id. 24; Forsyth v. Burr, 37 Barb. 540; Waring v. Waring, 1 Redf. 205; Matter of Butler, 38 N. Y. 397; Zilkin v. Carhart, 3 Bradf. 376; Sheerin v. Public Administrator, 2 Redf. 421; Young v. Young, 5 Week. Dig. 109; Jerome v. Jerome, 18 Barb. 24.

§ 2716. Id.; how discharged from commitment. A person committed to jail, upon the return of a warrant of attachment, issued as prescribed in the last section, may be discharged by the surrogate, or a justice of the supreme court, upon his paying and delivering, under oath, all the money and other property of the decedent, and all papers relating to the estate, under his control, to the surrogate, or to a person authorized by the surrogate to receive the same.

2 R. S. 86, 22 (2 Edm. 88).

2717. Petition by creditor or legatee to compel payment. In either of the following cases, a petition may be presented to the surrogate's court, praying for a decree directing an executor or administrator to pay the petitioner's claim, and that he may be cited to show cause, why such a decree should not be made:

1. By a creditor, for the payment of a debt, or of its just proportional part, at any time after six months have expired since letters were granted.

2. By a person entitled to a legacy, or any other pecuniary provision under the will, or a distributive share, for the payment or satisfaction thereof, or of its just proportional part, at any time after one year has expired since letters were granted.

2 R. S. 116, part of 18 (2 Edm. 120). Stagg v. Jackson, 1 N. Y. 206; Babcock v. Lillis, 4 Bradf. 218; 8. c., Sellis' Case, 4 Abb. 272; Thompson v. Taylor, 71 N. Y. 217; House v. Agate, 3 Redf. 307.

§ 2718. Hearing; decree. Upon the presentation of a petition, as prescribed in the last section, the surrogate must issue a citation accordingly; and, upon the return thereof, he must make such a decree in the premises, as justice requires. But in either of the fol lowing cases, the decree must dismiss the petition, without prejudice to an action or an accounting, in behalf of the petitioner:

1. Where the executor or administrator files a written answer, duly verified, setting forth facts which show that it is doubtful, whether the petitioner's claim is valid and legal, and denying its validity or legality, absolutely, or upon information and belief.

2. Where it is not proved, to the satisfaction of the surrogate, that there is money or other personal property of the estate, applicable to the payment or satisfaction of the petitioner's claim, and which may be so applied, without injuriously affecting the rights of others, entitled to priority or equality of payment or satisfaction.

New. Tucker v. Tucker, 4 Keyes, 149: Campbell v. Bruen, 1 Bradf. 224; Thompson v. Taylor, 72 N. Y. 32; Gilman v. Gilman, 63 id. 41: Ruthven v. Patten, Rob. 416; McNulty v. Hurd, 72 N. Y. 518; changing rul ings in 11 Hun, 339; Stilwell v. Carpenter, 2 Abb. N. C. 238; 59 N. Y. 414; Clapp . Meserole, 1 Abb. Ct. App. Dec. 362; Dubois v. Dubois, 6 Cow. 494; Thayer v. Clark, 4 Abb. 391; 8. C., 48 Barb. 243; Ryer's Estate, I Tuck. 128; Sayre . Ladd, 7 Week. Dig. 302; Dubois' Case, 3 Abb. 177; Babcock v. Lillis, 4 Bradf. 218; 4 Abb. 272; Curtis v. Stilwell, $2 Barb. 354; Forman v. Lawrence, 6 T. & C. 640.

§ 2719. Decree for payment of legacy, etc., on giving security. In a case specified in subdivision second of the last section but one, the surrogate may, in his discretion, entertain the petition, at any time after letters are granted, although a year has not expired. In such a case, if it appears, upon the return of the citation, that a decree for payment may be made, as prescribed in the last section; and that the amount of money, and the value of the other property, in the hands of the executor or administrator, applicable to the payment of debts, legacies, and expenses, exceed, by at least one third, the amount of all known debts and claims against the estate, of all legacies which are entitled to priority over the petitioner's claim, and of all legacies or distributive shares of the same class; and that the payment or satisfaction of the legacy, pecuniary provision, or distributive share, or some part thereof, is necessary for the support or education of the petitioner; the surrogate may, in his discretion, make a decree, directing payment or satisfaction accordingly, upon the filing of a bond, approved by the surrogate, conditioned as prescribed by law, with respect to a bond which an execu tor, or an administrator with the will annexed, may require from a legatee, upon payment or satisfaction of a legacy, before the expiration of one year from the time when letters were issued, pursuant to a direction to that effect, contained in the will.

2 R. S. 98, 82, 83 (2 Edm. 102). La Bau . Vanderbilt, 3 Redf. 385; Dodge v. Pond, 23 N. Y. 69; Lockwood v. Lockwood, 3 Redf. 330; Barnes v. Barnes, 13 Hun, 233; Keteltas v. Green, 9 id. 599; 72 N.Y. 312; Seymour v. Butler, 3 Bradf. 193.

§ 2720. Proceedings against executor, etc., for not setting apart exempt property.- Where an executor or administrator has failed to set apart property for a surviving husband, wife, or child, as prescribed by law, the person aggrieved may present a petition to the surrogate's court, setting forth the failure, and praying for a decree, requiring him to set apart the property accordingly; or, if it has been lost, injured, or disposed of, to pay the value thereof, or the amount of the injury thereto; and that he may be cited to show cause why such a decree should not be made. If the surrogate is of the opinion that sufficient cause is shown, he must issue a citation accordingly. Upon the return of the citation, the surrogate must make such a decree in the premises as justice requires. In a proper case, the decree may require the executor personally to pay the value of the property, or the amount of the injury thereto.

