TITLE 1. Surplus to be paid to debtor. Allowance to certain debtors. Trustees to render account on oath. [49] Trustees subject to order of courts. May be removed. Proceed mon pleas into su relinquished, and shall distribute it, on any subsequent dividend, among the other creditors. $43. If after settling the estate of any debtor, and after discharging his debts, entitled to a dividend, any surplus shall remain in the hands of his trustees, the same shall be paid to such debtor or his legal representatives. 1 R. L., 162, § 17; 468, § 19. S44. Every debtor who shall be discharged under the third, fourth or fifth Articles of this Title, shall be allowed the sum of five per cent. on the nett produce of all his estate, that shall be received by the assignees, to be paid to him by them, in case such nett produce, after such allowance made, shall be sufficient to pay the creditors of such debtor, entitled to a dividend, the sum of seventy cents on the dollar, on the amount of their debts respectively, as the same shall have been ascertained; but the said allowance shall not exceed in the whole, the sum of five hundred dollars. 1 R. L., 470, § 24; Laws of 1819, 117, § 4. S45. Within ten days after any dividend made by any trustees, they shall render on oath, and file with the clerk of the court of common pleas of the county in which they reside, or with a clerk of the supreme court, an account in writing of all their proceedings in the premises; stating, 1. Their disbursements, commissions, and the dividends made by them: 2. The names and residences of the creditors to whom dividends were made, and the names of those actually receiving them: 3. The property, monies and effects of the debtor remaining in their hands, and the value and situation of such property: And such trustees may at any time be compelled by a rule of the supreme court, or of the court of common pleas of the county in which they reside, to render such account on oath, on the application of the debtor, or of any creditor. 1 R. L., 471, § 27; Laws of 1823, 138, § 5. $46. Such trustees shall be subject to the order of the supreme court, and of the court of common pleas of the county in which they were appointed, upon the application of any creditor, or of any debtor in respect to whom they were appointed, in relation to the execution of any of the powers and duties confided to them; and they may be removed by the supreme court, for cause shown. $47. Whenever any authority shall be exercised by a court ings in com- of common pleas, or any officer, pursuant to any provisions of this Title, the proceedings may be removed into the supreme court by certiorari, and there examined and corrected. But no such certiorari shall issue, unless allowed by a justice of the supreme court, or a circuit judge; nor shall it operate preme court. as a stay of proceedings, unless it shall be so directed in the order of allowance. 6 N. Y., 309. ART. 8. removed, trustee may $48. Whenever any trustee shall be removed, or shall die, If trustee be or become incapacitated to perform his duties, the officer who &c., new originally appointed such trustee, or in case of his absence, be ap death, or removal, any other officer residing in the county pointed. where such trustee was resident, who by law would have been empowered to make such appointment, after giving notice, and an opportunity to the creditors to propose proper persons, may appoint another in the place of such trustee, who shall, in all respects, have the like powers and authority, and be subject to the same control, obligations and responsibilities; and the said appointment shall be certified and recorded, as the original appointment was required to be recorded. Laws of 1823, 137, § 4. wishing to may obtain $ 49. Any trustee appointed pursuant to the provisions of Trustee this Title, who shall be desirous of renouncing the trust vested in him, may apply to the officer, or court from whom his order to appointment was received, for an order to all persons inte- show cause. rested, to show cause why such renunciation should not be accepted. cation to $50. If the officer who made such appointment shall not [50] then be in office, such application may be made to a circuit Ib. Applijudge, supreme court commissioner, or the first judge of the whom made county, residing in the same county where the appointment of such assignee was made. Laws of 1823, 137, § 4; 6 N. Y., 319. to be ac $51. Such application shall be accompanied by a full, true, Application and just account of all the transactions of such trustee, in companied that character, and particularly of the property, monies and by account. effects received by him; of all payments made, whether to creditors or otherwise; and of the remaining effects and estate of the