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$ 2598. Id. ; how principal may be required to give a new bond, etc. Upon the return of a citation, issued as prescribed in the last section, the surrogate must hear the allegations and proofs of the parties; and if the objections, or any of them, are found to be valid, he must make an order, requiring the principal in the bond to give new or additional sureties, or a new bond in a larger penalty, as the case requires, within such a reasonable time, not exceeding five days, as the surrogate fixes; and directing that, in default thereof, his letters be revoked.
$ 2599. Decree revoking letters for failure to give new bond. If a bond with new or additional sureties, or, in a larger penalty, is approved and filed in the surrogate's office, as required by such an order, the surrogate must make a decree, dismissing the proceedings, upon such terms, as to costs as justice requires; otherwise he must make a decree, removing the delinquent from office, and revoking the letters issued to him.
$ 2600. Sureties may apply to be released, as to future breaches. Any or all of the sureties in a bond, taken as prescribed in this chapter, may present a petition to the surrogate's court, praying to be released from responsibility, on account of any future breach of the condition of the bond; and that the principal in the bond may be cited to show cause, why he should not give new sureties. The surrogate must thereupon issue a citation accordingly.
$ 2601. Release of old sureties on the giving of new. Upon the return of a citation, issued as prescribed in the last section, if the principal in the bond files in the surrogate's office a bond in the usual form, with new sureties to the satisf on of the surrogate, then or within such a reasonable time, not exceeding five days, as the surrogate fixes, the surrogate must make a decree, releasing the petitioner from liability upon the bond for any subsequent act or default of the principal; otherwise he must make a decree, revoking the delinquent's letters.
$ 2602. Surrogate may direct as to custody, where co-executors, etc., disagree. Where two or more co-executors or co-administrators disagree, respecting the custody of money or other property of the estate ; or two or more testamentary trustees or guardians of the property disagree, respecting the custody of money or other property, belonging to a fund or an estate which is committed to their joint charge; the surrogate may, upon the application of either of them, or of a creditor or person interested in the estate, and proof, by affidavit, of the facts, make an order, requiring them to show cause, why the surrogate should not give directions in the premises. Upon the return of the order, the surrogate may, in his direction, make an order, directing that any property of the estate or fund be deposited in a safe place, in the joint custody of the executors, administrators, guardians, or testamentary trustees, as the case requires, or subject to their joint order; or that the money of the estate be deposited in a specified safe bank or trust company, to their joint credit, and to be drawn out upon their joint order. Disobedience to such a direction may be punished as a contempt of the court.
$ 2603. Effect and contents of decree revoking letters. Upon the entry of a decree, made as prescribed in this chapter revoking letters, issued by a surrogate's court to an executor, administrator, or guardian, his powers cease. The decree may, in the discretion of the surrogate, require him to account for all money and other property received by him; and to pay and deliver over all money and other property in his hands into the surrogate's court, or to his successor in office, or to such other person as is authorized by law to receive the same; or it may be made without prejudice to an action or special proceeding for that purpose, then pending, or thereafter to be brought. The revocation does not affect the validity of any act, within the powers conferred by law upon the executor or administrator, or guardian, done by him before the service of the citation, where the other party acted in good faith ; or done after the service of the citation, and before entry of the decree, where his powers with respect thereto were not suspended by service of the citation, or where the surrogate, in a case prescribed by law, permitted him to do the same, notwithstanding the pendency of the special proceeding against him; and he is not liable for such an act done by him in good faith.
$ 2604. The last section qualified. The last section does not affect the liability of a person, to whom money or other property has been paid or delivered, as husband, wife, next of kin, or legatee, to respond to the person lawfully entitled thereto, where letters are revoked, because a supposed decedent is living; or because a will is discovered, after administration has been granted in a case of supposed intestacy, or revoking a prior will upon which letters were granted.
$ 2605. Successor may be appointed, and may compel accounting, etc. Where letters have been revoked by a decree of the surrogate's court, that court has, except in a case where it is otherwise specially prescribed by law, the same power to appoint a successor to the person whose powers have ceased, as if the letters had not been issued. The successor may complete the execution of the trust committed to his predecessor; he may continue, in his own name, a civil action, or special proceeding, pending in favor of his predecessor; and he may enforce a judgment, order, or decree, in favor of the latter. The surrogate's court has the same jurisdiction, upon the petition of the successor, or of a remaining executor, administrator, guardian or trustee, to compel the person whose letters have been revoked, to account for, or deliver over money or other property, and to settle his account, which it would have upon the petition of a creditor or person interested in the estate, if the term of office, conferred by the letters, had expired by its own limitation.
