§ 2600. Any or all of the sureties in a bond, taken as 2 Dem. 201. prescribed in this chapter, may present a petition to the surrogates's court, praying to Le released from responsibility, on account of any future breach of the condition of the bond; and that the principal in the bond may be cited to show cause, why he should not give new sureties. The surrogate must thereupon issue a citation accordingly.

§ 2601. Upon the return of a citation, issued as prescribed in the last section, if the principal in the bond files in the surrogate's office a bond in the usual form, with new sureties to the satisfaction of the surrogate, then or within such a reasonable time, not exceeding five days, as the surrogate fixes, the surrogate must make a decree, releasing the petitioner from liability upon the bond for any subsequent act or default of the principal; otherwise he must make a decree, revoking the delinquent's letters.

C. 413.

§ 2602. Where two or more co-executors or co-admin- 19 Abb. N. istrators disagree, respecting the custody of money or other property of the estate; or two or more testamentary trustees or guardians of the property disagree, respecting the custody of money or other property, belonging to a fund or an estate which is committed to their joint charge; the surrogate may, upon the application of either of them, or of a creditor or person interested in the estate, and proof, by affidavit, of the facts, make an order, requiring them to show cause, why the surrogate should not give directions in the premises. Upon the return of the order, the surrogate may, in his discretion, make an order, directing that any property of the estate or fund be deposited in a safe place, in the joint custody of the executors, administrators, guardians, or testamentary trustees, as the case requires, or subject to their joint order; or that the money of the estate be deposited in a specified safe bank or trust company, to their joint credit, and to be drawn out upon their joint order. Disobedience to such a direction may be punished as a contempt of the court.

§ 2603. Upon the entry of a decree, made as prescribed 5 Redf. 416 in this chapter, revoking letters, issued by a surrogate's court to an executor, administrator, or guardian, his powers cease. The decree may, in the discretion of the surrogate, require him to account for all money and other property received by him; and to pay and deliver over all money and other property in his hands into the surrogate's court, or to his successor in office, or to such other person as is authorized by law to receive the same; or it may be made without prejudice to an action or special proceeding for that purpose, then pending, or thereafter to be brought. The revocation does not affect the validity of any act, within the powers conferred by law upon the executor, administrator, or guardian, done by him before the service of the citation, where the other party acted in good faith; or done after the service of the citation, and before entry

of the decree, where his powers with respect thereto were "not suspended by service of the citation, or where the sur rogate, in a case prescribed by law, permitted him to do the same, notwithstanding the pendency of the special proceeding against him; and he is not liable for such an act, done by him in good faith.

§ 2604. The last section does not affect the liability of a person, to whom money or other property has been paid or delivered, as husband, wife, next of kin, or legatee, to respond to the person lawfully entitled thereto, where letters are revoked, because a supposed decedent is living or because a will is discovered, after administration has been granted in a case of supposed intestacy, or revoking a prior will, upon which letters were granted.

§ 2605. Where letters have been revoked by a decree of the surrogate's court, that court has, except in a case where it is otherwise specially prescribed by law, the same power to appoint a successor to the person whose powers have ceased, as if the letters had not been issued. The successor may complete the execution of the trust committed to his predecessor; he may continue, in his own name, a civil action or special proceeding, pending in favor of his predecessor; and he may enforce a judgment, order, or decree, in favor of the latter. The surrogate's court has the same jurisdiction, upon the petition of the successor, or of a remaining executor, administrator, guardian or trustee, to compel the person whose letters have been revoked, to account for, or deliver over money or other property, and to settle his account, which it would have upon the petition of a creditor or person interested in the estate, if the term of office, conferred by the letters, had expired by its own limitation. § 2606. [Am'd 1884, 1891.]

Where an executor, administrator, guardian or testamentary trustee dies, the surrogate's court has the same jurisdiction, upon the petition of his successor, or of a surviving executor, administrator or guardian, or of a creditor, or person interested in the estate, or of a guardian's ward, to compel the executor or administrator of the decedent to account, which it would have against the decedent if his letters have been revoked by a surrogate's decree. And an executor or administrator of a deceased executor, administrator, guardian or testamentary trustee may voluntarily account for any of the trust property which has come to his possession, and upon his petition such successor or surviving executor, administrator or guardian or other necessary party shall be cited and required to attend such settlement. With respect to the liability of the sureties in, and for the purpose of maintaining an action upon the decedent's official bond, a decree against his executor or administrator, rendered upon such an accounting, has the same effect as if an execution issued upon a surrogate's decree against the property of decedent had been returned unsatisfied during decedent's lifetime. So far as concerns the executor or administrator of decedent, such a decree is not within the provisions of section twenty-five hundred and fifty-two of this act. The surrogate's court

1

has also jurisdiction to compel the executor or administrator at any time to deliver over any of the trust property which has come to his possession or is under his control, and if the same is delivered over after a decree, the court must allow each credit upon the decree as justice requires.

2607. Where 2 execution, issued upon a surrogate's decree, against the property of an executor, administrator, testamentary trustee, or guardian, has been returned wholly or partly unsatisfied, an action, to recover 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.

§ 2608. 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.

35 N. Y. State Rep.

229

124 N. Y. 1.

48 Hun, 830.

124 N. Y. 1.

State Rep. 229.

124 N. Y. 1.

§ 2609. Where the letters of an executor or adminis- 35 N. Y. trator 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. The provisions of this article apply to an execu- 136 N. Y. 384. tor, 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 1. 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 adminis tration.

7. Foreign wills; ancillary letters.

ARTICLE FIRST.

PROBATE OF A WILL AND GRANT OF LETTERS THEREUPON.

§ 2611. [Am'd 1893.] A will of real or personal prop- 5 Dem. 295 rty, executed as prescribed by the laws of the State, or a vill 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 aws 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.

§ 2612. [Am'd 1893.] 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 of 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.

§ 2613. [Am'd 1893.] 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 supple