shall be entitled to a subpoena to be issued by the surrogate under his seal of office, to such persons as the said public administrator shall designate, requiring them to appear before such surrogate, at the time and place therein to be specified, for the purpose of being examined, touching the estate and effects of the deceased. § 9. If the surrogate be absent from the city of New York, such Id. application for a subpoena, may be made to the circuit judge of the first circuit, to the first judge of the court of common pleas of the said city and county, or to the mayor or recorder of the said city, either of whom is hereby authorised to issue such subpoena, under his hand and private seal, in the same manner as the surrogate. ART. 1. served and § 10. Such subpoena shall be served in the same manner as in civil How causes, and if any person shall refuse or neglect to obey the same, enforced. or shall refuse to answer touching the matters hereinafter specified, he shall be attached and committed to prison, by the said surrogate or other officer so issuing such subpoena, in the same manner as for disobedience of any citation or subpoena, issued by a surrogate in any case within his jurisdiction. tion of wit. 11. Upon the appearance of any person so subpoenaed before Examina such surrogate or other officer, he shall be sworn, truly to answer all ness. questions concerning the estate and effects of the deceased, and shall be examined fully and at large, by the public administrator, in relation to the said effects. when to 3 Bradf., 244. § 12. If upon any inquiry, it shall appear to the officer conducting Warrant, the same, that any effects of the deceased are concealed or withheld, issue. and the person having the possession of such property, shall not give the security in the next section specified, for the delivery of the same, such officer shall issue his warrant, directed to the sheriff, marshals and constables of the city or county, where such effects may be, commanding them to search for and seize, the said effects, and for that purpose, if necessary, to break open any house in the day time, and to deliver the said property so seized, to the public administrator, which warrant shall be obeyed by the officers to [121] whom the same shall be directed and delivered, in the same manner, as the process of a court of record. stay war § 13. But such warrant shall not be issued to seize any property, Bond to if the person in whose possession such property may be, or any one rant. in his behalf, shall execute a bond, with such sureties, and in such penalty as shall be approved by the surrogate, or other officer, acting in his place, to the public administrator in the city of New York, conditioned that such obligors will account for and pay to the said public administrator the full value of the property so claimed and withheld, (and which shall be enumerated in the said condition,) whenever it shall be determined in any suit to be brought by the public administrator, that the said property belongs to the estate of any deceased person, which the administrator has, by law, authority to collect and preserve. health offi. § 14. Whenever any effects of a deceased person, of which the Duty of public administrator is authorised to take charge, shall be at the cer in quarantine at the time of the death of such person, or shall arrive certain there afterwards, it shall be the duty of the health officer, or his deputy, whichever shall be present, to secure the said effects from cases. TITLES waste and embezzlement, and immediately to give information of such effects to the public administrator, to cause an inventory or account thereof to be taken, and to deliver the same to the said public administrator, unless the said property be of such a description as ought not to be removed, or may be ordered to be destroyed under the laws concerning the public health. Perishable property Notice, when to be given. How served and § 15. If any property taken into the charge of the public administrator, shall be in a perishing condition, he may immediately sell the same at public auction, on obtaining an order for that purpose from the surrogate of New York, which shall be granted on due proof of the fact. § 16. If the property of any intestate, of which the public administrator is authorised to take charge, shall exceed in value the sum of one hundred dollars, he shall immediately give notice of his intention to apply to the surrogate of New York, for letters of administration upon the estate of such intestate, specifying the time and place when such application will be made. § 17. Such notice shall be served personally on the widow and the published. relatives of the intestate entitled to any share in his estate, if there be any to be found in the city of New York, at least thirty days. before the time therein specified. If there be none to be found in the said city, and in all cases where the notice shall not have been personally served, it shall be published at least twice in each week, for four weeks, in some newspaper printed in the city of New York. [122] Granting of letters may be contested. When executor, widow, or relative, entitled to letters. Effect of such letters. Previous expense to be paid. § 18. At the time specified in such notice, any person interested in the estate of the deceased, may appear and contest the granting of letters of administration to the public administrator, and shall be entitled to subpoenas to compel the attendance of witnesses, on such hearing. § 19. If it shall appear that the deceased has left any will of his personal property, by which any executor is appointed who is competent, and qualified according to law to take