State Codes and Statutes

Statutes > New-york > Rpa > Article-12 > 1211

§  1211.  Action  by  joint  tenant, tenant in common or tenant by the  entirety for extinguishment of missing co-tenant's estate  upon  deposit  of  its value.  1. Where real property is held by two or more persons in  their own right as tenants in common, joint tenants or  tenants  by  the  entirety  and  one  of such tenants is missing under circumstances which  afford reasonable ground to believe that he is dead, the  other  tenants  or  tenant  may  maintain  an  action  in  the supreme court to obtain a  determination of the value of the estate of the missing co-tenant and  a  judgment  extinguishing the estate of the missing co-tenant upon payment  into court for his credit of the amount so determined to be the value of  his estate.    Persons  known  or  unknown  who  are  or  may  be  the  devisees   or  distributees  of a missing co-tenant may be joined as defendants in such  action.    2. (a) Service upon the missing co-tenant shall be made in the  manner  provided  for  service  in  an  action  in  which  the complaint demands  judgment that the person to be served  be  excluded  from  a  vested  or  contingent  interest  in  specific  real  property  in  this  state.  In  addition, the court, at any stage of such action, may direct that notice  of the action be published at or near the  place  where  the  co-tenant,  when last heard from, was known or believed to be.    (b)  The  court may, in its discretion, appoint a guardian ad litem to  represent the interests of the missing co-tenant, or of persons who  are  or may be his devisees or distributees.    3.  A  finding  of  reasonable  ground  to  believe  that  the missing  co-tenant is dead may be made, for purposes of this section, either  (a)  upon  proof  that  the co-tenant has been absent from his usual place of  abode for seven successsive years last past, and that a diligent  search  has  been  made  to discover evidence that he is living and that no such  evidence has been found, or (b) upon proof of other  circumstances  from  which  the probability that the missing co-tenant is dead may reasonably  be inferred, although the period of  his  absence  is  less  than  seven  years, provided that such period is not less than one year.    4.  Relief  extinguishing  the  estate  of the missing person shall be  deemed equitable and shall be granted in the discretion  of  the  court.  However,  no  such  relief shall be granted if the court shall find as a  fact that the missing person  is  dead.  In  such  event,  the  judgment  dismissing  the  complaint shall state such determination, but shall not  be deemed an adjudication of death of the missing person for any purpose  other than the dismissal of the complaint and shall not  be  controlling  in  any  other  action  or  proceeding,  whether or not between the same  parties, in which the fact of death of the missing person is in issue.    5. The finding of reasonable ground to believe that the missing person  is dead shall be made, and the value of the property and of  the  estate  of  the  missing  co-tenant  shall be determined, by the court without a  jury or by a referee.    6. The value of the estates of tenants by the entirety shall be deemed  equal. The proportionate shares of joint tenants and tenants  in  common  shall be determined in like manner as in an action for partition.    7.  Costs  of  the action, and fees and disbursements of a guardian ad  litem appointed to represent the interests of the missing  co-tenant  or  his  devisees  or  distributees shall be assessed against the parties in  such proportions as the court shall direct and the part thereof assessed  against the missing person shall be charged against  the  value  of  the  estate of the missing person.    8.  A judgment extinguishing the estate of the missing co-tenant shall  be conclusive even though the missing person was in fact alive,  or  was  in  fact dead, at the date of the entry thereof, and shall be conclusiveagainst (a) any person  claiming  under  the  missing  person  by  title  accruing  or  conveyance recorded after the filing of the judgment-roll,  or of the notice of pendency of the action, and (b) any person  claiming  under  the  missing  co-tenant  who  is  made a party to the action. The  judgment shall also have like effect as a conveyance made by the missing  co-tenant or by  the  missing  co-tenant  and  the  other  co-tenant  or  co-tenants,  conveying  the  premises  to the co-tenant or co-tenants in  accordance with their interests resulting from the judgment.  The  court  may  direct  that  an  instrument  of  conveyance in conformity with the  judgment be executed and delivered by the sheriff in  the  name  of  the  co-tenant.

