or interest; and if the court shall so determine there may be included in the order a direction that such right or interest be sold; and the purchaser, his heirs and assigns, shall hold the property free and discharged from any claim by virtue of that right. The regulations and provisions of article 2, title 1 of chapter 14 of this act, prescribing the rules of practice in relation to the right of dower, curtesy and estates for life, or for years in actions for the partition of real estate, so far as the same may be applicable, shall govern and control the disposition of moneys realized on such sale which shall belong to the owner of said right of dower, or tenant for life, or for years. Former § 2800 of this Code, modified. From L. 1905, c. 430. § 2718. Restitution from assets subsequently discovered. Where a decree has been made for the application of the proceeds of real property as prescribed in this title, and assets, which should have been applied thereto, are afterward discovered; or, for any other reason, money or other personal property of the decedent, which should have been applied thereto, afterward comes to the hands of the executor, administrator, legatee or next of kin, the heir, devisee, or other person aggrieved may maintain an action to procure reimbursement therefrom. Former § 2801 of this Code. See L. 1894, c. 735; L. 1904, c. 750. 780 TITLE V. Accounting and judicial settlement; effect and contents of decree on judicial settlement; costs, their amount, allowance and payment; fees of appraisers, referees, jurors and witnesses; commissions and allowances; appeals, how and to what court taken; undertakings and stay of execution; probate of heirship; definitions and application of other sections. Article 1. Accounting by recording settlement or filing account; intermediate, com- 2. Costs in special proceedings, when and how payable; security for costs. 3. Appeal, when, how and to what court taken, and power of appellate 4. Probate of heirship. Definitions, and application of other sections to ARTICLE FIRST. Accounting by recording settlement or filing account; intermediate, compulsory and voluntary judicial settlement; decree for payment and distribution and delivery of property." Sec. 2719. Recording instruments settling estates in part or in whole. 2720. Judicial settlement where recovery has been had in negligence action. 2721. Filing intermediate account voluntarily or by order. 2722. Proceedings where account is filed pursuant to order. 2723. Voluntary intermediate judicial settlement of the accounts of an executor, administrator, guardian or testamentary trustee. 2724. Compulsory intermediate judicial settlement of the accounts of a guardian or testamentary trustee. 7225. Accounting by executor, etc., of deceased executors, etc. 7226. When surrogate's court may require judicial settlement of account. 2727. Compulsory judicial settlement; who may petition. 2728. Compulsory judicial settlement; citation; order to account and proceedings thereon. 2729. Voluntary judicial settlement. 2730. Voluntary judicial settlement; citation. 2731. Proceedings on return of citation. 2732. Affidavit to account. 2733. Accounting for profit and loss. 2734. Property of an estate or trust to be delivered upon order of the court. 2735. Decree for payment and distribution. 2736. Id.; when specific property may be delivered. 2737. Id.; when money may be retained. 2738. Adjustment of advancements. 2739. Id.; share of infant. 2740. Legacy, etc., to unknown person to be paid into state treasury. 2741. When legacy, etc., to be paid to county treasurer. 2742. Effect of judicial settlement of account; decree. § 2719. Recording instruments settling accounts in part or in whole. There may be recorded in the surrogate's office any instrument settling an account in whole or in part, executed by one or more executors, administrators, testamentary trustees, or guardians, and one or more legatees, devisees, distributees, creditors or wards who have attained full age. Every such instrument to be recorded shall be acknowledged, or proved. and July certified; and the record JUST thereof, or a certified copy of such record, shall be presumptive evidence of the contents of such instrument and its due execution. Former § 2502 of this Code, modified. From L. 1906. c. 350. § 2720. Judicial settlement where recovery has been had in negligence action. Where limited letters testamentary or of administration have been granted for the prosecution of a cause of action, and a judgment or compromise thereof has been obtained and the proceeds are ready to be paid over; and where such recovery is not a part of the estate of the deceased but goes by special provision of law to designated persons or classes of persons; such executor or administrator may at any time file a petition for the judicial settlement of his account relating to such fund, and upon the return of a citation or upon the waiver of all the parties interested, if of full age and competent, the surrogate may take and settle such account, and direct payment to the parties entitled according to their respective rights and interests; and upon filing receipts for such payments the party paying the money and such executor or administrator shall be discharged from all further liability as to such cause of action and such fund. Where such recovery has been had and the amount thereof paid to the executor or administrator, he may in like manner have a judicial settlement of his account relating to such fund, at any time, and a decree made discharging him from further liability concerning the same. New. § 2721. Filing intermediate account voluntarily or by order. An executor, administrator, guardian or testamentary trustee may at any time voluntarily file in the surrogate's office an intermediate account, and the vouchers in support of the same. He may be required to file such account at any time, in the discretion of the surrogate, by an order made upon the petition of any person interested, or by direction of the surrogate. He may be required to attend and be examined under oath touching his receipts and disbursements or touching any other matter relating to his administration of the estate, or fund, and in the case of an executor or administrator as to any act done by him under color of his letters, or after decedent's death and before letters were issued, or touching any personal property owned or held by decedent at the time of his death. Former § 2725 of this Code, in part; also includes portion of former §§ 2729, and of 2802 and 2803 relating to trustees. From 2 R. S. 116, § 20; Id., 92, § 52; L. 1911, c. 436. § 2722. Proceedings where account is filed pursuant to order. On the return of the order, where one is made as prescribed in the foregoing section of this article, if the respondent fails either