TITLE VI. Provisions relating to a testamentary trustee. SEC. 2802. Intermediate accounting; when voluntary. 2804. Petition to compel payment of debt, legacy, etc. 2807. When surrogate may compel judicial settlement. 2809. Proceedings upon return of citation. 2810. Judicial settlement on petition of trustee. 2811. Certain provisions of title fourth made applicable. 2812. Surrogate to determine controversies; proportion may be re tained. 2813. Effect of decree. 2-14. Resignation of trust. 2-15. Petition for security from testamentary rustee. 2816. Security; how given. 2817. Removal of testamentary trustee. 2818. Appointment of successor. 2819. Proceedings where testamentary trustee is also executor or § 2802. Intermediate accounting; when voluntary. -A testamentary trustee may, at any time, file an intermediate account, and the vouchers in support of it, with the surrogate having jurisdiction of the estate. New in form, but based on L. 1866, ch. 115 (6 Edm. 700), and L. 1867, ch. 782, § 1 (7 Edm. 167); L. 1871, ch. 482 (9 Edm. 94). § 2803. Id.; when compulsory. — Upon the petition of a person interested, absolutely or contingently, in the estate or fund in the hands of a testamentary trustee, or in the application thereof, or of the income or other proceeds thereof, the surrogate may, in his discretion, make, at any time, an order requiring a testamentary trustee to render an intermediate account. Same as last above. $ 2804. Petition to compel payment of debt, legacy, etc.-Where a person is entitled, by the terms of the will, to the payment of money, or the delivery of personal property, by a testamentary trustee, he may present to the surrogate's court a written petition, duly verified, setting forth the facts which entitle him to the payment or delivery, and praying for a decree, directing payment or delivery accordingly; and that the testamentary trustee may be cited to show cause, why such a decree should not be made. If the petitioner is so entitled, only upon the happening of a contingency, or after the expiration of a certain time, he must show in his petition, that his right to the money or other property has become absolute. Upon the presentation of the petition, the surrogate must issue a citation accordingly. § 2805. Id.; proceedings upon return of citation.Upon the return of a citation, issued as prescribed in the last section, if the testamentary trustee 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 his information and belief, a decree must be made, dismissing the petition, without prejudice to an action in behalf of the petitioner for an accounting; otherwise, the surrogate must hear the alle gations and proofs of the parties, and must make such a decree in the premises, as justice requires. In a proper case, the decree may require the testamentary trustee, who is unable to deliver personal property, to which the petitioner is entitled, to pay the value thereof. 2806. Id.; other persons interested to be cited.Where it appears, upon the presentation of a petition as prescribed in the last section but one, that a decree, made pursuant to the prayer thereof, might affect the rights of other persons, with respect to the estate or fund held by the testamentary trustee, the citation must also be directed to those persons. Where that fact appears, upon the return of the citation, or upon the hearing, and it also appears presumptively that the petitioner is entitled to a decree, all the persons, whose rights may be so affected, must be brought in by a supplemental citation, before a decree is made. Same as 2802, ante. § 2807. When surrogate may compel judicial settlement. In either of the following cases, the surrogate's court may, from time to time, compel a judicial settlement of the account of a testamentary trustee : 1. Where one year has expired, since the will was admitted to probate. 2. Where the trustee has been removed, or, for any other reason, his powers have ceased. 3. Where the trusts, or one or more distinct and separate trusts, created by the terms of the will, have been executed, or are ready to be executed; so that the persons beneficially interested are, by the terms of the will, or by operation of law, entitled to receive any money or other personal property from the trustee. See notes to 2724 and 2802, ante. § 2808. Who may apply therefor. A petition, praying for a judicial settlement, as prescribed in the last section, and that the testamentary trustee may be cited to show cause, why he should not render and settle his account, may be presented, by any person bene. ficially interested in the execution of any of the trusts; or by any person in behalf of an infant so beneficially interested; or by a surety in the bond of the testamentary trustee, given as prescribed in this title, or by the legal representative of such a surety. Upon the presentation of the petition, the surrogate must issue a citation accordingly, unless the account of the testamentary trustee has been judicially settled, within a year before the petition is presented; in which case, the surrogate may, in his discretion, entertain, or decline to entertain, the petition. See notes to 2726 and 2802, ante. Le Fort v. Delafield, 3 Edw. 32; Rieben v. Hicks, 4 Brad, 136; Knox v. Jones, 47 N. Y. 389; Leitch v. Wells, 48 id. 585. - Sec 2809. Proceedings upon return of citation. tions 2727 and 2728 of this act apply to the proceedings upon a citation, issued as prescribed in the last section, and to the testamentary trustee to whom the citation is directed. See note to 2802, ante. 2810. Judicial settlement on petition of trustee.