N.Y. Real Property Actions and Proceedings Law 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 v…
§ 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.
Terms Used In N.Y. Real Property Actions and Proceedings Law 1211
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Dismissal: The dropping of a case by the judge without further consideration or hearing. Source:
- Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
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 conclusive against (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.