died, or has conveyed the share or interest so established, by a deed duly recorded in the county, the petition must state that fact; and must pray that the persons who have succeeded to his interest, may be also cited. Upon the presentation of such a petition, the surrogate must issue a citation accordingly. New. 2669. Id.; when granted. Where a petition is presented as prescribed in the last section, and it appears, upon the hearing, that, if the petitioner, or his ancestor, testator, or grantor, had been a party to the special proceeding, the decree or a part thereof could not have been legally made, as prescribed in this article, the surrogate must vacate or modify the decree accordingly. An exemplified copy of the decree or order, so vacating or modifying the original decree, may be recorded in the office of any clerk or register, where a copy of the original decree was recorded. New. ARTICLE FOURTH. GRANT OF LETTERS OF ADMINISTRATION. SEC. 2660. Who may apply for letters. 2661. What to be shown upon application. 2662. Citation; effect of renunciation. 2663. When attorney-general and public administrator to be cited, 2664. Renunciation; how made. 2665. Persons not cited may appear. 2666. Hearing; decree. 2667. Administrator's bond. 2660. Who may apply for letters. A person entitled, absolutely or contingently, to administration upon the estate of an intestate, may present to the surrogate's court, having jurisdiction, a written petition, duly verified, praying for a decree, awarding letters of administration, either to him or to such other person or persons, having a prior right, as may be entitled thereto, or in the alternative, as the petitioner elects ; and, if necessary, that the persons required to be cited, as prescribed in the next section but one, may be cited to show cause, why such a decree should not be made. The petition must set forth the petitioner's title; the facts upon which the jurisdiction of the court to grant letters of administration upon the estate depends; and the names of the husband or wife, if any, and of the next of kin of the decedent, as far as they are known to the petitioner, or can be ascertained by him with due diligence. New in form. 2 R. S. 74, 27-34, amended; L. 1867, ch. 782, 6, and d.. 2. Cattle v. Vanderheyden, 11 Abb. N. S. 17; Vallence v. Bausch, 8 Abb. 368; 28 Barb. 633; Barnes r. Underwood, 47 N. Y. 351; Shumway 2. Cooper, 16 Barb. 556; McCosker v. Golden, 1 Bradf. 64; Matter of Harvey, 3 Redf. 214; Kearney, etc... The Missionary of St. Paul, 2 Law Bull. 75; White v. Lowe, 1 Redf. 376; Wyles v. Gibbs, i. 582; Ex parte O'Neil, 2 id. 544; Taylor v. Delancy, 2 Cai, Cases, 143; Gooseberry's Estate, 52 How. 310; Wickwire v. Chapman, 15 Barb, 302; Public Administrator . Watts, 1 Paige, 347; Sullivan v. Fosdick, 10 Hun, 173; Allen .Eighmie, 9id. 201; Ex parte Hanover, 3 Redf. 91; reversed on particular grounds in 4 Wend. 163; Same v. Peters, 1 Bradf. 100; Sweezy e. Willis, id. 495; Proctor e. Wanmaker, 1 Barb. Ch. 302; Ex parte Hanover, 3 Redf. 91; Ketchum v. Morrell, 2 N. Y. Leg. Obs. 58; Cluett v. Mattice, 43 Barb. 417; White v. Pomeroy, 7 Barb. 640; Public Adm'r e. Hughes, 1 Bradf. 195; Ferrie e. Public Adm'r, 3 id. 151; Peters e. Same, 1 id. 200; Matter of Thompson, 33 Barb. 334; Churchill. Prescott, 2 Bradf. 304; Kechele's Estate, 1 Tuck. 52; 1 Redf. 472; Cooper. Lowerre, 1 Barb. Ch. 45; McMahon r. Harrison, 10 Barb. 659; Emerson v. Bowers, 14 N.Y. 449. Public Administrator.-Saurez v. Mayor, 2 Sandf. Ch. 173, Matter of Texidor, 2 Bradf. 105; Public Adm're. Hughes, id. 125; Matthews e. Mayor, 1 Sandf. 132; Lockhart . Public Adm'r, 4 Bradf. 21: Levin r. Russell, 42 N. Y. 251 Ex parte Root, 1 Redf. 257; s. c., 5 N. Y. Leg. Obs. 449; Proctor e. Wanmaker, 1 Barb. Ch. 302; Burras r. Looker, 2 Edw. Ch. 499; Hammonde. MeLea, 2 Johns. Ch.493; Public Adm're. Burdell, 4 Bradf. 232; Ex parte Blank, 2 Redf. 443; Dayton v. Johnson, 69 N. Y. 419; Sullivan r. Herrera, 7 Hun, 309; Glover v. New York, id. 232; Ex parte Hanover, 3 Redf. 91. 