upon him the execution of such will; or if it shall appear that there is a widow or any relative of the deceased entitled to a share in his estate, willing, competent and qualified, according to law to take letters of administration, with the will annexed, if there be one, or to take letters of administration if there be no will, then letters testamentary shall be granted to such exécutor, or letters of administration shall be granted to such widow or relative, as in other cases. § 20. Upon such letters testamentary or letters of administration being granted, all control and authority of the public administrator, over the estate of the deceased, shall cease, and every order that may have been previously granted to him, in relation to the estate, shall be revoked. § 21. The expenses incurred by the public administrator, in all necessary measures for securing and guarding the effects of the deceased, from waste and embezzlement, of serving and publishing the notice aforesaid, and of obtaining any necessary order from the surrogate, and of executing such order, shall be taxed and allowed. by the surrogate, and may be retained by the public administrator out of any moneys or effects of the deceased in his hands, and the residue thereof, shall be delivered by him to the executor or ART. 1. administrator so allowed or appointed, without any abatement or deduction for commissions, or for any other charges than such as shall have been so allowed and taxed. § 22. If there shall be no monies or effects of the deceased in the Id. hands of the public administrator, to pay such expenses, the same, after being allowed and taxed, shall be paid by the executor or administrator so appointed, in preference to all other debts or claims, except funeral charges, and the public administrator may maintain an action therefor in his own name. when to be ministra [123] § 23. If no executor be allowed, and no letters testamentary, or Letters, of administration, be granted by the surrogate, to any other person, granted to at the time specified for hearing the application, or at such other public adtimes as shall have been appointed, then, unless it appear that letters tor. testamentary, or of administration, have already been granted on such estate, the surrogate shall grant letters of administration thereon, with the will annexed, or otherwise, as the case may require, to the public administrator; briefly stating that administration of the goods, chattels, credits and effects of the deceased, has been granted to him according to law; which letters, the record thereof, and a transcript of such record, duly certified, shall be conclusive evidence of the authority of the said public administrator, in all cases in which he is authorised by law to act. adminis when to be § 24. If the property of any intestate, of which the public admin- Notice of istrator is authorised to take charge, be worth a sum not exceeding tration, one hundred dollars, he shall immediately give notice, briefly stating given. that the effects of the deceased, naming him, with his addition, in the hands of the public administrator, will be administered and disposed of by him according to law, unless the same be claimed by some lawful executor or administrator of the deceased, by a certain day to be specified in such notice, not less than thirty days from the service, or first publication thereof, as herein directed. § 25. Such notice shall be personally served on the widow, and every relative of the deceased who shall be residing in the city of New York, if any can be found; and if none be found, and in all cases where such personal service shall not have been made, the notice shall be published once in each week, for four weeks, in a newspaper printed in the city of New York. How 42 How. served. Pr. R, &c. 263. 26. If, at the time appointed in such notice, no claim to the ef- Anidavit, fects of the deceased shall have been made by any lawful executor or administrator, the public administrator shall make and file in the office of the surrogate of the city and county of New York, an affidavit, stating the value of the property and effects of the deceased, the service and publication of the notice by him, as above directed, and that no claim has been made according to law, and that he has taken upon himself the administration of the estate of the deceased. filing affi § 27. Upon filing such affidavit, the public administrator shall be Effect of vested with all the rights and powers, and subject to all the duties davit." of an administrator of the estate of the deceased, in the same manner as if letters of administration had been granted. Such affidavit, and a duly certified copy thereof, shall be presumptive evidence of TITLE 6. the facts therein contained, and that administration of the estate of the deceased, has been committed to the public administrator according to law. Power of administra letters, &c. [124] § 28. Until letters of administration shall be granted to the public tor before administrator, or until an affidavit shall be filed by him as above directed, he shall not proceed in the administration of any estate, further than to pay funeral charges of the deceased, to take possession of, and secure, his effects as herein before authorised, to sell such of them as shall be perishable, and to defray the expenses of such proceedings, and of serving and publishing notices, and of taking out letters of administration. Notice to be given to foreign consuls. Assets to be deliver ful execu. tor, &c. § 29. Whenever the deceased, of whose estate the public administrator is authorised to take charge, shall be a foreigner, and shall not have become naturalized, or taken any steps, for that