gate fixes; and directing that, in default thereof, his letters be revoked. L. 1837, ch. 460, 27, amended; L. 1862, ch. 229 (4 Edm. 492). Matter of Hart, 3 Redf. 156; Pattullo's Estate, 1 Tuck. 140. § 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. Id., 28, amended. § 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. Id., 29 and 30; Laws 1862, ch. 229, and L. 1876, ch. 278. § 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 satisfaction 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. L. 1837, ch. 460, 31 and 32; L. 1862, ch. 229 (4 Edm. 493), amended. Stevens . Stevens, 3 Redf. 507; Lewis v. Watson, id. 43. § 2602. Surrogate may direct as to custody, where co-executors, etc., disagree. Where two or more coexecutors 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 discretion, 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. New. Burt v. Burt, 41 N. Y. 46; Quackenbush v. Southwick, id. 117. $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, 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. 2 R. S. 62.38 (2 Edm. 62); 2 R. S. 77, 78, 22 40, 46 and 47 (2 Edm. 78, 80), amended. § 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. New. 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. 2 R. S. 77, 840 (2 Edm. 78); 2 R. S. 153, § 17 (2 Edm. 159); L. 1865, ch. 733, 1 (6 Edm. 583). § 2606. Accounting by executor, etc., of deceased executor.- Where an executor, administrator, guardian, or testamentary trustee dies, the surrogate's 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 the guardian's ward, to compel the executor or administrator of the decedent to account for and deliver over any of the trust property which has come to his possession, or is under his control, which it would have as against the decedent, if his letters had been revoked. New. 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. L. 1837, ch. 460, 265 (4 Edm. 498). Browning v. Vanderhoven, 4 Abb. N. C. 166; Scofield . Churchill, 72 N. Y. 565; Richardson v. West, ct. app., Feb. 1850, 21 Alb. L. J. 396; Townsend e. Whitney, 75 N. Y. 423; People v. Rowland, 5 Barb. 449; People v. Downing, 4 Sandf. 189; Cridler . Curry, 44 How. 345; Brewster. Balch, 41 N. Y. Super. 63; People ex rel. Laws, 4 Abb. 292; 8. c., 3 id. 450; People v. Corlies, 1 Sandf, 228; People v. Barnes, 12 Wend. 492: Mundorf v. Wangler, 44 N. Y. Super. 495; People v. Guild, 4 Den. 551; Mahoney r. Gunter, 10 Abb. 431; Behrle v. Sherman, 10 Bosw, 292; Field v. Van Cott, 15 Abb. N. S. 349; People v. Dunlap, 13 Johns. 437. 2608. Successor may prosecute official bond.— Where letters have been revoked by a decree of the surrogate's court, 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. 2 R. S. 85, 21 (2 Edm. 87). Mundorff. Wangler, 44 N. Y. Super. 495; Richardson v. West, 21 Alb. L. J. 396, ct. app.; People v. Corlies, 1 Sandf. 228. § 2609. Action on official bond when no successor is 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. New. Hood . Hood, 19 Hun, 300; People v. Guild, 4 Den. 551; Thayer v. Clark, 48 Barb. 243; People v. Laws, 4 Abb. Pr. 292; Cridler . Curry, 44 How. Pr. 345; Strong e. Wheaton, 38 Barb. 623. $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. New. TITLE III. 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. 3. Probate of heirship. 4. Grant of letters of administration. 5. Temporary administration. 6. Revocation of letters testamentary and letters of administra tion. 7. Foreign wills; ancillary letters. |
