the sum remaining uncollected, may be maintained upon his official bond, by and in the name of the person in whose favor the decree was made. If the principal debtor is a resident of the State, the execution must have been issued to the county where he resides. From ch. 460 of 1837, § 65 (4 Edm. 498). § 2608. Successor may prosecute official bond. Where letters have been revoked by a decree of the surrogate's court, the successor of the executor, administrator, or guardian, whose letters are so revoked, may maintain an action upon his predecessor's official bond, in which he may recover any money, or the full value of any other property, received by the principal in the bond, and not duly administered by him; and to the full extent of any injury, sustained by the estate of the decedent or of the infant, as the case may be, by any act or omission of the principal. The money, recovered in such an action, is regarded as part of the estate in the hands of the plaintiff, and must be distributed or otherwise disposed of accordingly; except that a recovery for an act or omission respecting a right of action, or other property, appropriated by law for the benefit of the husband, wife, family, or next of kin of a decedent, or disposed of by a will for the benefit of any person is, for the benefit of the person or persons so entitled thereto. From 2 R. S. 85, Part 2, ch. 6, tit. 3, § 21 (2 Edm. 87). § 2609. Action on official bond, when no successor appointed. Where the letters of an executor or administrator have been so revoked, and no successor is appointed, any person aggrieved may, upon obtaining an order from the surrogate, granting him leave so to do, maintain an action upon the official bond of the executor or administrator, in behalf of himself and all others interested; in which the plaintiff may recover any money, or the full value of any other property, received by the principal in the bond, and not duly administered by him, and to the full extent of any injury sustained by the estate of the decedent. by any act or omission of the principal. The money recovered in such an action must be paid, by the sheriff or other officer who collects it. into the surrogate's court; and the surrogate must distribute it to the creditors or other persons entitled thereto. The proceedings for such a distribution are the same as prescribed in title fifth of this chapter, for the distribution of the proceeds of a sale of real property. § 2610. Application of this article to executors, etc., heretofore appointed. The provisions of this article apply to an executor, administrator, or guardian, to whom letters have been issued, and to a testamentary trustee, whose trust has been created, before this chapter takes effect; except that it does not affect, in any manner, the liability of the sureties in a bond, executed before this chapter takes effect. TITLE III. Granting and revoking probate, letters testamentary, and letters of administration. Foreign wills; ancillary letters. ARTICLE I. Probate of a will and grant of letters thereupon. 2. Revocation of probate. 3. Probate of heirship. 4. Grant of letters of administration. 5. Temporary administration. 6. Revocation of letters testamentary and letters of administration. 7. Foreign wills; ancillary letters. ARTICLE FIRST. Probate of a Will and Grant of Letters Thereupon. SEC. 2611. What wills may be proved; change of residence not to affect validity. 2612. Persons incompetent to serve as executors. 2613. Supplementary letters; executors not named in letters, not to act; power of executors before letters of administration with the will annexed. 2614. Who may propound will. 2615. Who to be cited thereupon. 2616. Contents of citation. 2617. Persons not cited may appear. 2618. Witnesses to be examined; proof required. 2619. Absent, etc., witnesses to be accounted for. 2620. Proof of handwriting. 2621. Proof of lost or destroyed will. 2622. Probate not allowed, unless surrogate satisfied, etc. 2623. Will; when sufficiently proved. 2624. Validity and construction of testamentary provisions. 2625. Surrogate's decision on probate. 2626. Probate; how far conclusive as to personalty. 2627. Id.; as to realty. 2628. When purchaser from heir protected notwithstanding a devise. 2629. Will certified, or record thereof, may be read in evidence. 2630. Recording wills proved elsewhere within the State. 2631, 2632. Records of certain wills heretofore proved; how far evidenos. 2633. Id.; as to wills of real property. 2634. Index and fees. 2634. Wills to be returned after probate. 2636. When letters testamentary may be issued. 2637. Surrogate to inquire into objections. 2638. Bond; when required. 2639. Renunciation; retraction thereof. 2640. Selection of an executor under a power. 2641. Objection to such a person; how taken, etc. 2642. Executor failing to qualify, or renounce; how excluded. 2643. Letters of administration with will annexed; when and to whom. 2644. Id.; renunciation or exclusion of persons having prior right. 2645. Executor or administrator to qualify. 