he may be cited to attend the settlement thereof, may be presented to the surrogate's court in either of the following cases: By the ward, after he has attained his majority. 2. By the exccutor or administrator of a ward, who has died. 3. By the guardian's successor, including a guardian appointed after the reversal of a decree, appointing the person so required to account. 4. By a surety in the official bond of a guardian whose letters have been revoked or by the legal representative of such surety. Citation under this subdivision must be directed to both the guardian and the ward. From 2 R. S. 152, Part 2, ch. 8, tit. 3, § 11 (2 Edm. 158). Am'd by ch. 62 of 1890. § 2848. Id.; as to guardian of person. A petition, for the judicial settlement of the account of a general guardian of an infant's person, may be presented, as prescribed in the last section, or by the general guardian of the infant's property; but upon the presentation thereof, proof must be made, to the surrogate's satisfaction, that the guardian so required to account has received money or property of the ward, for which he has not accounted; or which he has not paid or delivered to the general guardian of the infant's property; and a guardian of the estate only of a minor shall be, for the purposes of this chapter, deemed a general guardian. Am'd by ch. 535 of 1881. § 2849. When guardian may compel judicial settlement. A guardian may present to the surrogate's court a written petition duly verified, praying for a judicial settlement of his account and a discharge from his duties and liabilities, in any case where a petition for a judicial settlement of his account may be presented by any other person as prescribed in either of the last two sections. The petition must pray that the person who might have so presented a petition, and also the sureties in his official bond of such guardian or the legal representatives of such surety may be cited to attend the settlement. From Id., § 12. Am'd by ch. 304 of 1893. § 2850. Citation; proceedings thereupon. Upon the presentation of a petition, as prescribed in either of the last three sections, the surrogate must issue a citation accordingly. Section two thousand seven hundred and twenty-seven, sections two thousand seven hundred and thirty-three to two thousand seven hundred and thirty-seven, both inclusive, and sections two thousand seven hundred and forty-one and two thousand seven hundred and forty-four of this act, apply to a guardian accounting as prescribed in this article, nd regulate the proceedings upon such an accounting. The accounting arty must annex to every account produced and filed by him an affiCavit, in the form prescribed in this article for the affidavit to be annexed by him to his annual inventory and account. A guardian designated in this title is entitled to the same compensation as an executor cr administrator. Am'd by ch. 400 of 1882 and ch. 143 of 1887. $ 2734 referred to herein is now § 2729; see 43 App. Div. 231. ARTICLE THIRD. Guardians Appointed by Will or Deed. SEC. 2851. Will or deed containing appointment to be proved, etc., and re corded. 2852. Testamentary guardian; qualification, letters, etc. 2853. When security required from guardian appointed by will or deed. 2854. What security to be given. 2855. Inventory and intermediate account may be required. 2856. When surrogate may compel judicial settlement of account. 2857. Effect of decree. 2858. Removal of guardian appointed by will or deed. 2859. Resignation of such a guardian. 2860. Appointment of successor. § 2851. Will or deed containing appointment to be proved, etc., and recorded. A person shall not exercise, within the State, any power or authority, as guardian of the person or property of an infant, by virtue of an appointment contained in the will of the infant's father or mother, being a resident of the State, and dying after this chapter takes effect, unless the will has been duly admitted to probate, and recorded in the proper surrogate's court, and letters of guardianship have been issued to him thereupon; or by virtue of an appointment contained in a deed of the infant's father or mother, being a resident of the State, executed after this chapter takes effect, unless the deed has been acknowledged or proved, and certified, so as to entitle it to be recorded, and has been recorded in the office for recording deeds in the county, in which the person making the appointment resided, at the time of the execution thereof. Where a deed containing such an appointment is not recorded, within three months after the death of the grantor, the person appointed is presumed to have renounced the appointment; and if a guardian is afterwards duly appointed by a surrogate's court, the presumption is conclusive. From ch. 206 of 1877, parts of §§ 4-7. § 2852. Testamentary guardian; qualification, letters, etc. Where a will, containing the appointment of a guardian, is admitted to probate, the person appointed guardian must, within thirty days thereafter, qualify as prescribed in section 2594 of this act; otherwise he is deemed to have renounced the appointment. But the surrogate may extend the time so to qualify, upon good cause shown, for not more than three months. And any person interested in the estate may, before letters of guardianship are issued, file an affidavit setting forth with respect to the guardian so appointed, any fact which is made by law an objection to the issuing of letters testamentary to an executor. Sections 2636 to 2638 of this act, both inclusive, apply to such an affidavit and to the proceedings thereupon. A person appointed guardian by will may, at any time before he qualifies, renounce the appointment by a written instrument, under his hand, filed in the surrogate's office. From Id. § 2853. When security required from guardian appointed by will or deed. Where a guardian of an infant's person or property has been appointed by will or by deed, the infant, or any relative or other person in his behalf, may present, to the surrogate's court in which the will was admitted to probate; or to the surrogate's court of the county in which the deed was recorded; a written petition, duly verified, setting forth, either upon his knowledge, or upon his information and belief, any fact, respecting the guardian, the existence of which, if it was interposed as an objection to granting letters testamentary to a person named as executor in a will, would make it necessary for such a person to give a bond, in order to entitle himself to letters; and praying for a decree, requiring the guardian to give security for the performance of his trust; and that he may be cited to show cause why such a decree should not be made. Upon the presentation of such a petition, and proof of the facts therein alleged, to the satisfaction of the surrogate, he must issue a citation accordingly. Upon the return of the citation, a decree requiring the guardian to give security may be made, in the