§ 433. Executor of deceased executor may be required to deliver trust property.-The surrogate's court may at any time compel the executor or administrator of a deceased executor, administrator, guardian or testamentary trustee to deliver to the person entitled thereto, any of the trust property which has come to his possession or is under his control; and if the same is delivered after a decree the court must allow such credit on the decree as justice requires. [Code, § 2606, last sentence, rewritten but without intended change of substance.]

§ 434. Voluntary intermediate accounting.-An executor or administrator may at any time voluntarily file in the surrogate's office an intermediate account and the vouchers in support thereof. [Code, § 2725, first sentence, without change.]

§ 435. Compulsory intermediate accounting.-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 1826 of the code of civil procedure.

2. On the return of a citation, issued on the petition of a judg ment 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 1381 of the code of civil procedure.

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 575 of this code.

4. Where eighteen months have elapsed since letters were issued and no proceeding on a petition for a judicial settlement of the executor's or administrator's account is pending.

[Code, § 2725, without change except that the first sentence is omitted and made a separate section 434.]

§ 436. 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 Where letters issued to him have been revoked, or for any other reason his powers have ceased.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 article sixteen of this code, 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.

[Code, § 2726, without change except that the words "title fifth," are omitted as unnecessary; and the last two sentences are omitted, and made separate sections 437, 438.]

§ 437. Judicial settlement by temporary administrator.-The surrogate's court may compel a judicial settlement of the account of a temporary administrator at any time.

[Code, § 2726, next to last sentence, without change.]

§ 438. Judicial settlement by freeholder.-The surrogate's court may compel the judicial settlement of the account of a freeholder appointed to dispose of a decedent's real property under this code, in the same manner as if the property had been disposed of by an executor or administrator.

[Code, § 2726, last sentence, without change.]

§ 439. Application by executor or administrator for judicial settlement of account.-An executor or administrator may apply for a judicial settlement of his account in either of the following

cases:

1. Where one year has elapsed since letters were issued to him;

2. Where a notice requiring all persons having claims against the decedent to exhibit the same with the vouchers thereof to such executor or administrator, has been duly published according to law;

3. Where letters issued to him have been revoked.

[Code, § 2728, first clause, subds. 1 and 2, and the last sentence. It is provided in the present law that 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." It is proposed as a substitute therefor, to provide that he "may apply for a judicial settlement of his account," etc. By section 81 all applications unless otherwise provided are to be by "written petition duly verified." This makes it unnecessary to repeat in this section the language of the present law. For contents of the petition see the following section.]

§ 440. Contents of petition.-The petition must pray that the following persons be cited:

1. The sureties in the official bond of the executor or adminis trator, or the legal representatives of a surety.

2. All creditors or persons claiming to be creditors of the decedent, except such as by vouchers annexed to the petition appear to have been fully paid.

3. 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.

4. If the petition is presented by one of two or more co-executors or co-administrators, and prays for a judicial settlement of his separate account, it must also pray that his co-executors or co-administrators be also cited.

5. If the letters issued to the petitioner have been revoked, his successor, if any.

[Code, § 2728. The first three subdivisions are contained in the first clause of such section. Subd. 4 is contained in the second sentence of the second paragraph; and subd. 5 is now in the last sentence of that section. The proposed section is new in form but contains no new law.]

§ 441. Settlement of account.-On the return of a citation for such settlement the surrogate must take the accounts and hear the allegations and proofs of the parties respecting the same. Any party may contest the accounts with respect to a matter affecting his interests in the settlement and distribution of the estate.

[Code, § 2728, fourth and fifth sentences of the second paragraph, without change.]

§ 442. Contest of intermediate account.-Any party may contest an intermediate account rendered under section 435, if it is not consolidated under section 449.

[Code, § 2728, third sentence from the end, without change.]

§ 443. Who may apply for compulsory accounting.—An application for a judicial settlement of the account of an executor or administrator may be made:

1. By a creditor or a person interested in the estate or fund, including a child born after the making of a will.

2. By any person in behalf of a minor interested in the estate or fund.

3. By a surety in the official bond of the person required to account, or the legal representative of such a surety.

[Code, § 2727, first sentence, rewritten but without intended change of substance. For contents of the petition see the next section.]

§ 444. Petition.-The application must be by petition, which must pray for the judicial settlement of the account, and that the executor or administrator be cited to show cause why he should not render and settle his account.

[Code, § 2727, a part of the first sentence, rewritten but without intended change of substance.]

§ 445. When citation in discretion of surrogate. If the petition is presented after one year and within eighteen months after letters were issued to the executor or administrator, the surrogate may entertain or decline to entertain it in his discretion.

[Code, § 2727, a part of the second sentence. The words "on the presentation of such a petition a citation must be issued accordingly, except, etc.," are omitted as unnecessary in view of the general provisions of section 82 of the revision which provides for the issuance of citations upon the presentation of petitions. The present law provides that "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," etc. By the use of the language proposed in the above section there is no change in effect, and the reference to another section is avoided.]

§ 446. Supplementary citation, if surplus shown.-If it appears on a compulsory accounting that there is a surplus distributable to creditors or to persons interested, the surrogate may at any time issue a citation directed to the persons who must be cited on the petition of an executor or administrator for a judicial settlement of his account.

[Code, § 2727, fourth sentence from the end rewritten, but without intended change. The words "and requiring them to attend the accounting" are omitted as unnecessary.]

$447. Proceedings on return of citation.-On the return of a citation for a compulsory accounting, if the executor or administrator fails either to appear or to show cause to the contrary, or to present in the proper case a petition for a voluntary accounting, an order must be made directing him to account within such time and in such 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.

[Code, § 2727, third and fourth sentences rewritten, but without intended change in substance. The words "citation for a compulsory accounting" in the first clause of the first sentence.