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TITLE V.

Proceedings to discover the death of a tenant for life.

SEC. 2302. Petition for production of tenant for life.

2303. Contents of petition.

2304. Service of petition and notice.

2305. Proceedings upon presentation of petition.

2306. Service of order; powers, etc., of referee.

2307. Habeas corpus.

2308. Report of referee.

2309. Dismissal of petition when order complied with.

2310. When life-tenant deemed dead, and petitioner let into possession. 2311. Commission to be issued if life-tenant is without the State.

2312. General provisions respecting the commission.

2313. Petitioner to give notice of its execution.

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§ 2302. Petition for production of tenant for life. A person entitled to claim real property, after the death of another who has a prior estate therein, may, not oftener than once in each calendar year, apply by petition to the supreme court, at a special term thereof, held within the judicial district wherein the property, or a part thereof, is situated, for an order directing the production of the tenant for life, as prescribed in this title, by a person, named in the petition, against whom an action of ejectment to recover the real property can be maintained, if the tenant for life is dead; or where there is no such person, by the guardian, husband, trustee or other person, who has, or is entitled to, the custody of the person of the tenant for life, or the care of his estate.

From 2 R. S. 343, Part 3, ch. 5, tit. 8, § 1 (2 Edm. 354).

§ 2303. Contents of petition.

The petition must be in writing, and verified by the affidavit of the petitioner, to the effect that the matters of fact therein set forth, are true. It must contain:

1. A description of the real property, and a statement of the petitioner's interest therein, and of such other facts as show that the case is within the provisions of the last section.

2. An averment that the petitioner believes that the person, upon whose life the prior estate depends, is dead, together with a statement of the grounds upon which the petitioner's belief is founded.

From 1d., § 2 and part of § 3.

§ 2304. Service of petition and notice.

A copy of the petition, including the affidavit, together with notice of the time and place at which the petition will be presented, must be personally served, at least fourteen days before its presentation, upon the person required, by the prayer thereof, to produce the tenant for life.

From Id., remainder of § 3.

§ 2305. Proceedings upon presentation of petition. Upon the presentation of the petition and affidavit, with due proof, by affidavit, of service of a copy thereof and of the notice, if sufficient cause to the contrary is not shown by the adverse party, the court must either issue a commission, as prescribed in the following sections of this title; or make an order, directing the adverse party, at a time and place therein specified, before the court, or a referee therein designated, to produce the person upon whose life the prior estate depends, or, in default thereof, to prove that he is living.

From Id., § 4.

§ 2306. Service of order; powers, etc., of referee. Where an order, requiring the production of the tenant for life, or proof that he is living, is made as prescribed in the last section, a certified copy thereof must be served, at least fourteen days before the time therein specified, upon the person required to make the production or proof, or upon his attorney. Upon presentation of proof of service, by affidavit, the court or the referee, must, at the time and place specified in the order, or at the time and place to which the hearing may be adjourned, hear the allegations and proofs of the parties, respecting the identity of any person produced, with the person whose death is in question; or, if the latter person is not produced, respecting the reasons for the failure to produce him, and whether he is living. Where a referee is appointed he has the same powers, and is entitled to the same compensation, as a referee appointed for the trial of an issue in an action.

From Id., § 5.

§ 2307. Habeas corpus.

If it appears, by affidavit, to the satisfaction of the court, that the person required to be produced is imprisoned within the State, for any cause, except upon a sentence for a felony, or is kept or detained, within the State, by any person, the court may, either before or after making the order for production, issue a writ of habeas corpus to bring him before it, or before the referee, as the case requires. The writ must be served and executed, and disobedience thereto may be punished as where a writ of habeas corpus is issued, to inquire into the cause of the detention of a prisoner.

From Id., § 7.

§ 2308. Report of referee.

