NEW YORK STATE
REAL PROPERTY ACTIONS AND PROCEEDINGS LAW
SPECIAL PROCEEDING FOR DISPOSITION OF REAL PROPERTY
OF INFANT, INCOMPETENT OR CONSERVATEE
Section 1701. Definitions.
1712. By whom maintainable.
1721. Notice of petition.
1722. Contents of petition.
1731. Infant, incompetent or conservatee
a ward of court.
1745. Report and confirmation of
agreement and of conveyance.
1746. When particular estates to be
included in disposition.
1747. When reversionary estates to be
included in sale.
1751. Sale contrary to will or conveyance
1753. Effect of disposition.
1755. Proceeds of sale deemed real property.
1761. Distribution of proceeds of disposition.
1762. Distribution of proceeds to owner
of particular or reversionary estate.
1763. Distribution of proceeds upon
release of inchoate right of dower.
1764. Distribution of proceeds where
there is an interest of an infant not in
1765. Distribution of proceeds to
guardian of infant, committee of incompetent
or conservator of conservatee.
1766. Distribution of proceeds on death
of infant, incompetent or conservatee.
Sec. 1701. DEFINITIONS.
As used in this article:
1. The term "incompetent person" means a person incompetent to
manage his affairs of whose property a committee has been
appointed pursuant to section 78.07 of the mental hygiene
2. The term "conservatee" means a person who has suffered
substantial impairment of his ability to care for his
property or has become unable to provide for himself or
others dependent upon him for support for whom a conservator
of his property has been appointed, pursuant to section
77.01 of the mental hygiene law.
3. The term "interest in real property" includes any term,
estate or other interest in real property, vested or
contingent, of an infant in being, an incompetent person, or
a conservatee including an inchoate right of dower and a
possibility of reverter, and also the contingent interest of
an infant not in being.
4. The term "possibility of reverter" means the possibility
that upon breach of a condition or termination of an estate
by limitation the right of re-entry will vest in, or real
property will revert to, an infant, incompetent person or
conservatee or his heirs solely or in common with others.
5. The term "dispose of" means to sell, convey, exchange,
mortgage, release or lease.
6. The term "guardian, committee or conservator" refers to the
general or testamentary guardian or guardian appointed by
deed of the property of the infant, or the committee of the
property of the incompetent person or patient appointed
pursuant to the provisions of section 78.03 or 78.07 of the
mental hygiene law, the conservator of the property of a
conservatee appointed pursuant to the provisions of article
seventy-seven of the mental hygiene law, or to the guardian
of the infant, incompetent person or conservatee appointed
as prescribed by this article.
Sec. 1711. GROUNDS.
In any of the following cases, a special proceeding may be
maintained to dispose of the real property or an interest in real
property of an infant, incompetent person or conservatee.
1. Where his personal property, together with the income of the
real property are insufficient for the payment of his debts
or for the maintenance and necessary education of himself
and his family.
2. Where his interests require or will be substantially
promoted by disposition, because the real property or
interest in real property is exposed to waste or
dilapidation, or is wholly or substantially unproductive, or
because funds are needed to preserve or to improve the same,
or because of other peculiar reasons or circumstances.
3. Where he is seized or possessed of the real property, or
interest in real property, by way of mortgage, or only in
trust for another.
4. Where a valid contract for the sale or conveyance of the
real property or interest in real property has been made,
but a conveyance thereof cannot be made because the person
in whom the title is vested is an infant, an incompetent, or
5. Where his interest will be substantially promoted by
releasing or joining with others in releasing for a valuable
consideration the possibility of reverter.
6. Where his interest will be substantially promoted by the
exchange of a portion of his real property for lands
adjacent to such real property if such exchange would tend
to improve the boundary line of such real property.
Sec. 1712. BY WHOM MAINTAINABLE.
The special proceeding may be maintained by the general or
testamentary guardian of the property of the infant, by the
committee of the property of the incompetent person or the
conservator of the property of the conservatee, or by any
relative or other person in behalf of the infant, incompetent
person, or conservatee or by an infant of the age of fourteen
years or over in his own behalf.
