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 FIDUCIARY 
 ACCOUNTING 
 
 MADDEN 
 
 FIRST EDITION 
 
 THE WILLIAM G. HEWITT PRESS 
 
 61-67 NAVY STREET, BROOKLYN, NEW YORK 
 PUBLISHERS 
 
Fiduciary Accounting 
 
 BY 
 
 John Thomas Madden, B.C.S., C.P.A, 
 
 Assistant Professor of Accounting, New York University, 
 School of Commerce, Accounts and Finance 
 
 ASSISTED BY 
 
 Charles H. Edwards, LL.B, 
 
 Of the New York Bar 
 
 FIRST EDITION 
 
 1913 
 
 THE WILLIAM G. HEWITT PRESS 
 
 61-67 Navy Street, Brooklyn 
 
 Publishers 
 

 Copyright, 1913, by 
 JOHN R. WILDMAN 
 
PREFACE 
 
 This syllabus has been prepared for the use of students 
 in New York University School of Commerce, Accounts and 
 Finance, in the course in Fiduciary Accounting. 
 
 The will accompanying the syllabus has been written for 
 use as a basis for the course, and brings out as many possible 
 situations as are likely to arise in the administration of a 
 decedent estate. Other technical points not covered in the 
 operation of the estate accounts, as outlined in the syllabus, 
 are introduced through the medium of questions, many of 
 which have been taken from the C. P. A. examination papers 
 set in New York and other states. 
 
 The legal phases of the course are treated from the view- 
 point of the New York Statute, and certain essential parts 
 of the Code of Civil Procedure, the Decedent Estate Law, and 
 the Transfer Tax Law, have been incorporated in the syllabus. 
 
 The legal forms accompanying the set include those which 
 concern the accountant, or which require action on the part 
 of the executor; and forms, such as citations, which concern 
 the attorney only, have been omitted. 
 
 The syllabus is designed solely as an aid to the instructor 
 and the students in the practical laboratory course in the class- 
 room, and it is not intended as a textbook nor as an exhaustive 
 work on the subject. 
 
 Jno. T. Madden. 
 
 New York University, July i, 191 3. 
 
 2^8V49 
 
FIDUCIARY ACCOUNTING 
 
 ESTATE OF JOHN SMART, DECEASED 
 
 CHRONOLOGICAL STATEMENT OF FACTS 
 
 John Smart, who resided at lOO Washington Square, in the 
 City of New York, died on January 15, 191 1. On January 17, 
 191 1, the will of the deceased was read, and in this instrument 
 the following heirs and next of kin were mentioned : 
 
 Mrs. Anna C. Smart, widow, aged 60 years; Mr. George 
 Smart, son, aged 39 years, married; Mr. Oliver Smart, son, 
 aged 37 years, unmarried; Miss Jane Smart, daughter, aged 
 34 years, unmarried; Mr. Thomas Smart, son, aged 31 years, 
 unmarried; Mrs. Margaret Jones, sister, aged 50 years, mar- 
 ried, residing at i University Place ; Mr. Arthur Jones, nephew, 
 aged 23 years, unmarried; Mr. William Smart, brother, aged 
 44 years, married, and residing at 23 East Ninth Street. 
 
 The will also gives legacies to Robert Brown, of iii West 
 I nth Street; Henry Robinson, 222 West 222d Street; Charles 
 Robinson, 222 West 222d Street ; Walter Mead, aged 25 years, 
 and Richard Mead, aged 30 years, both of 545 Fifth Avenue. 
 
 The will also mentioned Miss Mary Smart, daughter, who 
 died five days prior to the death of the testator. 
 
 All of the above resided in the State of New York, with 
 the exception of George and Oliver Smart, both of whom 
 resided in Newark, N. J. The executors immediately notified 
 the insurance companies of the testator's death. 
 
 January 19, 191 1 
 
 Application was made for letters testamentary; the execu- 
 tors opened an account in the Union Trust Company, in the 
 name of the "Estate of John Smart: Mrs. Anna C. Smart, 
 George Smart, Oliver Smart and Charles Robinson, Execu- 
 
Fiduciary Accounting 
 
 tors." The executors, upon opening the mail which had accu- 
 mulated during the last illness of the testator, discovered the 
 following checks, which are deposited to the credit of the 
 estate, in the Union Trust Company; quarterly dividend of 
 i^% on the stock of the Interurban R. R. Co., declared 
 December 28; six months' interest on the bond of William 
 Price ; check of Goldsmith, Silver & Co. for rental of leasehold 
 for period ending January 15, 191 1; check from the co- 
 partnership of Smart & Williams, for testator's proportion 
 of the profits for the fiscal year ended December 31, 1910, 
 $29,824.23. 
 
 February 24, 191 i 
 
 Objection having been made to the service of George and 
 Oliver Smart as executors without giving bonds, on the 
 ground of non-residence, arrangements are made to secure 
 the executors' bond. The will is admitted to probate, and 
 letters testamentary are issued to the executors, who qualify 
 at once. They procure certified copies of the will and letters, 
 the cost of same being $34.50. An exemplified copy of the 
 will is filed in Iowa, where the testator held farm lands, cost 
 of same being $5.00. The executors insert the usual notices 
 for creditors in the newspapers designated. The legacy of 
 Robert Brown is paid, voucher No. 3 ; Brown pays the amount 
 of the tax to the executors. The following bills are paid: 
 Voucher No. 4, A. Dickerson, funeral expenses, $834.27; Dr. 
 L. Brown, professional services, last illness, voucher No. 5, 
 $200.00 ; voucher No. 6, Fidelity Bond Co., premium on execu- 
 tors' bond, $1,645.00. Owing to the testator's illness, the 
 following items in connection with the leasehold property for 
 the year ending January 15, 191 1, had not been paid : Voucher 
 No. 7, J. J. Sator, rental, $7,000.00; voucher No. 8, Jones 
 Contracting Co., repairs to leasehold property, $436.17. These 
 bills are paid at once by the executors. Appraisers for the 
 inventory are appointed. 
 
 March i, 191 i 
 
 Rent due on Henry Street property is paid, $200.00; re- 
 ceived check of the insurance company, in settlement of policy 
 
Fiduciary Accounting 
 
 cf $20,000.00, the amount received being $20,965.00. Paid 
 voucher No. 9, Sun Publishing Co., $53.00; voucher No. 10, 
 Times Publishing Co., $53.00, advertising for creditors ; sewer 
 assessments amounting to $4,000.00 are levied against the 
 Bronxville property, under date of March i. Repairs to 
 Henry Street property, amounting to $105.00, are made by 
 James Cron, whose bill is paid. Dividend received on stock 
 of United Cigar Manufacturing Co., at the rate of i^%. 
 
 March 2, 191 1 
 
 Balance due to the estate on contract for the sale of realty 
 received by executors, viz. : Check, $4,000.00 and second 
 mortgage, Charles Stollerman, interest 6%, payable March i 
 and September i, premises Avenue A, Jamaica, Long Island, 
 recorded in Section 2, Liber loi of mortgages, page 17, due 
 Sept. I, 1912, $5,000.00. Paid voucher No. 12, Park & Til- 
 ford, debt of testator, invoice of Jan. 15, $216.42. Notice 
 of suspension of Skyrocket National Bank received. The se- 
 curities belonging to the estate are transferred to the personal 
 representatives, the usual arrangements having been made 
 with the State comptroller. 
 
 March 15, 191 1 
 
 The inventory is completed, and the executors pay the 
 appraisers' fees, amounting to $75.00, Vouchers Nos. 13, 
 14 and 15, John Doe, Ralph Roe and Samuel Straight, $25.00 
 each. Prepare the inventory, in the required form, from the 
 following statement of facts: 
 
 ESTATE OF JOHN SMART 
 
 SCHEDULE OF PROPERTY 
 
 1. Cash on deposit, Union Trust Co $16,000.00 
 
 2. Corn Exchange Bank, certificate of deposit, 
 
 dated Jan. i, 191 1, bearing interest at 3% 25,000.00 
 
 3. Cash on deposit. West Side Savings Bank. . 3,000.00. 
 
 4. One thousand (1,000) shares stock of Inter- 
 
Fiduciary Accounting 
 
 urban R. R. Co., a New York corporation 
 — ^par value $100.00 each — market value at 
 date of death 115,000.00 
 
 5. Bond of William Price, secured by mortgage 
 
 on N. Y. City improved property, dated 
 July I, 1 910, bearing interest at 6%, pay- 
 able Jan. I and July i 20,000.00 
 
 6. Leasehold, J. J. Sator to testator; made on 
 
 Jan. 15, 1906, to run for 30 years; annual 
 rental $7,000.00 ; lessee, in addition, to pay 
 all taxes and make all repairs. This prop- 
 erty was sublet by the testator to the firm 
 of Goldsmith, Silver &Co. for an improved 
 rental of $15,000.00; this lease provides 
 that the testator shall continue to pay the 
 taxes, insurance and repairs. In the origi- 
 nal lease given by Sator permission to sub- 
 lease had been given to the testator. An- 
 other provision in the contract allows the 
 testator to recover the sum of $5,000.00 
 for tenant's improvements at the end of the 
 period. All rentals are due and payable 
 on Jan. 15, at end of each year. The an- 
 nual average expense to date has been as 
 follows : Taxes, $900.00 ; repairs, $600.00 ; 
 insurance and expense, $400.00. Money 
 for this kind of property is worth 6%. 
 