The referee must deliver his report to the petitioner, or file it with the clerk, within ten days after the case is closed. He must state therein, whether any person was or was not produced before him, as being the person whose death is in question. He must append thereto, in the form of depositions, the proofs, if any, respecting the identity of any person so produced, with the person whose death is in question; or, if no one is so produced, upon the question whether the latter person is living. He must also state, in his report, his conclusions upon the questions controverted before him.

From Id., § 8.

§ 2309. Dismissal of petition when order complied with. If it appears, to the satisfaction of the court, upon the referee's report, and the proofs thereto appended; or, where a referee is not appointed, upon the allegations and proofs of the parties before the court; that the party, required to produce the tenant for life, or to prove his existence, has fully complied with the order, the court must make an order, dismissing the petition, and requiring the petitioner to pay the costs of the proceedings.

From Id., $ 9.

§ 2310. When life-tenant deemed dead, and petitioner let into possession.

If it appears from the referee's report, or upon the hearing before the court, that the person, upon whose life the prior estate depends, was not produced; and if the party required to produce him, or to prove his existence, has not proved, to the satisfaction of the court, that he is living; a final order must be made, declaring that he is presumed to be dead, for the purpose of the proceedings, and directing that the petitioner be forthwith let into possession of the real property, as if that person was actually dead.

From Id., § 10.

§ 2311. Commission to be issued if life-tenant is without the State.

If, before or at the time of the presentation of the referee's report to the court, or, where a referee is not appointed, at any time before the final order is made, the party, upon whom the petition and notice are served, presents to the court presumptive proof, by affidavit, that the person, whose death is in question, is, or lately was, at a place certain, without the State, the court must make an order, requiring the petitioner to take out a commission, directed to one or more persons, residing at or near that place, either designated in the order, or to be appointed upon a subsequent application for the commission, for the purpose of obtaining a view of the person, whose death is in question, and of taking such testimony, respecting his identity, as the parties produce. The order must also direct that the proceedings upon the petition be stayed, until the return of the commission; and that the petition be dismissed with costs, unless the petitioner takes out the commission, within a time specified in the order, and diligently procures it to be executed and returned, at his own expense.

From Id., 11.

§ 2312. General provision respecting the commission. It is not necessary, unless the court specially so directs, that the witnesses to be examined should be named in the commission, or that interrogatories should be annexed thereto. The commission must be executed and returned, and the deposition taken must be filed and used, as prescribed for those purposes in article second of title third of chapter ninth of this act, except as otherwise specially prescribed in this title.

§ 2313. Petitioner to give notice of its execution.

The petitioner must give to the adverse party, or his attorney, written notice of the time when, and the place where, the commissioner or commissioners will attend, for the purpose of executing the commission, as follows:

1. If the place, where the commission is to be executed, is within the United States, or the dominion of Canada, he must give at least two months' notice.

2. If it is within either of the West India islands, he must give at least three months' notice.

3. In every other case, he must give at least four months' notice. Notice may be given, as required by this section, by serving it as prescribed in this act for the service of a paper upon an attorney, in an action in the supreme court.

From Id. § 12.

§ 2314. Execution thereof.

The commissioner or commissioners possess the same powers, and must proceed in the same manner, as a referee, appointed by an order requiring the production of the tenant for life, or proof of his existence; except that they cannot proceed, unless a person is produced before

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them, as being the person whose death is in question. The return to the commission must expressly state whether any person was or was not so produced. The testimony, respecting the identity of a person so produced, must be taken, unless otherwise specially directed by the court, as prescribed in chapter ninth of this act, for taking the deposition of a witness upon oral interrogatories; except that it is not necessary to give any other notice of the time and place of examination, than that prescribed in the last section.

From Id., part of § 13.

§ 2315. Proceedings on return of commission.

Upon the return of the commission, the proceedings are the same as upon the report of a referee, as prescribed in sections 2309 and 2310 of this act; but the court may, in its discretion, receive additional proofs from either party.

From §§ 14, 15 and 16 and the remainder of § 13.

§ 2316. Costs.

