administration, on the ground of intestacy, have been granted, a will is admitted to probate, and letters are 'issued thereupon; or where, after letters have been issued upon a will, the probate thereof is revoked, or a subsequent will is admitted to probate, and letters are issued thereupon; the decree, granting or revoking probate, must revoke the former letters. 2 R. S. 78, 146 (2 Edm. 80); see 2603, ante. Newhouse v. Gale, 1 Redf. 217; Chapman . Fish, 6 Hill, 554; Bulkly . Redmond, 2 Brad. 281; Holland v. Ferris, id. 334; Matter of O'Neil, 2 Redf. 544; Matter of Harvey, 3 id. 214; Kircheis v. Scheig, id. 277; Oram v. Oram, id. 300. 2685. Revocation of letters for disqualification, misconduct, etc. In either of the following cases, & creditor, or person interested in the estate of a decedent, may present, to the surrogate's court, from which letters were issued to an executor or administrator, a written petition, duly verified, praying for a decree revoking those letters; and that the executor or administrator may be cited to show cause, why a decree should not be made accordingly: 1. Where the executor or administrator was, when letters were issued to him, or has since become, incompetent, or disqualified by law to act as such; and the grounds of the objection did not exist, or the objection not taken by the petitioner, or a person whom he represents, upon the hearing of the application for letters. was 2. Where, by reason of his having wasted or improperly applied the money or other assets in his hands, or invested money in securities unauthorized by law, or otherwise improvidently managed or injured the property committed to his charge; or by reason of other misconduct in the execution of his office, or dishonesty, drunkenness, improvidence, or want of understanding; he is unfit for the due execution of his office. 3. Where he has wilfully refused, or, without good cause, neglected, to obey any lawful direction of the surrogate, contained in a decree or order; or any provision of law, relating to the discharge of his duty. 4. Where the grant of his letters was obtained by a false suggestion of a material fact. 5. In the case of an executor, where his circumstances are such, that they do not afford adequate security to the creditors or persons interested, for the due administration of the estate. 6. In the case of an executor, where he has removed or is about to remove from the State, and the case is not one, where a non-resident executor would be entitled to letters without giving a bond. 7. In the case of an executor, where, by the terms of the will, his office was to cease upon a contingency, which has happened. 8. In the case of a temporary administrator, appointed upon the estate of an absentee, where it is shown that the absentee has returned; or that he is living, and capable of returning and resuming the management of his affairs; or that an executor, or an administrator in chief has been appointed upon his estate; or that a committee of his property has been appointed by a competent court of the State. 2 R. S. 72. 2 (2 Edm. 73): L. 1837, ch. 460, § 34 (4 Edm. 493). Hartnett r. Wandell, 60 N. Y. 346; 8. C., 16 Abb. N. S. 9; reversing, 2 Hun, 552; Newhouse v. Gale, 1 Redf. 217; Fosdick v. Delafield, 2 id. 392; Emerson r. Bowers, 14 N. Y. 449; Coope v. Lowerre, 1 Barb. Ch. 45; McMahon v. Harrison, 6 N. Y. 443; 10 N. Y. Leg. Obs. 289; s. c., 10 Barb. 639; Cogshall r. Green, 9 Inn, 471; Kerr v. Kerr, 41 N. Y. 272; Proctor v. Wanmaker, 1 Barb. Ch. 302; Oram v. Oram, 3 Redf. 300; Shields . Shields, 60 Barb. 56; Holmes v. Cock, 2 Barb. Ch. 426; Angevine's Estate, 1 Tuck. 215; Vredenburgh v. Calf, 9 Paige, 128; Mandeville v. Mandeville, 8 id. 475; Wood v. Wood, 4 id. 299. $2686. Petition; citation thereupon. - A petition, presented as prescribed in the last section, must set forth the facts and circumstances, showing that the case is one of those therein specified. Upon proof, by affidavit or oral testimony, satisfactory to the surrogate, of the truth of the allegations contained in the petition, a citation must be issued according to the prayer thereof; except that, where the case is within subdivision fifth of the last section, and the executor has given a bond, as prescribed in article first of this title, the surrogate may, in his discretion, entertain or decline to entertain the application. New. People ex rel. Hartman, 2 Sweeny, 576. 2687. Hearing; decree. - Upon the return of a citation, issued as prescribed in the last section, if the objections, or any of them, are established to the surrogate's satisfaction, he must make a decree, revoking the letters issued to the person complained of. But the surrogate may, in his discretion, dismiss the proceedings, upon such terms, as to costs, as justice requires, and may allow the letters to remain unrevoked, in either of the following cases: 1. Where the case is within subdivision third of the last section but one, if the direction of the surrogate or the provision of law is obeyed, and suitable amends made to each person injured by the neglect or refusal to obey it. 2. Where the case is within subdivision fourth of that section, if the person cited is entitled to letters, notwithstanding the false suggestion. 3. Where the case is within subdivision fifth of that section, if the executor gives, within a reasonable time, not exceeding five days, a bond, as prescribed in article first of this title. 2 R. S. 72, 20 and 21 (2 Edm. 74). Schofield v. Church, 72 N. Y. 565. 2688. Decree not to affect testamentary trusts.