 7. One-half interest in the co-partnership of 
 
 Smart &' Williams; partnership entered 
 into on Jan. i, 1908, to run for five years ; 
 each partner contributed $150,000.00; 
 profits are to be shared equally ; there is a 
 provision in the partnership agreement 
 that the death of a partner shall not termi- 
 nate the partnership, but that the survi- 
 ving partner shall continue the business 
 until the end of the calendar year in which 
 such partner died. 
 
 8. Farm lands in Iowa 12,000.00 
 
 9. New York City improved realty, situated on 
 
Fiduciary Accounting 
 
 Henry Street; rented to Denis Patterson 
 for $800.00 per annum, payable quarterly, 
 in advance 15,000.00 
 
 10. Life insurance policy, payable to estate 20,000.00 
 
 11. Life insurance policy, payable one-half to 
 
 widow, one-half to surviving children, 
 
 per capita 10,000.00 
 
 12. Residence, Bronxville 20,000.00 
 
 13. 1,500 shares stock United Cigar Manufactur- 
 
 ing Co., a New York corporation, $100.00 
 
 par value, market value at date of death. . 150,000.00 
 
 14. Contract for sale of real property on Long 
 
 Island for $10,000.00. The sum of 
 $1,000.00 was paid to testator in his life- 
 time ; balance due on March 2, payable in 
 cash, $4,000.00; second mortgage $5,- 
 000.00; interest at 6%, due Sept. 2 and 
 March 2 9,000.00 
 
 15. Bond of James Kent, secured by mortgage 
 
 on New York City improved property, 
 dated April i, 1910; interest 5%, payable 
 April I and October i 3,000.00 
 
 16. Debt due by representative, Charles Robin- 
 
 son, secured by his note, payable on de- 
 mand, bearing interest at 6% ; interest last 
 paid to Jan. 15, 191 1, inclusive 1,500.00 
 
 17. Household furniture 3,000.00 
 
 18. 30 N. Y. C. 4% gold debentures of 1934 
 
 (interest payable May i and November i), 
 
 at 93>^ 28,050.00 
 
 19. 1,000 shares Clarion Manufacturing Co. 
 
 stock, par $100.00, market value $101.00 
 per share, pledged as collateral for loan of 
 $100,000.00 from Union Trust Co. on 6 
 months' note, due May i, interest 5% 101,000.00 
 
 20. 500 shares Goldbrick Mining Co worthless 
 
 21. 10 shares Skyrocket National Bank stock, 
 
 par value $100.00 per share 1,500.00 
 
 22. Contract for the purchase of realty in Jack- 
 
 sonville, Florida, for $1,000.00, from 
 
 5 
 
Fiduciary Accounting 
 
 J. Enright; $500.00 paid at time of testa- 
 tor's death, balance due on Aug. i, 191 1. 
 
 23. Testator's library 2,500.00 
 
 24. Clothing and personal effects 5,000.00 
 
 Open the Estate Ledger; the number after the name of 
 each account indicates the number of lines required for the 
 respective accounts: Page i, library, 4; clothing and personal 
 effects, 4; household furniture, 6; N. Y. C. 4% gold deben- 
 tures, 1934, 7; bond of William Price, 8; bond of James 
 Kent, 7. Page 2 : Interurban R. R. Co. stock, 5 ; United 
 Cigar Manufacturing Co. stock, 5 ; Clarion Manufacturing Co. 
 stock, 8; Goldbrick Mining Co. stock, 8; Skyrocket National 
 Bank stock, 6. Page 3: Skyrocket National Bank, stock 
 assessment, 6; Union Trust Co. deposit, 14; Corn Exchange 
 Bank, certificate of deposit, 5 ; West Side Savings Bank, de- 
 posit, 14. Page 4: Mechanics Savings Bank, deposit, 14; 
 Ninth Ward Savings Bank, deposit, 14; leasehold property, 
 asset account, 12. Page 5: Life insurance policy, 4; contract 
 for sale of realty, 10; debt due by Chas. Robinson, 5 ; Goodrun 
 Tire Co., stock, 7; bond of C. Stollerman, 12. Page 6: Bond 
 of C. H. Keepler, 6 ; bond of C. R. Heinz, 6 ; bond of Winan 
 Realty Co., 6 ; bond of F. W. Holden, 6 ; Robert Brown, lega- 
 tee, 4; Margaret Jones, legatee, 4; William Smart, legatee, 4. 
 Page 7 : Arthur Jones, legatee, 6 ; Henry Robinson, legatee, 7 ; 
 Thomas Smart, legatee, 3 ; Jane Smart, legatee, 3 ; Charles 
 Robinson, legatee, 8; Mrs. A. C. Smart, legatee, 6; C. Robin- 
 son, suspense, 4. Page 8: Trustees for Mrs. A. C. Smart, 
 income, 9; trustees for R. and W. Mead, income, 13; expense 
 income, 16. Pages 9 and 10: Expense principal. Page 11: 
 Debts of testator. Page 12: Trustee income, 19; trustee prin- 
 cipal, 19. Page 13: Inheritance tax account, 22; commis- 
 sions, 3 ; Mrs. A. C. Smart, executrix, 3 ; George Smart, exec- 
 utor, 3; Oliver Smart, executor, 3; C. Robinson, executor, 3. 
 Page 14: Estate of John Smart, decrease of corpus, 10; es- 
 tate of John Smart, corpus, 22 \ proceeds of sales of realty, 7. 
 Page 15: Estate of John Smart, increase of corpus. Pages 
 16 and 17: Estate of John Smart, income. Page 18: Lease- 
 hold property, income account, 15. 
 
 The following payments are made : Repairs to household 
 
 6 
 
Fiduciary Accounting 
 
 furniture, voucher No. i6, E. Marshall, $57.40; postmaster, 
 voucher No. 17, postage, $6.00; Tower Stationery Co., voucher 
 No. 18, stationery, $5.47 ; Benedict & Benedict, insurance, 
 voucher No. 19, $30.(X), insurance premiums for one year. 
 Affidavits for inheritance tax proceedings on all property 
 within the state are secured. 
 
 April i, 191 i 
 
 The executors receive the following checks : Half-yearly 
 interest on bond of James Kent; quarterly dividend of i^% on 
 stock of Interurban R. R. Co. The executors hire a safe 
 deposit vault at the Monroe Trust Company, and pay the 
 annual rental of same, $10.00, voucher No. 20. Paid to widow 
 on account of income, $1,500.00, voucher No. 21. Charles 
 Robinson pays his debt to the estate, $1,500.00, with interest 
 at 6%. From receipts found among the papers of the estate 
 the executors learn of a safe deposit vault rented at the 
 Lincoln Trust Co. by the testator. Discovery proceedings are 
 commenced, and it is found that the testator had placed in 
 this vault two bank books showing the following deposits in 
 his favor: Mechanics Savings Bank, balance, with interest 
 to July I, 1910, $507.00; Ninth Ward Savings Bank, balance, 
 with interest to July i, 1910, $1,500.00. There was found, 
 in addition, a bank book in favor of George Smart, John 
 Smart, trustee, showing a balance, with accrued interest to 
 July I, 1910, of $2,020.00. The executors discover $300.00 
 in cash in a tin box belonging to the testator. 
 
 April 15, 191 1 
 
 The household furniture is sold at private sale for $2,745.00. 
 The residence at Bronxville is sold for $30,000.00, at public 
 auction, the buyer to pay the taxes for the current year, as 
 well as assessments. 
 
 May I, 191 1 
 
 Check received for semi-annual interest on N. Y. C. 4% 
 gold debentures. Certificate of deposit paid to executors, with 
 accumulated interest, and proceeds deposited in the Union 
 Trust Company. The note held by the trust company, with 
 
Fiduciary Accounting 
 
 the Clarion Mfg. Co. stock as collateral, is paid, and the col- 
 lateral released; interest paid on the note, $2,500.00, voucher 
 No. 22. The Goldbrick Mining Company, which went into 
 receiver's hands prior to the testator's death, makes its final 
 report, showing that the stockholders will realize nothing. The 
 stock of the Clarion Co. is sold at loij/^, less customary brok- 
 erage. An assessment of 50% is levied on the stockholders 
 of the Skyrocket National Bank, and same is paid by the 
 executors. 
 
