1. BE

CHA P. XXXVII.

An ACT concerning Ufes.

Paffed 20th February, 1787.

Eit enacted by the people of the flate of New-York, reprefened in fenate and affembly, and it is hereby enacted by the authority of the fame, That where any perfon or perfons fland or be feifed, or at any time hereafter fhall fland or be feited of and in any manors, mefluages, lands, tenements, rents, fervices, reverfions, remainders or other hereditaments, to the ufe, confidence or truft of any other perfon or perfons, or of any body politic, by reason of any bargain, fale, feoffiment, fine, recovery, covenant, contract, agreement, will or otherwife, by any manner of means whatsoever; in every fuch cafe, all and every fuch perfon and perfons, and bodies politic that haye, or hereafter fhall have, any fuch ufe, confidence or truft, in fee fimple, for term of life or of years, or otherwife, or any ufe, confidence or truft, in remainder or reverfion, fhall from henceforth ftand and be feiled, deemed and adjudged, in lawful feifin, cftate and poffeffion of and in the fame manors, meffuages, lands, tenements, rents, fervices, reverfions, remainders and hereditaments, with their appurtenances, to all intents, conftructions, and purposes in the law, of and in fuch like estates, as they had, or fhall have, in ufe, truft or confidence, of or in the fame; and that the eftate,. title, right and poffeffion that was or fhall be in fuch perfon or perfons that were or hereafter fhall be feifed of any lands, tenements or hereditaments, to the ufe, confidence or truft, of any fuch perfon or perfons, or of any body politic, be from henceforth clearly deemed and adjudged to be in him, her or them, that have or hereafter fhall have fuch ufe, confidence or truft, after fuch quality, manner, form and condition, as they had before, in or to the use, confidence or trust that was or shall be in them. And further, That where divers perfons be, or hereafter shall be jointly feifed of and in any lands, renements, rents reverfions, remainders or other hereditaments, to the uie, confidence or truft, of any of them fo jointly feifed, in every fuch cafe the perfon or perfons who have, or hereafter fhall have, any fuch ufe, confidence orut, in any fuch lands, tenements, rents, revertions, remainders or hereditaments, fhall from henceforth have, and be deemed and adjudged to have, only to him or them that have, or hereafter fhall have, fuch ufe, confidence or truft, fuch eftate, poflefion and feifin of and in the fame lands, tenements, rents, reverfions, remainders and other hereditaments, in like nature, manner, form, condition and course, as he or they had before, in the ufe, confidence or truft of the fame lands, tenements, ren's, reverfions, remainders or hereditaments; faving and referving to all and fingular perfons and bodies politic, their heirs and fucceffors, other than the perfon or perfons who be feifed, or hereafter fhall be feifed of any lands, tenements or hereditaments, to any ufe, confidence or truft, all fuch right, title, entry, intereft, poffeffion, rents and action, as they, or any of them had, or might have had, before the making of this act; and faving and referving alfo, to all and fingular thofe perfons, and to their heirs, who be, or hereafter fhall be feifed to any ufe, all fuch former right, title, entry, intereft, poffeffion, rents, customs, fervices and action, as they, or any of them, might have had, to his or their own proper ufe, in or to any manors, lands, tenements, rents or hereditaments, whereof they be, or hereafter fhall be feifed, to any other uft, as if this act had never been made.

II. And be it further enacted by the authority aforesaid, That where any perfon or perfons, fland and be feifed, or hereafter shall stand and be feifed of