2661. What to be shown upon application. - A citation shall not be issued, and a decree shall not be made where a citation is not necessary, until the petitioner presumptively proves, by affidavit or otherwise, to the satisfaction of the surrogate, the existence of all the jurisdictional facts, and, particularly, that the decedent left no will. For the purpose of the inquiry touching any of these matters, the surrogate may issue a subpœna, requiring any person to attend and be exam-ined as a witness. 2 R. S. 74, 26 (2 Edm. 75). Sheldon v. Wright, 5 N. Y. 497; s. c., 7 Barb. 39; Roderigas v. East R. Savings Bank, 76 N. Y. 316; s. c., 43 N. Y. Super. 217; Farley v. McConnell, 7 Lans. 428; 8. c., 52 N. Y. 630; Pumpelly e. Tinkham, 23 Barb. 321; Peters v. Public Administrator, 1 Brad. 200. 2662. Citation; effect of renunciation. - Every person, being a resident of the State, who has a right to administration, prior or equal to that of the petitioner, and who has not renounced, must be cited upon a petition for letters of administration. The surrogate may, in his discretion, issue a citation to non-residents, or those who have renounced, or to any or all other persons interested in the estate, whom he thinks proper to cite. Where it is not necessary to cite any person, a decree, granting to the petitioner letters, may be made upon presentation of the petition. New. Barber v. Converse, 1 Redf. 330; Peters v. Public Adm`r, 1 Brad. 200; Cobb v. Beardsley, 37 Barb. 192. 2663. When attorney-general and public administrator to be cited. Where the surrogate is unable to ascertain, to his satisfaction, whether the decedent left, surviving him, any person entitled to succeed to his estate, a citation must be issued directed generally to all creditors of, and persons interested in, the estate, and also to the attorney general, and the public administrator of the proper county, requiring them to show cause, why administration should not be granted to the petitioner. 2 R. S. 76, 37 (2 Edm. 78). 2664. Renunciation; how made. Any person who has a right to administration, prior or equal to that of the petitioner, may renounce his right by a written instrument, acknowledged or proved, and certified, in like manner as a deed to be recorded in the county, or otherwise proved to the satisfaction of the surrogate; which must be filed in the surrogate's office. Id., 33. Matter of Root, 5 N. Y. Leg. Obs. 449; 1 Redf. 257; Matter of Ward, 6 N. Y. Leg. Obs. 111; Casy v. Gardiner, 4 Brad. 13. - 2665. Persons not cited may appear. Where & citation is issued, any creditor of the decedent, or any person interested in the personal estate, although not cited, may appear and make himself a party to the special proceeding, in like manner and with like effect, as a devisee or legatee, who is not cited upon an application for probate. New. See 2617, ante; also, 2514, subd. 11. 2666. Hearing; decree. Upon the return of a citation, issued as prescribed in this article, the surrogate must make such a decree in the premises, as justice requires. The decree may award administration to any party to the special proceeding, who appears to be entitled thereto. The surrogate may, in his discretion, award administration without a personal examination of the person to whom it is awarded. New in form. L. 1878, ch. 298, 2. Gooseberry's Estate, 52 How. 310; Isham v. Gibbons, 1 Bradf. 69; Bulkley v. Redmond, 2 id. 281; Hicks v. Hicks, 12 Barb. 322; Roderigas v. East R. Sav. Bank, 63 N. Y. 460; s. c.. 76 N. Y. 316; 43 N. Y. Super. 217; 48 How. 166; Rockwell v. Saunders, 19 Barb. 473: Welch v. N. Y. C. R. R. Co., 53 N. Y. 610; Allen v. Eighmie, 9 Hun, 201; Matter of Faulkner, 7 Hill, 181; Vroom v. Van Horne, 10 Paige, 549; Rattoon v. Overacker, 8 Johns. 125. 