description of the trust, as is necessary to identify it, must be sub stituted in place of the words, "the estate of the decedent." From Id. See § 3320. § 2812. Surrogate to determine controversies; proportion may be retained. Upon a judicial settlement of the account of a testamentary trustee, a controversy which arises, respecting the right of a party to share in the money or other personal property to be paid, distributed, or delivered over, must be determined in the same manner as other issues are determined. If such a controversy remains undetermined, after the determination of all other questions upon which the distribution of the fund, or the delivery of the personal property depends, the decree must direct that a sum, sufficient to satisfy the claim in controversy, or the proportion to which it is entitled, together with the probable amount of the interest and costs, and, if the case so requires, that the personal property in controversy, be retained in the hands of the accounting party; or that the money be deposited in a safe bank or trust company, subject to the surrogate's order, for the purpose of being applied to the payment of the claim, when it is due, recovered, or settled; and that so much thereof, as is not needed for that purpose, be afterwards distributed according to law. From Id. § 2813. Effect of decree. A decree, made upon a judicial settlement of the account of a testamentary trustee, as prescribed in this title, or the judgment rendered upon an appeal from such a decree. has the same force, as a judgment of the supreme court to the same effect, as against each party who was duly cited or appeared, and every person who would be bound by such a judgment, rendered in an action between the same parties. From Id. § 2814. Resignation of trust. A testamentary trustee may, at any time, present to the surrogate's court a written petition, duly verified, praying that his account may be judicially settled; that a decree may thereupon be made, allowing him to resign his trust, and discharging him accordingly; and that all persons who are entitled absolutely or contingently, by the terms of the will or by operation of law, to share in the fund or estate, or the proceeds of any property held by the petitioner as a part of his trust. may be cited to show cause, why such a decree should not be made. The petition must set forth the facts upon which the application is founded; and it must, in all other respects, conform to a petition presented for a judicial settlement of the account of a testamentary trustee, as prescribed in this title. The surrogate may, in his discretion, entertain or decline to entertain the petition. If he entertains it, the proceedings must be. in all respects, the same as upon a petition for a judicial settlement of the petitioner's account. except that, upon the hearing, the surrogate must first determine, whether sufficient reasons exist for granting the prayer of the petition, and, if he determines that they exist, he must make an order accordingly, and allowing the petitioner to account, for the purpose of being discharged. Upon the petitioner's fully accounting, and paying all money belonging to the trust, and delivering all books, papers, and other property of the trust in his hands, either into the surrogate's court, ог as the surrogate directs, a decree may be made. accepting his resignation, and discharging him accordingly. From Id. § 2815. Petition for security from testamentary trustee. Any person, beneficially interested in the execution of the trust, may present to the surrogate's court a written petition, duly verified, setting forth, either upon his knowledge, or upon his information and belief, any fact, respecting a testamentary trustee, 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 security, in order to entitle himself to letters; and praying for a decree, directing the testamentary trustee 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, the surrogate must issue a citation accordingly. Upon the return of the citation, a decree, requiring the testamentary trustee to give such security, may be made, in a case where a person so named as executor can entitle himself to letters testamentary, only by giving a bond; but not otherwise. From Id. § 2816. Security; how given. The security, given as prescribed in the last section, must be a bond to the same effect, and in the same form, as an executor's bond. Each provision of this chapter, applicable to the bond of an executor, or 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, apply to the bond so given, and to the parties thereto. From Id. See § 2595, 2601, 2603, 2604, 2607, 2645. § 2817. Removal of testamentary trustee. In either of the following cases, a person beneficially interested in the execution of the trust, may present to the surrogate's court, a written petition, duly verified, setting forth the facts, and praying for a decree removing a testamentary trustee from his trust; and that he may be cited to show cause why such a decree should not be made: 1. Where, if he was named in a will as executor, letters testamentary would not be issued to him, by reason of his personal disqualification or incompetency. 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 property committed to his charge, or by reason of other misconduct in the execution of his trust, or dishonesty, drunkenness, improvidence, or want of understanding, he is unfit for the due execution of his trust. 3. Where he has failed to give a bond, as required by a decree, made as prescribed in the last two sections; or has wilfully refused, or without good cause neglected to obey, a direction of the surrogate, contained in any other decree, or in an order, made as prescribed in this title; or any provision of law relating to the discharge of his duty. From Id. § 2818. Appointment of successor. When a person named in a will as sole testamentary trustee dies prior to the probate of the will, or by an instrument in writing renounces his appointment or when a sole testamentary trustee dies, or becomes a lunatic, or is, by a decree of the surrogate's court, removed or allowed to resign, and the trust has not been fully executed, the same court may appoint his successor; unless such an appointment would contravene the express terms of the will. Where one of two or 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. Settlement of his ARTICLE FIRST. 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 to appoint a general guardian, of the person or of the property, or 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 fourteen. 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 JUS CT 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 genèral 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. |