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and in any lands, tenements or hereditaments, in fee fimple or otherwife, to the ufe or intent that fome other perfon or perfons fhall have and perceive yearly to them, and to his or their heirs, one annual rent of ten pounds, or more or lefs, out of the fame lands, tenements and hereditaments, and fome other perfon or perfons one other annual rent to him or them and their affigns, for term of life or years, or for fome other special time, according to fuch intent and use as heretofore hath been, or hereafter fhall be declared, limited and made thereof, in every fuch cafe, the fame perfons, their heirs and affigns, and every of them, who have fuch ufe and intereft, to have and perceive any fuch annual rents, out of any lands, tenements or hereditaments, fhall be adjudged and deemed to be in poffellion and feifin of the fame rent, of and in fuch like estate as they had in the title, intereft or use of the faid rent or profit, and as if a fufficient grant or other lawful conveyance had been made and executed to them, by fuch as were or fhall be feifed, to the use or intent of any fuch rent to be had, made or paid, according to the very truft and intent thereof; and that all and every fuch perfon and perfons as have or hereafter fhall have any title, use and intereft, in or to any fuch rent or profit, fhall lawfully diftrain for non-payment of the faid rent, and in their own names make avowries, or by their bailiffs or fervants make cog nizances and juftifications, and have all other fuits, entries and remedies for fuch rents, as if the fame rents had been actually and really granted to them, with fufficient claufes of distress, re-entry or otherwife, according to fuch conditions, pains, or other things limited and appointed, upon the trust and intent, for payment or furety of fuch rent.

may take all advan

III. And be it further enaled by the authority aforefaid, The ceftui que ufe That all and fingular perfon and perfons, and bodies polizages as his feoffees tic, which have or fhall have any eftate unto them execunight have had. ted, of and in any lands, tenements or hereditaments, by the authority of this act, fhall and may have and take the fame or like advantage, benefit, voucher, aid-prayer, remedy, commodity, and profit, by action, entry, condition, or otherwife, to all intents, conftructions and purpofes as the perfon or perfons feifed to their ufe, of or in any fuch lands, tenements or hereditaments fo executed, had, fhould, might, or ought to have had at the time of the execution of the effate thereof, by the authority of this act, against any other perfon or perfons, of or for any wafte, diffeifin, trefpaís, condition broken, or any other offence, caufe or thing, concerning or touching the faid lands or tenements, fo executed by the authority of this act.

ecution upon judg

que ufe, &c.

IV. And be it further enacted by the authority aforesaid, Lands hable to ex That it fhall and may be lawful for every fheriff, and other ments against celui Officer to whom any writ or precept is or fhall be directed, at the fuit of any perfon or perfons, of, for and upon any judgment or recognizance, made or had, or hereafter to be made or had, to do, make and deliver execution unto the party in that behalf fuing, of all fuch lands, tenements, rents and hereditaments, as any other perfon or perfons be, in any manner of wife feifed or pofleffed, or hereafter shall be seised or poffeffed, to the ufe or in truft for him against whom execution is fo fued, like as the heriff or other officer might or ought to have done, if the faid party against whom execution is or fhall be fo fued, had been feifed of fuch lands, tenements, rents or other hereditaments, of fuch eftate as he is or fhall be feifed of, in the use or truft, at the time of the faid execution fued; and fuch lands, tenements, rents, and other hereditaments, by force and virtue of fuch execution, fhall accordingly be held and enjoyed, freed, and discharg

ed of all incumbrances of fuch perfon or perfons as are or shall be fo feifed or poffeffed, to the ufe or in truff for the perfon against whom fuch execution is or fhall be fued; and if any perfon intitled to, or having any fuch use or truft, hath devised, or fhall devise the fame, by his laft will, or hath died, or shall die inteftate leaving the fame to defcend to his heirs, the fame fhall be liable to the debts of the teftator or inteftate, and deemed and taken to be affets in the hands of the heirs or devilees, who fhall be chargeable for the fame, in like manner as they are by law chargeable and liable in cafes where lands or tenements defcend, or are devised to them, and not otherwise.

V. And be it further enacted by the authority aforefund, That every eftate, feoffment, gift, release, grant, leafe and confirmation of lands, tenements, rents, fervices or hereditaments, made or had, or hereafter to be made or had, by any perfon or perfons, being of full age, of found mind, at large, and not in duress, to any perfon or perfons, and all recoveries and executions had or made, or to be had or made, fhall be good and effectual to him, her or them, to whom it is fo made, had or given, and to all others, to his, her or their use, against the feller, feoffor, donor or grantor thereof, and against the fellers, feoffors, donors or grantors, his, her and their heirs, claiming the fame only as heir or heirs to the fame fellers, feoffors, donors or grantors, and every of them, and against all others having or claiming any title or intereft in the fame, only to the use of the fame feller, feoffor, donor or grantor, fellers, feoffors, donors or grantors, or his, her or their faid heirs, at the time of the bargain, fale, covenant, gift or grant made.