The special proceeding may be maintained, in a case specified in
subdivisions 3 and 4 of section 1711, by a person entitled to the
conveyance; and, also, in a case specified in subdivision 4 of
that section, by the executor or administrator of the person who
made the contract, or of a person who died seized or possessed of
the real property or interest in real property, or by an heir or
devisee of either of those persons, to whom the real property or
interest in real property has descended or was devised. Where the
proceeding is in behalf of an infant of the age of fourteen years
or over the infant shall join therein.
Sec. 1721. NOTICE OF PETITION.
Notice of petition shall be given, in the discretion of the
court, to such persons and in such manner as the court may
direct. If the proceeding affects the interest of an incompetent
person or of a conservatee, notice shall be given to either the
committee of property or the conservator of property, and if the
incompetent person or conservatee has been committed to a state
institution and is an inmate thereof, also to the attorney-
general and to the director having jurisdiction over the
institution where the incompetent or conservatee is confined. If
the proceeding affects the interest of an infant who has a
general or testamentary guardian of the property, notice shall be
given to such guardian.
Sec. 1722. CONTENTS OF PETITION.
The petition shall state:
1. The name, age and residence of the infant, incompetent
person or conservatee.
2. The grounds of the proceeding.
3. A description of the real property or interest to be
disposed of and of the incumbrance, if any, thereon.
4. The name and residence of the guardian of the infant,
committee of the incompetent person or conservator of the
conservatee and, where a guardian ad litem is to be
appointed, the name and residence of the person proposed as
the guardian ad litem, the relationship he bears to the
infant, incompetent person, or conservatee and the security
proposed to be given.
5. In a proceeding pursuant to subdivision four of section
seventeen hundred eleven of this article, that the contract
was made after the advertisement of the real property for
sale for a period of four successive weeks by a notice of
sale posted conspicuously on the premises, and by
publication of a notice of sale in the manner prescribed by
section two hundred thirty-one of this chapter for
publication of a notice of sale of real property made in
pursuance of a judgment, provided, however, that the court
may, upon cause shown, shorten such time or dispense with
Sec. 1731. INFANT, INCOMPETENT OR CONSERVATEE A WARD OF
From the time of the filing of a petition, by or in behalf of an
infant, incompetent person or conservatee, praying for an order
to dispose of his real property, or interest in real property,
the infant, incompetent person or conservatee is considered a
ward of the court with respect to that real property or interest
and the income and proceeds thereof. The court shall have power
to make such orders as may be necessary to further justice and to
protect and conserve the rights and interests of the infant,
incompetent person or conservatee.
Sec. 1741. REFERENCE.
1. The court may appoint a referee to receive evidence and
report his opinion thereon.
2. The referee's report shall include conclusions as to: what,
if any, form, terms and conditions of disposition of the
real property or interest would be beneficial to the infant,
incompetent person or conservatee, and the reasons therefor;
whether the infant, incompetent person or conservatee is in
absolute need of some and what portion of the proceeds of
such disposition, for a purpose specified in the petition,
in addition to what he might earn by his own exertions; the
value of the property or interest to be disposed of,
specifically, as to each separate lot or parcel, with the
incumbrances, if any, thereon, and whether there is any
person entitled to dower or a life estate, or estate for
Sec. 1742. APPRAISAL.
When the court deems it necessary for the protection of the
interests of the infant, incompetent person or conservatee, it
may appoint a competent, disinterested person as appraiser, who
after taking an oath fairly to appraise the real property, shall
go upon the premises, and make an appraisal of the property and
report the result thereof to the court. The fee of the appraiser
shall be fixed by the court and be included in the costs of the
proceedings. A transcript of the proof and the report of the
referee or appraiser, if any, shall be filed with the final
Sec. 1743. JUDGMENT.
The judgment may direct that the real property, or interest in
real property, or a part thereof, be disposed of by the guardian,
committee or conservator and contain directions respecting the
time, manner and conditions of the disposition.
Sec. 1744. SECURITY.
