more persons named in a will as testamentary trustees dies prior to the probate of the will or by an instrument in writing, renounces his or their appointment, or where one of two or more testamentary trustees dies or becomes a lunatic, or is by decree of the surrogate's court removed or allowed to resign, a successor shall not be appointed except where such appointment is necessary in order to comply with the express terms of the will, or unless the same court or the supreme court shall be of the opinion that the appointment of a successor would be for the benefit of the cestuis que trust. Unless and until a successor is appointed the remaining trustee or trustees may proceed and execute the trust as fully as if such trustee or trustees had not died, renounced, become a lunatic, been removed or resigned. Where a decree removing a trustee, or discharging him upon his resignation, does not designate his successor, or the person designated therein does not qualify; the successor must be appointed and must qualify, in the manner prescribed by law for the appointment and qualification of an administrator with the will annexed.

From Id.

Am'd by ch. 408 of 1884, and by ch. 370 of 1903. In effect May 6, 1903. See Real Property Law, § 91: ch. 547 of 1896.

§ 2819. Proceedings where testamentary trustee is also executor or administrator.

Where the same person is a testamentary trustee, and also the executor of the will, or an administrator upon the same estate, proceedings taken by or against him, as prescribed in this title, do not affect him as executor or administrator, or the creditors of, or persons interested in, the general estate, except in one of the following cases:

1. Where he presents a petition, praying for the revocation of his letters, he may, also, in the same petition, set forth the facts, upon showing which he would be allowed to resign as testamentary trustee; and may thereupon pray for a decree allowing him so to resign, and for a citation accordingly.

2. Where a person presents a petition, praying for the revocation of letters issued to an executor or administrator; and any of the facts set forth in the petition are made, by the provisions of this title, sufficient to entitle the same person to present a petition praying for the removal of a testamentary trustee; the petitioner may pray for a decree removing the person complained of in both capacities, and for a citation accordingly.

In either case, proceedings upon the petition for the resignation or removal, as the case requires, of the testamentary trustee, and for the judicial settlement of his account, may be taken, as prescribed in this title, in connection with, or separately from, the like proceedings upon the petition for the revocation of the letters, as the surrogate directs. See § 2688.

§ 2820. Application of this title.

The provisions of this title apply to a trust created by the will of a resident of the State, or relating to real property, situated within the State, without regard to the residence of the trustee, or the time of the execution of the will.

TITLE VII.

Provisions relating to a guardian.

ARTICLE 1. Appointment, removal, and resignation of a general guardian. 2. Supervision and control of a general guardian.

accounts.

3. Guardians appointed by will or deed.

ARTICLE FIRST.

Settlement of his

Appointment, Removal and Resignation of a General Guard

ian.

SEC. 2821. Power of court to appoint guardians.

2822. Petition for appointment, by infant over fourteen.

2823. Contents of petition; citation.

2824. Id.; where petitioner is a married woman.

2825. Appointment of guardian.

2826. Guardian to be nominated by infant.

2827. Appointment of temporary guardian for infant under fourteen.

2828. Term of office of temporary guardian.

2829. Inquiry as to value of property.

2830. Qualification of guardian of property.

2831. Id.; of guardian of person.

2832. When letters may be revoked for misconduct, etc.

2833. Citation; hearing; decree.

2834. Suspension of guardian; effect thereof.

2835. Application by guardian for revocation of letters.

2836. Proceedings thereupon.

2837. Ward or new guardian may require accounting.

2838. Application for ancillary letters to foreign guardian.
2839. Proceedings thereupon.

2840. Effect of such letters.

2841. Application of the last section to former guardians.

§ 2821. Power of court to appoint guardians.

The surrogate's court has the like power and authority to appoint a general guardian. of the person or of the property, or both, of an infant which the chancellor had, on the thirty-first day of December, eighteen hundred and forty-six. It has also power and authority or of the property, or to appoint a general guardian, of the person both, of an infant whose father or mother is living, and to appoint a general guardian of the property only, of an infant married woman. Such power and authority must be exercised in like manner as they were exercised by the court of chancery, subject to the provisions of this act. The same person may be appointed guardian of an infant in both capacities; or the guardianship of the person and of the property may be committed to different persons.

From 2 R. S. 151, Part 2, ch. 8, tit. 3, part of § 6 (2 Edm. 157).