CHA P. XXXVII.

Au ACT for fettling Inteftates Eftates, proving Wills, and granting Adminiftrations.

Paffed 20th February, 1787. I. E it enacted by the people of the ftate of New-York, reprefented in fende and affembly, and it is hereby enacted by the authority of the fame, That adminiftration of the goods, chattels and credits of any perfon dying inteflate, fhall be committed or granted to the widow, or next of kin of the inteftate, or to fome or one of them, if they, or any, or either of them will accept the fame; and if neither of them will accept the fame, then to fuch other proper perfon or perfons as will accept the fame; and fuch adminiftrators fhall have the benefit, and incur the charge of, and be accountable as ex

ecutors.

made among the next

tate.

II. And be it further enacted by the authority aforefaid Diftribution to be That juft and equal diftribution of what remaineth clear, or of kin to the inter- the goods and perfonal eftate of any perfon dying inteftate, after all debts, funeral charges, and just expences of every fort firft allowed and deducted, fhall be made amongst the wife and children, or childrens children, if any fuch there be, or otherwife to the next of kindred to the inteftate, in equal degree, or legally reprefenting their flocks, each according to his or her refpective right, pursuant to the laws in fuch cafes, and the rules and limitations herein after fet down.

fuch diftribution to

be made.

III. And be it further enacted by the authority aforesaid, In what manner That the whole furplufage of the goods and perfonal estate of every perfon dying inteftate, fhall be distributed in manner and form following; That is to fay, One third part of the furplusage to the wife of the inteftate, and all the refidue, by equal portions, to and amongit

the children of fuch perfons dying inteftate, and fuch perfons as legally reprefent fuch children, in cafe any of the faid children be then dead, other than fuch child or children who fhall have any eltate by fettlement, or shall be advanced by the inteftate, in his life time, by portion or portions equal to the fhare which fhall, by fuch diftribution, be allotted to the other children to whom fuch diftribution is to be made; and in cafe any child fhall have any eftate by fettlement, from the faid inteftate, or fhall be advanced by the faid inteftate in his life-time, by portion not equal to the fhare which will be due to the other children by fuch diftribution as aforefaid, then fo much of the furplufage of the estate of fuch inteftate fhall be diftributed to fuch child or children as fhall have any land by fettlement from the inteftate, or were advanced in the life-time of the inteftate, as fhall make the eftate of all the faid children to be equal, as near as can be eftimated. And in cafe there be no children, nor any legal reprefentatives of them, then one moiety of the said eftate fhall be allotted to the wife of the faid inteflate, and the refidue of the faid eftate fhall be diftributed equally to every of the next of kindred of the intertate, who are in equal degree, and those who reprefent them; but no reprefentation fhall be admitted among collaterals, after brothers and fifters children. And in cafe there be no wife, then all the faid eflate to be diftributed equally to and amongst the children; and in cafe there be no child, then to the next of kindred in equal degree of, or unto the intellate, and their legal reprefentatives as aforefaid, and in no other manner whatsoever.

a child fhall be divid

IV. And be it further enacted by the authority aforefaid, Where the eftate of That if after the death of a father, any of his children fhall ed between the mo- die inteftate, without wife or children, in the life-time of ther, brothers and fii- the mother, every brother and fifter, and the reprefentatives of them, fhall have an equal fhare with her; any thing in this act, or any law, ufage or custom to the contrary notwithstanding. V. And be it further enalled by the authority aforefaid, This at not to ex- That neither this act, nor any thing therein contained, ref dying inteftate. pecting the diftribution of inteftates eftates, fhall be conflrued to extend to the eftates of feme coverts that fhall die inteftate, but that their hufbands may demand and have administration of their rights, credits and other perfonal eftates, and recover and enjoy the fame as fully as they might. have done before the palling of this act.

