ch. 18, tit. 4, art. 1. AIDING AN EXECUTOR. After the expiration of one year, the executors or administrators must discharge the specific legacies bequeathed by the will and pay the general If there are not sufficient assets, then an legacies. if there be assets. abatement of the general legacies must be made in equal proportions. Such payments shall be enforced by the surrogate in the same manner as the return of an inventory, and by a suit on the bond of such executor or administrator whenever directed by the surrogate. From 2 R. S. 90, §§ 43-45. Am'd by ch. 686 of 1893. ARTICLE SECOND. Accounting; and Settlement of the Estate. SEC. 2722. Petition to compel payment; hearing; decree. 2723. Decree for payment of legacy, et cetera, on giving security. 2724. Proceedings for neglect to set apart exempt property; proceedings upon judicial settlement. 2725. Intermediate accounting. 2726. When surrogate may require judicial settlement of account. 2727. Citation; order to account and proceedings thereon. 2728. Executors, etc., may petition for judicial settlement; citation there upon. 2729. Affidavit to account; vouchers; examination of accounting party. 2730. Commissioners of executor or administrator. 2731. Determination of claims by surrogate; suspension of statute of limitations in certain cases. 2732. Order of distribution. 2733. Advancements. 2734. Estates of married women. 2735. Accounting party to be examined, etc. [Repealed.] 2736. Compensation of several executors or administrators. [Repealed.] 2738. One compensation allowed on different letters. [Repealed.] 2740. Effect of the statute of limitations on such claims. [Repealed.] 2742. Effect of judicial settlement of account. 2743. Decree for payment and distribution. 2744. Id.; when specific property may be delivered. 2745. Id.; when money may be retained. 2746. Infant's share. 2747. Legacy, etc., to unknown persons to be paid into state treasury. 2748. When legacy, etc., to be paid to county treasurer. § 2722. Petition to compel payment; hearing; decree. In either of the following cases a petition may be presented to the surrogate's court, praying for a decree, directing an executor or administrator to pay the petitioner's claim, and that he be cited to show cause why such a decree should not be made: 1. By a creditor, for the payment of a debt, or of its just proportional part, at any time after six months have expired since letters were granted. 2. By a person entitled to a legacy or any other pecuniary provision under the will, or a distributive share, for the payment or satisfaction thereof, or of its just proportional part, at any time after one year has expired since letters were granted. On the presentation of such a petition, the surrogate must issue a citation accordingly; and on the return thereof, he must make such a decree in the premises as justice requires. But in either of the following cases the decree must dismiss the petition without prejudice to an action or an accounting, in behalf of the petitioner: 1. Where an executor or administrator files a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner's claim is valid and legal, and denying its validity or legality absolutely, or on information and belief. 2. Where it is not proved, to the satisfaction of the surrogate, that there is money or other personal property of the estate, applicable to the payment or satisfaction of the petitioner's claim, and which may be so applied, without injuriously affecting the rights of others, entitled to priority or equality of payment or satisfaction. Former §§ 2717, 2718, Co. Civ. Proc. Consolidated. Am'd by ch. 686 of 1893. § 2723. Decree for payment of legacy, et cetera, on giving security. In a case specified in subdivision second of the last section, the surrogate may, in his discretion, entertain the petition, at any time after letters are granted, although a year has not expired. In such a case, if it appears, on the return of the citation, that a decree for payment may be made, as prescribed in the last section; and that the amount of money and the value of the other property in the hands of the executor or administrator applicable to the payment of debts, legacies and expenses, exceed, by at least one-third, the amount of all known debts and claims against the estate, of all legacies which are entitled to priority over the petitioner's claim and of all legacies or distributive shares of the same class; and that the payment or satisfaction of the legacy, pecuniary provision or distributive share, or some part thereof, is necessary for the support or education of the petitioner; the surrogate may, in his discretion, make a decree directing payment or satisfaction accordingly, on the filing of a bond, approved by the surrogate, conditioned as prescribed by law, with respect to a bond which an executor or an administrator with the will annexed may require from a legatee, on payment or satisfaction of a legacy, before the expiration of one year from the time when letters were issued, pursuant to a direction to that effect contained in the will. From former § 2719, Co. Civ. Proc. Am'd by ch. 686 of 1893. § 2724. Proceedings for neglect to set apart exempt property; proceedings upon judicial settlement. Where an executor or administrator has failed to set apart property for a surviving husband, wife or child, as prescribed by law, the person aggrieved may present a petition to the surrogate's court, setting forth the failure and praying for a decree, requiring such executor or administrator to set apart the property accordingly; or, if it has been lost, injured or disposed of, to pay the value thereof, or the amount of the injury thereto, and that he be cited to show cause why such a decree should not be made. If the surrogate is of the opinion that sufficient cause is shown, he must issue a citation accordingly. On the return of the citation, the surrogate must make such a decree in the premises as justice requires. In a proper case, the decree may require the executor personally to pay the value of the property, or the amount of the injury thereto. The decree made on a judicial settlement of the account of an executor or administrator, may award to a surviving husband, wife or child, the same relief which may be awarded in his or her favor, on a petition presented as prescribed in this section. Former 88 2720, 2721, Co. Civ. Proc. Consolidated. § 2725. Intermediate accounting. An executor or administrator at any time, may, voluntarily, file in the surrogate's office an intermediate account, and the vouchers in support of the same. In either of the following cases, the surrogate may, in his discretion, make an order, requiring an executor or administrator to render an intermediate account: 1. Where an application for an order, permitting an execution to issue on a judgment against the executor or administrator, has been made by the judgment creditor, as prescribed in section eighteen hundred and twenty-six of this act. 2. On the return of a citation, issued on the petition of a judgment creditor, praying for a decree, granting leave to issue an execution on a judgment rendered against the decedent in his lifetime as prescribed in section thirteen hundred and eighty-one of this act. 3. On the return of a citation, issued on the petition of a creditor, or person entitled to a legacy, or other pecuniary provision, or a distributive share, praying for a decree directing payment thereof, as prescribed in section twenty-seven hundred and twenty-two of this act. 4. Where eighteen months have elapsed since letters were issued, and no special proceeding, on a petition for a judicial settlement, of the executor's or administrator's account is pending. Former §§ 2722, 2723, Co. Civ. Proc. Consolidated. Am'd by ch. 686 of 1893. § 2726. When surrogate 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 or administrator. 