§ 2581. Principal may substitute new bond or surety after judicial settlement. Whenever there is pending in surrogate's court a proceeding for the intermediate judicial settlement of the account of an executor, administrator, guardian or testamentary trustee who has been required to file an official bond, such principal may ask in such proceeding, upon good cause shown, for leave to file a new bond or a new surety. If the surrogate grants such application he shall thereupon fix the penalty of the new bond, or the amount in which the new surety must justify, and upon the filing and approval of such new bond, or of the undertaking of the new surety, the surrogate may provide in the decree of judicial settlement that the former bond or surety be discharged from and after the date of such decree from all liability, except upon appeal therefrom, as to all matters embraced in said account and decree. New. § 2582. Sureties liable for money, etc., received in another capacity. A person to whom letters are issued is liable for money or other personal property of the estate which was in his hands, or under his control, when his letters were issued, in whatever capacity it was received by him, or came under his control. Where it was received by him, or came under his control, by virtue of letters previously issued to him in the same or another capacity, an action to recover the money, or damages for failure to deliver the property, may be maintained upon both official bonds; but, as between the suretics upon the official bond given upon the issue of the prior letters, and those upon the official bond given upon the issue of the subsequent letters, the latter are liable over to the former. Former § 2596 of this Code. § 2583. When bond may be prosecuted. Where an 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. Former § 2607 of this Code. From L. 1837, c. 460, § 65. § 2584. Successor may prosecute official bond. Where a successor of an executor, administrator, guardian or testamentary trustee has been appointed, he 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, infant or beneficiary as the case may be, by any act or omission of the principal. The money recovered in such an action shall be part of the estate or fund in the hands of the successor 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, appro priated 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. A decree against such decedent's executor, or administrator, rendered upon an accounting under section 2725 of this chapter, 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 life time. Former § 2608 of this Code, with part of § 2606. From 2 R. S. 85 (Part 2, c. 6, tit. 3), § 21. § 2585. Action on official bond, when no successor appointed. Where an executor, administrator, guardian or testamentary trustee has been removed, or his letters have been 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 person so removed or whose letters have been revoked 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 on the bond, and not duly administered by him, and to the full extent of any injury sustained by the estate of the decedent, infant or beneficiary 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 to be paid to a successor when appointed and dis tributed to the persons entitled thereto. Former § 2609 of this Code, modified. § 2586. Discharge of bond or undertaking given on appeal, or for the performance of an act. Any party to a bond or undertaking given upon appeal, or to insure the performance of an act by himself or another, as to which no accounting is required by law for its discharge, may apply to the surrogate's court, upon notice to all parties interested in the subjectmatter, or in the proceeding in which the bond or undertaking was given, for the discharge of the obligation or liability, in whole or in part. The court may thereupon by order certify that the whole obligation or liability on the bond or undertaking is discharged, or may direct that such obligation or liability be discharged in such amount as may be just, and that the bond or undertaking shall thereafter have the same force and effect as if given in terms for the remaining obligation or liability. New. § 2587. 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 on a bond executed before this chapter takes effect. Former § 2610 of this Code. TITLE III. Granting letters of administration, probating and construing wills; issue of letters testamentary, and ancillary letters testamentary and of administration; appointment and qualification of testamentary trustee; appointment and qualification of general, ancillary and testamentary guardian, and guardian by deed; annual accounts by such guardlans. Article 1. Grant of letters of administration, and qualification of administrators; public and temporary administrators; administrator with the will annexed and de bonis non. 2. Production and probate of wills; objections and their trial; construction of wills; qualification of executors; grant of ancillary letters testamentary and of administration; qualification of testamentary trustee; security from testamentary trustees and executors acting as trustees. 3. Appointment and qualification of general, ancillary and testamentary guardians, and guardians by deed; filing and examining guardians' annual accounts. ARTICLE FIRST. Grant of letters of administration, and qualification of administrator; public and temporary administrator; administrator with the will annexed, and de bonis non. Sec. 2588. Who entitled to letters of administration. 2589. Application for letters. 2590. Citation; proceedings upon return thereof. 2591. Administrator's bond. 2592. Limited letters may be issued; bond. 2593. County treasurer appointed administrator to qualify and have fees. 2595. Public administrator of Erie county. 2596. When and how temporary administrators may be appointed. 2597. General powers, etc., of temporary administrator. 2598. Id.; as to requiring creditors to present claims. 2599. Id.; as to paying debts. 2600. Id.; as to real property. 2601. Special powers of temporary administrator of absentee; may provide for family. 2602. Notices required by this article; how given. 2603. Letters of administration with will annexed; when and to whom granted. 2604. Id.; renunciation or exclusion of persons having prior right. 2605. How executor or administrator with the will annexed qualifies. 2606. Appointment of administrator de bonis non. § 2588. Who entitled to letters of administration. Administration in case of intestacy must be granted to the persons entitled to take or share in the personal property, who are competent and will accept the same, in the following order: 1. To the surviving husband or wife. 2. To the children. 3. To the grandchildren. 4. To the father. 5. To the mother. 6. To the brothers. 7. To the sisters. 