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of the real property, as if that person was actually dead. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 2310.

§ 579. 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 was 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. (Added by L. 1920,

ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 2311.

§ 580. General provisions 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 by law for depositions taken without the state for use within the state, except as otherwise specially prescribed in this article. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 2312.

§ 581. 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 any 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 by law for the service of a paper upon an attorney, in a civil action in the supreme court. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 2313.

§ 582. 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 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 by law, 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. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 2314.

§ 583. Proceedings on return of commission.

Upon the return of the commission, the proceedings are the same as upon the report of a referce, as prescribed in sections five hundred and seventy-seven and five hundred and seventy-eight of this chapter; but the court may, in its discretion, receive additional proofs from either party. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 2315.

§ 584. Costs.

Where costs of a special proceeding, taken as prescribed in this article, 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 article for the award of costs, they may be denied, or awarded to or against either party, as justice requires. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 2316.

§ 585. Property; when restored.

The possession of real property, which has been awarded to the

petitioner; as prescribed in this article, 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 article, upon the application of the. person to whom possession is awarded. (Added by L. 1920, ch. 930, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 2317.

§ 586. Remedy of person evicted for rents and profits.

A person evicted, as prescribed in this article, 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. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 2318.

§ 587. Order not conclusive in ejectment.

A final order, made as prescribed in this article, 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. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 2319.

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ARTICLE 19.

(Article added by L. 1920, ch. 930, in effect April 15, 1921.)

PROCEEDINGS FOR VOLUNTARY PARTITION OF INFANT'S OB INCOMPETENT'S REAL PROPERTY.

SECTION 590. Petition by guardian or committee for authority to agree.

591. Contents of petition.

592. Court may authorize partition.

593. Effect of releases.

§ 590, Petition by guardian or committee for authority to agree.

Where an infant, idiot, lunatic, or habitual drunkard, holds real property, in joint tenancy or in common, the general guardian of the infant, or the committee of the idiot, lunatic, or habitual drunkard, may apply to the supreme court or to the county court of the county, wherein the real property is situated, for authority to agree to a partition of the real property. Where such application affects the interests of an incompetent person who has been committed to a state institution, and is an inmate thereof, notice of such application must be given to the superintendent, acting superintendent, or state officer having special jurisdiction over the institution where the incompetent person is confined. (Added by L. 1920, ch. 930, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 1590.

§ 591. Contents of petition.

Such an application must be by a petition, which must describe the real property proposed and to be partitioned; must state the rights and interests of the several owners thereof; must specify the particular partition proposed to be made; and must be verified by affidavit. The court may order notice of the application to be given to such persons as it thinks proper. (Added by L. 1920, ch. 930, in effect April 15, 1921.)

Derivation: Code of Civil Procedure, § 1591.

§ 592. Court may authorize partition.

If, after due inquiry into the merits of the application, by a reference or otherwise, the court is of the opinion that the interests of the infant, or of the idiot, lunatic, or habitual drunkard will be promoted by the partition, it may make an order authorizing the petitioner to agree to the partition proposed, and in the name of the infant, or of the idiot, lunatic, or habitual drunkard, to execute

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releases of his right and interest in and to that part of the property which falls to the shares of the other joint-tenants or tenants in common. The court may, in its discretion, for the furtherance of the interests of said infant, idiot, lunatic, or habitual drunkard, direct partition to be so made as to set off to him or them his or their share in common with any of the other owners, provided the consent in writing thereto of such owners shall be first obtained. (Added by L. 1920, ch. 930, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 1592.

§ 593. Effect of releases.

Releases so executed have the same validity and effect, as if they were executed by the person in whose behalf they are executed, and as if the infant was of full age, or the idiot, lunatic, or habitual drunkard was of sound mind, and competent to manage his affairs. (Added by L. 1920, ch. 930, in effect April 15, 1921.), Derivation: Code of Civil Procedure, § 1593

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