1. Before the guardian, committee or conservator executes and
delivers the deed, mortgage, release or lease pursuant to
the judgment or receives any portion of the proceeds arising
from the transaction, he shall give security for the
faithful performance of his trust, for the paying over and
investing of and accounting for all moneys received by the
guardian, committee or conservator in the special proceeding
and for the observance of the provisions of law and the
directions of the court in relation to the trust. Such
security shall have the same force and effect as if it had
been filed before the guardian, committee or conservator
acted on behalf of the infant, incompetent person or
conservatee and the application to the court was made in the
2. The court may, by order, dispense wholly or in part with the
giving of security if the sureties on the undertaking, if
any, theretofore filed by the general or testamentary
guardian of the property of the infant, the committee of the
property of the incompetent person, or conservator of the
property of the conservatee as well as such guardian,
committee, or conservator consent to its extension to cover
the special proceeding, and the court deems such extended
undertaking sufficient to protect the interests of the
infant, incompetent person or conservatee in such
proceeding. The consent shall be in writing and shall be
filed with the order dispensing with the giving of security.
Sec. 1745. REPORT AND CONFIRMATION OF AGREEMENT AND OF
1. Before disposition of the property can be made pursuant to
the judgment, the guardian, committee or conservator must
enter into an agreement therefor, subject to the approval of
the court, and must report the agreement to the court under
oath. Such agreement may be made either before or after the
commencement of the proceeding, and if made and reported
prior to the entry of the judgment, such judgment may
include a confirmation thereof.
2. Upon the confirmation of the agreement, either by the
judgment or by a subsequent order, the guardian, committee
or conservator shall execute and deliver a deed, mortgage,
release or lease as directed by such judgment or order.
3. Where the judgment directs the execution of a conveyance in
the first instance for the purpose of fulfilling a contract,
or because the property is held by way of mortgage, or in
trust only, the guardian, committee or conservator executing
the conveyance shall report the conveyance to the court
Sec. 1746. WHEN PARTICULAR ESTATES TO BE INCLUDED IN
When the real property, or interest in real property, directed to
be sold is subject, absolutely or contingently, to a right of
dower or an estate for life, or for years, in the whole or any
part thereof, the person having the prior right or estate may
manifest in writing his consent, either to receive from the
proceeds of the sale a gross sum to be fixed according to the
principles of law applicable to annuities, in satisfaction of his
right or estate, or to have a proportionate share of the proceeds
of the sale invested, and the interest thereof paid to him, from
the time of the investment or of the commencement of his right or
estate, as justice requires, until the determination of his right
or estate. Upon filing the consent with the clerk, the judgment,
in the discretion of the court, may direct a sale of the entire
property to which the right or estate attaches.
Sec. 1747. WHEN REVERSIONARY ESTATES TO BE INCLUDED IN SALE.
When the interest of the infant, incompetent person or
conservatee, consists of a right of dower or an estate for life,
or for years, the judgment may authorize the guardian, committee
or conservator to join, with the person or persons holding the
reversionary estate, in a conveyance of the property to which the
interest attaches, so as to release the right of dower, or fully
convey the particular estate, on receiving from the proceeds of
the sale a gross sum in satisfaction of that interest, or a
proportionate part of the proceeds, to be invested until the
determination of the particular estate.
Sec. 1751. SALE CONTRARY TO WILL OR CONVEYANCE PROHIBITED.
Real property, or an interest in real property, shall not be
disposed of, as prescribed in this article, contrary to the
provisions of a will by which it was devised, or of a conveyance
or other instrument by which it was transferred, to the infant,
incompetent person or conservatee.
Sec. 1753. EFFECT OF DISPOSITION.
A deed, mortgage, release or lease made in good faith, as
prescribed in this article, upon an application in behalf of an
infant, incompetent person or conservatee, has the same validity
and effect as if executed by the person in whose behalf it was
executed, and as if the infant were of full age or the
incompetent person or conservatee were of sound mind and
competent to manage his affairs. It shall be valid and effectual
to vest in any purchaser an interest of an infant not in being at
the time of the said sale, and any mortgage so executed shall be
a valid lien and charge upon the contingent interest of an infant
not in being at the time of the execution and delivery of the
same. A release of an inchoate right to dower as authorized by
this article shall have the same effect as if the wife had joined
with the husband in a deed or conveyance of the property affected
thereby and had duly acknowledged the same in the manner required
by law to pass the estate of married women. The failure to
conduct the proceeding strictly in accordance with the provisions
of this article shall not invalidate the disposition if the
interests of the infant, incompetent person or conservatee have
not been prejudiced.