discretion of the surrogate, in a case where a person so named as executor, can entitle himself to letters testamentary only by giving a bond; but not otherwise. § 2854. What security to be given. The security to be given, as prescribed in the last two sections, must be a bond to the same effect, and in the same form, as the bond of a general guardian, appointed by the surrogate's court. Each provision of this chapter, applicable to the bond of such a guardian, and to the rights, duties, and liabilities of the parties thereto, or any of them, including the release of the sureties, and the giving of a new bond; applies to the bond so given, and the parties thereto. § 2855. Inventory and intermediate account may be required. Upon the petition of the ward, or of any relative or other person in his behalf, the surrogate's court having jurisdiction to require security, as prescribed in the last three sections, may, at any time, in the discretion of the surrogate, make an order requiring a guardian appointed by will or by deed, to render and file an inventory and account, in the same form, and verified in the same manner as the inventory and account required to be filed annually by a guardian appointed by a surrogate's court, as prescribed in article second of this title. The order may also require such an inventory and account to be filed in the month of January of each year thereafter. Sections twenty-eight hundred and forty-two, to twenty-eight hundred and and forty-five, of this act, both inclusive apply to such an inventory and account, and to the filing thereof, as if the guardian had been appointed by the surrogate's court. The provisions of section twenty-eight hundred and forty-six of this act shall apply to a guardian appointed by will or deed with the same effect as if such guardian had been mentioned in said section, and the proceedings therein prescribed may be had in the case of any such guardian in the same manner as if he were a general guardian. Am'd by ch. 61 of 1896. See 88 2842-2845. § 2856. When surrogate may compel judicial settlement of account. The surrogate's court, having jurisdiction to require security may compel a judicial settlement of the account of the guardian appointed by will or by deed, in any case where it may compel a judicial settlement of the account of a general guardian and the proceedings to procure such a settlement are the same as if the guardian so appointed by will or by deed had been a general guardian. A guardian appointed by will or by deed may present to the surrogate's court a written petition, duly verified, praying for a judicial settlement of his account. and a discharge from his duties and liabilities, in any case where a petition for a judicial settlement of his account may be presented by any other ch. 18, tit. 7, art. 3. GUARDIAN BY WILL. The petition must pray that the person as prescribed in this article. person who might have so presented a petition may be cited to attend Upon the presentation of such petition the surrogate the settlement. must issue a citation accordingly. Sections twenty-seven hundred and thirty-three to twenty-seven hundred and thirty-seven, both inclusive, and sections twenty-seven hundred and forty-one and twenty-seven hundred and forty-four of this act apply to a guardian accounting as prescribed in this article and regulate the proceedings upon such an accounting, A guardian designated in this title is entitled to the same compensation as a general guardian. Am'd by ch. 197 of 1891. See §§ 2847, 2850. § 2857. Effect of decree. A decree made upon a judicial settlement of the account of a guardian appointed by will or by deed, as prescribed in this article, or the judgment rendered upon appeal from such decree, has the same force, as a judgment of the supreme court to the same effect See § 2813. § 2858. Removal of guardian appointed by will or deed. Upon the petition of the ward, or of any relative or other person in his behalf, the surrogate's court, having jurisdiction to require security from a guardian appointed by will or by deed, may remove such a guardian, in any case where a testamentary trustee may be removed, as prescribed in title sixth of this chapter; and the proceedings upon such a petition are the same, as prescribed in that title for the removal Where a citation is issued, upon a petition of a testamentary trustee. for the removal of such a guardian, he may be suspended from the exercise of his powers and authority, as if he had been appointed by the surrogate's court. From ch. 469 of 1874 (9 Edm. 960). § 2859. Resignation of such a guardian. A guardian appointed by will or by deed, may be allowed to resign his trust, by the surrogate's court, having jurisdiction to require security from him. The proceedings for that purpose, and the effect of a decree made thereupon, are the same, as where a guardian appointed by the surrogate's court presents a petition, praying that his letters may be revoked, as prescribed in article first of this title. See 88 2835-2837. § 2860. Appointment of successor. Where a sole guardian, appointed by will or by deed, has been, by the decree of the surrogate's court, removed or allowed to resign, a successor may be appointed by the same court, with the effect prescribed in section 2605 of this act; unless such an appointment would contravene the express terms of the will or deed. See § 2818. CHAPTER XIX. Courts of Justices of the Peace, and Proceedings Therein I.-Jurisdiction and general powers. II. Commencement of action; appearance of parties; provisional remedies. III.-Pleadings; including counter-claims, and proceed. ings upon answer of title. TITLE TITLE TITLE TITLE TITLE TITLE TITLE TITLE VIII.-Appeals. IV.-Proceedings between the joinder of issue and the trial. V. Trial and its incidents. VI.-Judgment; and docketing the same. VII.-Executions. TITLE IX.-Costs. TITLE X.-Action or special proceeding, relating to an animal straying upon the highway. TITLE XI. Provisions specially relating to courts of justices of the peace in the city of Brooklyn. TITLE XII.-Miscellaneous provisions. TITLE I. Jurisdiction and general powers. SEC. 2861. Justice's jurisdiction must be specially conferred by law. 2862. General civil jurisdiction. 2863. No jurisdiction in certain cases. 2864. Confession of judgment. 2865. Actions by and against officers, etc.; and by executors, etc. 2867. Members of legislature not compelled to act. 2868. Justices to hold courts; general powers. 2869. In what town, etc., action must be brought. 2870. Criminal contempts. 2871. Id.; how punished. 2872. Offender to be heard. 2873. Record of conviction. 2874. Requisites of commitment. 2875. Fine to be paid to overseer or superintendent of the poor. § 2861. Justice's jurisdiction must be specially conferred by law. A justice of the peace has such jurisdiction in civil actions and special proceedings, as is specially conferred upon him by statute, and no other. See § 1284, Consol. Act. |