tend to teme coverts

appointed in cách

County, &

Vİ. And be it further ended by the authority aforesaid,, Surrogates to be That it fhall and may be lawful to and for the perfon adminiftring the government of this ftate for the time being, by and with the advice and confent of the council of appointment, from time to time, and at all times hereafter, to nominate and appoint, during the pleasure of the faid council, and commiflionate, under the great feal of this flate, a furrogate in each and every county of this ftate, who fall be, and hereby are refpectively authorised and empowered to take the proof of the laft wills and teftaments, and codicils, of all perfons dying in the feveral counties, for which fuch furrogates fhall be refpectively appointed and commif fioned, and to make and iffue probates thereof, and to grant letters teftamentary thereon, and to grant adminifirations, with the will annexed, in all cafes where it may be neceflary or proper, and to grant letters of adminiftratior of the goods, chattels, and credits of all perfons dying inteflate in the respective counties for which fuch furrogates fhall be respectively appointed and commiftioned. And if it fo happen that any perfon who is or fhall be an inha bitant in any part of this flate, fhall die while abfent from home upon a

journey or bufinefs, the will of fuch perfon, if he or fhe fhall have made any, fhall be proved before, and the probate thereof granted, or it fuch perion fhall die inteftate, adminiftration of his or her goods, chattels and credits, shall be granted, by the furrogate of the county where fuch perfon fo dying was. an inhabitant, as if fuch perfon had died at home. And further, That fuch letters teftamentary and adminiftrations fhall be made in the name of the people of the ftate of New-York, and tefted in the name of the furrogate who fhall grant or iflue the fame, and be fealed with his feal of office; and all fuch probates, letters teftamentary, and administrations, shall be as good, valid and effectual, to all intents and purposes, as if the fame were made, granted and iffued by the judge of the court of probates of this ftate; any law, ufage or cuftom to the contrary notwithstanding.

VII. And be it further enacted by the authority aforefaid, That each of the faid furrogates (ball, at his own expence, caufe a feal to be made for his office, with fuch device as they may reffectively think proper, upon which feal fhall be infcribed the name of the county for which it is to be used, and the words, Surrogate Seal, and fhall deliver a defcription in writing of fuch. feal to the fecretary of this flate, who fhall depofit and record the fame in his office, there to remain as a public record of this state..

VIII. And be it further enacted by the authority aforesaid, That each of the faid furrogates fhall record (in books to be provided for that purpofe, at his own expence) all wills proved before him, together with the proof thereof, and all letters teftamentary and adminiftrations by him iffued or granted, with all things concerning the fame; which records fhall be of the fame force, validity and effect, as the like records in the office of the judge of the court of probates of this ftate. And further, That all wills proved before any fuch furrogate, fhall, upon demand, after the fame are copied by the furrogate, be returned to the person who delivered the fame to fuch furrogate; or in cafe of the death, infanity or removal of fuch perion from this ftate, before the will shall be delivered to fuch perfon, then fuch will to be returned to any devisee named in fuch will, or to the heirs or affigns of fuch devifee; and in cafe of demand of fuch will from the furrogate, by fuch devifee, or the heirs or affigns of fuch devifee, on the fuggeftion of the death, infanity or removal from this ftate, of the person who delivered the will, the furrogate fhall not be compelled to deliver fuch will, until the truth of the fuggeftion fhall be proved to him, by the oath of a witness or witnefies, and which witnefles the furrogate is authorised and required to examine on oath, touching the truth of the fuggeflion.

IX. And be it further enaced by the authority aforefaid, That every furrogate fo to be appointed and commiffioned, fhall, before he enters upon the execution of his office, take and fubfcribe the following oath, to wit

I

furrogate of the county of

do folemnly and fncerely promife and fwear, That I will in all things, well and faithfully execute the office of furrogate of the faid county, according to the beft of my knowledge and ability..

And further, That upon the death or removal from office of any fuch furrogate, the faid feal, and all original wills, with all records, books and parers belonging to the faid office, fhall be delivered over to the fucceflor in office, upon the oath of the preceeding furrogate, or of his executors or adniniftrators, in cafe of his death.