-When one year has expired since the probate of the will, or when the trusts, or one or more distinct and separate trusts, created by the will, have been, or are ready to be, fully executed, a testamentary trustee may present to the surrogate's court a petition, duly verified, setting forth the facts, and praying that his account may be judicially settled; and that all the persons who are entitled, absolutely or contingently, by the terms of the will, or by operation of law, to share in the fund, or in the proceeds of property held by the petitioner, as a part of his trust, may be cited to attend the settlement. Thereupon the surrogate must issue a citation accordingly. Sections 2729, 2730, and 2731 of this act apply to the proceedings upon the return of a citation, issued as prescribed in this section, and to the testamentary trustee whose account is to be settled. Any person, although not named in the citation, who is beneficially interested in the estate or fund which came to the petitioner's hands, or in the proceeds thereof, or in the application of that estate or fund, or of the proceeds thereof, is entitled to appear upon the hearing, and thus make himself a party to the special proceeding. See note to 2802, ante. 2811. Certain provisions of title fourth made applicable.-Sections 2734 to 2737, both inclusive, sections 2739 to 2741, both inclusive, and sections 2743, 2744, and 2746 of this act, apply to and regulate the like matters, where a testamentary trustee accounts, as prescribed in this title; except as otherwise prescribed in the next two sections. To each account, filed as prescribed in this title, must be annexed an affidavit, in the form prescribed in section 2733 of this act, for the affidavit to be annexed to the account of an executor or administrator; except that the expression," the trusts created by the will", with such other description of the trust, as is necessary to identify it, must be substituted in place of the words, "the estate of the decedent ". Same as 2802, ante; see, also, 2735 and 2736, ante. Knox r. Jones, 47 N. Y. 389; Leitch . Wells, 48 id, 585; Ruben e. Hicks, 4 Brad. 136; Le Fort . Delafield, 3 Edw. 32; Ackerman . Emmott, 4 Barb. 625; 3 N. Y. Leg. Obs. 337; King v. Talbott, 50 Barb. 453, 481; Brown v. Campbell, Hopk. 233; Sortore r. Scott, 6 Lans. 271; Boerman e. Schenck, 41 NY. 182: Bostwick v. Atkins, 3 id. 63; Lingke v. Wilkinson, 57 id. 445; Rapelje . Hall, 1 Sandf. Ch. 399; Mumford . Murray, 6 Johns, Ch. 1; Bates v. Underhill, 3 Redf. 365; Tiffany v. Clark, 58 N. Y. 632; Johnson v. Bennett, 30 Barb. 237; Carman v. Cowles, 2 Redf. 414; Hawley r. James, 5 Paige, 318; Bronson . Bronson, 48 How. 481; Matter of Schell, 53 N. Y. 263; Matter of De Peyster, 4 Sandf. Ch. 511; Wagstaff e. Lowerre, 23 Barb. 209; McWhorter v. Benson, Hopk, 2s; Ex parte Carman, 3 Redf. 46; Cram v. Cram, 2 id. 244; Hall v. Hall, 18 Hun, 358; affirmed, Nov. 1879, ct. app.; Prine's Estate, 1 Tuck. 119; Fisher v. Britton, 2 Redf. 524. § 2812. Surrogate to determine controversies; proportion may be retained. - Upon a judicial settle ment of the account of a testamentary trustee, a controversy which arises, respecting the right of a party to share in the money or other personal property to be paid, distributed, or delivered over, must be determined in the same manner as other issues are determined. If such a controversy remains undetermined, after the determination of all other questions upon which the distribution of the fund, or the delivery of the personal property depends, the decree must direct that a sum, sufficient to satisfy the claim in controversy, or the proportion to which it is entitled, together with the probable amount of the interest and costs, and, if the case so requires, that the personal property in controversy, be retained in the hands of the accounting party; or that the money be deposited in a safe bank or trust company, subject to the surrogate's order, for the purpose of being applied to the payment of the claim, when it is due, recovered, or settled; and that so much thereof, as is not needed for that purpose, be afterwards distributed according to law. See note to 2802, ante. 2813. Effect of decree.-A decree, made upon a judicial settlement of the account of a testamentary trustee, as prescribed in this title, or the judgment rendered upon an appeal from such a decree, has the same force, as a judgment of the supreme court to the same effect, as against each party who was duly cited or appeared, and every person who would be bound by such a judgment, rendered in an action between the same parties. L. 1866, ch. 115 (6 Edm. 700). 2814. Resignation of trust.-A testamentary trustee 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, allowing him to resign his trust, and discharg ing him accordingly; and that all persons who are entitled, absolutely or contingently, by the terms of the will or by operation of law, to share in the fund or estate, or the proceeds of any property held by the petitioner as a part of his trust, may be cited to show cause, why such a decree should not be made. The petition |