Sec. 1755. PROCEEDS OF SALE DEEMED REAL PROPERTY.
A sale of real property, or of an interest in real property other
than a possibility of reverter, of an infant or incompetent
person, does not give to the infant or incompetent person any
other or greater interest in the proceeds of the sale than he had
in the property or interest sold. Those proceeds are deemed
property of the same nature as the estate or interest sold until
the infant arrives at full age or the incompetency is removed.
The proceeds of the release of a possibility of reverter shall be
deemed and treated as if they were proceeds of real property of
which the infant was seized and possessed. If the incompetent
person dies after the sale, having specifically devised the
property sold, the provisions of section thirty-six of the
decedent estate law shall apply to the devise.
Sec. 1761. DISTRIBUTION OF PROCEEDS OF DISPOSITION.
1. After the disposition of real property as provided in this
article, the court shall direct the distribution of the
2. The court shall direct the payment from the proceeds of all
debts, in equal proportion, without giving a preference to a
debt founded upon a specialty or upon which judgment has
3. The court shall direct the investment of any portion of the
proceeds belonging to the infant, incompetent person or
conservatee which is not needed for the payment of debts, or
the safe keeping, or the immediate maintenance and education
of himself or his family, or for the preservation or
improvement of his real property or his interest in real
4. The court shall require a report, under oath, of the
disposition and investment of the proceeds to be made as
soon as practicable, and must compel periodical accounts to
be rendered thereafter by each person who is intrusted with
the proceeds or any part thereof.
Sec. 1762. DISTRIBUTION OF PROCEEDS TO OWNER OF PARTICULAR OR
1. When real property has been disposed of so as to include a
particular reversionary estate, as provided in sections 1746
and 1747, the court shall direct that the value of such
estate be paid from the proceeds of disposition.
2. The manner of payment may be either in a gross sum or by the
investment of a just proportion of the proceeds until the
termination of the prior estate or the commencement of a
3. If a prior estate has been included, income from the
invested proceeds shall be paid to the owner of such estate.
But no such payment shall be made nor shall any gross sum be
paid to such owner until an effectual release of the right
or estate of the person so consenting, executed to the
satisfaction of the court, and duly acknowledged or proved,
and certified, in like manner as a deed to be recorded, has
been filed with the clerk.
4. If a future estate has been included, the invested proceeds
shall be paid to the owner of such estate at the time of the
Sec. 1763. DISTRIBUTION OF PROCEEDS UPON RELEASE OF INCHOATE
RIGHT OF DOWER.
Where an inchoate right of dower is released as prescribed in
this article and such release is to accompany a sale by the
husband of the property to which the inchoate right of dower
attaches, the court shall make an order requiring one-third of
the amount realized on the sale of the property to which the
inchoate right of dower attached to be invested by the guardian,
committee or conservator, or paid into the court to be held for
the benefit of the husband during his life and upon his death for
the benefit of the wife during her life, or the court may direct
said amounts to be paid to the husband upon his giving an
undertaking in the amount of at least double the amount so
received for such release, conditioned for the repayment as the
court shall direct by his executors or administrators of such
amount upon the death of the husband, or the court may ascertain
the sum in gross representing the present value of such inchoate
right of dower and direct the payment of that sum to the
guardian, committee or conservator for the wife. Where an
inchoate right of dower is released as prescribed in this
article, and, at the time of the commencement of the proceeding,
the property to which the inchoate right of dower attaches has
already been sold by the husband, and the wife has not joined in
the conveyance or otherwise released her inchoate right of dower,
the court shall make an order that, as the consideration for the
release, or as part of the consideration therefor, there be paid
to the guardian, committee, or conservator or into the court an
amount to be fixed by the court as equal to one-third of the fair
market value of the property, to be invested by the guardian,
committee or conservator or held by the court for the benefit of
the person making such payment during the life of the husband,
and upon his death for the benefit of the wife during her life,
and upon her death to be returned to the person making such
payment or to his executors, administrators or assigns; or in
lieu of such payment, the court may allow an undertaking to be
given in the amount of at least double the amount so fixed as
equal to one-third of the fair market value of the property,
conditioned for the payment as the court shall direct, upon the
death of the husband leaving the wife surviving, of the said sum
so fixed as equal to one-third of the fair value of the property,
to be held for the benefit of the wife during her life and upon
her death to be returned to the person giving such undertaking or
to his executors, administrators or assigns; or, in lieu of such
payment or undertaking, the court may ascertain the sum in gross
representing the present value of such inchoate right of dower in
the fair market value of the property and direct the payment of
that sum to the guardian, committee or conservator for the wife.
