issued pursuant to the foregoing provisions. An executor, administrator, trustee or other person holding trust funds may require such personal bonds or guarantees of payment to accompany investments as may seem prudent, and all premiums paid on such guarantees may be charged to or paid out of income, providing that such charge or payment be not more than at the rate of one-half of one per centum per annum on the par value of such investments. But no trustee shall purchase securities hereunder from himself. (Amended by L. 1918, ch. 544, in effect May 8, 1918.)

Derivation: L. 1897, ch. 417, § 9 pt., as amended by L. 1902, ch. 295, § 1, and L. 1907, ch. 669, § 1.

§ 112. Executors de son tort abolished.

No person shall be liable to an action as executor of his own wrong, for having received, taken or interfered with, the property or effects of a deceased person; but shall be responsible as a wrongdoer in the proper action to the executors, or general or special administrators, of such deceased person, for the value of any property or effects so taken or received, and for all damages caused by his acts, to the estate of the deceased.

Derivation: R. S., Part 3, ch. 8, Tit. 3, Art. 1, § 17.

§ 113. Special promise to answer for debt of testator or intestate.

No executor or administrator shall be chargeable upon any special promise to answer damages, or to pay the debts of the testator or intestate, out of his own estate, unless the agreement for that purpose, or some memorandum or note thereof, be in writing, and signed by such executor or administrator, or by some other person by him thereunto specially authorized.

Derivation: R. S., Part 2, ch. 6, Tit. 5, § 1.

§ 114. Liability of executors and administrators of executors and administrators.

The executors and administrators of every person, who, as executor, either of right or in his own wrong, or as administrator, shall have wasted or converted to his own use, any goods, chattels, or estate, of any deceased person, shall be chargeable in the same manner as their testator or intestate would have been, if living. Derivation: R. S., Part 2, ch. 6, Tit. 5, § 6.

§ 115. Rights of administrators de bonis non.

When administration of the effects of a deceased person, which shall have been left unadministered by any previous executor or administrator of the same estate, shall be granted to any person, such person may appeal from any judgment obtained against such previous executor or administrator of the same estate, or against the original testator or intestate; and shall defend any appeal from any such judgment; and shall have the same remedies, in the prosecution or defense of any action, by or against such previous

executors or administrators, and for the collection and enforcing of any judgment obtained by them, as they would have by law. Derivation: R. S., Part 3, ch. 8, Tit. 3, Art. 1, § 18.

§ 116. Actions upon contract by and against executors.

Actions of account, and all other actions upon contract, may be maintained by and against executors, in all cases in which the same might have been maintained, by or against their respective testators. Derivation: R. S., Part 2, ch. 6, Tit. 5, § 2.

§ 117. Administrators to have same rights and liabilities as executors.

Administrators shall have actions to demand and recover the debts due to their intestate, and the personal property and effects of their intestate; and shall answer and be accountable to others to whom the intestate was holden or bound, in the same manner as executors.

Derivation: R. S., Part 2, ch. 6, Tit. 5, § 3.

§ 118. Actions of trespass by executors and administrators. Executors and administrators shall have actions of trespass against any person who shall have wasted, destroyed, taken or carried away, or converted to his own use, the goods of their testator or intestate in his lifetime. They may also maintain actions for trespass committed on the real estate of the deceased, in his lifetime.

Derivation: R. S., Part 2, ch. 6, Tit. 5, § 4.

§ 119. Actions of trespass against executors and administrators.

Any person, or his personal representatives, shall have actions of trespass against the executor or administrator of any testator or intestate, who in his lifetime shall have wasted, destroyed, taken or carried away, or converted to his own use, the goods or chattels of any such person, or committed any trespass on the real estate of any such person.

Derivation: R. S., Part 2, ch. 6, Tit. 5, § 5.

§ 120. Actions for wrongs, by or against executors and adminis– trators.

For wrongs done to the property, rights or interests of another, for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or after his death, by his executors or administrators, against such wrong-doer, and after his death against his executors or administrators, in the same manner and with the like effect, in all respects, as actions founded upon contracts. This section shall not extend to an action

for personal injuries, as such action is defined in section thirtythree hundred and forty-three of the code of civil procedure; except that nothing herein contained shall affect the right of action now existing to recover damages for injuries resulting in death. Added by L. 1909, ch. 240, § 16. In effect April 22, 1909.

§ 121. Action or proceeding by executor of executor.