1. Where one year has expired since letters were issued to him. 2. Where letters issued to him have been revoked, or, for any other reason, his powers have ceased. 3. Where a decree for the disposition of real property, or of an interest in real property, has been made, as prescribed in title fifth of this chapter, and the property, or a part thereof, has been disposed of by him pursuant to the decree. 4. 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, where one year has elapsed since letters were issued to him. The surrogate's court may compel a judicial settlement of the account of a temporary administrator at any time. It may also compel a judicial settlement of the account of a freeholder, appointed to dispose of a decedent's real property, or interest in real property, as prescribed in title fifth of this chapter, in like manner as where the same has been disposed of by the executor or administrator. Former 88 2724, 2725, Co. Civ. Proc. Consolidated. § 2727. Citation; order to account and proceedings thereon. A petition, praying for the judicial settlement of an account, and that the executor and administrator be cited to show cause why he should not render and settle his account, may be presented, in a case prescribed in the last section, by a creditor or a person interested in the estate or fund, including a child born after the making of a will; or by any person. in behalf of an infant so interested; or by a surety in the official bond of the person required to account, or the legal representative of such a surety. On the presentation of such a petition, a citation must be issued accordingly; except that in a case specified in subdivision first of the last section if the petition is presented within eighteen months after letters were issued to the executor or administrator, the surrogate may entertain or decline to entertain it, in his discretion. On the return of a citation issued as prescribed in either of the foregoing sections of this article, if the executor or administrator fails either to appear, or to show good cause to the contrary, or to present in a proper case, 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. The executor or administrator is bound by such an order.without service thereof. If he disobeys it the surrogate may issue a warrant of attachment against him, and his letters may be revoked, as where a warrant of attachment is issued to compel the retarn of an inventory. 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 of an executor or administrator for a judicial settlement of his account, and requiring them to attend the accounting. The pendency of a proceeding against an executor or administrator to compel him to account does not preclude him from presenting a petition as proscribed in the next section. If such petition is 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 directeu to petitioner in the special proceeding pending against the executor o administrator, and the two proceedings must be consolidated. The surrogate may, in his discretion, and on such terms as may be just, direct the consolidation of any two or more of such proceedings pending before him, and such consolidation does not affect any power of the surrogate which might be exercised in either proceeding. Former §§ 2726-2728, Co. Civ. Proc. Consolidated. § 2728. Executor, etc., may petition for judicial settlement; citation thereupon. In either of the following cases an executor or administrator may present to the surrogate's court his account and a written petition duly verified, praying that his account may be judicially settled; and that the sureties in his official bond or the legal representatives of such surety and all creditors or persons claiming to be creditors of the decedent, except such, as by vouchers annexed to the account filed, appear to have been paid and the decedent's husband or wife next of kin and legatees, if any; or, if either of those persons has died, his executor or administrator, if any, may be cited to a tend the settlement : 1. Where one year has elapsed since letters were issued to such executor or administrator. 2. Where notice requiring all persons having claims against the deceased to exhibit the same with the vouchers thereof to such exccutor or administrator has been duly published according to law. If one of two or more co-executors or co-administrators presents his account and a petition for a judicial settlement of his separate account, it must pray that his co-executors or co-administrators may also be cited. Upon the presentation of account and a petition, as prescribed in this section, the surrogate must issue a citation accordingly. On the return of a citation, issued as prescribed in this section, the surrogate must take the account, and hear the allegations and proofs of the parties, respecting the same. Any party may contest the account, with respect to a matter affecting his interest in the settlement and distribution of the estate. And any party may contest an intermediate account rendered under section twentyseven hundred and twenty-five of this act in case the same shall not be consolidated pursuant to section twenty-seven hundred and twenty-seven of this act. A creditor, or person interested in the estate, although not cited, is entitled to appear on the hearing, and thus make himself a party to the proceeding. When letters issued to an executor or administrator have been revoked, he may present to the surrogate's court a written retition, duly verified, praying that his account be judicially settled, en that his successor, if a successor has been appointed, and the other persons specified in this section be cited to attend this settlement. Former 2729-2732, Co. Civ. Proc. Consolidated. Am'd by ch. 686 of 1893; ch. 421 of 1894, and ch. 426 of 1895. § 2729. Affidavit to account; vouchers; examination of accounting party. To each account filed with the surrogate, as prescribed in this article, must be appended the affidavit of the accounting party, to the effect |