 May 10, 191 1 
 
 Paid to widow on account of income, $1,000.00; debts of 
 testator, voucher No. 25, Lord & Taylor, $200.00. Paid to 
 J. Sayles, auctioneers, commission on sale of residence, $300.00, 
 voucher No. 26. 
 
 June i, 191 i 
 
 Checks received as follows: For rent of Henry Street 
 property; growing crops on farm in Iowa sold for $600.00; 
 dividend of i^% on stock of United Cigar Mfrs. Co. 
 
 July i, 191 i 
 
 The executors receive the following checks : Quarterly 
 dividend of i^% on stock of Interurban R. R. Co. The semi- 
 annual interest on the bond of W. Price is defaulted. 
 
 July 3, 191 1 
 
 Improvements on the Henry Street property are made, at 
 a cost of $1,000.00, voucher No. 2y, James Cron. The West 
 Side Savings Bank credits interest on deposit at 4%, for six 
 months ending June 30. 
 
 July 7, 191 1 
 Paid to widow on account of income, $1,000.00. 
 
 July 15, 191 1 
 
 The Skyrocket National Bank pays a final liquidation divi- 
 dend of $550.00. The executors deposit $18,000.00 on account 
 of the inheritance tax. 
 
 8 
 
Fiduciary Accounting 
 
 The student should note carefully the following important 
 provisions of the Tax Law : 
 
 THE TAX LAW 
 ARTICLE X 
 
 TAXABLE TRANSFERS 
 
 Sect. 220. TAXABLE TRANSFERS. A tax shall be and is 
 hereby imposed upon the transfer of any tangible property within 
 the state and of intangible property, or of any interest therein or 
 income therefrom, in trust or otherwise, to persons or corporations in 
 the following cases, subject to the exemptions and limitations herein- 
 after prescribed: 
 
 1. When the transfer is by will or by the intestate laws of this 
 state of any intangible property, or of tangible property within the 
 state, from any person dying seized or possessed thereof while a resident 
 of the state. 
 
 2. When the transfer is by will or intestate law, of tangible 
 property within the state, and the decedent was a non-resident of 
 the state at the time of his death. 
 
 3. Whenever the property of a resident decedent, or the property 
 of a non-resident decedent within this state, transferred by will, is 
 not specifically bequeathed or devised, such property shall, for the 
 purposes of this article, be deemed to be transferred proportionately 
 to and divided pro rata among all the general legatees and devisees 
 named in said decedent's will, including all transfers under a residuary 
 clause of such will. 
 
 4. When the transfer is of intangible property, or of tangible 
 property within the state, made by a resident, or of tangible property 
 within the state made by a non-resident, by deed, grant, bargain, sale 
 or gift made in contemplation of the death of the grantor, vendor or 
 donor, or intended to take effect in possession or enjoyment at or after 
 such death. 
 
 5. When any such person or corporation becomes beneficially 
 entitled, in possession or expectancy, to any property or the income 
 thereof by any such transfer, whether made before or after the passage 
 of this chapter. 
 
 6. Whenever any person or corporation shall exercise a power 
 of appointment derived from any disposition of property made either 
 before or after the passage of this chapter, such appointment when 
 made shall be deemed a transfer taxable under the provisions of 
 this chapter, in the same manner as though the property to which 
 such appointment relates belonged absolutely to the donee of such 
 power and had been bequeathed or devised by such donee by will. 
 
 7. The tax imposed hereby shall be upon the clear market value 
 of such property, at the rates hereinafter prescribed. 
 
 Sect. 221. EXCEPTIONS AND LIMITATIONS. Any prop- 
 
Fiduciary Accounting 
 
 erty devised or bequeathed for religious ceremonies, observances, or 
 commemorative services of or for the deceased donor, or to any person 
 who is a bishop, or to any religious, educational, charitable, mission- 
 ary, benevolent, hospital or infirmary corporation, wherever incor- 
 porated, including corporations organized exclusively for bible or 
 tract purposes and corporations organized for the enforcement of laws 
 relating to children or animals, shall be exempted from and not 
 subject to the provisions of this article. There shall also be exempted 
 from and not subject to the provisions of this article bonds or other 
 obligations issued by the State of New York, provided, however, that 
 such bonds or other obligations are registered in the name of the 
 decedent at the time of death, or in the name of one or more persons 
 or corporations in trust for such decedent at the time of such dece- 
 dent's death. There shall also be exempted from and not subject to 
 the provisions of this article personal property other than money 
 or securities bequeathed to a corporation or association, wherever 
 incorporated or located, organized exclusively for the moral or mental 
 improvement of men or women or for scientific, literary, library, 
 patriotic, cemetery or historical purposes, or for two or more of such 
 purposes, and used exclusively for carrying out one or more of such 
 purposes. But no such corporation or association shall be entitled 
 to such exemption if any officer, member or employee thereof shall 
 receive, or may be lawfully entitled to receive, any pecuniary profit 
 from the operations thereof, except reasonable compensation for 
 services in effecting one or more of such purposes or as proper bene- 
 ficiaries of its strictly charitable purposes; or if the organization 
 thereof for any such avowed purpose be a guise or pretense for directly 
 or indirectly making any other pecuniary profit for such corporation 
 or association or for any of its members or employees, or if it be 
 not in good faith organized or conducted exclusively for one or more 
 of such purposes. 
 
 Sect. 221a. RATES OF TAX. i. Upon a transfer taxable under 
 this article of property or any beneficial interest therein, of an amount 
 in excess of the value of five thousand dollars to any father, mother, 
 husband, wife, child, brother, sister, wife or widow of a son, or the 
 husband of a daughter, or any child or children adopted as such in 
 conformity with the laws of this state, of the decedent, grantor, donor, 
 or vendor, or to any child to whom any such decedent, grantor, donor, 
 or vendor, for not less than ten years prior to such transfer, stood in 
 the mutually acknowledged relation of a parent, provided, however, 
 such relationship began at or before the child's fifteenth birthday, and 
 was continuous for said ten years thereafter, or to any lineal descendant 
 of such decedent, grantor, donor, or vendor, born in lawful wedlock, 
 the tax on such transfer shall be at the rate of — 
 
 One per centum on any amount in excess of five thousand dollars 
 up to the sum of fifty thousand dollars. 
 
 Two per centum on any amount in excess of fifty thousand dollars 
 up to the sum of two hundred and fifty thousand dollars. 
 
 10 
 
Fiduciary Accounting 
 
 Three per centum on any amount in excess of two hundred and 
 fifty thousand dollars up to the sum of one million dollars. 
 
 Four per centum on any amount in excess of one million dollars. 
 
 2. Upon a transfer taxable under this article, of property or any 
 beneficial interest therein, of an amount in excess of the value of 
 one thousand dollars to any person or corporation other than those 
 enumerated in paragraph i of this section, the tax shall be at the 
 rate of — 
 
 Five per centum on any amount in excess of one thousand dollars 
 up to the sum of fifty thousand dollars. 
 
 Six per centum on any amount in excess of fifty thousand dollars 
 up to the sum of two hundred and fifty thousand dollars. 
 
 Seven per centum on any amount in excess of two hundred and 
 fifty thousand dollars up to the sum of one million dollars. 
 
 Eight per centum on any amount in excess of one million dollars. 
 
 Sect. 221b. EXEMPTION OF CERTAIN PERSONAL PROP- 
 ERTY. A transfer of pictures, statuary, works of art, antiques, books, 
 manuscripts, or other similar personal property, shall be exempted from 
 and not subject to the provisions of this article, if within two years 
 after such transfer the person to whom such transfer is made shall 
 present the same to the state, or to a municipal corporation of the 
 state for educational, scientific, literary, library, or historical purposes; 
 and if the tax thereon shall have been theretofore paid the amount 
 thereof shall be refunded in accordance with the provisions of this 
 article. 
 
 Sect. 222. ACCRUAL AND PAYMENT OF TAX. All taxes 
 imposed by this article shall be due and payable at the time of the 
 transfer, except as herein otherwise provided. Taxes upon the transfer 
 of any estate, property or interest therein limited, conditioned, dependent 
 or determinable upon the happening of any contingency or future event 
 by reason of which the fair market value thereof cannot be ascertained 
 at the time of the transfer, as herein provided, shall accrue and become 
 due and payable when the persons or corporations beneficially entitled 
 thereto shall come into actual possession or enjoyment thereof. Such 
 tax shall be paid to the state comptroller in a county in which the 
 office of appraiser is salaried, and in other counties, to the county treas- 
 urer, and said state comptroller or county treasurer shall give, and 
 every executor, administrator or trustee shall take, duplicate receipts 
 from him of such payment, as provided in section two hundred and 
 thirty-six. 
 
