ARTICLE FIFTH. Provisions Relating Generally to Letters; and Generally to Executors, Administrators, Guardians, and Testamentary Trustees. SEC. 2590. Requisites of letters. 2591. Their effect. 2592. Priority among different letters. 2593. Time, how reckoned upon successive letters. 2594. Official oaths of executors, etc. 2595. Deposit of securities to reduce penalty of bond. 2596. Sureties liable for money, etc., received in another capacity. 2597. When new bond or new sureties may be required. 2598. Id.; how principal may be required to give a new bond, etc. 2599. Decree revoking letters for failure to give new bond. 2600. Sureties may apply to be released, as to future breaches. 2601. Release of old sureties on the giving of new. 2602. Surrogate may direct as to custody, where co-executors, etc., dis agree. 2603. Effect and contents of decree revoking letters. 2604. The last section qualified. 2605. Successor may be appointed, and may compel accounting, etc. 2606. Accounting by executor, etc., of deceased executor. 2607. When bond may be prosecuted. 2608. Successor may prosecute official bond. 2609. Action on official bond when no successor appointed. 2610. Application of this article to executors, etc., heretofore appointed. § 2590. Requisites of letters. Letters testamentary, letters of administration, and letters of guardianship must be in the name of the people of the State. Where they are granted by a surrogate, or by an officer or person appointed by the board of supervisors, temporarily acting as surrogate, they must be tested in the name of the officer granting them, signed by him, or by the clerk of the surrogate's court, and sealed with the seal of the surrogate's court. Where they are issued out of another court, they must be tested in the name of the judge holding the court, signed by the clerk thereof, and sealed with its seal. From 2 R. S. 80, Part 2, ch. 6, tit. 2, § 55 (2 Edm. 81). See 88 2485, 2486, 2490-2494. § 2591. Their effect. Subject to the provisions of the next section, regulating the priority among different letters, letters testamentary. letters of administration, and letters of guardianship, granted by a court or officer, having jurisdiction to grant them, as prescribed in this chapter, are conclusive evidence of the authority of the persons to whom they are granted, until the decree granting them is reversed upon appeal, or the letters are revoked, as prescribed in this chapter. From Id., § 56 (2 Edm. 82). § 2592. Priority among different letters. The person or persons. to whom letters testamentary, or letters of administration are first issued, from a surrogate's court having jurisdiction to issue them, as prescribed in article first of title first of this chapter, have sole and exclusive authority, as executors or administrators, pursuant to the letters, until the letters are revoked, as prescribed by law; and they are entitled to demand and recover from any person, to whom letters upon the same estate are afterwards issued, by any other surrogate's court, the decedent's property in his hands. But the acts of a person, to whom letters were afterwards issued, done in good faith, before notice of the letters first issued, are valid; and an action or special proceeding, commenced by him, may be continued by and in the ⚫ name of the person or persons to whom the letters were first issued. From Id., 25 (2 Edm. 75). § 2593. Time, how reckoned upon successive letters. Where it is prescribed by law, that an act, with respect to the estate of a decedent, must or may be done within a specified time after letters testamentary or letters of administration are issued, and successive or supplementary letters are issued upon the same estate, the time so specified must be reckoned from the issuing of the first letters, except in a case where it is otherwise specially prescribed by law; or where the first or any subsequent letters are revoked. as prescribed in section 2684 of this act, or by reason of the want of power in the surrogate's court to issue the same, for any cause. § 2594. Official oaths of executors, etc. The official oath or affirmation of an executor, administrator, or guardian, to the effect that he will well, faithfully, and honestly discharge the duties of his office, describing it. must be filed with the surrogate, before letters are issued to him. The oath may be taken before any officer, within or without the State, who is authorized to take an affidavit, to be used in the supreme court. Where it is taken without the State, it must be certified as required by law, with respect to an affidavit to be used in the supreme court. From 2 R. S. 71, 77, Part 2, ch. 66, tit. 2, §§ 13 and 41 (2 Edm. 72, 78), and ch. 460 of 1837, § 59 (4 Edm. 497). § 2595. Deposit of securities to reduce penalty of bond. In a case where a bond, or new sureties to a bond, may be required by a surrogate from an executor, administrator, guardian, or other trustee, if the value of the estate or fund is so great, that the surrogate deems it inexpedient to require security in the full amount prescribed by law, he may direct that any securities for the payment of money, belonging to the estate or fund, be deposited with him, to be delivered to the county treasurer, or be deposited subject to the order of the trustee, countersigned by the surrogate, with a trust company duly authorized by law to receive the same. After such a deposit has been made, the surrogate may fix the amount of the bond, with respect to the value of the remainder only of the estate or fund. A security thus deposited shall not be withdrawn from the custody of the county treasurer or trust company, and no person other than the county treasurer or the proper officer of the trust company, shall receive or collect any of the principal or interest secured thereby without the special order of the surrogate, entered in the appropriate book. Such an order can be made in favor of the trustee, appointed, only where an additional bond has been given by him, or upon proof that the estate or fund has been so reduced, by payments or otherwise, that the penalty of the bond originally given, will be sufficient in amount to satisfy the provisions of law relating to the penalty thereof, if the security so withdrawn is also reckoned in the estate or fund. Am'd by ch. 516 of 1885. See rule 15 (N. Y. Co. Sur. Ct.). See also § 2667. § 2596. 