73 Hun, 144. ARTICLE THIRD. ACTION TO ESTABLISH OR IMPEACH A WILL. 1861. When action to establish a will may be brought. 1863. Judgment admitting the 1864. Contents of judgment; surrogate's duty. § 1865. Proof of lost will in cer tain cases. 1866. Action to establish, etc.. will relating to real property. 1867. Retrospective effect of this article. § 1861. 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. 2. Where a will of personal property, made by a person, who resided without the State, at the 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. § 1862. If, in such an action, the facts necessary to establish the validity of the will, as prescribed in the last section, are satisfactorily proved, final judgment must be rendered, establishing the will accordingly. But where the will of a person, who was a resident of the State at the time of his death, is established as prescribed in the last section, the judgment establishing it does not affect the construction or validity of any provision contained therein; and such a question arising with respect to any provision, must be determined in the same action, or in another ac tion or a special proceeding, as the case requires, as if the will was executed within the State. 1863. Where the parties to the action, who have 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. $1364. A copy of the will so established, or, if it is lost or destroyed, the substance thereof, must be incorporated into a final judgment, rendered as prescribed in the last section; and the surrogate must record the same, and issue letters thereupon, as directed in the judgment. $1835. But the plaintiff is not entitled to a judgment, establishing a lost or destroyed will, as prescribed in this article, unless the will was in existence, at the time of the testator's death, or was fraudulently destroyed in his lifetime; and its provisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness. § 1886. The validity, construction or effect, under the laws of the State, of a testamentary disposition of real property situated within the State, or of an interest in such property, which would descend to the heir of an intestate, may be determined, in an action brought for that purpose, in like maner as the validity of a deed, 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 section does not apply to a case, where the question in controversy is determined by the decree of a surrogate's court, duly rendered upon allegations for that purpose, as prescribed in article first of title third of chapter eighteenth of this act, where the plaintiff was duly cited, in the special proceeding in the surrogate's court, before the commencement of the action. § 1867. The provisions of this article apply as well to wills made before as to those made after, this article takes effect. ARTICLE FOURTH. GENERAL AND MISCELLANEOUS PROVISIONS. 1868. Action by child born § 1869. Receiver, as successor of after will, or by witness to will. surviving executor, etc. 1870. Next of kin defined. § 1868. A child, born after the making of a will, who is entitled to succeed to a part of the real or personal property of the testator, or a subscribing witness to a will, who is entitled to succeed to a share of such property, may maintain an action against the legatees or devisees, as the case requires, to recover his share of the property; and he is subject to the same liabilities, and has the same rights, and is entitled to the same remedies, to compel a distribution or partition of the property, or a contribution from other persons interested in the estate, or to gain possession of the property, as any other person who is so entitled to succeed. 5 Redf. 371 Id. 376. 2 Dem. 421. 139 N. Y. 210 41 Hun, 366. 48 Id. 534. 139 N.Y. 210. 48 Hun, 534. 112 N.Y.104 § 1869. [Am'd 1895, amendment to take effect January 1, 1896.] Where the e-tate of a decedent has been brought under the jurisdiction of the supreme court, by an action to: partition or distribution, or for the construction or establish ment of a will, the court may, upon the death of the sole surviving executor, appoint a receiver of the estate, pending the action, upon such terms and conditions, and upon such notice to the parties interested, as the court directs, and upon such security, if any, as to the court seems proper. For the purpose of carrying into effect the judgment and orders of the court, in relation to the estate, a receiver so appointed is the successor in interest of the surviving executor; and has, subject to the direction of the court, the like power. as an administrator with the will annexed. § 1870. The term, "next of kin," as used in this title. includes all those entitled, under the provisions of law relating to the distribution of personal property, to share in the unbequeathed assets of a decedent, after payment of debts and expenses, other than a surviving husband or wife. TITLE IV Other special actions and rights of action. 2. Action by a private person upon an official bond. 5. Miscellaneous actions and rights of action. 1871. Where an execution, against the property of a judgment debtor, issued out of a court of record, as prescribed in the next section, has been returned wholly or partly unsatisfied, the judgment creditor may maintain an action against the judgment debtor, and any other person, to compel the discovery of any thing in action, or other property belonging to the judgment debtor, and of any money, thing in action, or other property due to him, or held in trust for him; to prevent the transfer thereof, or the payment or delivery thereof, to him, or to any other person; and to procure satisfaction of the plain tiff's demand, as prescribed in the next section but ore. Where the execution was issued as prescribed in section on e thousand nine hundred and thirty-four of this act, and a 1872-1876 JUDGMENT CREDITOR'S ACTION. 