State Codes and Statutes

Statutes > New-york > Rpa > Article-12 > 1211

§  1211.  Action  by  joint  tenant, tenant in common or tenant by the  entirety for extinguishment of missing co-tenant's estate  upon  deposit  of  its value.  1. Where real property is held by two or more persons in  their own right as tenants in common, joint tenants or  tenants  by  the  entirety  and  one  of such tenants is missing under circumstances which  afford reasonable ground to believe that he is dead, the  other  tenants  or  tenant  may  maintain  an  action  in  the supreme court to obtain a  determination of the value of the estate of the missing co-tenant and  a  judgment  extinguishing the estate of the missing co-tenant upon payment  into court for his credit of the amount so determined to be the value of  his estate.    Persons  known  or  unknown  who  are  or  may  be  the  devisees   or  distributees  of a missing co-tenant may be joined as defendants in such  action.    2. (a) Service upon the missing co-tenant shall be made in the  manner  provided  for  service  in  an  action  in  which  the complaint demands  judgment that the person to be served  be  excluded  from  a  vested  or  contingent  interest  in  specific  real  property  in  this  state.  In  addition, the court, at any stage of such action, may direct that notice  of the action be published at or near the  place  where  the  co-tenant,  when last heard from, was known or believed to be.    (b)  The  court may, in its discretion, appoint a guardian ad litem to  represent the interests of the missing co-tenant, or of persons who  are  or may be his devisees or distributees.    3.  A  finding  of  reasonable  ground  to  believe  that  the missing  co-tenant is dead may be made, for purposes of this section, either  (a)  upon  proof  that  the co-tenant has been absent from his usual place of  abode for seven successsive years last past, and that a diligent  search  has  been  made  to discover evidence that he is living and that no such  evidence has been found, or (b) upon proof of other  circumstances  from  which  the probability that the missing co-tenant is dead may reasonably  be inferred, although the period of  his  absence  is  less  than  seven  years, provided that such period is not less than one year.    4.  Relief  extinguishing  the  estate  of the missing person shall be  deemed equitable and shall be granted in the discretion  of  the  court.  However,  no  such  relief shall be granted if the court shall find as a  fact that the missing person  is  dead.  In  such  event,  the  judgment  dismissing  the  complaint shall state such determination, but shall not  be deemed an adjudication of death of the missing person for any purpose  other than the dismissal of the complaint and shall not  be  controlling  in  any  other  action  or  proceeding,  whether or not between the same  parties, in which the fact of death of the missing person is in issue.    5. The finding of reasonable ground to believe that the missing person  is dead shall be made, and the value of the property and of  the  estate  of  the  missing  co-tenant  shall be determined, by the court without a  jury or by a referee.    6. The value of the estates of tenants by the entirety shall be deemed  equal. The proportionate shares of joint tenants and tenants  in  common  shall be determined in like manner as in an action for partition.    7.  Costs  of  the action, and fees and disbursements of a guardian ad  litem appointed to represent the interests of the missing  co-tenant  or  his  devisees  or  distributees shall be assessed against the parties in  such proportions as the court shall direct and the part thereof assessed  against the missing person shall be charged against  the  value  of  the  estate of the missing person.    8.  A judgment extinguishing the estate of the missing co-tenant shall  be conclusive even though the missing person was in fact alive,  or  was  in  fact dead, at the date of the entry thereof, and shall be conclusiveagainst (a) any person  claiming  under  the  missing  person  by  title  accruing  or  conveyance recorded after the filing of the judgment-roll,  or of the notice of pendency of the action, and (b) any person  claiming  under  the  missing  co-tenant  who  is  made a party to the action. The  judgment shall also have like effect as a conveyance made by the missing  co-tenant or by  the  missing  co-tenant  and  the  other  co-tenant  or  co-tenants,  conveying  the  premises  to the co-tenant or co-tenants in  accordance with their interests resulting from the judgment.  The  court  may  direct  that  an  instrument  of  conveyance in conformity with the  judgment be executed and delivered by the sheriff in  the  name  of  the  co-tenant.

