for the purposes specified in the next section, examine or cause to be examined, under his direction, all inventories and accounts of guardians filed since the first day of February of the preceding year. The examination may be made by the clerk of the surrogate's court, or by a person specially appointed by the surrogate to make it, who must, before he enters upon the examination, subscribe and take before the surrogate, and file with the clerk of the surrogate's court, an oath faithfully to execute his duties, and to make a true report to the surrogate. Where the surrogate seasonably certifies in writing to the board of supervisors, or in the county of New York, to the board of aldermen, that the examination required by this action cannot be made by him, or by the clerk of the surrogate's court, or by any clerk, employed in his office and paid by the county, the board must provide for the compensation of a suitable person to make the examination. § 2845. If it appears to the surrogate, upon an examination made as prescribed in the last section, that a general guardian of an infant's property, appointed by letters issued from his court, has omitted to file his annual inventory or account, or the affidavit relating thereto, as prescribed in the last section but one; or if the surrogate is of the opinion, that the interest of the ward requires that the guardian should render a more full or satisfactory inventory or account; the surrogate must make an order, requiring the guardian to supply the deficiency, and also, in his discretion, requiring the guardian personally to pay the expense of serving the order upon him. Where the guardian fails to comply with such an order, within three months after it is made; or where the surrogate has reason to believe that sufficient cause exists for the guardian's removal, the surrogate may, in his discretion, appoint a fit and proper person special guardian of the ward, for the purpose of filing a petition in his behalf, for the removal of the guardian, and prosecuting the necessary proceedings for that pur pose. § 2846. Upon the petition of the general guardian of an infant's person or property; or of the infant; or of any relative or other person in his behalf; the surrogate, upon notice to such persons, if any, as he thinks proper to notify may make an order, directing the application, by the guardian of the infant's property, to the support and education of the infant, of such a sum as to the surrogate seems proper, out of the income of the infant's property; or, where the income is inadequate for that purpose, out of the principal. § 2847. [Am'd 1890.] A written petition, duly verified, praying for the judicial settlement of the account of a general guardian of an infant's property, and that he may be cited to attend the settlement thereof, may be presented to the surrogate's court, in either of the following cases: 4 Dem. 145. 1. By the ward, after he has attained his majority. 2. By the executor 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. § 2848. [Am'd 1881.] 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, $ 2849. [Am'd 1893.] A guardian may present to the surrogate's court a written petition, duly verified, praying for a judicial: ettlement 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. § 2850. [Am❜d 1882, 1887.] 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, and regulate the proceedings upon such an accounting. The accounting party must annex to every account produced and filed by him an affidavit, 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 or administrator. ARTICLE THIRD. GUARDIANS APPOINTED BY WILL OR DEED. 2851. Will or deed containing appointment to be proved, etc., and recorded. § 2852. Testamentary guardian; qualification, letters, etc. 2853. When security required § 2851. 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 inother, 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. § 2852. 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 two thousand five hundred and ninetyfour 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 two thousand six hundred and thirty-six to two thousand six hundred and thirty-eight 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. 2853. 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 fact therein allege 1, to the satisfaction of the surrogate, he must issue a citation accordingly. Upon the return of the citation, a deres 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. 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, app icable 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 b nd; applies to the bond so given, and the parties thereto. § 2855. 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 guard an 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 two thousand, eight hundred and forty-two to two thousand eight hundred 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. § 2856. [Am'd 1891.] The surrogate's court having jurisdiction to require security may compel a judicial settlement of the account of a 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 apointed 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 person as prescribed in this article. The petition must pray that the person who might have so presented & petition may be cited to attend the settlement. Upon the presentation of such petition must issue a cita tion 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 desiguated in this title is entitled to the same compensation as a general guardian. 22857. 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. $2858. Upon the petition of the ward, or of any relative or other person in his behalf, the surrogate's court, having juris iction 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 tile for the removal of a testamentary trustee. Where a citation is issued, upon a petition for the removal of such a guar ian, he may be suspended from the exercise of his powers and authority, as if he had been appointed by the surrogate's court. § 2859. 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 nade thereupon, are the same, as where a guardian appointed by the surr gate's court presents a petition, praying that his letters may be revoked, as prescribed in article first of this title. § 2860. Where a sole guardian, appointed by will cr 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 two thousand six hundred and five of this act; unless such an appointment would contravene the express terms of the will or deed. CHAPTER XIX. COURTS OF JUSTICES OF THE PEACE, AND PROCEEDINGS THEREIN. I.--JURISDICTION AND GENERAL POWERS. TITLE TITLE II. TITLE TITLE -COMMENCEMENT OF ACTION; APPEARANCE OF III.-PLEADINGS; INCLUDING COUNTERCLAIMS, AND IV. PROCEEDINGS BETWEEN THE JOINDER OF ISSUE AND THE TRIAL. TITLE V. TRIAL AND ITS INCIDENTS. TITLE VI.-JUDGMENT; AND DOCKETING THE SAME. |