c. Where letters issued to him have been revoked, or his powers have ceased.

3. In the case of a trustee,

a. Where the trustee has been removed, or for any other reason his powers have ceased.

b. Where the trusts, or one or more distinct and separate trusts, created by the terms of the will, have been executed, or are ready to be executed; so that the persons beneficially interested are, by the terms of the will, or by operation of law, entitled to receive any money or other personal property from the trustee.

Former § 2726 of this Code, modified. See also former §§ 2605, 2807, 2837, 2856. From 2 R. S. 92, 95, §§ 52, 68; Id., 104, § 24; Id., 106, 109, §§ 34, 57; L. 1837, c. 460, § 36; L. 1864, c. 71, § 7; L. 1881, c. 535; L. 1893, c. 686.

§ 2727. Compulsory Judicial settlement; who may petition.

A petition praying for the judicial settlement of the accounts of a person described in the last section, and that such person may be cited to show cause why he should not render and settle such account may be presented in a case prescribed in the last section as follows: 1. Against an executor or administrator,

a. By a creditor or a person interested in the estate or fund, b. By or on behalf of a child born after the making of the will, when interested in the estate.

2. Against a guardian,

a. By the ward after he has become twenty-one years of age, b. By the executor or administrator of a ward who has died, c. By the ward or a duly appointed guardian where a person has been acting as a guardian in socage.

3. Against a testamentary trustee,

a. By any person beneficially interested in the execution of any of the trusts, or by any person on behalf of an infant so interested, unless his account has been judicially settled within one year preceding the application.

In any case,

a. By a surety on the official bond of the person required to account, or the legal representative of such a surety,

b. By the successor, or by the remaining executor, administrator, guardian or trustee, where a representative, guardian or testamentary trustee has been removed or his letters revoked.

c. By the attorney-general of the state where any of the property or fund may belong to the state of New York, by reason of the death of any testator, intestate, or person interested without leaving known heirs-at-law or next of kin, as the case may be, or such heirsat-law or next of kin are unknown.

New. See former §§ 2727, 2808, 2847, 2848, 2856.

§ 2728. Compulsory judicial settlement; citation; order to account and proceedings thereon.

On the presentation of a petition, as prescribed in the last section, a citation must be issued accordingly, and on the return of the citation if the person cited fails either to appear, or to file his account, or to show good cause to the contrary, or to present in a proper case,

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a petition as prescribed in the next section, 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. He is bound by such an order, without service thereof. If it appears that there is a surplus, distributable to creditors or persons interested, the surrogate may, at any time, issue a supplemental citation, directed to the persons who must be cited, on the petition for a judicial settlement of his account. The pendency of a proceeding against an executor, administrator, guardian or trustee to compel him to account does not preclude him from presenting a petition as prescribed in the next section. If such petition be presented at or before the return of a citation in and as prescribed in either of the foregoing sections of this title, the citation issued thereon need not be directed to petitioner in the special proceeding pending, and the two proceedings must be consolidated.

Former § 2727 of this Code, in part. From 2 R. S. 92, 93, §§ 53, 60; Id., 152, § 11; L. 1890, c. 62; L. 1893, c. 686; L. 1901, c. 408; L. 1911, c. 432.

§ 2729. Voluntary Judicial settlement.

In either of the following cases an administrator, executor, guardian or testamentary trustee may present to the surrogate's court his account and a petition praying that his account may be judicially settled and that all necessary and proper parties may be cited to show cause why such settlement should not be had:

1. By an executor or administrator,

a. Where the time for presentation of claims as fixed by a notice duly published has expired; or one year has expired since letters were issued to him or his predecessor in office.

b. Where letters issued to the petitioner have been revoked. 2. By a guardian,

a. Where a petition for a compulsory judicial settlement of his accounts may be presented by any other person,

b. Where he has properly used and expended all of the estate of the infant, and the circumstances are such that, in the discretion of the surrogate, it is proper that such guardian should be discharged. 3. By a testamentary trustee.

a. Where one or more distinct and separate trusts created by the will, have been, or are ready to be, fully executed.

