guardian of an infant's property, appointed by letters issued from his court, has omitted to file his annual inventory or account, or the affidavit relating thereto, as prescribed in the last section but one; or if the surrogate is of the opinion, that the interest of the ward requires that the guardian should render a more full or satisfactory inventory or account; the surrogate must make an order, requiring the guardian to supply the deficiency, and also, in his discretion, requiring the guardian personally to pay the expense of serving the order upon him. Where the guardian fails to comply with such an order, within three months after it is made; or where the surrogate has reason to believe that sufficient cause exists for the guardian's removal, the surrogate may, in his discretion, appoint a fit and proper person special guardian of the ward, for the purpose of filing a petition in his behalf, for the removal of the guardian, and prosecuting the necessary proceedings for that purpose.

Id., 60.

2846. Surrogate may direct as to infant's maintenance. Upon the petition of the general guardian of an infant's person or property; or of the infant; or of any relative or other person in his behalf; the surrogate, upon notice to such persons, if any, as he thinks proper to notify, may make an order, directing the application, by the guardian of the infant's property, to the support and education of the infant, of such a sum as to the surrogate seems proper, out of the income of the infant's property; or, where the income is inadequate for that purpose, out of the principal.

New. Wilcox v. Wilcox, 14 N. Y. 575; Wood v. Wood, 5 Paige, 596; In re Parker, 1 Barb. Ch. 154; Morgan v. Hannas, 13 Abb. N. S. 361.

2847. When judicial settlement of guardian's account compelled. A written petition, duly verified, praying for the judicial settlement of the account of a general guardian of an infant's property, and that he may be cited to attend the settlement thereof, may be presented to the surrogate's court, in either of the following cases:

1. By the ward, after he has attained his majority. 2. By the executor or administrator of a ward, who has died.

3. By the guardian's successor, including a guardian appointed after the reversal of a decree, appointing the person so required to account.

2 R. S. 152, 11 (2 Edm. 158).

2848. Id.; as to guardian of person. A petition, for the judicial settlement of the account of a general guardian of an infant's person, may be presented, as prescribed in the last section, or by the general guardian of the infant's property; but, upon the presentation thereof, proof must be made to the surrogate's satisfac tion, that the guardian so required to account has received money or property of the ward, for which he has not accounted; or which he has not paid, or delivered, to the general guardian of the infant's property.

New. Farnsworth v. Oliphant, 19 Barb. 30.

S2849. When guardian may compel judicial settlement.—A guardian may present to the surrogate's court a written petition, duly verified, praying for a judicial settlement of his account, and a discharge from his duties and liabilities, in any case, where a petition for a judicial settlement of his account may be presented by any other person, as prescribed in either of the last two sections. The petition must pray that the person, who might have so presented a petition, may be cited to attend the settlement.

R. S., 12. Colon's Estate, 1 Tuck. 244.

§ 2850. Citation; proceedings thereupon. Upon the presentation of a petition, as prescribed in either of the last three sections, the surrogate must issue a citation accordingly. Section 2727, sections 2733 to 2738, both inclusive, and section 2741, of this act, apply to a guardian accounting, as prescribed in this article, and regulate the proceedings upon such an accounting. The accounting party must annex to every account produced and filed by him, an affidavit, in the form prescribed in this article, for the affidavit to be annexed by him to his annual inventory and account.

New see id., 20, 21, and 22. Willick v. Taggart, 17 Hun, 511; Carman v. Cowles, 2 Redf, 414; Torry v. Black, 58 N. Y. 185; Field r. Schieffelin, 7 Johns. Ch. 150; Chapman v. Tibbetts, 33 N. Y. 289; Tuttle r. Heavy, 59 Barb. 334; Burtis v. Brush, 1 Redf. 448; Rickard's Case, 15 Abb. N. S. 6; Low v. Purdy, 2 Lans. 422; Poultney v. Randall, 9 Bosw. 232; White v. Parker, 8 Barb. 48; Kirby v. Turner, Hopk. 309; Clark r. Montgomery, 23 Barb. 464; Elliott v. Gibbons, 30 id. 498; s. c. 31 N.

Y. 67; Hill . Hanford, 11 Hun, 536; Clark v. Clark, 8 Paige, 152; Harring v. Coles, 2 Bradf. 349; Matter of Kane, 2 Barb. Ch. 375; Rait . Rait, I Bradf. 315; De Peyster r. Clarkson, 2 Wend. 77; s. c., Hopk. 421; Torry r. Frazer, 2 Redf. 486; Knother. Kaiser, 2 Hun, 515; Thompson e. Brown, 4 Johns, Ch. 619; Wilcox r. Van Schaick, 19 Hun, 279; Evertson r. Evertson, 5 Paige, 644; Swartwout 2. Oaks, 52 Barb, 622; Matter of Jackson, 1 Tuck. 71: Seaman e. Duryea, 10 Barb. 523; s. c., 11 N. Y. 324; Hauenstein v. Kull, 59 How. 24; Thomas v. Bennett, 56 Barb, 197; Weed r. Ellis, 3 Cal. 254; Matter of Gill, 3 Hun, 20; Morgan . Hannas, 49 N. Y. 667; s.C., 13 Abb. N. S. 361; Clowes r. Van Antwerp, 4 Barb. 416; Matter of Kellogg, 7 Paige, 265; Foley e. Egan, 13 Abb. N. S. 316, n; Rapelje v. Hall, 1 Sandf. Ch. 399; Matter of Van Horne, 7 Paige, 46; Dakin r. Demming, 6 id. 95; Kirby v. Taylor, & Johns. Ch. 242; Fish v. Miller, Hoffm. 267.