purpose, it shall be the duty of the public administrator to serve upon the consul of the nation to which the deceased belonged, if any there be in the city of New York, the notice of his intention to apply for letters of administration, and of his intention to administer, herein before specified, in the same manner as they are herein directed to be served, upon the widow or relative of the deceased. § 30. If any lawful executor or administrator shall appear to claim ed to law the effects of the deceased, at any time before the public administrator becomes vested with the power of administering such effects, he shall, on producing the letters testamentary, or of administration, be entitled to receive the goods and effects of the deceased in the hands of the public administrator, after deducting the charges specified in the preceding twenty-first section, to be allowed and taxed by the surrogate, as therein directed. Powers of public ad § 31. The powers and authority of the public administrator, in ministrator relation to the estate of any deceased person, shall be superseded in perseded. the three following cases: when su i Barb. Redf., 91; 1 1. Where letters testamentary shall be granted to any executor of a will of any deceased person, either before or after the public Dem., 412. administrator shall have taken letters, or become vested with the powers of an administrator upon such estate: Id. 1 Barb. Dem., 413. 2. Where letters of administration of such estate shall have been granted to any other person, before the public administrator became vested with the powers of an administrator, upon the same estate: 3. Where letters of administration shall be granted upon such estate, by any surrogate having jurisdiction, at any time within six months after the public administrator became vested with the powers of an administrator upon such estate. § 32. If any relative of the deceased, entitled to administration on Ch., 307;1 his estate, being competent and qualified according to law, shall, within three months after the public administrator has become vested with the powers of an administrator on such estate, apply to the surrogate of New York for letters of administration, the same shall be granted to him, upon proof to the surrogate that the applicant did not reside in the city of New York at the time of the death of the intestate; or that residing in the said city, no notice was served on him as herein required. be deliver § 33. Upon notice being given to the public administrator, of the ART. 1. granting such letters testamentary, or letters of administration, in [125] either of the cases aforesaid, by producing to him duly attested Assets to copies thereof, his powers and authority in relation to such estate ed. shall cease; and he shall deliver over to the executor or administrator so appointed, the property, monies and effects in his hands, belonging to the said estate, after deducting his commissions on the monies received by him, at the rate herein before allowed, and the expenses incurred by him, in the preceding twenty-first section specified, to be allowed and taxed as therein directed. abate. § 34. No suit that shall have been commenced by the public Snits not to administrator, shall abate on account of his authority having ceased w., for any cause; but the same may be continued by his successor, or 499. the executor or administrator of the deceased, who shall succeed him in the administration of the estate, in relation to which, suit shall have been brought. powers and § 35. Whenever the public administrator shall become vested Rights, with the right of administering upon any estate as herein provided, duties of he shall possess the following rights and powers, and be subject to public adthe following obligations: ministra- Bradf., 127. 1. He shall have all the rights, powers and authority given by law 21; 4 to any administrator, except so far as the same may be qualified by the succeeding provisions: 2. He may, like any other administrator, sue and be sued; and he may plead the general issue in any action against him, and give the special matter of his defence, in evidence under that plea: 3. He shall make and return an inventory in all cases, in the same manner and within the same time as is required by law of other administrators; and the same proceedings may be had to compel such return: 4. He may sell the personal property of the deceased at public auction, after publishing notice thereof three days, daily, in a newspaper in the city of New York; but he shall not sell any property exceeding five hundred dollars in value, without having given such notice daily for fourteen days: 5. He shall not sell any public stock, or stock in any incorporated company, unless for the payment of debts, and on the order of the surrogate, to be duly entered in his records: 6. In all cases where the estate of any deceased person in his hands, shall exceed the value of two hundred and fifty dollars, he shall give notice to the creditors of the deceased, to exhibit their claims, by a publication once in each week for eight weeks, in a newspaper printed in the said city, and in the state paper: 7. He may, in his discretion, proceed as other administrators are allowed by law, to compel creditors to exhibit their claims, and with the like effect in all respects: 8. He shall adjust and pay all demands against the estate of the deceased, in the same manner as other administrators; and like them, may refer all disputes respecting such demands: 9. One year after he shall have become vested with the right of administering upon any estate, he shall account on oath to the surrogate of New York for all assets of such estate received by him, and [126] |