State Codes and Statutes

State Codes and Statutes

Statutes > New-york > Rpa > Article-12 > 1211

§  1211.  Action  by  joint  tenant, tenant in common or tenant by the  entirety for extinguishment of missing co-tenant's estate  upon  deposit  of  its value.  1. Where real property is held by two or more persons in  their own right as tenants in common, joint tenants or  tenants  by  the  entirety  and  one  of such tenants is missing under circumstances which  afford reasonable ground to believe that he is dead, the  other  tenants  or  tenant  may  maintain  an  action  in  the supreme court to obtain a  determination of the value of the estate of the missing co-tenant and  a  judgment  extinguishing the estate of the missing co-tenant upon payment  into court for his credit of the amount so determined to be the value of  his estate.    Persons  known  or  unknown  who  are  or  may  be  the  devisees   or  distributees  of a missing co-tenant may be joined as defendants in such  action.    2. (a) Service upon the missing co-tenant shall be made in the  manner  provided  for  service  in  an  action  in  which  the complaint demands  judgment that the person to be served  be  excluded  from  a  vested  or  contingent  interest  in  specific  real  property  in  this  state.  In  addition, the court, at any stage of such action, may direct that notice  of the action be published at or near the  place  where  the  co-tenant,  when last heard from, was known or believed to be.    (b)  The  court may, in its discretion, appoint a guardian ad litem to  represent the interests of the missing co-tenant, or of persons who  are  or may be his devisees or distributees.    3.  A  finding  of  reasonable  ground  to  believe  that  the missing  co-tenant is dead may be made, for purposes of this section, either  (a)  upon  proof  that  the co-tenant has been absent from his usual place of  abode for seven successsive years last past, and that a diligent  search  has  been  made  to discover evidence that he is living and that no such  evidence has been found, or (b) upon proof of other  circumstances  from  which  the probability that the missing co-tenant is dead may reasonably  be inferred, although the period of  his  absence  is  less  than  seven  years, provided that such period is not less than one year.    4.  Relief  extinguishing  the  estate  of the missing person shall be  deemed equitable and shall be granted in the discretion  of  the  court.  However,  no  such  relief shall be granted if the court shall find as a  fact that the missing person  is  dead.  In  such  event,  the  judgment  dismissing  the  complaint shall state such determination, but shall not  be deemed an adjudication of death of the missing person for any purpose  other than the dismissal of the complaint and shall not  be  controlling  in  any  other  action  or  proceeding,  whether or not between the same  parties, in which the fact of death of the missing person is in issue.    5. The finding of reasonable ground to believe that the missing person  is dead shall be made, and the value of the property and of  the  estate  of  the  missing  co-tenant  shall be determined, by the court without a  jury or by a referee.    6. The value of the estates of tenants by the entirety shall be deemed  equal. The proportionate shares of joint tenants and tenants  in  common  shall be determined in like manner as in an action for partition.    7.  Costs  of  the action, and fees and disbursements of a guardian ad  litem appointed to represent the interests of the missing  co-tenant  or  his  devisees  or  distributees shall be assessed against the parties in  such proportions as the court shall direct and the part thereof assessed  against the missing person shall be charged against  the  value  of  the  estate of the missing person.    8.  A judgment extinguishing the estate of the missing co-tenant shall  be conclusive even though the missing person was in fact alive,  or  was  in  fact dead, at the date of the entry thereof, and shall be conclusiveagainst (a) any person  claiming  under  the  missing  person  by  title  accruing  or  conveyance recorded after the filing of the judgment-roll,  or of the notice of pendency of the action, and (b) any person  claiming  under  the  missing  co-tenant  who  is  made a party to the action. The  judgment shall also have like effect as a conveyance made by the missing  co-tenant or by  the  missing  co-tenant  and  the  other  co-tenant  or  co-tenants,  conveying  the  premises  to the co-tenant or co-tenants in  accordance with their interests resulting from the judgment.  The  court  may  direct  that  an  instrument  of  conveyance in conformity with the  judgment be executed and delivered by the sheriff in  the  name  of  the  co-tenant.

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