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 sureties upon the official bond given upon the prior letters, and those upon the official bond given upon the subsequent letters, the latter are liable over to the former. § 2597. When new bond or new sureties may be required. Any person interested in the estate or fund, may present to the surrogate's court a written petition. duly verified, setting forth that a surety in a bond, taken as prescribed in this chapter, is insufficient, or has removed, or is about to remove, from the State, or that the bond is inadequate in amount; and praying that the principal in the bond may be required to give a new bond, in a larger penalty, or new or additional sureties, as the case requires; or, in default thereof, that he may be removed from his office, and that letters issued to him may be revoked. Where the bond so taken is that of a guardian, the petition may also be presented by any relative of the infant. When the bond is that of an executor, or administrator, the petition may also be presented by any creditor of the decedent. If it appears to the surrogate, that there is reason to believe that the allegations of the petition are true, he must cite the principal in the bond to show cause, why the prayer of the petition should not be granted. From ch. 460 of 1837, §§ 25 and 26 (4 Edm. 492), as amended by ch. 229 of 1862, and ch. 460 of 1837, § 35 (4 Edm. 493). § 2598. Id.; how principal may be required to give a new bond, etc. Upon the return of a citation, issued as prescribed in the last section the surrogate must hear the allegations and proofs of the parties; and if the objections, or any of them, are found to be valid, he must make an order, requiring the principal in the bond to give new or additional sureties, or a new bond in a larger penalty, as the case requires, within such a reasonable time, not exceeding five days, as the surrogate fixes; and directing that, in default thereof, his letters be revoked. From § 27 of the Act of 1837, as amended by ch. 229 of 1862 (4 Edm. 492). § 2599. Decree revoking letters for failure to give new bond. If a bond with new or additional sureties, or, in a larger penalty, is approved and filed in the surrogate's office, as required by such an order. the surrogate must make a decree, dismissing the proceedings, upon such terms, as to costs as justice requires; otherwise he must make a decree, removing the delinquent from office, and revoking the letters issued to him. From Id., § 28. § 2600. Sureties may apply to be released, as to future breaches. Any or all of the sureties in a bond taken as prescribed in this chapter, may present a petition to the surrogate's court praying to be released from responsibility, on account of any future breach of the condition of the bond and that the principal in the bond be required to give new sureties and to render and settle his account and that a citation issue to said principal to attend on such application. accordingly. The surrogate must thereupon issue a citation From Id., §§ 29 and 30, as amended by ch. 229 of 1862, and ch. 278 of 1876. Am'd by ch. 524 of 1901. § 2601. Release of old sureties on the giving of new. Upon the return of the citation issued as prescribed in the last section if the principal in the bond does not file a new bond in the usual form with new sureties to the satisfaction of the surrogate, the surrogate must make an order requiring said principal to file such new bond within such reasonable time not exceeding five days as the surrogate fixes. Should the principal file such new bond upon the return of such citation or within the time fixed by such order, the surrogate must thereupon make a decree releasing the petitioner from liability upon the bond for any subsequent act or default of the principal and requiring the principal to render and settle his account to and including the date of such decree and to file such account within a time fixed, not exceeding twenty days from such date; otherwise he must make a decree revok ing the delinquent's letters. From Id., §§ 31 and 32. § 2602. Surrogate may direct as to custody, where coexecutors, etc., disagree. Where two or more co-executors or co-administrators 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 direction, 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. Effect and contents of decree revoking letters. Upon the entry of a decree, made as prescribed 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 surrogate, 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. From 2 R. S. 62, Part 2, ch. 6, tit. 1, § 38 (2 Edm. 62); Id., tit. 2, §§ 40, 46 and 47 (2 Edm. 8). § 2604. The last section qualified. 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 sup posed intestacy, or revoking a prior will upon which letters were granted. § 2605. Successor may be appointed, and may compel accounting, etc. 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. 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. The From 2 R. S. 77, Part 2, ch. 6, tit. 2, § 40 (2 Edm. 78); 2 R. S. 153, Part 2, ch. 8. tit. 3, § 17 (2 Edm. 159); ch. 733 of 1865, § 1 (6 Edm. 583), and ch. 406 of 1879. § 2606. Accounting by executor, et cetera, of deceased executors. 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, or the legal representative of a deceased ward, or a surety upon the official bond of the decedent, or the legal representative of a deceased surety, 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 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. And on the death heretofore or here. after, of any executor, administrator, guardian or testamentary trustee while an accounting by or against him, as such, was or is pending before a surrogate's court, such court may revive said proceeding against his executor, administrator or successor 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, acting at the time of such revival had voluntarily petitioned for an accounting as provided for in this section. On a pétition filed either by or against an executor or administrator of a deceased executor, administrator, guardian or testamentary trustee, or on a revival and continuation of an accounting pending by or against such decedent at the time of his death, the successor of such decedent and all persons who would be necessary parties to a proceeding commenced by such decedent for a judicial settlement of his accounts shall be cited and required to attend such settlement. The surrogate's court may at any time on its own motion or on the motion of any party to any one of two or more of such proceedings, consolidate said proceedings but without prejudice to the power of the court to make any subsequent order in either of them. 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 the decedent's lifetime. So far as concerns the executor or administrator of decedent, such a decree is not within the provisions of section twentyfive hundred and fifty-two of this act. The surrogate's court has also jurisdiction to compel the executor or administrator, or successor of any decedent, 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 such credit upon the decree as justice requires. Am'd by ch. 399 of 1884; ch. 175 of 1891; ch. 248 of 1897, and 409 of 1901. Am'd by ch. 349 of 1902. In effect April 3, 1902. § 2607. 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 |