debtor, in respect to whom, or whose estate, he was appointed trustee, within his knowledge, and the situation of the same. be annexed. $52. To such account shall be annexed the affidavit of the Affidavit to trustee, that the said account is in all respects just and true, according to the best of his knowledge and belief: which affidavit shall be subscribed and sworn to, before the officer, or court, to whom the application is made, and shall be certified by him, or by the clerk of the court. show cause. $53. Such officer, or court, shall thereupon grant an order, Notice to directing notice to be given to all persons interested in the estate of the debtor, in respect to whom or whose estate such trustee was appointed, to show cause on a day, or at a term and at a place therein to be specified, why he should not be permitted to renounce his appointment. S54. Such notice shall be published, once in each week, for Notice to be published. TITLE 1. Hearing. When trus tee may be allowed to renounce. Trustee to execute assignment. [51] Effect of as powers, assignee. six weeks successively, in the state paper, and in such other newspapers, as such officer or court shall direct. $55. On the day appointed for such hearing, and on such other days as shall from time to time be appointed, if it shall appear that notice was duly published, the officer or court shall proceed to hear the proofs and allegations of the parties. $56. If it shall appear that the proceedings of such trustee, in relation to his trust, have been fair and honest, and particularly in the collection of the property and debts vested in him; and if such court or officer be satisfied, that for any reason, it is inexpedient for such trustee to continue in the execution of the duties of his appointment, and that such duties can be executed by another trustee, without injury to the estate of the debtor, or to the creditors; and if no good cause to the contrary appear, such officer or court shall grant an order, allowing such trustee to renounce his appointment, and to assign the property and effects of the debtor. $57. Such assignment shall be executed by such trustee, to such person, or persons, as the court or officer shall appoint for that purpose; and in the appointment, such persons as shall have been named to be assignees by the creditors of such debtor, or by the major part of them, shall be preferred, if approved by such court or officer. $58. Such assignment shall transfer to the persons to whom signment; it shall be made, all the remaining estate and effects, vested of new in the trustee so renouncing; and such new assignee shall have the same powers, be subject to the same duties, and be entitled to the same compensation, as the original trustee; and shall continue any suit that may have been commenced by such original trustee, in his name, or in that of such new assignee. When order to be made trustee. $59. Upon producing to the officer or court allowing such discharging assignment, the certificate of the assignee, duly proved by the oath of a subscribing witness, that such assignment has been duly made, and the property capable of delivery, belonging to such debtor, together with all the books, vouchers and documents, relating to the estate of such debtor, has been duly delivered; and also a certificate of the county clerk, that such assignment has been recorded; such court or officer shall grant to the trustee so applying, an order that he be discharged from his trust. Trustee thereupon subject to prior liabilities. $60. Upon such order being granted, such trustee shall be discharged, discharged from the trust reposed in him, and his power and authority shall thereupon cease; but he shall, notwithstanding, remain subject to any liability he may have incurred, at any time previous to the granting of such order, in the management of his trust. Assign ment, peti $61. Such new assignment, upon being duly proved or tion, &c., to acknowledged, shall be recorded in the office of the clerk of be recorded the county where such order was granted; and the petition of the trustee, the affidavit and proceedings thereon, with the and filled. certificate of the new assignee, shall be filed in the same office where the original papers and proceedings, in respect to such debtor, were filed. TITLE 2 be paid by $62. The expense of all proceedings in effecting such Expenses to renunciation and assignment, shall be paid by the trustee trustee. making the application. See Laws of 1830, ch. 258; 1833, ch. 52; 1834, ch. 245; 1846, ch. 158; 1862, ch. 373. TITLE II. OF THE CUSTODY AND DISPOSITION OF THE ESTATES OF IDIOTS, Sa 1. Chancellor to have custody of idiots, and their estates. 2. Overseers of the poor, when to make application in respect to drunkards. 