2646. Effect of certain provisions limited. § 2611. What wills may be proved; change of residence not to affect validity. A will of real or personal property, executed as prescribed by the laws of the state, or a will of personal property executed without the state, and within the United States, the Dominion of Canada, or the kingdom of Great Britain and Ireland, as prescribed by the laws of the state or country where it is or was executed, or a will of personal property executed by a person not a resident of the state, according to the laws of the testator's residence, may be proved as prescribed in this article. The right to have a will admitted to probate, the validity of the execution thereof, or the validity or construction of any provision contained therein. is not affected by a change of the testator's residence made since the execution of the will. This section applies only to a will executed by a person dying after April eleven, eighteen hundred and seventy-six, and it does not invalidate a will executed before that date, which would have been valid but for the enactment of sections one and two of chapter one hundred and eighteen of the laws of eighteen hundred and seventy-six, except where such a will is revoked or altered by a will which those sections rendered valid, or capable of being proved as prescribed in this article. Former §§ 2611, 2612, 2613, Co. Civ. Proc. consolidated. Am'd by ch. 686 of 1893. § 2612. Persons incompetent to serve as executors. No person is competent to serve as an executor who, at the time the will is proved, is: 1. Incapable in law of making a contract. 2. Under the age of twenty-one years. 3. An alien not an inhabitant of this state; or 4. Who shall have been convicted of an infamous crime; or 5. Who, on proof is found by the surrogate to be incompetent to execute the duties of such trust by reason of drunkenness, dishonesty, improvidence or want of understanding. If any such person be named as the sole executor in a will, or if all the persons named therein as executors be incompetent, letters of administration with the will annexed must be issued as in the case of all the executors renouncing. A surrogate, in his discretion. may refuse to grant letters testamentary or of administration to a person unable to read and write the English language. Am'd by ch. 686 of 1893. § 2613. Supplementary letters; executors not named in letters not to act; power of executor before letters of administration with the will annexed. If the disability of a person under age, or an alien named as executor in a will, be removed before the execution of the provisions of such will is completed. he shall be entitled, on application, to supplementary letters testamentary, to be issued in the same manner as the original letters, and authorized to join in the execution of the will with the persons previously appointed. A person named in a will as executor, and not named as such in the letters testamentary or in letters of administration with the will annexed, shall be deemed to be superseded thereby, and shall have no power or authority whatever as such executor until he appears and qualifies. An executor named in a will has no power to dispose of any part of the estate of the testator before letters testamentary are granted, except to pay funeral charges, nor to interfere with such estate in any manner further than is necessary for its preservation. Where letters of administration with the will annexed are granted, the will of the deceased shall be observed and performed and the administrators with such will. have the rights and powers and are subject to the same duties as if they had been named executors in the will. Am'd by ch. 686 of 1893. § 2614. Who may propound will. A person designated in a will as executor, devisee, or legatee or any person interested in the estate, or a creditor of the decedent, or any party to an action brought or about to be brought, and interested in the subject thereof, in which action the decedent, if living, would be a proper party, may present to the surrogate's court having jurisdiction, a written petition, duly verified, describing the will, setting forth the facts, upon which the jurisdiction of the court to grant probate thereof depends, and praying that the will may be proved, and that the person, specified in the next section, may be cited to attend the probate thereof. Upon the presentation of such a petition, the surrogate must issue a citation accordingly. From ch. 460 of 1837, § 4 (4 Edm. 487). Am'd by ch. 177 of 1897. § 2615. Who to be cited thereupon. The following persons must be cited upon a petition presented as prescribed in the last section: 1. If the will relates exclusively to real property, the husband or wife, if any, and all the heirs of the testator. 2. If the will relates exclusively to personal property, the husband or wife, if any, and all the next of kin of the testator. 3. If the will relates to both real and personal property, the husband or wife, if any, and all the heirs, and all the next of kin of the testa tor. From Id., § 5 Am'd by ch. 174 of 1891; ch. 627 of 1892, and ch. 118 of 1894. § 2616. Contents of citation. The citation must set forth the name of the decedent, and of the person by whom the will is propounded; and it must state whether the will relates, or purports to relate, exclusively to real property, or personal property, or to both. Where the will propounded was nuncupative, that fact must be stated in the citation. Where the surrogate is unable to ascertain to his satisfaction. whether the decedent left, surviving him, any person, who would be entitled to the property affected by the will, if the decedent had died intestate, the citation must be directed, where the will relates to real property, to the attorney-general; where it relates to personal property, to the public administrator, who would have been entitled to administration, if the decedent had died intestate. From Id., § 7, and 2 R. S. 76, Part 2, ch. 6, tit. 2, § 37 (2 Edm. 78). § 2617. Persons not cited may appear. Any person, although not cited, who