— Where an executor or an administrator is also a testamentary trustee, a decree revoking his letters does not affect his power or authority as testamentary trustee, except in the case specially prescribed for that purpose, in title sixth of this chapter. New. Settles conflict between Matter of Crossman, 20 How. 350, and Matter of Bull, 45 Barb. 334; 31 How. 69. 2689. Application by executor, etc., for revocation of letters. - An executor or administrator may, at any time, present, to the surrogate's court a written petition, duly verified, praying that his account may be judicially settled; that a decree may thereupon be made, revoking his letters, and discharging him accordingly; and that the same persons may be cited to show cause, why such a decree should not be made, who must be cited upon a petition for a judicial settlement of his account, as prescribed in article second of title fourth of this chapter. The petition must set forth the facts upon which the application is founded; and it must, in all other respects, conform to a petition praying for a judicial settlement of the account of an executor or administrator. The surrogate may, in his discretion, entertain or decline to entertain the applica. tion. L. 1870, ch. 359, 3. Flinn v. Chase, 4 Denio, 85. § 2690. Proceedings thereupon. If the surrogate entertains an application, made as prescribed in the last section, the proceedings thereupon must be, in all respects, the same, as upon a petition for a judicial settlement of the petitioner's account; except that, upon the hearing, the surrogate must first determine, whether sufficient reasons exist for granting the prayer of the petition. If he determines that they exist, he must make an order accordingly, and allowing the petitioner to account, for the purpose of being discharged. Upon his fully accounting, and paying over all money which is found to be due from him to the estate, and delivering over all books, papers, and other property of the estate in his hands, either into the surrogate's court, or in such a manner as the surrogate directs, a decree may be made, revoking the petitioner's letters, and discharging him accordingly. Id., part of 3. Matter of Bernstein, 3 Redf. 20. § 2691. In what cases letters may be revoked without a citation.- In either of the following cases, the surrogate must make a decree, revoking letters testamentary or letters of administration, issued from his court, without a petition or the issuing of a citation: 1. Where the person, to whom the letters were issued, is not a resident of the State, or is absent therefrom; and, upon being duly cited to account, neglects to appear upon the return of the citation, without showing a satisfactory excuse therefor; and the surrogate has not sufficient reason to believe that such an excuse can be made. 2. Where a citation, issued to such a person, in a case prescribed by law, cannot be personally served upon him, by reason of his having absconded or concealed himself. 3. Where, by reason of his default in returning an inventory, such a person has remained, for thirty days, committed to jail, under the surrogate's order, granted in proceedings taken as prescribed in section 2715 of this act. 4. In the case of a temporary administrator, where an order has been made and served, as prescribed in section 2679 of this act, directing him to deposit money, or show cause why a warrant of attachment should not issue against him; and a warrant of attachment, issued thereupon, has been returned not served upon him. L. 1846, ch. 288, part of § 1 (4 Edm. 503); 2 R. S. 85, 19 (2 Edm. 87). § 2692. Remaining executors may act, where letters of one revoked. Where one of two or more executors or administrators dies, or becomes a lunatic, or is convicted of an infamous offence, or becomes otherwise incapable of discharging the trust reposed in him; or where letters are revoked with respect to one of them, a successor to the person, whose letters are revoked, shall not be appointed, except where such an appointment is necessary, in order to comply with the express terms of a will; but the others may proceed and complete the administration of the estate, pursuant to the letters, and may continue any action or special proceeding, brought by or against all. 2 R. S. 78, 44 (2 Edm. 79); L. 1837, ch. 460, 33 (4 Edm. 493). $2693. In other cases, successor to be appointed.Where all the executors or all the administrators, to whom letters have been issued, die, or become incapable, as prescribed in the last section, or the letters are revoked as to all of them; the surrogate must grant letters of administration to one or more persons as their successors, in like manner as if the former letters had not been issued; and the proceedings to procure the grant of such letters, are the same, as in a case of intestacy. Id., 45. Schultz v. Dambman, 3 Bradf, 379; Casoni v. Jerome, 58 N. Y. 315. ARTICLE SEVENTH. FOREIGN WILLS; ANCILLARY LETTERS. SEC. 2694. Testamentary dispositions; what law governs. 2695. Ancillary letters upon foreign probate. 2696. Id.; upon foreign grant of administration. 2697. To whom ancillary letters granted. 2698. Petition; citation. 2699. Hearing; security. 2700. Persons acting under ancillary letters must transmit assets. 2701. Id.; when they may be directed to pay, etc., withou. trans mission. 2702. Id.; general powers and duties. 2703. Recording wills proved in other states, etc. 2704, 2705. Papers recorded, etc.; how authenticated. $2694. Testamentary dispositions; what law gov erns. The validity and effect of a testamentary dispo |