N.Y. Real Property Actions & 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.

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.