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ment of the account of a testamentary trustee, a controversy which arises, respecting the right of a party to share in the money or other personal property to be paid, distributed, or delivered over, must be determined in the same manner as other issues are determined. If such a controversy remains undetermined, after the determination of all other questions upon which the distribution of the fund, or the delivery of the personal property depends, the decree must direct that a sum, sufficient to satisfy the claim in controversy, or the proportion to which it is entitled, together with the probable amount of the interest and costs, and, if the case so requires, that the personal property in controversy, be retained in the hands of the accounting party; or that the money be deposited in a safe bank or trust company, subject to the surrogate's order, for the purpose of being applied to the payment of the claim, when it is due, recovered, or settled; and that so much thereof, as is not needed for that purpose, be afterwards distributed according to law.

See note to 2802, ante.

§ 2813. Effect of decree.-A decree, made upon a judicial settlement of the account of a testamentary trustee, as prescribed in this title, or the judgment rendered upon an appeal from such a decree, has the same force, as a judgment of the supreme court to the same effect, as against each party who was duly cited or appeared, and every person who would be bound by such a judgment, rendered in an action between the same parties.

L. 1866, oh. 115 (6 Edm. 700).

§ 2814. Resignation of trust.-A testamentary trustee may, at any time, present to the surrogate's court a written petition, duly verified, praying that his account may be judicially settled; that a decree may thereupon be made, allowing him to resign his trust, and discharg ing him accordingly; and that all persons who are entitled, absolutely or contingently, by the terms of the will or by operation of law, to share in the fund or estate, or the proceeds of any property held by the peti tioner as a part of his trust, may be cited to show cause, why such a decree should not be made. The petition

must set forth the facts upon which the application is founded; and it must, in all other respects, conform to a petition presented for a judicial settlement of the ac count of a testamentary trustee, as prescribed in this title. The surrogate may, in his discretion, entertain or decline to entertain the petition. If he entertains it, the proceedings must be, in all respects, the same as upon & petition for a judicial settlement of the petitioner's account, except that, upon the hearing, the surrogate must first determine, whether sufficient reasons exist for granting the prayer of the petition; and, if he de termines that they exist, he must make an order accordingly, and allowing the petitioner to account, for the purpose of being discharged. Upon the petitioner's fully accounting, and paying all money belonging to the trust, and delivering all books, papers, and other property of the trust, in his hands, either into the surrogate's court, or as the surrogate directs, a decree may be made, accepting his resignation, and discharging him accord. ingly.

See 2802, note, and L. 1870, ch. 359, 8 3. Wood v. Wood, 5 Paige, 596; Craig. Craig, 3 Barb. Ch. 76; Youngs Youngs, 53 N. Y. 613; Cruger . Halladay, 1 Paige, 314; Ex parte Bernstein, 3 Redf. 20; Matter of Robinson, 37 N. Y. 261.

2815. Petition for security from testamentary trustee. Any person, beneficially interested in the execution of the trust, may present to the surrogate's court a written petition, duly verified, setting forth, either upon his knowledge, or upon his information and belief, any fact, respecting a testamentary trustee, the existence of which, if it was interposed as an objection to granting letters testamentary to a person named as executor in a will, would make it necessary for such a person to give security, in order to entitle himself to letters; and praying for a decree, directing the testa mentary trustee to give security for the performance of his trust; and that he may be cited to show cause, why such a decree should not be made. Upon the presenta tion of such a petition, the surrogate must issue a citation accordingly. Upon the return of the citation, a decree, requiring the testamentary trustee to give such security, may be made, in a case where a person so named as executor can entitle himself to letters testamentary, only by giving a bond; but not otherwise.

See note to 2802, ante.

2816. Security; how given. The security, given as prescribed in the last section, must be a bond to the same effect, and in the same form, as an executor's bond. Each provision of this chapter, applicable to the bond of an executor, or to the rights, duties, and liabilities of the parties thereto, or any of them, including the release of the sureties, and the giving of a new bond, apply to the bond so given, and to the parties thereto.

See notes to sections 2802, 2595, 2601, 2603, 2604, 2607 and 2645, ante, 2667.

S2817. Removal of testamentary trustee.-In either of the following cases, a person beneficially interested in the execution of the trust, may present to the surrogate's court a written petition, duly verified, setting forth the facts, and praying for a decree removing a testamentary trustee from his trust; and that he may be cited to show cause, why such a decree should not be made:

1. Where, if he was named in a will as executor, letters testamentary would not be issued to him, by reason of his personal disqualification or incompetency.

2. Where, by reason of his having wasted or improperly applied the money or other property in his charge, or invested money in securities unauthorized by law, or otherwise improvidently managed or injured the property committed to his charge, or by reason of other misconduct in the execution of his trust, or dishonesty, drunkenness, improvidence, or want of understanding, he is unfit for the due execution of his trust.

3. Where he has failed to give a bond, as required by a decree, made as prescribed in the last two sections; or has wilfully refused, or without good cause neg lected, to obey a direction of the surrogate, contained in any other decree, or in an order, made as prescribed in this title; or any provision of law, relating to the discharge of his duty.

