and a copy of that section must be annexed thereto, except that subdivision sixth thereof may be omitted.

$ 2985. The justice, to whom the package containing 78 Hun, 615. the commission is transmitted by mail, must receive it from the post-office, and open and file it, indorsing thereupon the date of his so doing. It must remain on file with him, until the trial ; but either party is entitled to inspect it on file.

S2986. Sections nine hundred and two and nine hun dred and three of this act apply to a commission, issued as prescribed in this article; and to the execution thereof. A deposition taken thereunder may be read in evidence upon the trial by either party, and has the effect specified in seco tion nine hundred and eleven of this act.

$ 2987. Where the commission is executed within the 78 Hun, 515. State, the commissioner, or, if there are two or more, a majority of them, have the same power to issue a subpena, to swear a witness, and to compel his attendance, that & justice of the peace has, in an action pending before him.

173

TITLE V.

Trial and its incidents. 2988. Effect of failure of de- 2 3001. Witness refusing to he: fendant to appear.

sworn, etc. Warrant 2989. When justice to try issue

thereupon. of fact.

3002. Contents of warrant: m2930 Demanding jury trial.

prisonment of recusaut

witness 2991. Venire.

3003. Adjournment thereupon. 2992. Id., in action between two 3004. Ex parte atlidavit ; when towns, etc.

evidence, 2933. Delivery, execution, and 3005. Competency of witness; return of venire.

how determined. 2994. Ballots ; how prepared. 3006. Constable to keep jury ; 2995. Drawing jury.

his oath. 2396. Taleemani.

3007. Rendition cf verdict: 2997. New venire.

plaintiff need not be 2398. Juror's oatb.

called. 2999. Jury to hear proofs.

3008. Jury when to be dis3000). Witness's oath.

charged ; new venire, 3009. Fine to be imposed on de

faulting juror. $ 1883, Con. $ 2988. Where the def dant makes default in appearsol. Act. ing or pleading, upon the return of a summons, which has 30 App. Div.

been duly served as prescribed in this chapter, the justice must hear the allegations and proofs of the plaintiit, and render judgment according to law and equity, as the very

right of the case appears. 30 App. Div. $ 2939. Where an issue of fact has been joined, if 173.

peither party demands a trial by jury, the justice must try the issue, hear die allegations and proofs of the parties, and

render judgment as prescribed in the last section. 13 App. Div. $ 2990. Demanding Jury Trial. (Am'd 1889, 1897, 16.

amendment to take effect September 1, 1897.)--At the time when an issue of fact is joined either party may demand a trial by jury, and unless so demanded at the joining of issue a jury trial is waived. The party demanding a trial by jury shall thereupon pay to the justice the statutory fees for the attendance of each person to be summoned and for the jurors to serve upon the trial, and also the fees to which the constible is entitled for notifying the persons to be drawn as jurors. The fees so deposited shall be delivered by the justice to the constable serving the venire, and by him shall be paid out as require 1 by law. In default of a deposit us aforesaid the justice shall proceed as if no demand for trial by jury hart been made. And the town clerk of every town in this state shall deliver to each of the jus. tices of the peace in his town a certified copy of thlist filed with him, in pursuance of section one thousand and thirty-seven of this code, and he shall also deliver to each of said justices it certified copy of any such list hereaft r filed with him, within ten days after the same shall be filed. The town clerk is entitled to a fee of one dollar for each copy of said list so delivered. Any town clerk who shall neglect to deliver a copy of the list to each of the justices

[ocr errors][merged small][merged small][ocr errors]

plification of the record thereof, must be received in evidence, as if the original will was produced and provel.

$ 2634. Upon recording a will or exemplification, as prescribed in the last section, the cerk or register mus: index it in the same books, and substantially in the same manner, as if it was a deed recorded in his oflice, and lie is entitled to receive the same fees therefor, as for recording a deed. An executor, or administrator with the will annexed, who causes such a record to be made, must be allowed, in his account, the fees paid by him therefor.

$ 2635. Except where special provision is otherwise made by law, a written will, after it has been proved and recorded, must be retained by the surrogate, until the expiration of one year after it has been recorded, and, if a petition for the revocation of probate thereof is then filed, until a decree is made thereupon. It must then be returned, upon demand, to the person who delivered it. unless he is dead, or a Junatic, or has removed from the State ; in which case, it may, in the discretion of the sur. rogate, be delivered to any person named therein as devisee, or to an heir or assignee of a devisee ; or, if it relates only to personal property, to the executor, or administrator with the will annexed, or to a legatee.

& 2636. Where a will, which is admitted to probate, names one or more persons to be executor or executors thereof, upon a contingency, the surrogate must inquire into the facts, and, if the contingency has happened, that fact must be recited in the decree. Immediately after a will has been admitted to probate, the person or persons vamed therein as executors, who are competent by law to serve, and who appear and qualify, are entitled to letters testamentary thereupon; unless, before the letters are granted, a creditor of the decedent, or a person interested in the estate, tiles an affidavit, specifying his demand, or how he is interested, and either setting forth specitically one or more legal objections to granting the letters to one or more of the executors, or stating that he is advised and believes that there are such objections, and that he intends to file a specific statement of the same. Where such an affidavit is tiled, the surrogate must stay the granting of letters, at least thirty days, or until the matter is sooner disposed of. A specification or statement of an objection, made as prescribed in this section, must be verified by the oath of the objector, or his attorney, to the lect that h. believes it to be true,

S 2037. The surrogate must inquire in'o an objection, filed as prescribed in the last section; end, íor that purpose, he m: y receive proof, by atlidavit or otherwise, in his dis. cretion If it appears that there is a legal and sufficient objection in any person, named as executor in the will, letters s'all not be issued to him, cxcept as prescribed in the next section.

« 이전계속 »