Former § 2728 of this Code, in part, rewritten, and combined with former §§ 2810, 2849, 2856.

§ 2730. Voluntary judicial settlement; citation.

Upon a voluntary judicial settlement of the account of an executor, administrator, guardian or testamentary trustee there must be cited:

1. All creditors or persons claiming to be creditors of the decedent, except such as by vouchers filed with the account appear to have been paid.

2. The sureties on his official bond, if any.

3. All co-executors, administrators, guardians or trustees who do not join in the petition.

4. The successor, if a successor has been appointed, in a case where the petitioner's letters have been revoked, or he has been removed, and if no successor has been appointed, all the persons interested who are required to be cited by this section.

5. The attorney-general in all cases where the decedent, ward or beneficiary died intestate as to any part of the estate or fund leaving no known heir-at-law or next of kin.

6. The widow or husband, if any, and all the heirs-at-law where the decedent, ward or beneficiary died intestate as to any real property, and all his next of kin where he died intestate as to any personal property.

7. All devisees, all trustees of any trust created by the will, and all legatees, except such as by voucher and release acknowledged, or proved, and duly certified and filed, appear to have been fully paid. 8. In the case of a guardian, there shall also be cited all persons who might have presented a petition for a compulsory settlement. 9. In the case of a trustee there shall also be cited 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 in the proceeds of property held by the petitioner as a part of his trust.

Where any person required to be cited has died, his executor or administrator shall be cited, and if no legal representative has been appointed, the husband or widow and all the heirs-at-law or next of kin, or both, of such deceased person, who are interested.

From former § 2728 of this Code, rewritten; see also § 2850.

§ 2731. Proceedings on return of citation.

On the return of a citation, issued as prescribed in the last section, the surrogate must take the account, and hear the allegations and proofs of the parties, respecting the same and make such order or decree as justice requires. The executor, administrator, guardian or trustee may be examined under oath by any party to the proceeding as to any matter relating to his administration of the estate or fund. If any party interested shall demand in writing that a voucher be produced and filed for any payment alleged by the account to have been made, the accounting party shall produce and file such voucher or make satisfactory proof of such payment.

From former § 2728, in part, rewritten.

§ 2732. Affidavit to account.

To each account filed in the surrogate's court, as prescribed in this article, must be appended the affidavit of the accounting party, to the effect that the account contains, according to the best of his knowledge and belief, a full and true statement of all his receipts and disbursements on account of the estate or fund, and of all money and other property belonging to the estate or fund, which have come to his hands, or been received by any other person, by his order or authority, for his use, and that he does not know of any error or omission in the account, to the prejudice of any creditor of, or person interested in, the estate or fund.

From former § 2729, in part, rewritten. From 2 R. S. 92, 93, §§ 54-56; L. 1893, c. 686.

§ 2733. Accounting for profit and loss.

No profit shall be made by an executor, administrator, guardian or testamentary trustee by the increase, nor shall he sustain any loss by the decrease or loss, without his fault, of any part of the estate

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or fund; but he shall account for such increase, and be allowed for such decrease or loss on the settlement of his accounts.

From former §§ 2717, 2729 of this Code, in part.

§ 2734. Property of an estate or trust to be delivered upon order of the court.

The surrogate's court has jurisdiction to compel the executor, administrator, guardian or trustee, or successor of any deceased executor, administrator, trustee or guardian at any time to deliver over any property of the estate or trust 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 such credit upon the decree as justice requires.

The said court has also jurisdiction when an executor, administrator, trustee or guardian has died, absconded, been removed, or become insane to direct the person so removed, or any person or corporation having possession or control of any property belonging to such estate or fund, to deliver the same to the court or to a successor duly appointed; or as directed by a decree made pursuant to section 2725 of this chapter.

First part of this section is from former § 2606 of this Code; the last sentence is from Id., § 2605.

§ 2735. Decree for payment and distribution.