$ 2606. Accounting by executor, et cetera, of deceased executor. Where an executor, administrator, guardian or testamentary trustee dies, the surrogates' court has the same jurisdiction, upon the petition of his successor, or of a surviving executor, administrator or guardian, or of a creditor, or person interested in the estate, or of a guardian's ward, or the legal representative of a deceased ward, or a surety upon the official bond of the decedent, or the legal representative of a deceased surety, to compel the executor or a lininistrator of the decedent to account, which it would have against the decedent if his letters have been revoked by a surrogate's decree. And an executor or administrator of a deceased executor, administrator, guardian, or testamentary trustee may voluntarily account for any of the trust property which comes to his possession, and upon his petition such successor or surviving executor, administrator, or guardian or other necessary party shall be cited and required to attend such settlement. With respect to the liability of the sureties in, and for the purpose of maintaining an action upon the decedent's oflicial bond, a decree against his executor or adminis'rator, rendered upon such an accounting, bus the same effect as if an execution issued upon a surrogate's decree agitinst the property of decedent had been returned unsatisfied during decedent's life-time. So far as concerns the executor or administrator of decedent, such a decree is not within the provisions of section twenty-five hundred and fifty-two of this act. The surrogate's court has also jurisdiction to compel the executor or administrator at any time to deliver over any of the trust property which has come to his possession or is under his control, and if the same is delivered over after a decree, the court must allow such credit upon the decree as justice requires. (AM'D BY CR. 248 OF 1897. In effect Sept. 1, 1897.]
$ 2607. When bond may be prosecuted. Where an execution, issued upon a surrogate's decree, against the property of an executor, administrator, testamentary trustee, or guardian, has been returned wholly or partly unsatisfied, an action, to recover the sum remaining uncollected, may be maintained upon his official bond, by and in the name of the person in whose favor the decree was made. If the principal debtor is a resident of the State, the execution must have been issued to the county where he resides.
§ 2608. Successor may prosecute official bond. Where letters have been revoked by a decree of the surrogate's conrt, the successor of the executor, administrator, or guardian, whose letters are so revoked, may maintain an action upon his predecessor's official bond, in which he may recover any money, or the full value of any other property, received by the principal in the bond, and not duly administered by him; and to the full extent of any injury, sustained by the estate of the decedent or of the infant, as the case may be, by any act or omission of the principal. The money, recovered in such an action, is regarded as part of the estate in the hands of the plaintiff, and must be distributed or otherwise disposed of accordingly; except that a recovery for an act or omission, respecting a right of action, or other property, appropriated by law for the benefit of the husband, wife, family, or next of kin of a decedent, or disposed of by a will for the benefit of any person, is for the benefit of the person or persons so entitled thereto.
§ 2009. Action on official bond, when no successor appointed. Where the letters of an executor or administrator have been so revoked, and no successor is appointed, any person aggrieved may, upon obtaining an order from the surrogate, granting him leave so to do, maintain an action upon the official bond of the executor or administrator, in behalf of himself and all others interested; in which the plaintiff may recover any money, or the full value of any other property, received by the principal in the bond, and not duly administered by him, and to the full extent of any injury, sustained by the estate of the decedent, by any act or omission of the principal. The money recovered in such an action must be paid, by the sheriff or other officer who collects it, into the surrogate's court; and the surrogate must distribute it to the creditors or other persons entitled thereto. The proceedings for such a distribution are the same as prescribed in title fifth of this chapter, for the distribution of the proceeds of a sale of real property.
§ 2610. Application of this article to executors, etc., heretofore appointed. The provisions of this article apply to an executor, administrator, or guardian, to whom letters have been issued, and to a testamentary trustee whose trust has been created, before this chapter takes effect; except that it does not affect, in any manner, the liability of the sureties in a bond, executed before this chapter takes effect.
Granting and revoking probate, letters testamentary, and letters of administration,
Foreign wills; ancillary letters.