§ 2822. Petition for appointment, by infant over four

teen.

In either of the following cases, an infant. of the age of fourteen years or upwards, may present, to the surrogate's court of the county

in which he resides; or, if he is not a resident of the State, to the surrogate's court of the county in which any of his property, real or personal, is situated; a written petition, duly verified, setting forth the facts upon which the jurisdiction of the court depends, and praying for a decree appointing a general guardian, either of his person, or of his property, or both, as the case requires; and, if necessary. that the persons, entitled by law to be cited upon such an application, may be cited to show cause, why such a decree should not be made:

1. Where such a general guardian has not been duly appointed, either by a court of competent jurisdiction of the State, or by the will or deed of his father or mother, admitted to probate or authenticated, and recorded, as prescribed in section 2851 of this act.

2. Where a general guardian so appointed, has died, become incompetent or disqualified; or refuses to act; or has been removed; or where his term of office has expired.

Where the petitioner is a non-resident married woman, and the petition relates to personal property only, it must affirmatively show that the property is not subject to the control or disposition of her husband, by the law of the petitioner's residence.

From 2 R. S. 150, § 4 (2 Edm. 157).

§ 2823. Contents of petition; citation.

A petition, presented as prescribed in the last section, must also state whether or not the father and mother of the petitioner are known to be living. If either of them is known to be living, and the petition does not pray that the father, or, if he is dead. that the mother, may be appointed the general guardian, it must set forth the circumstances which render the appointment of another person expedient; and must pray that the father, or if he is dead, that the mother, of the petitioner may be cited to show cause, why the decree should not be made. A citation, issued to the father of the petitioner, must be served at least ten days before it is returnable. Where the case is within subdivision second of the last section, the petition must pray that the person formerly appointed general guardian may be cited, unless it is shown that he is dead. The surrogate must inquire, and ascertain as far as practicable, what relatives of the infant reside in his county; and he may, in his discretion, cite any relative or class of relatives of the infant, residing in that county or elsewhere, to show cause why the prayer of the petition should not be granted.

§ 2824. Id.; where petitioner is a married woman.

The last section applies, where the petitioner is a married woman; except that her husband must also be cited, and that the surrogate may, in his discretion, make a decree, appointing a guardian of her property, without citing her father or her mother.

§ 2825. Appointment of guardian.

Upon the return of the citation, the surrogate must make such a decree in the premises, as justice requires. He may, in his discretion, hear allegations and proofs from a person not a party. Where a citation is not issued, the surrogate must, upon the presentation of the petition, inquire into the circumstances. For the purpose of such an inquiry, or of an inquiry into the amount of security to be required of the guardian, he may issue a subpoena, requiring any person to attend before him, to testify respecting any matter involved therein. If he is satisfied that the allegations of the petition are true in fact, and that the interests of the infant will be promoted by the appointment of a general guardian, either of his person or of his property, he must make a decree accordingly, except that a guardian of the person of a married woman shall not be appointed. In a proper case, he may appoint a general guardian in one capacity, without a citation; and issue a citation to show cause against the appointment of a general guardian, in the other capacity.

§ 2826. Guardian to be nominated by infant.

A guardian appointed upon the application of an infant of the age of fourteen years, or upwards, as prescribed in this article, must be nominated by the infant, subject to the approval of the surrogate. From 2 R. S. 150, § 4 (2 Edm. 157).

§ 2827. Appointment of temporary guardian for infant under fourteen.

A relative of an infant under fourteen years of age, or any other person in behalf of such an infant, may present to the surrogate's court of the county in which the infant resides; or, if he is not a resident of the State, to the surrogate's court of the county in which any of the infant's property, real or personal, is situated; a written petition, duly verified, setting forth the facts, upon which the jurisdiction of the court depends, and praying for a decree appointing a guardian of the person, or of the property, or both, of the infant, to serve until the infant attains the age of fourteen years, and a successor to the guardian is appointed. The cases in which such a guardian may be appointed, the contents of the petition, and the proceedings thereupon, are the same, as prescribed in the foregoing sections of this article, with respect to the appointment of a general guardian, upon the petition of an infant of the age of fourteen years or upwards; except that the surrogate must nominate, as well as appoint, the temporary guardian. From Id., § 5.

§ 2828. Term of office of temporary guardian.