is named as a devisee or legatee in the will propounded, or as executor, trustee, devisee or legatee in any other paper purporting to be a will of the decedent, or who is otherwise interested in sustaining or defeating the will, may appear, and, at his election, support or oppose the application. A person so appearing becomes a party to the special proceeding. But this section does not affect a right or interest of such a person unless he so becomes a party. And in case the will propounded for probate is opposed, due and timely notice of the hearing of the objections to the will shall be given. in such manner as the surrogate shall direct. to all persons in being. who would take any interest in any property under the provisions of the will, and to the executor or executors, trustee or trustees named therein, if any, who have not appeared in the proceeding, and any decree in the proceeding shall not affect the right or interest of any such person unless he shall be so notified. Am'd by ch. 118 of 1894. § 2618. Witnesses to be examined; proof required. Upon the return of the citation, the surrogate must cause the witnesses to be examined before him. The proofs must be reduced to writing. Before a written will is admitted to probate, two, at least, of the subscribing witnesses must be produced and examined, if so many are within the state, and competent and able to testify. Before a nuncupative will is admitted to probate, its execution and the tenor thereof must be proved by at least two witnesses. Any party who contests the probate of a will, may, by a notice filed with the surrogate at any time before the proofs are closed, require the examination of all the subscribing witnesses to a written will, or of any other witness, whose testimony the surrogate is satisfied may be material; in which case, all such witnesses, who are within the state, and competent and able to testify, must be so examined. From ch. 460 of 1837, §§ 10 and 11 (4 Edm. 488). § 2619. Absent, etc., witnesses to be accounted for. The death, absence from the state, lunacy, or other incompetency of a witness, required to be examined as prescribed in this or the last section, or proof that such witness cannot, after due diligence, be found within the state or elsewhere, must be shown by affidavit or other competent evidence, to the satisfaction of the surrogate, before dispensing with his testimony. Where a witness, being within the state, is disabled from attending by reason of age, sickness or infirmity, his disability must be shown in like manner; and in that case, the testimony of the witness, where it is required, and he is able to testify, must be taken in the manner prescribed by law, and produced before the surrogate, as part of the proofs. From Id., and ch. 129 of 1841, §§ 1, 2 and 3 (4 Edm. 501). See 88 2539, 2540. § 2620. Proof of handwriting. If all the subscribing witnesses to a written will are, or if a subscribing witness, whose testimony is required, is dead, or incompetent, by reason of lunacy or otherwise, to testify or unable to testify; or if such a subscribing witness is absent from the state; or if such a subscribing witness has forgotten the occurrence, or testifies against the execution of the will; the will may nevertheless be established, upon proof of the handwriting of the testator, and of the subscribing witnesses, and also of such other circumstances, as would be sufficient to prove the will upon the trial of an action. Where a subscribing witness is absent from the state, upon application of either party, the surrogate shall cause the testimony of such witness to be taken a commission, when it is made to appear that by due diligence such testimony may be obtained. Where a written will is proved, as prescribed in this section, it must be filed and remain in the surrogate's office. But when it shall be shown, by affidavit or otherwise, to the satisfaction of the surrogate, that the decedent left real or personal property in another state or territory of the United States or in a foreign country, and that the laws of such state, territory or country require the production of the original will before the provisions thereof become effective, the surrogate may, at any time after probate, and upon such notice to the parties interested in the estate as he may think proper, cause any original will remaining on file in his office to be sent by pust. or otherwise to any court which, or to any officer of such state, territory or country who, under the laws thereof, is empowered to receive the same for probate, or may deliver such will to any person interested in the probate thereof in such state, territory or country, or to his representative, upon such terms as he shall think proper for the protection of other parties interested in the estate. Where in any matter before the surrogate or in a surrogate's court the testimony of any witness shall be taken by or on commission, the same, together with the commission on which it is taken, shall be duly filed in the office of the surrogate but need not be recorded. The testimony or other proceeding duly taken to be used before the surrogate or surrogate's court, by a stenographer, shall be filed and need not be recorded. From Id., § 20, and 2 R. S. 58, Part 2, ch. 6, tit. 1, §§ 13 and 16 (2 Edm. 59, 60). Am'd by ch. 508 of 1888. Am'd by ch. 114 of 1902. In effect March 12, 1902. § 2621. Proof of lost or destroyed will. A lost or destroyed will can be admitted to probate in a surrogate's court; but only in a case, where a judgment establishing the will could |