 Sect. 223. DISCOUNT AND INTEREST. If such tax is paid 
 within six months from the accrual thereof, a discount of five per 
 centum shall be allowed and deducted therefrom. If such tax is not 
 paid within eighteen months from the accrual thereof, interest shall 
 be charged and collected thereon at the rate of ten per centum per 
 annum from the time the tax accrued; unless by reason of claims 
 made upon the estate, necessary litigation or other unavoidable cause 
 of delay, sucR tax cannot be determined and paid as herein provided, 
 
 II 
 
Fiduciary Accounting 
 
 in which case interest at the rate of six per centum per annum shall 
 be charged upon such tax from the accrual thereof until the cause 
 of such delay is removed, after which ten per centum shall be charged. 
 
 Sect. 224. UEN OF TAX AND COLLECTION BY EXECU- 
 TORS, ADMINISTRATORS AND TRUSTEES. Every such tax 
 shall be and remain a lien upon the property transferred until paid 
 and the person to whom the property is so transferred, and the execu- 
 tors, administrators and trustees of every estate so transferred shall 
 be personally liable for such tax until its payment. Every executor, 
 administrator or trustee shall have full power to sell so much of the 
 property of the decedent as will enable him to pay such tax in the 
 same manner as he might be entitled by law to do for the payment of 
 the debts of the testator or intestate. Any such executor, administrator 
 or trustee having in charge or in trust any legacy or property for 
 distribution, subject to such tax, shall deduct the tax therefrom and 
 shall pay over the same to the state comptroller or county treasurer, 
 as herein provided. If such legacy or property be not in money, he 
 shall collect the tax thereon upon the appraised value thereof from 
 the person entitled thereto. He shall not deliver or be compelled to 
 deliver any specific legacy or property subject to tax under this article 
 to any person until he shall have collected the tax thereon. If any 
 such legacy shall be charged upon or payable out of real property, the 
 heir or devisee shall deduct such tax therefrom and pay it to the 
 executor, administrator or trustee, and the tax shall remain a lien 
 or charge on such real property until paid; and the payment thereof 
 shall be enforced by the executor, administrator or trustee in the same 
 manner that payment of the legacy might be enforced, or by the 
 district attorney under section two hundred and thirty-five of this 
 chapter. If any such legacy shall be given in money to any such 
 person for a limited period, the executor, administrator or trustee 
 shall retain the tax upon the whole amount; but if it be not in money, 
 he shall make application to the court having jurisdiction of any 
 accounting by him, to make an apportionment, if the case require it, 
 of the sum to be paid into his hands by such legatees, and for such 
 further order relative thereto as the case may require. 
 
 Sect. 225. REFUND OF TAX ERRONEOUSLY PAID. If any 
 debts shall be proven against the estate of a decedent after the payment 
 of any legacy or distributive share thereof, from which any such tax 
 has been deducted or upon which it has been paid by the person 
 entitled to such legacy or distributive share, and such person is required 
 by order of the surrogate having jurisdiction, on notice to the state 
 comptroller, to refund the amount of such debts or any part thereof, 
 an equitable proportion of the tax shall be repaid to him by the 
 executor, administrator or trustee, if the tax has not been paid to 
 the state comptroller or county treasurer; or if such tax has been 
 paid to such state comptroller or county treasurer, such officer shall 
 refund out of the funds in his hands or custody to the credit of such 
 taxes such equitable proportion of the tax, and credit himself with 
 
 12 
 
Fiduciary Accounting 
 
 the same in the account required to be rendered by him under this 
 article. If after the payment of any tax in pursuance of an order 
 fixing such tax, made by the surrogate having jurisdiction, such order 
 be modified or reversed by the surrogate having jurisdiction within 
 two years from and after the date of entry of the order fixing the 
 tax, or be modified or reversed at any time on an appeal taken 
 therefrom within the time allowed by law on due notice to the state 
 comptroller, the state comptroller shall, if such tax was paid in a 
 county in which the office of appraiser is salaried, refund to the 
 executor, administrator, trustee, person or persons by whom such 
 tax was paid, the amount of any moneys paid or deposited on account 
 of such tax in excess of the amount of the tax fixed by the order 
 modified or reversed, out of the funds in his hands or custody to the 
 credit of such taxes, and to credit himself with the same in the 
 account required to be rendered by him under this article; or if paid 
 in a county in which the office of appraiser is not salaried, he shall 
 by warrant direct and allow the county treasurer of the county to 
 refund such amount in the same manner; but no application for such 
 refund shall be made after one year from such reversal or modification, 
 unless an appeal shall be taken therefrom, in which case no such 
 application shall be made after one year from the final determination 
 on such appeal, or of an appeal taken therefrom, and the representatives 
 of the estate, legatees, devisees or distributees entitled to any refund 
 under this section shall not be entitled to any interest upon such 
 refund, and the state comptroller shall deduct from the fees allowed 
 by this article to the county treasurer the amount theretofore allowed 
 him upon such overpayment. Where it shall be proved to the satis- 
 faction of the surrogate that deductions for debts were allowed upon 
 the appraisal, since proved to have been erroneously allowed, it shall 
 be lawful for such surrogate to enter an order assessing the tax 
 upon the amount wrongfully or erroneously deducted. This section, 
 as amended, shall apply to appeals and proceedings now pending and 
 taxes heretofore paid in relation to which the period of one year 
 from such reversal or modification has not expired when this section, 
 as amended, takes effect. 
 
 Sect. 226. TAXES UPON DEVISES AND BEQUESTS IN 
 LIEU OF COMMISSIONS. If a testator bequeaths or devises 
 property to one or more executors or trustees in lieu of their commis- 
 sions or allowances, or makes them his legatees to an amount exceed- 
 ing the commissions or allowances prescribed by law for an executor 
 or trustee, the excess in value of the property so bequeathed or devised 
 above the amount of commissions or allowances prescribed by law in 
 similar cases shall be taxable under this article. 
 
 Sect. 227. LIABIUTY OF CERTAIN CORPORATIONS TO 
 TAX. If a foreign executor, administrator or trustee shall assign 
 or transfer any stock or obligations in this state standing in the name 
 of a decedent, or in trust for a decedent, liable to any such tax, the 
 tax shall be paid to the state comptroller or the treasurer of the proper 
 
 13 
 
Fiduciary Accounting 
 
 county on the transfer thereof. No safe deposit company, trust com- 
 pany, corporation, bank or other institution, person or persons having 
 in possession or under control securities, deposits, or other assets 
 belonging to or standing in the name of decedent who was a resident 
 or non-resident, or belonging to, or standing in the joint names of 
 such decedent and one or more persons, including the shares of the 
 capital stock of, or other interests in, the safe deposit company, trust 
 company, corporation, bank or other institution making the delivery 
 or transfer herein provided, shall deliver or transfer the same to the 
 executors, administrators or legal representatives of said decedent, 
 or to the survivor or survivors when held in the joint names of a 
 decedent and one or more persons, or upon their order or request, 
 unless notice of the time and place of such intended delivery or transfer 
 be served upon the state comptroller at least ten days prior to said 
 delivery or transfer; nor shall any such safe deposit company, trust 
 company, corporation, bank or other institution, person or persons, 
 deliver or transfer any securities, deposits or other assets belonging 
 to, or standing in the name of a decedent, or belong to, or stand- 
 ing in the joint names of a decedent and one or more persons, 
 including the shares of the capital stock of, or other interests 
 in, the safe deposit company, trust company, corporation, bank or 
 other institution making the delivery or transfer, without retaining 
 a sufficient portion or amount thereof to pay any tax and interest 
 which may thereafter be assessed on account of the delivery or transfer 
 of such securities, deposits or other assets, including the shares of 
 the capital stock of, or other interests in, the safe deposit company, trust 
 company, corporation, bank or other institution making the delivery 
 or transfer, under the provisions of this article, unless the state comp- 
 troller consents thereto in writing. And it shall be lawful for the 
 said state comptroller, personally or by representative, to examine 
 said securities, deposits or assets at the time of such delivery or 
 transfer. Failure to serve such notice, or failure to allow such exam- 
 ination, or failure to retain a sufficient portion or amount to pay 
 such tax and interest, as herein provided, shall render said safe 
 deposit company, trust company, corporation, bank or other institution, 
 person or persons liable to the payment of the amount of the tax 
 and interest due or thereafter to become due upon said securities, 
 deposits or other assets, including the shares of the capital stock of, 
 or other interests in, the safe deposit company, trust company, cor- 
 poration, bank or other institution making the delivery or transfer, 
 and in addition thereto, a penalty of not less than five or more than 
 twenty-five thousand dollars ; and the payment of such tax and interest 
 thereon, or of the penalty above prescribed, or both, may be enforced 
 in an action brought by the state comptroller in any court of competent 
 jurisdiction. 
 