The term of office of a guardian, appointed as prescribed in the last section, expires when the infant attains the age of fourteen years. But after the infant attains that age, the person so appointed continues to retain all the powers and authority and is subject to all the duties and liabilities, of a guardian of the person, or of the property, or both, pursuant to his letters; until his successor is appointed and has qualified, or until his letters are revoked. for some other cause, by the decree of the surrogate's court; and his sureties are responsible accordingly.

From Id., part of § 10.

§ 2829. Inquiry as to value of property.

Where a general guardian of the property of an infant is appointed, as prescribed in this article, the surrogate must inquire into the infant's circumstances, and must ascertain, as nearly as practicable, the value of his personal property, and of the rents and profits of his real property.

From Id., part of § 6.

§ 2830. Qualification of guardian of property.

Before letters of guardianship of an infant's property are issued by the surrogate's court, the person appointed must, besides taking an official oath, as prescribed by law, execute to the infant, and file with the surrogate his bond, with at least two sureties in a penalty. fixed by the surrogate, not less than twice the value of the personal property, and of the rents and profits of the real property; conditioned that the guardian will, in all things, faithfully discharge the trust reposed in him, and obey all lawful directions of the surrogate touching the trust. and that he will, in all respects, render a just and true account of all money and other property received by him and of the application thereof, and of his guardianship, whenever he is required so to do, by a court of competent jurisdiction. But the surrogate may, in his discretion, limit the amount of the bond to not less than twice the value of the personal property and of the rents and profits of the real property for the term of three years. But in case

where it appears to be impracticable to give a bond sufficient to cover the whole amount of the intant's personal property, the surrogate may, in his discretion, accept security, to be approved by the surrogate, not less than twice the amount of the particular portion of the infant's property which the guardian will be authorized under the letters to receive; and issue letters thereon limited to the receiving and administering only such personal property for which double the security has been given, and restraining the guardian from receiving any other personal property of the infant, until the further order of the surrogate, on additional further satisfactory security.

From Id., § 8.

Am'd by chs. 535 of 1881 and 559 of 1892.

See rule 54 (Sup. Ct.).

§ 2831. Id.; of guardian of person.

Before letters of guardianship of an infant's person are issued by the surrogate's court, the person appointed must take the official oath, as prescribed by law. The surrogate may also require him to execute to the infant a bond, in a penalty fixed by the surrogate, and with or without sureties, as to the surrogate seems proper; conditioned that the guardian will in all things faithfully discharge the trust reposed in him, and duly account for all money or other property which may come to his hands, as directed by the surrogate's court.

§ 2832. When letters may be revoked for misconduct, etc.

In either of the following cases, the ward, or any relative or other person in his behalf. or the surety of a guardian, may, at any time, present to the surrogate's court, a written petition, duly verified, setting forth the facts and praying for a decree, revoking letters of guardianship, either of the person, or of the property, or both; and that the guardian complained of may be cited to show cause, why such a decree should not be made:

1. Where the guardian is disqualified by law. or is, for any reason, incompetent to fulfill his trust.

2. Where. by reason of his having wasted or improperly applied the money or other property in his charge, or invested money in securities unauthorized by law, or otherwise improvidently managed or injured the real or personal property of the ward, or by reason of other misconduct in the execution of his office, or his dishonesty, drunkenness, improvidence, or want of understanding, he is unfit for the due execution of his office.

3. Where he has wilfully refused, or, without good cause, neglected, to obey any lawful direction of the surrogate, contained in a decree or an order or any provision of law, relating to the discharge of his duty.

4. Where the grant of letters to him was obtained by a false suggestion of a material fact.

5. Where he has removed, or is about to remove, from the State. 6. In the case of the guardian of the person, where the infant's welfare will be promoted by the appointment of another guardian. From 2 R. S. 150, § 14, and ch. 460 of 1837, §§ 34 and 45 (2 Edm. 493, 495). See §§ 2686, 2687, 2833.

§ 2833. Citation; hearing; decree.

Upon the presentation of a petition, as prescribed in the last section, the surrogate must inquire into the matter; and for that purpose, he may issue a subpoena to any person requiring him to attend and testify in the premises. If the surrogate is satisfied that there is probable cause to believe, that the allegations of the petition are true. he must issue a citation to the guardian complained of; and, upon the return thereof, if the material allegations of the petition are estab