An executor of an executor shall have no authority to commence or maintain any action or proceeding relating to the estate, effects or rights of the testator of the first executor, or to take any charge or control thereof, as such executor.

Added by L. 1909, ch. 240, § 16. In effect April 22, 1909.

§ 122. Appraisal of estate of deceased person.

Whenever by reason of the provisions of any law of this state it shall become necessary to appraise in whole or in part the estate of any deceased person, the persons whose duty it shall be to make such appraisal shall value the real estate at its full and true value, taking into consideration actual sales of neighboring real estate similarly situated during the year immediately preceding the date of such appraisal, if any; and they shall value all such property, stocks, bonds, or securities as are custoramily bought or sold in open markets in the city of New York or elsewhere, for the day on which such appraisal or report may be required, by ascertaining the range of the market and the average of prices as thus found, running through a reasonable period of time.

Derivation: L. 1891, ch. 34, part of § 1. For remainder of section, see General Corporation Law and Debtor and Creditor Law. Renumbered by L 1909, ch. 240, § 17.

ARTICLE 5.

(Article added by L. 1920, ch. 919, in effect April 15, 1921.)

ACTION FOR CAUSING DEATH OF DECEDENT.

SECTION 130. Action by executor or administrator for negligence or wrongful act or default causing death of decedent.

131. Trial and burden of proof of contributory negligence.

132. Amount of recovery.

133. Distribution of damages recovered.

134. Next of kin defined.

§ 130. Action by executor or administrator for negligence or wrongful act or default causing death of decedent.

The executor or administrator duly appointed in this state, or in any other state, territory or district of the United States, or in any foreign country, of a decedent who has left him or her surviving a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent by reason thereof if death had not ensued. Such an action must be commenced within two years after the decedent's death. When the husband, wife or next of kin, do not participate in the estate of decedent, under a will appointing an executor, other than such husband, wife or next of kin, who refuses to bring such action, then such husband, wife or next of kin shall be entitled to have an administrator appointed for the purpose of prosecuting such action for their benefit. (Added (Added by L. 1920, ch. 919, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 1902.

§ 131. Trial and burden of proof of contributory negligence.

On the trial of an action to recover damages for causing death the contributory negligence of the person killed shall be a defense, to be pleaded and proven by the defendant. (Added by L. 1920, ch. 919, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 841-b, as added by L. 1913, ch. 228., This section has been duplicated in Civil practice act, § 265.

§ 132. Amount of recovery.

The damages awarded to the plaintiff may be such a sum as the jury upen a writ of inquiry, or upon a trial, or, where issues of fact are tried without a jury, the court or the referee, deems to

be a fair and just compensation for the pecuniary injuries, resulting from the decedent's death, to the person or persons, for whose benefit the action is brought. If the decedent leaves surviving a father and a mother, the death of such father prior to the verdict shall not affect the amount of damages recoverable. When final judgment for the plaintiff is rendered, the clerk must add to the sum so awarded, interest thereupon from the decedent's death, and include it in the judgment. The inquisition, verdict, report or decision, may specify the day from which interest is to be computed; if it omits so to do, the day may be determined by the clerk, upon affidavits. (Added by L. 1920, ch. 919, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 1904.

§ 133. Distribution of damages recovered.

The damages recovered in an action, as prescribed in this article, or obtained through settlement without action, are exclusively for the benefit of the decedent's husband or wife, and next of kin; and, when they are collected, they must be distributed by the plaintiff, or representative, as if they were unbequeathed assets, left in his hands, after payment of all debts, and expenses of administration; subject however to the following provisions, to wit:

1. In case the decedent shall have left him surviving a wife or a husband, but no children, the damages recovered shall be for the sole benefit of such wife or husband.

2. In case the decedent leaves neither husband, wife, nor issue, but leaves a mother, and a father who has abandoned him, or who has left the maintenance and support of their child to the mother, the damages or recovery shall be for the sole benefit of such mother.

3. In case the decedent leaves no husband or wife, issue or father, or having left a father entitled to recovery, who dies prior to the recovery or verdict, the damages or recovery shall be for the sole benefit of the mother if then living.

The reasonable expenses of the action, or settlement, the reasonable funeral expenses of the decedent, and the commissions of the plaintiff or representative, upon the residue may be fixed by the surrogate, upon notice, given in such a manner and to such persons, as the surrogate deems proper or upon the judicial settlement of the account of the plaintiff, or representative, and may be deducted from the recovery. (Added by L. 1920, ch. 919, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 1903.