 Sect. 228. JURISDICTION OF THE SURROGATE. The surro- 
 gate's court of every county of the state having jurisdiction to grant 
 letters testamentary or of administration upon the estate of a decedent 
 
 14 
 
Fidu ciary Accoun ting 
 
 whose property is chargeable with any tax under this article, or to 
 appoint a trustee of such estate or any part thereof, or to give ancillary 
 letters thereon, shall have jurisdiction to hear and determine all ques- 
 tions arising under the provisions of this article, and to do any act 
 in relation thereto authorized by law to be done by a surrogate in 
 other matters or proceedings coming within his jurisdiction; and if 
 two or more surrogates' courts shall be entitled to exercise any such 
 jurisdiction, the surrogate first acquiring jurisdiction hereunder shall 
 retain the same to the exclusion of every other surrogate. Every 
 petition for ancillary letters testamentary or ancillary letters of admin- 
 istration made in pursuance of the provisions of article seven, title 
 three, chapter eighteen, of the code of civil procedure, shall set forth 
 the name of the state comptroller as a person to be cited as therein 
 prescribed, and a true and correct statement of all the decedent's 
 property in this state and the value thereof; and upon the presentation 
 thereof the surrogate shall issue a citation directed to the state comp- 
 troller ; and upon the return of the citation the surrogate shall determine 
 the amount of the tax which may be or become due under the pro- 
 visions of this article, and his decree awarding the letters may contain 
 any provision for the payment of such tax, or the giving of security 
 therefor, which might be made by such surrogate if the state comptroller 
 were a creditor of the decedent. 
 
 Sect. 230. PROCEEDINGS OF APPRAISER. In each county 
 in which the office of appraiser is not salaried the county treasurer 
 shall act as appraiser. The surrogate, either upon his own motion, or 
 upon the application of any interested person, including the state 
 comptroller, shall by order direct the person or one of the persons 
 appointed pursuant to section two hundred and twenty-nine of this 
 article in counties in which the office of appraiser is salaried, and in 
 other counties, the county treasurer, to fix the fair market value of 
 property of persons whose estates shall be subject to the payment 
 of any tax imposed by this article. 
 
 Every such appraiser shall forthwith give notice by mail to all 
 persons known to have a claim or interest in the property to be 
 appraised, including the state comptroller, and to such persons as 
 the surrogate may by order direct, of the time and place when he 
 will appraise such property. He shall at such time and place appraise 
 the same at its fair market value as herein prescribed; and for that 
 purpose the said appraiser is authorized to issue subpoenas and to 
 compel the attendance of witnesses before him, and to take the evidence 
 of such witnesses, under oath, concerning such property and the value 
 thereof; and he shall make report thereof and of such value, in writing, 
 to the said surrogate, together with the depositions of the witnesses 
 examined, and such other facts in relation thereto and to said matter 
 as the surrogate may order or require. Every appraiser, except in 
 the counties in which the office of appraiser is salaried, for which 
 provision is hereinbefore made, shall be paid by the state comptroller, 
 and after the audit of said state comptroller, his actual and necessary 
 
 15 
 
Fiduciary Accounting 
 
 traveling expenses and the fees paid such witnesses, which fees shall 
 be the same as those now paid to witnesses subpoenaed to attend in 
 courts of record, payment to be made out of funds in the hands of 
 the county treasurer of the proper county on account of the tax imposed 
 under the provisions of this article. 
 
 The value of every future or limited estate, income, interest or 
 annuity dependent upon any life or lives in being, shall be determined 
 by the rule, method and standard of mortality and value employed 
 by the superintendent of insurance in ascertaining the value of policies 
 of life insurance and annuities for the determination of liabilities of 
 life insurance companies, except that the rate of interest for making 
 such computation shall be five per centum per annum. 
 
 In estimating the value of any estate or interest in property, to the 
 beneficial enjoyment or possession whereof there are persons or corpo- 
 rations presently entitled thereto, no allowance shall be made on 
 account of any contingent incumbrance thereon, nor on account of any 
 contingency upon the happening of which the estate or property, or 
 some part thereof or interest therein, might be abridged, defeated 
 or diminished ; provided, however, that in the event of such incum- 
 brance taking effect as an actual burden upon the interest of the 
 beneficiary, or in the event of the abridgement, defeat or diminution 
 of said estate or property or interest therein as aforesaid, a return 
 shall be made to the person properly entitled thereto of a proportionate 
 amount of such tax on account of the incumbrance when taking 
 effect, or so much as will reduce the same to the amount which would 
 have been assessed on account of the actual duration or extent of 
 the estate or interest enjoyed. Such return of tax shall be made in 
 the manner provided by section two hundred and twenty-five of this 
 article. 
 
 Where any property shall, after the passage of this chapter, be trans- 
 ferred subject to any charge, estate or interest, determinable by the 
 death of any person, or at any period ascertainable only by reference 
 to death, the increase accruing to any person or corporation upon 
 the extinction or determination of such charge, estate or interest, shall 
 be deemed a transfer of property taxable under the provisions of 
 this article in the same manner as though the person or corporation 
 beneficially entitled thereto had then acquired such increase from the 
 person from whom the title to their respective estates or interests is 
 derived. 
 
 When property is transferred in trust or otherwise, and the rights, 
 interest or estates of the transferees are dependent upon contingencies 
 or conditions whereby they may be wholly or in part created, defeated, 
 extended or abridged, a tax shall be imposed upon said transfer at 
 the highest rate which, on the happening of any of the said contingen- 
 cies or conditions, would be possible under the provisions of this 
 article, and such tax so imposed shall be due and payable forthwith 
 by the executors or trustees out of the property transferred, and the 
 surrogate shall enter a temporary order determining the amount of 
 
 i6 
 
Fiduciary Accounting 
 
 said tax in accordance with this provision; provided, however, that 
 on the happening of any contingency whereby the said property, or any 
 part thereof, is transferred to a person or corporation exempt from 
 taxation under the provisions of this article, or to any person taxable 
 at a rate less than the rate imposed and paid, such person or corpo- 
 ration shall be entitled to a return of so much of the tax imposed 
 and paid as is the difference between the amount paid and the amount 
 which said person or corporation should pay under the provisions of 
 this article ; and the executor or trustee of each estate, or the legal 
 representative having charge of the trust fund, shall immediately upon 
 the happening of said contingencies or conditions apply to the surro- 
 gate of the proper county, upon a verified petition setting forth all the 
 facts, and giving at least ten days' notice by mail to all interested 
 persons or corporations, for an order modifying the temporary taxing 
 order of said surrogate so as to provide for the final assessment and 
 determination of the tax in accordance with the ultimate transfer 
 or devolution of said property. Such return of overpayment shall be 
 made in the manner provided by section two hundred and twenty-five 
 of this article. 
 
 Estates in expectancy which are contingent or defeasible, and in 
 which proceedings for the determination of the tax have not been 
 taken, or where the taxation thereof has been held in abeyance, shall 
 be appraised at their full, undiminished value when the persons enti- 
 tled thereto shall come into the beneficial enjoyment or possession 
 thereof, without diminution for or on account of any valuation there- 
 tofore made of the particular estates for purposes of taxation, upon 
 which said estates in expectancy may have been limited. 
 
 Where an estate for life or for years can be divested by the act or 
 omission of the legatee or devisee it shall be taxed as if there were 
 no possibility of such divesting. 
 
 The report of the appraiser shall be made in duplicate, one of 
 which duplicates shall be filed in the office of the surrogate and the 
 other in the office of the state comptroller. 
 
 Sect. 231. DETERMINATION OF SURROGATE. From such 
 report of appraisal and other proof relating to any such estate before 
 the surrogate, the surrogate shall forthwith, as of course, determine 
 the cash value of ail estates and the amount of tax to which the same are 
 liable ; or the surrogate may so determine the cash value of all such 
 estates and the amount of tax to which the same are liable, without 
 appointing an appraiser. 
 
 The superintendent of insurance shall, on the application of any 
 surrogate, determine the value of any such future or contingent estates, 
 income or interest therein limited, contingent, dependent or determin- 
 able upon the life or lives of persons in being, upon the facts contained 
 in any such appraiser's report, and certify the same to the surrogate, 
 and his certificate shall be conclusive evidence that the method of 
 computation adopted therein is correct. 
 
 The surrogate shall immediately give notice, upon the determination 
 
 17 
 
Fiduciary Accounting 
 
 by him as to the value of any estate which is taxable under this 
 article, and of the tax to which it is liable, to all persons known to 
 be interested therein, and shall immediately forward a copy of such 
 taxing order to the state comptroller. The surrogate shall also forward 
 to the state comptroller copies of all orders entered by him in relation 
 to or affecting in any way the transfer tax on any estate, including 
 orders of exemption. 
 
 If, however, it appear at any stage of the proceedings that any 
 of such persons known to be interested in the estate is an infant or 
 an incompetent, the surrogate may, if the interest of such infant or 
 incompetent is presently involved, and is adverse to that of any of the 
 other persons interested therein, appoint a special guardian of such 
 infant; but nothing in this provision shall affect the right of an infant 
 over fourteen years of age, or of any one on behalf of an infant under 
 fourteen years of age, to nominate and apply for the appointment of 
 a special guardian for such infant at any stage of the proceedings. 
 