ARTICLE 1. Probate of a will and grant of letters thereupon.
2. Revocation of probate.
PROBATE OF A WILL AND GRANT OF LETTERS THEREUPON.
WECTION 2611. What wills may be proved; change of residence not to affect validity.
2612. Persons incompetent to serve as executors.
of executors before letters of administration with the will annexed.
SECTION 2614. Who may propound will.
2615. Who to be cited thereupon.
$ 2611. What wills may be proved; change of residence not to affect validity. A will of real or personal property, executed as prescribed by the laws of the state, or a will of personal property executed without the state, and within the United States, the dominion of Canada, or the kingdom of Great Britain and Ireland, as prescribed by the laws of the state or country where it is or was executed, or a will of personal property executed by a person not a resident of the state, according to the laws of the testator's residence, may be proved as prescribed in this article. The right to have a will admitted to probate, the validity of the execution thereof, or the validity or construction of any provision contained therein, is not affected by a change of the testator's residence made since the execution of the will. This section applies only to a will executed by a person dying after April eleven, eighteen hundred and seventy-six, and it does not in. validate a will executed before that date, which would have been valid but for the enactment of sections one and two of chapter one hundred and eighteen of the laws of eighteen hundred and seventy-six, except where such a will is revoked or altered by a will which those sections rendered valid, or capable of being proved as prescribed in this article. Am'd by chap. 686 of 1893. Code, SS 2611, 2612, 2613, consolidated.
$ 2612. Persons incompetent to serve as executors. is competent to serve as an executor who, at the time the will is proved, is :
1. Incapable in law of making a contract. 2. Under the age of twenty-one years.
3. An alien not an inhabitant of this state ; or
5. Who, on proof, is found by the surrogate to be incompetent to execute the duties of such trust by reason of drunkenness, dishonesty, improvidence or want of understanding. If any such person be named as the sole executor in a will, or if all the persons named therein as executors be incompetent, letters of administration with the will annexed must be issned as in the case of all of the executors renouncing. A surrogate, in his discretion, may refuse to grant letters testamentary or of administration to a person unable to read and write the English language. Am'd by chap. 686 of 1893.
$ 2613. Supplementary letters; executors not named in letters not to act; power of executor before letters of administration with the will annexed. — If the disability of a person under age, or an alien named as executor in a will, be removed before the execution of a provision of such will is completed, he shall be entitled, on application, to supplementary letters testamentary, to be issued in the same manner as the original letters, and authorized to join in the execution of the will with the persons previously appointed. A person named in a will as executor, and not named as such in the letters testamentary or in letters of administration with the will annexed, shall be deemed to be superseded thereby, and shall have no power or authority whatever as such executor until he appears and qualifies. An executor named in a will has no power to dispose of any part of the estate of the testator before letters testamentary are granted, except to pay funeral charges, nor to interfere with such estate in any manner further than is necessary for its preservation. Where letters of administration with the will annexed are granted, the will of the deceased shall be observed and performed ; and the administrators, with such will, have the rights and powers and are subject to the same duties as if they had been named esecutors in the will.
Am'd by chap. 686 of 1893.
$ 2614. Who may propound will.-A person designated in a will as executor. devi. see, or legatee, or any person interested in the estate, or a creditor of the decedent, or any party to an action brought or about to be brought, anii interested in the subject thereat, in which action the decedent, if living, would be a proper party, may present to the surrogate's court having jurisdiction, a written petition, duly verified, describing the will, setting forth the facts, upon which the jurisdiction of the court to grant probate thereof depends, and praying that the will may be proved, and that the persons, specitied in the next seo tion, may be cited to attend the probate thereof. Upon the presentation of such a petition, the surrogate must issue a citation accordingly. [AM'D BY CH. 177 OF 1897." In effect April 3, 1897.]
$ 2615. Who to be cited thereupon. The following persons must be cited upon a petition presented as prescribed in the last section:
1. If the will relates exclusively to real property, the husband or wife, if
any, and all the heirs of the testator. 2. If the will relates exclusively to personal property, the husband or wife, if any, and all the next of kin of the testator.
3. If the will relates to both real and personal property, the husband or wife, if any, and all the heirs, and all the next of kin of the testator. [AM'D BY CH. 118 OF 1894. To take effect September 1, 1894).