2667. Administrator's bond. A person appointed an administrator must, before letters are issued to him, besides filing his official oath, execute to the people of the State, and file with the surrogate, the joint and several bond of himself, and two or more sureties, in a penalty, fixed by the surrogate, not less than twice the value of the personal property of which the decedent died possessed,and of the probable amount to be recovered by reason of any right of action, granted to an executor or administrator, by special provision of law. The sum, to be fixed as the amount of the penalty, must be ascertained by the surrogate, by the examination, upon oath, of the applicant or any other person, or otherwise, as the surrogate thinks proper. The bond must be conditioned, that the administrator will faithfully discharge the trust reposed in him as such, and obey all lawful decrees and orders of the surrogate's court, touching the administration of the estate committed to him. 2 R. S. 77. 42 (2 Edm. 78). Farley v. McConnell, 7 Lans. 428; 52 N. Y. 630; Casoni v. Jerome, 58 id. 315; Bloom v. Burdick, 1 Hill, 130; Brewster v. Balch, 41 N. Y. Super. 63; Halsted v. Hyman, 3 Brad. 426: Gerould v. Wilson, 16 Hun, 530; Ex parte Hart, 2 Redf. 156; Senior v. Ackerman, id. 302; Schofield r. Heustis, 9 Hun, 157; s. c., Schofield v. Churchill, 72 N. Y. 565; Rowe v. Parsons, 6 Hun, 338; Bramley v. Forman, 15 id. 144; People v. Struller, 16 id. 234: Dayton v. Johnson, 69 N. Y. 419; Lewis v. Watson, 3 Redf. 43; Patullo's Estate, 1 Tuck. 140. ARTICLE FIFTH. TEMPORARY ADMINISTRATION. 2668. Temporary administration; when allowed. 2671. Id.: to qualify. 2672. General powers, etc., of temporary administrator. 2674. Id.; as to paying debts. 2675. Id.; as to real property. 2676. Special powers of temporary administrator of absentee. 2677. Temporary administrator of absentee may provide for fam ily. 2678. Deposit of money by temporary administrator. 2679. Proceedings where he neglects to deposit. 2680. Money deposited: how withdrawn. 2681. Notices required by this article; how given. 2682. When time to run for or against the estate. 2683. Application of this chapter to collectors, etc., heretofore appointed. 2668. Temporary administration; when allowed. Upon the application of a creditor, or a person interested in the estate, the surrogate may, in his discretion, issue to one or more persons, competent and qualified to serve as executors, letters of temporary administration, in either of the following cases: 1. Where delay necessarily occurs in the granting of letters testamentary or letters of administration, in consequence of a contest arising upon an application there. for, or for probate of a will; or in consequence of the absence from the State of an executor named in the will; or for any other cause. 2. Where a person, of whose estate a surrogate would have jurisdiction, if he was shown to be dead, disappears or is missing, so that, after diligent search, his abode cannot be ascertained, and under circumstances which afford reasonable ground to believe either that he is dead, or that he has become a lunatic, or that he has been secreted, confined, or otherwise unlawfully made away with; and the appointment of a temporary administrator is necessary for the protection of his property, and the rights of creditors, or of those who will be interested in the estate, if it is found that he is dead, L. 1857, ch. 460, 23 (4 Edm. 491); L. 1867, ch. 782, 7 (7 Edm. 169). Howard . Dougherty, 3 Redf. 535: Lawrence . Parsons, 27 How. 26; McGregor . Buel, 24 N. Y. 166; Hicks v. Hicks, 12 Barb 332; Mootrie v. Hunt, 4 Brad. 173. $2669. Temporary administrator; how appointed. An appointment of a temporary administrator, in a case specified in subdivision first of the last section, must be made by an order. At least ten days' notice of the application for such an order must be given to each party to the special proceeding, who has appeared. L. 1864, ch. 71 11 (6 Edm. 234). 2670. Id.; upon estate of absentee, etc.-Applica tion for such an appointment, in a case specified in subdivision second of the last section but one, must be made by petition, in like manner as where an application is made for administration, in a case of intestacy; and the proceedings are the same as prescribed in article fourth of this title, relating to such last mentioned application. Such an application for the appointment of a temporary administrator may also be made, with |