 Sect. 232. APPEAL AND OTHER PROCEEDINGS. The state 
 comptroller, or any person dissatisfied with the appraisement or assess- 
 ment and determination of tax may appeal therefrom to the surrogate 
 within sixty days from the fixing, assessing and determination of tax 
 by the surrogate, as herein provided, upon filing in the office of the 
 surrogate a written notice of appeal, which shall state the grounds 
 upon which the appeal is taken; but no costs shall be allowed by the 
 surrogate on such appeal. 
 
 Within two years after the entry of an order or decree of a 
 surrogate determining the value of an estate and assessing the tax 
 thereon, the state comptroller may, if he believes that such appraisal, 
 assessment or determination has been fraudulently, collusively or 
 erroneously made, make application to a justice of the supreme court 
 of the judicial district embracing the surrogate's court in which the 
 order or decree has been filed for a reappraisal thereof. The justice 
 to whom such application is made may thereupon appoint a competent 
 person to reappraise such estate. Such appraiser shall possess the 
 powers and be subject to the duties of an appraiser, under section 
 two hundred and thirty, and shall receive compensation at the rate 
 of five dollars per day for every day actually and necessarily employed 
 in such appraisal. Such compensation shall be payable by the state 
 comptroller or county treasurer out of any funds he may have on 
 account of any tax imposed under the provisions of this article, upon 
 the certificate of the justice appointing him. The report of such 
 appraiser shall be filed with the justice by whom he was appointed, 
 and thereafter the same proceedings shall be taken and had by and 
 before such justice as are herein provided to be taken and had by 
 and before the surrogate. The determination and assessment of such 
 justice shall supersede the determination and assessment of the surro- 
 gate, and shall be filed by such justice in the office of the state comp- 
 troller, and a certified copy thereof transmitted to the surrogate's court 
 of the proper county. 
 
 18 
 
Fiduciary Accounting 
 
 Sect. 233. COMPOSITION OF TRANSFER TAX UPON CER- 
 TAIN ESTATES. The state comptroller, by and with the consent 
 of the attorney-general, expressed in writing, is hereby empowered 
 and authorized to enter into an agreement with the trustees of any 
 estate in which remainders or expectant estates have been of such a 
 nature, or so disposed and circumstanced, that the taxes therein are 
 held not presently payable, or where the interests of the legatees 
 or devisees were not ascertainable under the provisions of chapter 
 four hundred and eighty-three of the laws of eighteen hundred and 
 eighty-five, chapter three hundred and ninety-nine of the laws of 
 eighteen hundred and ninety-two, or chapter nine hundred and eight 
 of the laws of eighteen hundred and ninety-six, and the several acts 
 amendatory thereof and supplemental thereto; and to compound such 
 taxes upon such terms as may be deemed equitable and expedient; and 
 to grant discharge to said trustees upon the payment of the taxes 
 provided for in such composition, provided, however, that no such 
 composition shall be conclusive in favor of said trustees as against 
 the interest of such cestuis que trust as may possess either present 
 rights of enjoyment or fixed, absolute or indefeasible rights of future 
 enjoyment, or of such as would possess such rights in the event of 
 the immediate termination of particular estates, unless they consent 
 thereto, either personally, when competent, or by guardian or com- 
 mittee. Composition or settlement made or effected under the pro- 
 visions of this section shall be executed in triplicate, and one copy filed 
 in the office of the state comptroller, one copy in the office of the 
 surrogate of the county in which the tax was paid, and one copy 
 delivered to the executors, administrators or trustees who shall be 
 parties thereto. 
 
 Sect. 241. REPORT OF STATE COMPTROLLER; PAYMENT 
 OF TAXES; REFUNDS IN CERTAIN CASES. The state comp- 
 troller shall deposit all taxes collected by him under this article, except 
 as hereinafter otherwise provided, in a responsible bank, bankings 
 house or trust company in the city of Albany, which shall pay the 
 highest rate of interest to the state for such deposit, to the credit of 
 the state comptroller on account of the transfer tax. And every 
 such bank, banking house or trust company shall execute and file 
 in his office an undertaking to the state, in the sum, and with such 
 sureties, as are required and approved by the comptroller, for the 
 safe keeping and prompt payment on legal demand therefor of all 
 such moneys held by or on deposit in such bank, banking house or 
 trust company, with interest thereon on daily balances at such rate 
 as the comptroller may fix. Every such undertaking shall have 
 indorsed thereon, or annexed thereto, the approval of the attorney- 
 general as to its form. The state comptroller shall on the first day 
 of each month make a verified return to the state treasurer of all 
 taxes received by him under this article, stating for what estate and 
 by whom and when paid; and shall credit himself with all expenditures 
 made since his last previous return on account of such taxes, for 
 
 19 
 
Fiduciary Accounting 
 
 salary, refunds or other purposes lawfully chargeable thereto. He 
 shall, on or before the tenth day of each month, pay to the state 
 treasurer the balance of such taxes remaining in his hands at the 
 close of business on the last day of the previous month, as appears 
 from such returns. Whenever the tax on a contingent remainder has 
 been determined at the highest rate which on the happening of any 
 of said contingencies or conditions would be possible under the 
 provisions of this article, the state comptroller, in the counties wherein 
 this tax is payable direct to him, and in all other counties the treas- 
 urer of said counties, respectively, when such tax is paid shall retain 
 and hold to the credit of said estate so much of the tax assessed upon 
 such contingent remainders as represents the difference between the 
 tax at the highest rate and the tax upon such remainders which 
 would be due if the contingencies or conditions had happened at the 
 date of the appraisal of said estate, and the state comptroller or the 
 county treasurer shall deposit the amount of tax so retained in some 
 solvent trust company or trust companies or savings banks in this 
 state, to the credit of such estate, paying the interest thereon when 
 collected by him to the executor or trustee of said estate, to be applied 
 by said executor or trustee as provided by the decedent's will. Upon 
 the happening of the contingencies or conditions whereby the remainder 
 ultimately vests in possession, if the remainder then passes to persons 
 taxable at the highest rate, the state comptroller or the county treas- 
 urer shall turn over the amount so retained by him to the state treas- 
 urer, as provided herein and by section two hundred and forty of 
 this article, or if the remainder ultimately vests in persons taxable at 
 a lower rate, or a person or corporation exempt from taxation by the 
 provisions of this article, the state comptroller or the County treasurer 
 shall refund any excess of tax so held by him to the executor or 
 trustee of the estate, to be disposed of by said executor or trustee 
 as provided by the decedent's will. Executors or trustees of any 
 estate may elect to assign to and deposit with the state comptroller or 
 the county treasurer bonds or other securities of the estate approved 
 by the state comptroller, or the county treasurer, both as to the form 
 of the collateral and the amount thereof, for the purpose of securing 
 the payment of the difference between the tax on said remainder at 
 the highest rate and the tax upon said remainder which would be due 
 if the contingencies or conditions had happened at the date of the 
 appraisal of said estate, and cash for the balance of said tax as 
 assessed, which said bonds or other securities shall be held by the 
 state comptroller, or the county treasurer, to the credit of said estate 
 until the actual vesting of said remainders, the income therefrom 
 when received by the state comptroller or the county treasurer to be 
 paid over to the executor or trustee during the continuance of the 
 trust estates, and then to be finally disposed of in accordance with 
 the ultimate transfer or devolution of said remainders, as hereinbefore 
 provided ; and it shall be the duty of the executors or trustees of such 
 estates to forthwith notify the state comptrolkr of the actual vesting 
 of all such contingent remainders. 
 
 20 
 
Fiduciary Accounting 
 
 If any executor or trustee shall have deposited with the state 
 comptroller or the county treasurer, cash or securities, or both cash 
 and securities, to an amount in excess of the sum necessary to pay 
 the transfer tax upon such contingent remainders at the highest rate, 
 as aforesaid, the excess of tax so deposited shall be returned to the 
 executor or trustee, or if any executor or trustee shall have deposited 
 with the state comptroller, or the county treasurer, cash or securities, 
 or both cash and securities, to an amount less than is sufficient to 
 pay the tax upon such contingent remainders as finally assessed and 
 determined, the executor or trustee of said estate shall forthwith, upon 
 the entry of the order determining the correct amount of tax due, pay 
 to the state comptroller, or the county treasurer, whichever is entitled 
 under the provisions of this article to receive the tax, the balance due 
 on account of said tax. 
 