Sec. 1764. DISTRIBUTION OF PROCEEDS WHERE THERE IS AN
INTEREST OF AN INFANT NOT IN BEING.
In case by any contingency, infants not in being may thereafter
become possessed of any interest in the real property disposed
of, the court, in case of a sale, shall cause the proceeds of the
sale, after paying the costs and expenses of the same, to be
placed at interest for the benefit of the persons who are or who
ultimately may be entitled to the same, and shall not authorize
the distribution of the same in advance of said contingency,
except upon a petition of some person entitled thereto and upon
filing an undertaking in such amount as the court shall direct,
conditioned that in case of any contingency by which any infant
not then in being shall thereafter become entitled to any of the
proceeds of the sale, that said petitioner will pay to said
person or persons his or their proportionate share of the money
so paid over to said petitioner. In the case of the mortgaging of
said real estate, the proceeds of the same, after paying costs
and expenses, shall be paid out and disbursed under the direction
of the court only for the purpose of paying lawful charges
thereon, or repairing, improving, building upon or otherwise
enhancing in value any real estate so mortgaged as aforesaid.
Sec. 1765. DISTRIBUTION OF PROCEEDS TO GUARDIAN OF INFANT,
COMMITTEE OF INCOMPETENT OR CONSERVATOR OF
1. Proceeds or income of proceeds invested as provided in
subdivision 3 of section 1761 may be paid on order of court
on such undertaking as it may require.
2. If the proceeds do not exceed one thousand dollars, the
court may direct that the same be paid to the father or
mother of the infant, or to some competent person with whom
the infant resides, or who has some interest in his welfare,
for the use and benefit of such infant.
3. In the case of an infant residing without the state, and
having in the state or country where he resides a general
guardian or person duly appointed under the laws of such
state or country to the control, and entitled by the laws of
such state or country to the custody, of the money of said
infant, the court, upon satisfactory proof of such facts and
of the sufficiency of the security given by such general
guardian or person in such state or country, by the
certificate of a judge of a court of record of such state or
country, or otherwise, may direct that the portion of such
infant arising upon a sale pursuant to this article shall be
paid over to such general guardian or person.
Sec. 1766. DISTRIBUTION OF PROCEEDS ON DEATH OF INFANT,
INCOMPETENT OR CONSERVATEE.
If the infant should die before arriving at full age, or the
incompetent person should die before the incompetency is removed,
or the conservatee should die before the conservatorship is
terminated not leaving any personal property, or not leaving
sufficient personal property to pay funeral expenses and expenses
that may be necessary or necessarily incurred, then in each case,
the proceeds of disposition of real property are to be deemed
personal property so far as may be necessary to pay the funeral
and other necessary expenses. The proceeds are to be paid, upon
order of the surrogate's court or court having jurisdiction of
the estate of the deceased, to an administrator appointed by the
surrogate to administer upon decedent's estate, and after paying
all funeral expenses and expenses of administration and any
indebtedness, the remainder, if any there be, upon the order of
the surrogate, shall be paid into the hands of the trustee who
held the same, to be distributed as the law directs.