8. To any other next of kin entitled to share in the distribution of the estate, preference being given to the person entitled to take the largest share in the estate, except as hereinafter provided. If a person entitled to take all the personal estate is an infant, or an incompetent, or has died, his guardian, committee or legal repre c. 18, tit. 3, art. 1 sentative, as the case may be, shall have a prior right to letters in his place and stead. If all the persons entitled to take the personal estate are infants, or adjudged incompetents, or, if no adult or competent person entitled to take or share in the estate will accept the same, letters may be granted to the general guardian of an infant or to the committee of an incompetent, in the place of such infant or incompetent. If no person entitled to take or share in the estate will accept the same or an appointment is not made by consent as hereinafter provided, then administration shall be granted as follows: a. To the public administrator. b. To the county treasurer of the county, or to the petitioner, in the discretion of the surrogate. c. To any other person or persons. If several persons have an equal right to administration, they must be preferred in the following order: First, men to women; second, relatives of the whole blood to those of the half blood; third, unmarried women to married. If there are several persons equally entitled to administration, the surrogate may grant letters to one or more of such persons. Administration may be granted to one or more competent persons, jointly with, and upon the application of, a person entitled; or to a competent person or persons not entitled, upon the consent of all of the persons entitled to take or share in the estate who are within this state and competent, which consent must be in writing, and filed in the office of the surrogate. For the purposes of this section a trust company or other corporation authorized to act as administrator shall be included in the word "person." Former § 2660 of this Code. From 2 R. S. 74, 75 (Part 2, c. 6, tit. 2). §§ 27, 28, 33, 34; L. 1867, c. 782, § 6; L. 1893, c. 686; L. 1894, c. 503; L. 1897, c. 177; L. 1909, c. 65; L. 1913, c. 403. $2589. Application for letters. A creditor, or person interested in the estate of an intestate, or interested in an action brought or about to be brought in which the intestate, if living, would be a proper party, may present to the surrogate's court having jurisdiction, a petition, praying for a decree awarding letters of administration, either to him, or to another person. A citation shall not be issued, and a decree shall not be made where a citation is not necessary, until the petitioner shows to the satisfaction of the surrogate, the existence of all the jurisdictional facts, and particularly that the decedent left no will. Former § 2662 of this Code. From 2 R. S. 74, § 26; L. 1909, c. 184. § 2590. Citation; proceedings upon return thereof. Every person, being a resident of the state and competent, who has a right to administration prior or equal to that of the petitioner and who has not renounced, must be cited upon a petition for letters of administration; and where the petitioner is not entitled to share in the distribution of the estate there must also be cited all resident infants and adjudged incompetents who are so entitled. The surrogate may, in his discretion, issue a citation to non-residents, or those who have renounced, or to any or all other persons interested in the estate. Where it is not necessary to cite any person, a decree, granting letters may be made on presentation of the petition. Any person who has a right to administration, prior or equal to that of the petitioner, may renounce his right by a written instrument, acknowledged, or proved, and duly certified which must be filed in the surrogate's office; except that a public administrator or county treasurer may not renounce his right and may only be excused from acting as such upon his motion duly made and upon an order made and entered thereupon by the surrogate. Former § 2663 of this Code. From 2 R. S. 76, §§ 35, 37; L. 1878, c. 298, § 2; L. 1911, c. 431. § 2391. Administrator's bond. Before letters are issued to an administrator he must file his official oath, and execute to the people of the state, and file with the surrogate, the joint and several bond of himself and two or more sureties, in a penalty fixed by the surrogate, not less than the value of the personal property of which the decedent died possessed and of the probable amount to be recovered by reason of any right of action, granted to an executor or administrator, by special provision of law, or by reason of a cause of action which existed in behalf of decedent; except that where the person or persons about to be appointed is or are entitled to the whole estate, the surrogate may dispense with a bond or fix the penalty at such sum as will adequately protect the rights of all creditors. The sum to be fixed as the amount of the penalty must be ascertained by the surrogate, by the examination on oath of the applicant or any other person, or otherwise, as the surrogate thinks proper. The bond must be conditioned that the administrator will faithfully discharge the trust reposed in him as such and obey all lawful decrees and orders of the surrogate's court touching the administration of the estate committed to him. In cases where the husband or wife and all the next of kin of the decedent or all the persons entitled to share in the estate consent, the penalty of the bond need not exceed double the amount of the claims of the creditors, against the estate, presented to the surrogate, pursuant to a notice to be published once a week for four weeks in such newspaper or newspapers as the surrogate shall direct, reciting an intention to apply for letters under this provision, and notifying creditors to present their claims to the surrogate's court on or before a day to be fixed in such notice, which shall be at least thirty days after the first publication thereof; but no bond so given shall be for less than five thousand dollars; and such bond may be increased by order of the surrogate for cause shown. Pending such application, no temporary administrator shall be appointed, except on petition of such next of kin. Former § 2664 of this Code. From 2 R. S. 77, § 42; L. 1881, c. 535, L. 1882, c. 398. § 2592. Limited letters may be issued; bond. Where a right of action is granted to an executor or administrator by special provision of law, or it is alleged that a cause of action existed in behalf of decedent, and it appears to be impracticable to give a bond sufficient to cover the probable amount to be recovered in the case of an executor, or such probable recovery and the existing personal estate in the case of an administrator, the surrogate may dispense with a bond, or fix the penalty at such sum as he shall deem |