3. In certain cases application may be made to the common pleas. 4. In such cases, application may be made to first judge. 5. If inquisition be traversed, issue to be awarded. 6. Appeals from decisions of court of common pleas. 10. Filing of such inventories may be compelled. 12. Reference to be made on such petition. 13. Court may make order for mortgaging, &c. 14. Court may require additional security by committee. 15. Committee to pay debts without preference. 16. Application may be made to provide for support of idiot. 17. Court to direct how proceeds shall be secured and applied. 18. Court to give orders respecting sales. 19. Petition for order to convey, where idiot is mortgagee. 20. Party entitled to such conveyance may also apply. 21. Effect of conveyances, mortgages and leases. 22. Specific performance of contracts may be decreed. 23. Real estate not to be leased for more than five years. 24. If party become capable, his estate to be restored. [52] to have cus idiots, &c. 25. If party die, powers of his trustees to cease; estate how disposed of. $1. The chancellor shall have the care and custody of all Chancellor idiots, lunatics, persons of unsound mind, and persons who tody of shall be incapable of conducting their own affairs, in consequence of habitual drunkenness, and of their real and personal estates, so that the same shall not be wasted or destroyed; and shall provide for their safe keeping and maintenance, and for the maintenance of their families, and the education of their children, out of their personal estates, and the rents and profits of their real estates, respectively. 1 R. L., 147, § 1; Laws of 1821, 99, § 1; 8 N. Y., 388; 28 B., 51; 16 drunkards. $2. Whenever the overseers of the poor of any city or Habitual town in this state, discover any person, resident therein, to be an habitual drunkard, having property to the amount of two TITLE 2. Duty of overseers of the poor. 1b. Appli cation when made to common pleas. Ib. When to first judge. [53] Ib. Issue when to be awarded. Ib. Appeal from deci hundred and fifty dollars, which may be endangered by means of such drunkenness, it shall be their duty to make application to the court of chancery, for the exercise of its powers and jurisdiction. Laws of 1821, 99; 5 N. Y., 116; 16 How. P. R., 568. S3. If such drunkard have property to an amount less than two hundred and fifty dollars, the overseers may make such application to the court of common pleas of the county; which is hereby vested with the same powers in relation to the person and real and personal estate of such drunkard, as are by this Title conferred on the court of chancery, and shall in all respects proceed in the like manner, subject to an appeal to the court of chancery. S4. Application for a commission in such case, may be made in vacation to the first judge of the county, who may award the same to one or more proper persons, to inquire into the fact of such alleged habitual drunkenness; and the inquisition taken thereon, shall be returned to the next court of common pleas of the county, who shall confirm or set aside the same. 5 N. Y., 116. $5. If the party proceeded against, shall traverse the inquisition on its return, an issue shall be directed by the court, as in other cases, which shall be tried in the same court; and the verdict thereon, shall have the same effect, as if rendered upon an issue awarded by the chancellor. 6 J. C. R., 440. S6. Appeals from any order, judgment or decree of a court sion of com- of common pleas, made pursuant to the provisions of this mon pleas. Title, shall be filed and entered within three months after the making of such order, judgment or decree; and shall be accompanied by a bond, with such sureties as the court shall approve, to the opposite party, in the penalty of one hundred dollars, conditioned for the payment of such costs as shall be awarded against the appellant, in case of the order, judgment or decree, being affirmed. Ib. Expen cation, $ 7. The expenses of the overseers of the poor, in conducteat of appli- ing any application under this Title, shall be audited and allowed in the same manner as other expenses of such city or town. Every committee to file inventory. Laws of 1821, 100, § 5. S8. Every committee of the estate of any idiot, lunatic, or other person in the first section of this Title specified, shall, within six months after their appointment, file in the office of the register or assistant register of the court of chancery, or of the clerk of the court which appointed such committee, a just and true inventory of the whole real and personal estate of such idiot, lunatic or other person; stating the income and profits thereof, and the debts, credits and effects, so far as the same shall have come to the knowledge of such committee. |