89 defendant not summoned in the original action is made a defendant in an action brought under this section, personal property, owned by him jointly with the defendants summoned or with any of them, may be applied to the satisfaction of the plaintiff's demand as prescribed in this article. 1872. To entitle the judgment creditor to maintain an action as prescribed in the last section, the execution must have been issued as follows: 1. If, at the time of the commencement of the action, the judgment debtor is a resident of the State, to the sheriff of the county where he resides. 2. If he is not then a resident of the State, to the sheriff of the county where he has an office, for the regular transaction of business in person; or, if he has no such office within the State, to the sheriff of the county where the judgment-roll is filed, unless the execution was issued out of a court, other than the court in which the judgment was rendered; in which case, it must have been issued to the sheriff of the county where a transcript of the judgment is filed. § 1873. The final judgment in the action must direct and provide for the satisfaction of the sum due to the plaintiff, out of any money, thing in action, or other personal property, belonging to, or due to the judgment debtor, or held in trust for him, which is discovered in the action; whether the same might or might not have been originally taken, by virtue of an execution. 1874. The final judgment in the action must also direct and provide for the satisfaction of the sum due to the plaintiff, out of the interest, if any, of the judgment debtor, in a contrac; for the purchase of real property by him; either by selling the interest, or by transferring it to the judgment creditor, in such a manner and upon such terms, as the court deems most conducive to the interests of the parties. Where the person, bound to perform the contract to the judginent debtor, is a defendant in the action, the final judgment may direct a specific performance of the contract to the judgment creditor, or where the interest in the contract is directed to be sold, to the purchaser. § 1875. In a case specified in the last section, the value of the interest of the judgment debtor holding the contract must be ascertained, under the direction of the court; and so much thereof as is necessary must be applied to the payment of the sum due to the plaintiff, and the residue, if any, to the benefit of the judgment debtor. § 1876. A temporary injunction, restraining the transfer to any person, or the payment or delivery to the judgment debtor, of any money, thing in action, or other property or interest, which may, by the provisions of this article, be applied to the satisfaction of the sum due to the plaintiff, 21 Hun, 157. 3 N. Y. Supp. 476. 136 N. Y.259. may be granted in the action. The injunction, and the proceeding before and after it is granted, are governed by the provisions of article first of title second of chapter seventh for this act for which purpose, the injunction is deemed to be one of those specified in section six hundred and three of this act. § 1877. The court may, by an order, or by the interlocutory or final judgment in the action, appoint a receiver of any or all of the property of the judgment debtor; and may direct the judgment debtor, or any other defendant in the action, to convey or deliver to the receiver, as justice requires, any property, real or personal, book, voucher, or other paper, or to execute any instrument, which it deems necessary, for perfecting or assuring the receiver's title or possession. § 1878. A discovery may be compelled in an action. brought as prescribed in this article, by directing the person, required to make it, to appear before the court, or a referee appointed by it, and to be examined under oath, concerning the matters pertaining to the discovery. But this section does not affect the right of the plaintiff, to cause the deposition of a defendant to be taken, as prescribed in article first of title third of chapter ninth of this act. § 1879. This article does not apply to a case, where the judgment debtor is a corporation, created by or under the laws of the State. Nor does it authorize the discovery or seizure of, or other interference with, any property, which is expressly exempted by law from levy and sale, by virtue of an execution; or any money, thing in action, or other property held in trust for a judgment debtor, where the trust has been created by, or the fund so held in trust has proceeded from, a person other than the judgment debtor ; or the earnings of the judgment debtor for his personal services, rendered within sixty days next before the commencement of the action, where it is made to appear, by his oath or otherwise, that those earnings are necessary for the use of a family, wholly or partly supported by his labor. ARTICLE SECOND. ACTION BY A PRIVATE PERSON UPON AN OFFICIAL BOND. § 1880. Application for leave to § 1887. Action upon 8 county Sue sherit's bond; 1881. Order granting leave; ac- 1882. Successive actions. tion. 1834. Collection of execution; 1885. When claimants entitled treasurer's bond. 1888. Action upon official bonds of other officers. Actions, etc., under the last three sections, regulated. 1889. 1890. Receivers, etc., deemed public officers. 1891. Demand of money; when necessary before application. 1892. Application may be made ex parte |