ARTICLE THIRD.

GUARDIANS APPOINTED BY WILL OR DEED,

Sec. 2851. Will or deed containing appointment to be proved, etc., and recorded.

2852. Testamentary guardian; qualification, letters, etc.

2553. When security required from guardian appointed by will or deed.

2854. What security to be given.

2855. Inventory and intermediate account may be required.

2856. When surrogate may compel judicial settlement of account. 2857. Effect of decree.

2858. Removal of guardian appointed by will or deed.

2859. Resignation of such a guardian.

2860. Appointment of successor.

2851. Will or deed containing appointment to be proved, etc., and recorded. - A person shall not exercise, within the State, any power or authority, as guardian of the person or property of an infant, by virtue of an appointment contained in the will of the infant's father or mother, being a resident of the State, and dying after this chapter takes effect, unless the will has been duly admitted to probate, and recorded in the proper surrogate's court, and letters of guardianship have been issued to him thereupon; or by virtue of an appointment contained in a deed of the infant's father or mother, being a resident of the State, executed after this chapter takes effect, unless the deed has been acknowledged or proved, and certified, so as to entitle it to be recorded, and has been recorded in the office for recording deeds in the county, in which the person making the appointment resided, at the time of the execution thereof. Where a deed containing such an appointment is not recorded, within three months after the death of the grantor, the person appointed is presumed to have renounced the appointment; and if a

guardian is afterwards duly appointed by a surrogate's court, the presumption is conclusive.

Substituted for L. 1877, ch. 206, }} 4, 5, 6, and 7; see, also, 2 R. S. 150. 1-3. Thompson e. Thompson, 55 How 494; Matter of Pierce, 12 id. 532; Ruppert's Estate, 1 Tuck. 480; People v. Boice, 39 Barb, 307; People ex rel. Wamsley, 15 Abb. 323: Fullerton v. Jackson, 5 Johns Ch. 278; Hoytv. Hilton, 2 Edw. 202; Sackett's Estate, 1 Tuck. 84; Bostwick v. Atkins, 3 N. Y. 53; Haggerty v. Haggerty, 9 Hun, 175: Ex parte Reynolds, 11 id. 41; Geiston e. Shields, 16 id. 143; affirmed, Sept. 30, 1879, ct. app.; Corrigan v. Kiernan, I Brad. 208; Matter of Taylor, 3 Redf. 259.

$2852. Testamentary guardian; qualification, letters, etc. Where a will, containing the appointment of a guardian, is admitted to probate, the person appointed guardian must, within thirty days thereafter, qualify as prescribed in section 2594 of this act; otherwise he is deemed to have renounced the appointment. But the surrogate may extend the time so to qualify, upon good cause shown, for not more than three months. And any person interested in the estate may, before letters of guardianship are issued, file an affidavit, setting forth, with respect to the guardian so appointed, any fact which is made by law an objection to the issuing of letters testamentary to an executor. Sections 2636 to 2638 of this act, both inclusive, apply to such an affidavit, and to the proceedings thereupon. A person appointed guardian by will may, at any time before he qualifies, renounce the appointment by a written instrument, under his hand, filed in the surrogate's office.

See L. 1877, ch. 206, 4, 5, 6, and 7.

$2853. When security required from guardian appointed by will or deed.-Where a guardian of an infant's person or property has been appointed by will or by deed, the infant, or any relative or other person in his be half, may present, to the surrogate's court in which the will was admitted to probate; or to the surrogate's court of the county in which the deed was recorded; a written petition, duly verified, setting forth, either upon his knowledge, or upon his information and belief, any fact, respecting the guardian, 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 a bond, in order to entitle himself to letters; and praying for a decree, requiring the guardian 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, and proof of the facts therein alleged, to the satisfaction of the sur rogate, he must issue a citation accordingly. Upon the return of the citation, a decree requiring the guardian to give security may be made, in the discretion of the surrogate, in a case where a person so named as executor, can entitle himself to letters testamentary only by giving a bond; but not otherwise.

New.

§ 2854. What security to be given.- The security to be given, as prescribed in the last two sections, must be a bond to the same effect, and in the same form, as the bond of a general guardian, appointed by the surrogate's court. Each provision of this chapter, applicable to the bond of such a guardian, and 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; applies to the bond so given, and the parties thereto.

New.

2855. Inventory and intermediate account may be required. Upon the petition of the ward, or of any relative or other person in his behalf, the surrogate's court having jurisdiction to require security, as prescribed in the last three sections, may, at any time, in the discretion of the surrogate, make an order, requir ing a guardian, appointed by will or by deed, to render and file an inventory and account, in the same form, and verified in the same manner as the inventory and account, required to be filed annually by a guardian appointed by a surrogate's court, as prescribed in article second of this title. The order may also require such an inventory and account to be filed, in the month of January of each year thereafter. Sections 2842 to 2845 of this act, both inclusive, apply to such an inventory and account, and to the filing thereof, as if the guardian had been appointed by the surrogate's court.

New.

2856. When surrogate may compel judicial settlement of account. The surrogate's court, having