 Sect. 243. DEFINITIONS. The words "estate" and "property," 
 as used in this article, shall be taken to mean the property, or interest 
 therein, passing or transferred to individual or corporate legatees, 
 devisees, heirs, next of kin, grantees, donees or vendees, and not as 
 the property or interest therein of the decedent, grantor, donor or 
 vendor, and shall include all property or interest therein, whether 
 situated within or without this state. The words "tangible property," 
 as used in this article, shall be taken to mean corporeal property, such 
 as real estate and goods, wares and merchandise, and shall not be taken 
 to mean money, deposits in bank, shares of stock, bonds, notes, credits, 
 or evidences of an interest in property and evidences of debt. The 
 words "intangible property," as used in this article, shall be taken 
 to mean incorporeal property, including money, deposits in bank, shares 
 of stock, bonds, notes, credits, evidences of an interest in property and 
 evidences of debt. The word "transfer," as used in this article, shall 
 be taken to include the passing of property or any interest therein in 
 the possession or enjoyment, present or future, by inheritance, descent, 
 devise, bequest, grant, deed, bargain, sale or gift, in the manner herein 
 prescribed. The words "county treasurer" and "district attorney," as 
 used in this article, shall be taken to mean the treasurer or the district 
 attorney of the county of the surrogate having jurisdiction, as provided 
 in section two hundred and twenty-eight of this article. The words, 
 "the intestate laws of this state," as used in this article, shall be taken 
 to refer to all transfers of property, or any beneficial interest therein, 
 eflfected by the statute of descent and distribution and the transfer 
 of any property, or any beneficial interest therein effected by operation 
 of law upon the death of a person omitting to make a valid disposition 
 thereof, including a husband's right as tenant by the courtesy or the 
 right of a husband to succeed to the personal property of his wife 
 who dies intestate, leaving no descendants her surviving. 
 
 21 
 
Fiduciary Accounting 
 
 THE TAX LAW 
 ARTICLE XII 
 
 STOCK TRANSFER TAX LAW 
 
 Sect. 270. AMOUNT OF TAX. There is hereby imposed, and 
 shall immediately accrue and be collected a tax, as herein provided, 
 on all sales, or agreements to sell, or memoranda of sales of stock, and 
 upon any and all deliveries or transfers of shares or certificates of 
 stock, in any domestic or foreign association, company or corporation, 
 made after the first day of June, nineteen hundred and five, whether 
 made upon or shown by the books of the association, company or 
 corporation, or by any assignment in blank, or by any delivery, or 
 by any paper or agreement or memorandum, or other evidence of sale 
 or transfer, whether intermediate or final, and whether investing 
 the holder with the beneficial interest in or legal title to said stock, 
 or merely with the possession or use thereof for any purpose, or to 
 secure the future payment of money, or the future transfer of any 
 stock, on each hundred dollars of face value or fraction thereof, two 
 cents, except in cases where the shares or certificates of stock are 
 issued without designated monetary value, in which cases the tax 
 shall be at the rate of two cents for each and every share of such 
 stock. It shall be the duty of the person or persons making or 
 effectuating the sale or transfer to procure and affix the stamps and 
 pay the tax provided by this article. It is not intended by this act to 
 impose a tax upon an agreement evidencing the deposit of stock cer- 
 tificates as collateral security for money loaned thereon, which stock 
 certificates are not actually sold, nor upon such stock certificates so 
 deposited, nor upon mere loans of stock or the return thereof. The 
 payment of such tax shall be denoted by an adhesive stamp or stamps 
 affixed as follows: In the case of a sale or transfer, where the evi- 
 dence of the transaction is shown only by the books of the association, 
 company or corporation, the stamp shall be placed upon such books, 
 and it shall be the duty of the person making or effectuating such sale 
 or transfer to procure and furnish to the association, company or 
 corporation the requisite stamps, and of such association, company or 
 corporation to aflftx and cancel the same. Where the transaction is 
 effected by the delivery or transfer of a certificate, the stamp shall 
 be placed upon the surrendered certificate and cancelled; and in cases 
 of an agreement to sell, or where the sale is effected by delivery of 
 the certificate assigned in blank, there shall be made and delivered 
 by the seller to the buyer a bill or memorandum of such sale, to which 
 the stamp provided for by this article shall be affixed and cancelled. 
 Every such bill or memorandum of sale, or agreement to sell, shall 
 show the date of the transaction which it evidences, the name of 
 the seller, the stock to which it relates, and the number of shares 
 
 22 
 
Fiduciary Accounting 
 
 thereof. All such bills or memoranda of sale shall bear a number 
 upon the face thereof, and no more than one such bill or memorandum 
 of sale made by the seller on any given day shall bear the same num- 
 ber. The aforesaid identification number of the bill or memorandum 
 of sale shall in all cases be entered and recorded on the books of 
 account required to be kept by article two hundred and seventy-six 
 of this chapter ; and no further tax is hereby imposed upon the delivery 
 of the certificate of stock, or upon the actual issue of a new certificate 
 when the original certificate of stock is accompanied by the duly 
 stamped memorandum of sale as herein provided. 
 
 EXCERPTS FROM RULINGS OF STATE COMPTROLLER'S 
 
 OFFICE GOVERNING THE COLLECTION OF 
 
 TAXES ON TRANSFERS OF STOCK 
 
 4. It is not necessary, to render it taxable, that the transaction 
 involve a sale. By the statute, as amended, a tax is imposed upon all 
 sales or transfers of shares or certificates of stock, whether operating 
 to convey the beneficial interest in or merely the legal title to said 
 stock, or possession thereof for any purpose. The only exceptions to 
 this rule are those expressly provided for in section 270 of the law. 
 
 5. The transfer to and from voting trustees is taxable; also the 
 transfer of voting trust certificates. 
 
 6. The mere surrender of a certificate of stock for reissue in 
 smaller denomination is not taxable; but if reissued in part to the 
 original owner and in part to a third party it is taxable to the extent 
 of the transfer to the third party. 
 
 7. Likewise, the mere surrender of a certificate of stock held by 
 a deceased person for issuance in the name of his executor or admin- 
 istrator is not taxable; but all transfers made by the latter, whether 
 to trustees, legatees, or other persons, are taxable. 
 
 8. The law applies to the stock of foreign as well as domestic 
 corporations and to residents and non-residents alike. 
 
 10. It is the duty of the person making or effectuating the sale 
 or transfer to pay the required tax by procuring, affixing and cancelling 
 the stamps, except that where a sale or transfer is shown only by 
 the books of the corporation, the person making the sale must secure, 
 and the corporation affix the stamps to its books. (Sect. 270.) 
 
 August i, 191 i 
 
 Balance due on contract to purchase realty is paid, voucher 
 No. 30. 
 
 Taxes on farm lands in Iowa, assessed prior to testator's 
 death, amounting to $84.00, are paid. The executors com- 
 mence foreclosure proceedings against William Price. 
 
 23 
 
Fiduciary Accounting 
 
 August 3, 191 1 
 
 Notice received by executors of credit for interest for year 
 ended June 30, 191 1, by Mechanics and Ninth Ward Savings 
 banks; amounts, respectively, are $20.48 and $60.60. 
 
 August 7, 191 1 
 
 Payment is made of the following debts: voucher No. 32, 
 Goodrun Tire Co., a New York corporation, due on stock 
 subscription made by testator in his lifetime for sixteen shares, 
 par value $100 each, $1,600.00; voucher No. 33, Rogers, Peet 
 Co., $373.00. 
 
 Legal fees in connection with probate of will and services 
 to date paid to J. Bennett, $1,200. Transfer tax appraisers 
 appointed. 
 
 September i, 191 i 
 
 Received rent of Henry Street property, $200.00 Paid 
 balance of testator's debts as follows : Fresco Decorating Co., 
 $395.00; Heddon & Co., contractors, $3,195.00. 
 
 September 7, 191 1 
 
 Executors pay the transfer tax. Jane Smart is married 
 to James Farrand. The property of W. Price is sold at public 
 auction and realized $25,000.00. The executors receive the 
 interest due on the second mortgage; also the quarterly divi- 
 dend of i%% on the stock of the United Cigar Mfrs. Co. 
 
 October 2, 191 1 
 
 The executors receive the quarterly dividend on stock of 
 Interurban R. R. Co. of i%% ; half-yearly interest on bond of 
 James Kent. The executors invest in a bond and mortgage of 
 Charles H. Keepler, premises, 352 West Forty-third Street, 
 Manhattan, recorded in Section 4. Liber 193 of Mortgages, 
 page 82, due April i, 1914. Interest at 5%, payable October 
 I and April i, $50,000.00. 
 
 24 
 
Fiduciary Accounting 
 
 November i, 191 i 
 
 Check received for interest on N. Y. C. gold debentures. 
 Paid taxes of current year on realty, $246.00; personalty, 
 $1,241.60. 
 
 December i, 191 i 
 
 Executors receive rent of Henry Street property, $200.00; 
 quarterly dividend of Ij4% on stock of United Cigar Mfrs. 
 Co. 
 
 December 30, 191 1 
 
 The Union Trust Co. allowed a credit on the balance of 
 the testator's account to date of death, $14.37; subsequent to 
 death, $304.00. Paid to widow on account of income, $500.00. 
 Close the cash book and prepare a trial balance of the ledger 
 as of December 31, 191 1. 
 