New; see L. 1842, ch. 157, 2, and L. 1867, ch. 782, 13. Sheldon v. Bliss, 8 N. Y. 31; Voelkner . Hudson, 1 Sandf. 215; Kain . Fisher, 6 N. Y. 597; Knapp v. Public Administrator, 2 Bradf. 258; Vedder v. Saxton, 46 Barb. 185; Brigham v. Bush, 33 id. 596; Scofield v. Scofield, 6 Hill, 642; Applegate v. Cameron, 2 Bradf. 119; Ames v. Downing, id. 321; 8 N. Y. Leg. Obs. 317; Banks v. Taylor, 10 Abb. 199; Clayton v. Wardell, 2 Bradf. 1; Cornwell v. Deck, 2 Redf, 87.

§ 2721. Id.; upon judicial settlement. The decree, made upon a judicial settlement of the account of an executor or administrator, may award to a surviving husband, wife, or child, the same relief which may be awarded, in his or her favor, upon a petition presented as prescribed in the last section.

New.

Cornwell v. Deck, 2 Redf. 87.

ARTICLE SECOND.

ACCOUNTING AND SETTLEMENT OF THE ESTATE.

SEC. 2722. Intermediate accounting; when voluntary.

2723. Id.; when compulsory.

2724, 2725. When surrogate may require judicial settlement of

account.

2726. Who may apply for accounting; citation thereupon.

2727. Order to account; supplemental citation.

2728. Person cited may bring in other parties; proceedings there

upon.

2729. Executor, etc., may petition for Judicial settlement; citation thereupon.

2730. Hearing.

2731. Creditor, etc., not cited, may contest.

SEC. 2732. Executor whose letters have been revoked may petition.

Proceedings.

2733. Affidavit to be annexed to account.

2734. Vouchers to be produced.

2735. Accounting party to be examined, etc.

2736. Compensation of several executors or administrators.

2737. When compensation not allowed.

2738. One compensation allowed on different letters.

2739. Surrogate may determine certain claims.

2740. Effect of the statute of limitations on such claims.

2711. Surrogate may allow for property lost, etc.

2742. Effect of judicial settlement of account.

2743. Decree for payment and distribution.

2744. Id.; when specific property may be delivered.

2745. Id.; when money may be retained.

2746. Id.; share of infant.

2747. Legacy, etc., to unknown person to be paid into State treas

ury.

2748. When legacy, etc., to be paid to county treasurer.

§ 2722. Intermediate accounting; when voluntary. -An executor or administrator may, at any time, voluntarily file in the surrogate's office an intermediate account, and the vouchers in support of the same.

New.

2723. Id.; when compulsory.- 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 upon a judgment against the execu tor or administrator, has been made by the judgment creditor, as prescribed in section 1826 of this act.

2. Upon the return of a citation, issued upon the petition of a judgment creditor, praying for a decree, granting leave to issue an execution upon a judgment rendered against the decedent in his life-time, as prescribed in section 1381 of this act.

3. Upon the return of a citation, issued upon the petition of a creditor, or person entitled to a legacy, or other pecuniary provision, or a distributive share, pray. ing for a decree directing payment thereof, as prescribed in section 2717 of this act.

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

Sey

2 R. S. 116, 83 18 and 20 (2 Edm. 120); 2 R. S. 92. 52 (2 Edm. 94). mour v. Seymour, 4 Johns. Ch. 409; Foster e. Wilber, 1 Palge, 537: Rog

ers v. King, 8 id. 210; Westervelt v. Gregg, 1 Barb. Ch. 469; Mount r. Mitchell, 31 N. Y. 363.

2724. 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 title fifth of this chapter, 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 devisable interest in real property, or the rents, profits, or proceeds thereof, pursuant to a power contained in the decedent's will. 2 R. S. 92, 52 and 68 (2 Edm. 94, 98); L. 1837, ch. 460, 36 (4 Edm. 493); L. 1865, ch. 733, § 1 (6 Edm. 583); 2 R. S. 166, 34, 57 (2 Edm. 110, 113). Bogart r. Van Velsor, 4 Edw. 718; Harris . Ely, 25 N. Y. 138; Valentine r. Valentine, 2 Barb. Ch. 430; Gerould v. Wilson, 16 Hun, 530; Stagg r. Jackson, I N. Y. 206; s. c., 2 Barb. Ch. 86; Bloodgood v. Bruen, 2 Bradf 8: Clarke v. Clarke, 8 Paige, 152; Lawrence's Estate, 1 Tuck.68; Wever r. Marvin, 14 Barb. 376; 7 How. 182; Farrell's Estate, 1 Tuck. 110: Stouvenell's Estate, id. 241; Ex parte Jones, 1 Redf. 263; s. c., 5 N. Y. Leg. Obs. 124.

$2725. The same. The surrogate's court may compel a judicial settlement of the account of a temporary administrator, at any time. It may also compel a judicial settlement of the account of a freeholder, appointed to dispose of a decedent's real property, or interest in real property, as prescribed in title fifth of this chapter, in like manner as where the same has been disposed of by the executor or administrator.

L. 1864, ch. 71, 7 (6 Edm. 233); 2 R. S. 104, § 24 (2 Edm. 108).

2726. Who may apply for accounting; citation thereupon. A petition, praying for the judicial settlement of an account, and that the executor or adminis trator may be cited to show cause, why he should not render and settle his account, may be presented, in a case prescribed in either of the last two sections, by a creditor, or a person interested in the estate or fund, in