Where an account is judicially settled, as prescribed in this article, and any part of the estate or fund remains and is ready to be distributed, the decree must direct the payment and distribution thereof to the persons so entitled, according to their respective rights. It may also award to a surviving husband, wife, or child, the same relief as to set off of exempt property which may be awarded in his or her favor, on a petition presented as prescribed in section 2671 of this chapter.

Former §§ 2724, 2743 of this Code, in part, modified. From 2 R. S. 94, § 71; L. 1895, c. 595; L. 1898, c. 565; L. 1906, c. 515.

§ 2736. Id.; when specific property may be delivered.

In either of the following cases, the decree may direct the delivery of an unsold chattel, or the assignment of an uncollected demand, or any other personal property, to a party or parties entitled to payment or distribution, in lieu of the money value of the property:

1. Where all the parties interested manifest their consent thereto by a writing filed in the surrogate's office.

2. Where any legatee or distributee files a consent to accept as payment in whole or in part any specified personal property at a value to be ascertained by appraisement.

3. Where it appears that a sale thereof, for the purpose of payment or distribution, would cause a loss to any infant or incompetent legatee or distributee, and the value thereof has been fixed by appraisement.

The value must be ascertained, if the consent does not fix it, by an appraisement under oath, made by one or more persons appointed by the surrogate for the purpose.

Former § 2744 of this Code. From 2 R. S. 94. § 72; L. 1878, c. 30.

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§ 2737. Id.; when money or property may be retained.

Where an admitted debt of the decedent is not yet due, and the creditor will not accept present payment, with a rebate of interest; or when a debt not yet due has been disputed or rejected; or where an action is pending between the executor or administrator, and a person claiming to be a creditor of the decedent; or where on the judicial settlement of the account of a testamentary trustee a controversy respecting the right of a party to share in the fund, or other personal property held by the trustee, has not been determined; the decree must direct that a sum sufficient to satisfy the claim, or the proportion to which it is entitled, together with the probable amount of the interest and costs, or that any personal property the right to which is in controversy, be retained in the hands of the accounting party; or be deposited in a safe bank, or trust company, subject to the order of the surrogate's court; or be paid into the surrogate's court, for the purpose of being applied to the payment of the claim, or the satisfaction of any judgment 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.

Former §§ 2745, 2812 of this Code, modified. From 2 R. S. 96, § 74..

§ 2738. Adjustment of advancements.

Where there is a surplus of personal property to be distributed and the advancement as provided in section 99 of the Decedent Estate Law, consisted of personal property, or where a deficiency in the adjustment of an advancement of real property is chargeable on personal property, the decree for distribution, in the surrogate's court, must adjust all the advancements which have not been previously adjusted by the judgment of a court of competent jurisdiction. For that purpose, if any person to be affected by the decree, is not a party to the proceeding, the surrogate must cause him to be brought in by a supplemental citation.

Former § 2733 of this Code. From 2 R. S. 97, §§ 76-78. See L. 1893, c. 686; L. 1909, c. 65.

§ 2739. Payment of share of infant.

When a legacy or distributive share is payable to an infant, the decree shall direct that it be paid to his guardian, upon his filing sufficient security, unless the legacy does not exceed fifty dollars, or a distributive share does not exceed one hundred and fifty dollars, in which cases the decree may order it to be paid to his father, or to his mother, or to some competent person with whom the infant resides, or who has some interest in his welfare, for the use and benefit of such infant. If there be no guardian, the decree shall provide that the legacy or distributive share not disposed of in the manner aforesaid, shall be paid into or deposited with the surrogate's court.

Former § 2746 of this Code, in part, modified. From 2 R. S. 91, §§ 46-51; Id., 96, § 80; L. 1886, c. 358; L. 1900, c. 554; L. 1909, c. 65; L. 1911, c. 328; L. 1913, c. 10.

§ 2740. Legacy, etc., to unknown person to be paid into state treasury. Where the person entitled to a legacy or distributive share is unknown, the decree must direct the executor, administrator, guardian or testamentary trustee to pay the amount thereof into the treasury of the State, for the benefit of the person or persons who