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capacity was not exhausted. But this section does not increase the sum, which the plaintiff is entitled to recover against him, in the capacity in which he is actually liable; nor does it charge a defendant individually, who is liable only in a representative capacity. (Added by L. 1920, ch. 919, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 1860.

§ 194. Next of kin defined.

The term "next of kin," as used in this article, includes all those entitled, under the provisions of law relating to the distribution of personal property, to share in the unbequeathed assets of a decedent, after payment of debts and expenses, other than a surviving husband or wife. (Added by L. 1920, ch. 919, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 1870.

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ARTICLE 8.

ACTION TO ESTABLISH A WILL OR CONSTRUE A DEVISE.

(Article added by L. 1920, ch. 919, in effect April 15, 1921.) SECTION 200. When action to establish a will may be brought. 201. Judgment, that will be established.

202. Judgment admitting the will to probate.

203. Contents of judgment; surrogate's duty.

204. Proof of lost will in certain cases.

205. Action to determine validity, construction or effect of devise. 206. Retrospective effect of this article.

§ 200. When action to establish a will may be brought.

An action to procure a judgment, establishing a will, may be maintained, by any person interested in the establishment thereof, in either of the following cases:

1. Where a will of real or personal property, or both, has been executed, in such a manner and under such circumstances, that it might, under the laws of the state, be admitted to probate in a surrogate's court; but the original will is in another state or country, under such circumstances, that it cannot be obtained for that purpose; or has been lost or destroyed, by accident or design, before it was duly proved and recorded within the state.

2. Where a will of personal property made by a person, who resided without the state, at the time of the execution thereof, or at the time of his death, has been duly executed, according to the laws of the state or country in which it was executed, or in which the testator resided at the time of his death, and the case is not one, where the will can be admitted to probate in a surrogate's court, under the laws of the state. (Added by L. 1920, ch. 919, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 1861.

§ 201. Judgment, that will be established.

If, in such an action, the facts necessary to establish the validity of the will, as prescribed in the last section, are satisfactorily proved, final judgment must be rendered, establishing the will accordingly. But where the will of a person, who was a resident of the state at the time of his death, is established as prescribed in the last section, the judgment establishing it does not affect the construction or validity of any provision contained therein; and such a question arising with respect to any provision, must be determined in the same action, or in another action or a special pro

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ACTION TO ESTABLISH A WILL, ETC.

ceeding, as the case requires, as if the will was executed within the state. (Added by L. 1920, ch. 919, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 1862.

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§ 202. Judgment admitting the will to probate.

Where the parties to the action, who have appeared or have been duly summoned, include all the persons who would be necessary parties to a special proceeding, in a surrogate's court, for the probate of the same will and the grant of letters thereupon, if the circumstances were such that it could have been proved in a surrogate's court; the final judgment, rendered as prescribed in the last section, must direct, that an exemplified copy thereof be transmitted to the surrogate having jurisdiction, and be recorded in his office; and that letters testamentary, or letters of administration with the will annexed, be issued thereupon from his court, in the same manner, and with like effect, as upon a will duly proved in that court. (Added by L. 1920, ch. 919, in effect April 15,

1921.)

Derivation: Code of Civil Procedure, § 1863.

§ 203. Contents of judgment; surrogate's duty.

A copy of the will so established, or, if it is lost or destroyed, the substance thereof must be incorporated into a final judgment, rendered as prescribed in the last section; and the surrogate must record the same, and issue letters thereupon, as directed in the judgment. (Added by L. 1920, ch. 919, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 1864.

§ 204. Proof of last will in certain cases.

But the plaintiff is not entitled to a judgment, establishing a lost or destroyed will, as prescribed in this article, unless the will was in existence at the time of the testator's death, or was fraudulently destroyed in his lifetime; and its provisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness. (Added by L. 1920, ch. 919, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 1865.

effect of devise.

§ 205. Action to determine validity, construction
The validity, construction, or effect, under the laws of the state,
of a testamentary disposition of real property situated within the
state, or of an interest in such property, which would descend to
the heir of an intestate, may be determined, in an action brought
for that purpose, in like manner as the validity of a deed, purport-
ing to convey land, may be determined. The judgment in such
an action may perpetually enjoin any party from setting up or

from impeaching the devise, or otherwise making any claim in contravention to the determination of the court, as justice requires. But this section does not apply to a case, where the question in controversy is determined by the decree of a surrogate's court, duly rendered upon allegations for that purpose, as prescribed by law, where jurisdiction of the plaintiff was duly acquired in the special proceeding in the surrogate's court, before the commencement of the action. (Added by L. 1920, ch. 919, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 1866.

§ 206. Retrospective effect of this article.

The provisions of this article apply as well to wills made before, as to those made after, this article takes effect. (Added by L. 1920, ch. 919, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 1867.

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ARTICLE 9.

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

RECEIVERS.

SECTION 210. Receiver of decedent's estate.

§ 210. Receiver of decedent's estate.

Where the estate of a decedent has been brought under the jurisdiction of the supreme court, by an action for partition or distribution, or for the construction or establishment of a will, the court may, upon the death of the sole surviving executor, appoint a receiver of the estate, pending the action, upon such terms and conditions, and upon such notice to the parties interested, as the court directs, and upon such security, if any, as to the court seems proper. For the purpose of carrying into effect the judgment and orders of the court in relation to the estate, a receiver so appointed is the successor in interest of the surviving executor; and has, subject to the direction of the court, the like power, as an administrator with the will annexed. (Added by L. 1920, ch. 919, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 1869.

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