to file his account, appear, or to show good cause to the contrary, or to present in a proper case, a petition as prescribed in section 2729, an order must be made, directing him to account within such a time, and in such a manner as the surrogate prescribes, and to attend, from time to time, before the surrogate, for that purpose. If it appears that the account can be then judicially settled, a supplemental citation may be issued directed to the persons who must be cited on a petition for a judicial settlement of his account. The pendency of a proceeding against the respondent to compel him to account does not preclude him from presenting a petition as prescribed in section 2729. If such petition is presented at or before the return day of the order, the citation issued thereon need not be directed to petitioner in the special proceeding pending against him and the two proceedings must be consolidated. When such account is filed in connection with a proceeding then pending any party may contest the account as to any matter affecting his interest, and the decree or other determination made shall go to the extent only of determining the question or questions necessary to be decided in order to grant or deny the relief asked for in the special proceeding in which the account was ordered to be filed. Where the accounting is made a judicial settlement by the issuing of a supplemental citation or the filing of a petition as above provided, the same proceedings shall be had as on a judicial settlement. Former § 2727 of this Code, in part, modified. From 2 R. S. 92, 93 (Part 2, c. 6, tit. 3), §§ 53, 60; L. 1893, c. 686; L. 1901, c. 408; L. 1911, e. 432. § 2723. Voluntary intermediate judicial settlement of the account of an executor, administrator, guardian or testamentary trustee. An executor, administrator, guardian or testamentary trustee may, at any time after one year has expired since letters were issued to him, or he was appointed and qualified, and not oftener than annually thereafter, file in the surrogate's court having jurisdiction an intermediate account and a petition for its judicial settlement. If the surrogate entertain such application, a citation shall issue to all persons who would be required to be cited upon a voluntary final judicial settlement of such account, and the same proceedings shall be had and with like effect, so far as the settlement of such account is concerned, as though such proceeding were a final judicial settlement. New. See former § 2802 of this Code. § 2724. Compulsory Intermediate judicial settlement of the account of a guardian or testamentary trustee. The surrogate of his own motion, or upon the petition of any person interested in the fund held by a guardian or testamentary trustee, may by order direct such guardian or testamentary trustee to make and settle an intermediate account of his proceedings. The proceedings upon the return of the order shall be the same as though the respondent had filed his petition for a voluntary intermediate judicial settlement as provided in section 2723 of this title, and the decree entered shall have the same force and effect as if made in such proceeding. New. See former § 2803 of this Code. 2725. Accounting by executor, etc., of deceased executors, etc. Where an executor, administrator, guardian or testamentary trustee dies, the surrogate's court has the same jurisdiction, upon the petition of any person who would be required to be cited upon a voluntary judicial settlement of his account to compel the executor or administrator of the decedent to account, which it would have against the decedent if his letters had been revoked, or he had been removed, by a surrogate's decree. An executor or administrator of a deceased executor, administrator, guardian, or testamentary trustee may voluntarily account for the acts and doings of the decedent, and for the trust property which had come into his possession or into the possession of the decedent. On the death of any executor, administrator, guardian or testamentary trustee while an accounting by or against him, as such, is pending before a surrogate's court, such court may continue said proceeding where his executor, administrator or successor has voluntarily made himself a party thereto or has been brought in by a citation to show cause why he should not be made a party, and proceed with such accounting and determine all questions and grant any relief that the surrogate would have power to determine or grant in case such decedent had not died or in a case where the executor or administrator of said last mentioned decedent had voluntarily petitioned for an accounting as provided for in this section. On a petition filed either by or against an executor or administrator of a deceased executor, administrator, guardian or testamentary trustee, the successor of such decedent, his executor or administrator, and all persons who would be necessary parties to a proceeding commenced by such decedent for a judicial settlement of his accounts shall be brought in. If upon such accounting, the surrogate finds that there can be a distribution, in whole or in part, to the parties entitled thereto, he may make a decree accordingly, and he may also therein direct payment and delivery, by the accounting party, upon such terms and security as may be proper, of the balance, if any, of said estate or fund. For the purpose of such payment and distribution the accounting party shall have all the powers and duties of the deceased representative, trustee or guardian. Former § 2606 of this Code, modified. From L. 1884, c. 399; L. 1891, c. 175; L. 1897, c. 248; L. 1901, c. 409; L. 1902, c. 349. § 2726. When surrogate's court may require judicial settlement of account. In either of the following cases, the surrogate's court may, from time to time, compel a judicial settlement of the account of an executor, administrator, guardian or trustee: 1. In the case of an executor or administrator, a. Where fifteen days have elapsed after the time in which to present claims has expired, or one year has expired since letters were issued to him. b. Where letters issued to him have been revoked, or, for any other reason, his powers have ceased. c. Where the administrator is a temporary administrator. d. Where he has sold, or otherwise disposed of, any of the decedent's real property, or the rents, profits or proceeds thereof, pursuant to a power contained in the decedent's will, or an order of the surrogate's court, and fifteen days have elapsed after the time in which to present claims has expired, or one year has elapsed since 1 letters were issued to him. 2. In the case of a guardian. a. Where the ward has attained the age of twenty-one years, or has died. b. Where the guardian is a guardian in socage, or the guardian of the infant's person only. |