See notes to sections referred to last above, and 2 R. S. 730, ch. 1, 270. Bronson v. Bronson, 48 How. 481; Matter of Morgan, 63 Barb. 621; 8. C.. 66 N. Y. 618; Matter of Wadsworth, 2 Barb. Ch. 381; Blake v. Sands, 3 Redf. 168.

$2818. [Amended 1884.] Appointment of successor. Where a sole testamentary trustee dies, or becomes a lunatic, or is, by a decree of the surrogate's court, removed or allowed to resign, and the trust has not been fully executed, the same court may appoint his successor; unless such an appointment would contravene the express terms of the will. Where one of two or more testamentary trustees dies or becomes a lunatic, or is by decree of the surrogate's court removed or allowed to re

sign, a successor shall not be appointed except where such appointment is necessary in order to comply with the express terms of the will, or unless the same court or the supreme court shall be of the opinion that the appointment of a successor would be for the benefit of the cestui que trust. Unless and until a successor is appointed the remaining trustee or trustees may proceed and execute the trust as fully as if such trustee or trustees had not died, become a lunatic, been removed or resigned. Where a decree removing a trustee or discharging him upon his resignation does not designate his successor, or the person designated therein does not qualify, the successor must be appointed and must qualify in the manner prescribed by law for the appointment and qualification of an administrator with the will annexed.

See note to 2802, ante; L. 1870, ch. 359, 3; 1 R. S. 730, ch. 1, 22 68, 71. Shook v. Shook, 19 Barb. 653; Ross v. Roberts, 2 Hun, 90; 63 N. Y. 652; Dunning. Ocean Nat. Bank, 6 Lans. 296; 61 N. Y. 497; De Peyster v. Glendenning, 8 Paige, 295; 26 Wend. 21; Matter of Van Schoonhoven, 5 Paige, 559 Matter of Crossman, 20 How. 350; Williams v. Conrad, 30 Barb. 524; De Peyster v. Ferrers, 11 Paige 13; Milbank v. Crane, 25 How. 193; Bronson v. Bronson, 48 id. 481; Holden v. N. Y. & E. Bank, 72 N. Y. 286; Curtis v. Smith, 60 Barb. 9; Leggett v. Hunter, 19 N. Y. 445; 25 Barb. 81.

$2819. Proceedings where testamentary trustee is also executor or administrator.- Where the same per son is a testamentary trustee, and also the executor of the will, or an administrator upon the same estate, proceedings taken by or against him, as prescribed in this title, do not affect him as executor or administrator, or the creditors of, or persons interested in, the general estate, except in one of the following cases:

1. Where he presents a petition, praying for the revocation of his letters, he may also, in the same petition, set forth the facts, upon showing which he would be allowed to resign as testamentary trustee; and may thereupon pray for a decree allowing him so to resign, and for a citation accordingly..

2. Where a person presents a petition, praying for the revocation of letters issued to an executor or administrator and any of the facts set forth in the petition are made, by the provisions of this title, sufficient to entitle the same person to present a petition, praying for the removal of a testamentary trustee; the petitioner may pray for a decree, removing the person complained of in both capacities, and for a citation accordingly.

In either case, proceedings upon the petition for the resignation or removal, as the case requires, of the testamentary trustee, and for the judicial settlement of his account, may be taken, as prescribed in this title, in connection with, or separately from, the like proceedings upon the petition for the revocation of the letters, as the surrogate directs.

See notes to z 2802 and 2688, ante. Quackenboss v. Southwick, 41 N. Y. 117.

§ 2820. Application of this title.-The provisions of this title apply to a trust created by the will of a resi dent of the State, or relating to real property, situated within the State, without regard to the residence of the trustee, or the time of the execution of the will.

See note to 2802, ante.

TITLE VII.

Provisions relating to a guardian.

ARTICLE 1. Appointment, removal, and resignation of a general guardian 2. Supervision and control of a general guardian. Settlement of

his accounts.

3. Guardians appointed by will or deed.

ARTICLE FIRST.

APPOINTMENT, REMOVAL, AND RESIGNATION OF A GEN ERAL GUARDIAN.

SEC. 2821. Power of court to appoint guardians.

2822. Petition for appointment, by infant over fourteen.

2823. Contents of petition; citation.

2824. Id.; where petitioner is a married woman.

2825. Appointment of guardian.

2826. Guardian to be nominated by infant.

2827. Appointment of temporary guardian for infant under fourteen.

2828. Term of office of temporary guardian.

2829. Inquiry as to value of property.

2830. Qualification of guardian of property.

2831. Id.; of guardian of person.

2832. When letters may be revoked for misconduct, etc.

2833. Citation; hearing; decree.

2834. Suspension of guardian; effect thereof.

2835. Application by guardian for revocation of letters.

2836. Proceedings thereupon.

2837. Ward or new guardían may require accounting.

2838. Application for ancillary letters to foreign guardian.
2839. Proceedings thereupon.

2840. Effect of such letters.

2841. Application of the last section to former guardians.

2821. Power of court to appoint guardians.-The surrogate's court has the like power and authority to appoint a general guardian, of the person or of the property, or both, of an infant, which the chancellor had, on the thirty-first day of December, eighteen hun

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