Where costs of a special proceeding, taken as prescribed in this title, are awarded, they must be fixed by the court at a gross sum, not exceeding fifty dollars, in addition to disbursements. Where provision is not specially made in this title for the award of costs, they may be denied, or awarded to or against either party, as justice requires. From Id., § 18.

§ 2317. Property; when restored.

The possession of real property, which has been awarded to the petitioner, as prescribed in this title, upon the presumption of the death of the person, upon whose life the prior estate depends, must be restored, by the order of the court, to the person evicted, or to his heirs or legal representatives, upon the petition of the latter, and proof, to the satisfaction of the court, that the person presumed to be dead is living. The proceedings upon such an application are the same, as prescribed in this title, upon the application of the person to whom possession is awarded.

From Id., § 19.

§ 2318. Remedy of person evicted for profits, etc.

A person evicted, as prescribed in this title, may, if the presumption, upon which he is evicted, is erroneous, maintain an action against the person who has occupied the property, or his executor or administrator, to recover the rents and profits of the property, during the occupation, while the person, upon whose life the prior estate depends, is or was living.

From Id., § 20.

§ 2319. Order not conclusive in ejectment.

A final order, made as prescribed in this title, awarding to the petitioner the possession of real property, is presumptive evidence only, in an action of ejectment, brought against him by the person evicted, or in an action brought as prescribed in the last section, of the life or death of the person, upon whose life the prior estate depends.

TITLE VI.

Proceedings for the appointment of a committee of the person, and of the property, of a lunatic, idiot, or habitual drunkard; general powers and duties of the committee.

SEC. 2320. Jurisdiction; concurrent jurisdiction.

2321. Duty of court having jurisdiction.

2322. Committee may be appointed.

2323. Application for committee; by whom made.

2323a. Application when incompetent person is in a state institution; petition, by whom made; contents and proceedings upon presentation thereof.

2323b. Costs.

2324. Duty of certain officers to apply.

2325. Contents, etc., of petition; proceedings upon presentation thereof. 2326. When foreign committee may be appointed.

2327. Order for commission, or for trial by jury in court.

2328. Contents of commission.

2329. Commissioners to be sworn; vacancies, how filled.

2330. Jury to be procured; proceedings thereupon.

2331. Proceedings upon the hearing.

2332. Return of inquisition and commission.

2333. Expenses of commission.

2334. Proceedings upon trial by jury in court.

2335. Subject of inquiry in cases of lunacy.

2336. Proceedings upon verdict, or return of commission.

2336a. Sections of this title not applicable when application for com.

mittee is made under authority of this state.

2337. Security to be given by committee.

2338. Compensation of committee.

2339. Committee under control of court; limitation of powers.

2340. Committee of property may maintain actions, etc.

2341. Id.; to file inventory and account.

2342. Id.; may be compelled to file the same or render an additional ac

count, etc.

2343. Property, when to be restored.

2344. Id.; disposition in case of death.

§ 2320. Jurisdiction; concurrent jurisdiction.

The jurisdiction of the supreme court extends to the custody of the person, and the care of the property, of a person incompetent to manage himself or his affairs, in consequence of lunacy, idiocy, habitual drunkenness, or imbecility arising from old age or loss of memory and understanding or other cause. Where a county court has jurisdiction of those matters, concurrent with that of the supreme court, the jurisdiction of the court first exercising it, as prescribed in this title, is exclusive of that of the others, with respect to any matter within its jurisdiction, for which provision is made in this title. In all proceedings under this title for the appointment of a committee of such a person he shall be designated “an alleged incompetent person; " and after the appointment of a committee of such person, in all subsequent proceedings the lunatic, idiot, habitual drunkard or imbecile shall be designated an incompetent person."

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From ch. 446 of 1874, tit. 2, part of § 1 (9 Edm. 929).

Am'd by ch. 504 of 1894 and ch. 946 of 1895.

See Statutory Const. Law, ch. 677 of 1892, § 7.

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