 January 2, 191 2 
 
 Stock of Interurban R. R. Co. sold for $117,000.00, less 
 usual brokerage and expense; this stock sells ex-dividend on 
 January i. The executors purchase for $85,000.00 and 
 accrued interest a bond and mortgage of Charles R. Heinz, 
 premises 361-363 West Fifty-eighth Street, Manhattan, re- 
 corded in Section 4, Liber 220 of Mbrtgages, page 82, due 
 March 2, 1916, interest 5%, March i and September i. The 
 executors withdraw all deposits from savings banks, trans- 
 ferring the respective deposits to the Union Trust Co. To 
 these accounts the banks had credited interest at the rate of 
 4% per annum. Paid to widow on account of income, voucher 
 No. 41, $1,400.00. 
 
 January 15, 191 2 
 
 Received rental on leasehold property from Goldsmith, 
 Silver & Co., $15,000.00; paid J. Sator rental of leasehold 
 property, $7,000.00; paid Spear & Co., expenses in connection 
 with leasehold property as follows : voucher No. 43, insurance, 
 $395.00; voucher No. 44, repairs, $1,612.00; taxes, $903.00, 
 voucher No. 45. Make a suitable provision for the amortiza- 
 tion of the leasehold. 
 
Fiduciary Accounting 
 
 February 15, 191 2 
 
 Paid renewal premium on executors' bond, voucher No. 
 46, $1,645.00 The stock of United Cigar Mfrs. Co., sold at 
 ioi}i, less usual brokerage and tax. 
 
 February 25, 191 2 
 
 The executors pay the balance of the legacies and bequests 
 under the will ; the bond and mortgage of James Kent being 
 assigned to Henry Robinson as of February 25, 1912; Robin- 
 son pays to the executor the amount of the tax on his legacy. 
 
 March i, 191 2 
 
 The executors sell the Iowa farm lands for $14,000.00; 
 rent of Henry Street property received; interest on invest- 
 ments due on this date received. Paid to widow on account of 
 income, voucher No. 63, $1,000.00. Land in Florida sold for 
 $1,000.00. The executors make the following investments: 
 Bond and mortgage, Fred W. Holden, premises southwest 
 corner West Broadway and Thomas Street, Manhattan, re- 
 corded in Section i. Liber 156 of Mortgages, page 150, due 
 March i, 1916, interest 5% March i and September i, 
 $75,000.00; bond and mortgage, Winan Realty Holding Com- 
 pany, premises northwest corner Twelfth Avenue and 129th 
 Street, Manhattan, recorded in Section 7, Liber 290 of Mort- 
 gages, page 450, due March i, 191 5, interest 5% March i 
 and September i, $i,cxx),ooo.oo. 
 
 April i, 191 2 
 
 Interest due on Keepler Bond and Mortgage paid. Paid 
 Monroe Trust Co., one year rent of vault. Paid renewal of fire 
 insurance premium, $15.00. 
 
 May I, 1912 
 
 Executors receive the interest due on 4% gold debentures. 
 They pay half-yearly portion of taxes on realty, $125.00, and 
 on personalty, $1,210.00, vouchers No. 68 and No. 69. 
 
 26 
 
Fiduciary Accounting 
 
 May 3, 1912 
 
 Sold at private sale N. Y. C. 4% gold debentures at 95 
 and accrued interest, including date of sale. 
 
 June i, 1912 
 
 Rent of Henry Street property received. The executors 
 are unable to realize a fair price for the stock of the Goodrun 
 Tire Co., and decide to hold it for the present. 
 
 June 30, 1912 
 
 The Union Trust Co. credits interest on the estate account 
 to date, $3,294,87. The following amounts are paid by the 
 executors : R. Brown, C. P. A., audit fee, $5cx>.oo, voucher 
 No. 70 ; postmaster, postage, $25.07, voucher No. 71 ; Tower 
 Stationery Co., stationery, $52.35, voucher No. 72. C. Robin- 
 son has elected to take the regular commission allowed by 
 law in lieu of his bequest under the terms of the will. The 
 partnership of Smart and Williams has been liquidated with 
 the following result: a new corporation, under the name of 
 The Smart and Williams Company has been formed to take 
 over the former business; the estate is paid the sum of $150,- 
 000.00, representing the capital contribution of the decedent; 
 the new company pays two years' purchase of the average 
 annual profits for the previous three years for the goodwill 
 of the old firm ; the annual average profits for the three-year 
 period were $25,000.00; the new corporation took the busi- 
 ness over as of January i, 1912, and the profits for the year 
 ending December 31, 191 1, after all charges, were $24,050.00. 
 Close the cash book; take a trial balance of the estate ledger 
 and prepare the executors' summary statement with supporting 
 schedules, allowing for counsel's fee of $5,000.00 and the 
 regular commissions allowed by law. 
 
 July 20, 191 2 
 
 The Surrogate allowed the executors the statutory com- 
 missions as well as the bill of G. Bennett, attorney for the 
 executors, amounting to $5,000.00 Close the books of the 
 
 27 
 
Fiduciary Accounting 
 
 executors. Open the books of the trustees, planning the 
 accounts in the ledger in such a manner as to facilitate the 
 preparation of the trustees 'accounts for presentation to the 
 Surrogate. 
 
 The student must enter the income from trust invest- 
 ments on due date as the syllabus will not mention these items 
 in future. 
 
 August i, 1912 
 
 The trustees purchase 200 bonds, par value $1,000.00 each, 
 of City of Rochester bearing interest at 5%, payable February 
 I and August i, amount $208,572.40, due May i, 191 7. The 
 Goodrun Tire Co. stock is sold for $1,650.00, less usual charges. 
 The balance of income due to R. & W. Mead is paid, as also 
 is the balance of income due to Mrs. A. C. Smart. 
 
 September i, 1912 
 
 The trustees receive the amount due on principal and inter- 
 est on bond of C. Stollerman. 
 
 December 31, 1912 
 
 Mrs. A. C. Smart is killed in a railroad accident. Prepare 
 with due distinction as to principal and income, the accounts 
 of the trustees for the period ending December 31, 19 12, 
 together with the necessary schedules showing the eflfect upon 
 the trust estate of the death of Mrs. Smart. 
 
 28 
 
Fiduciary Accounting 
 
 SYNOPSIS OF DECEDENT ESTATE LAW OF NEW YORK 
 
 ARTICLE I. I. Title. 2. Definitions. Will includes codicils. 
 
 ARTICLE II. 10. All persons, except idiots, persons of unsound 
 mind and infants, may devise real estate. 11. Every estate and interest 
 in real property descendible to heirs may be devised. 12. Such devise 
 of real property may be made to every person capable by law of holding 
 real estate. Corporations must be authorized by charter or statute 
 to take by devise. 14. Wills expressly or in terms denoting an 
 intent to devise all real estate of testator pass all real estate testator 
 was entitled to devise at time of death. 15. Males 18 years, females 
 16 years, of sound mind and memory, may will in writing personal 
 estate. 16. Nuncupative or unwritten wills of personal estate are 
 invalid unless made by soldier in actual military service or mariner 
 at sea. 17. "No person having a husband, wife, child or parent, shall, 
 by his or her last will and testament devise or bequeath to any benevo- 
 lent, charitable, literary, scientific, religious or missionary society, 
 association or corporation, in trust or otherwise, more than one-half 
 part of his or her estate, after the payment of his or her debts, and 
 such devise or bequest shall be valid to the extent of one-half and 
 no more." 21. Manner of execution of will: Every will must be (a) 
 subscribed by testator at end; (b) such subscription made by testator 
 in presence of each attesting witness, or acknowledged to have been, 
 so made to each attesting witness ; (c) at time of subscription, or at 
 time of acknowledging, testator shall declare instrument to be last 
 will and testament; (d) at least two attesting witnesses, each to sign 
 his name as witness at end of the will, at request of testator. 22. 
 Witnesses must write addresses, or forfeit $50. Lack of address no 
 effect on will. 23. "What wills may be proved?" A will of real or 
 personal property, executed as prescribed by the laws of the state, 
 or a will of personal property executed without the state, and within 
 the United States, the Dominion of Canada, or the Kingdom of Great 
 Britain and Ireland, as prescribed by the laws of the state or country 
 where it is or was executed, or a will of personal property executed 
 by a person not a resident of the state, according to the laws of the 
 testator's residence, may be admitted to probate in this state. 24. 
 Validity of execution or right to admit to probate or validity or con- 
 struction of any provision not affected by change of testator's residence 
 since execution of will. 25. (Applies to old wills.) 26. Children 
 born after making of will unprovided for by settlement, and not men- 
 tioned in will, have same right as though there were no will, and may 
 recover from devisees and legatees in proportion to devises and 
 bequests. 27. Witness who is necessary cannot take under will but 
 may take to extent he would have received property if there had been 
 no will. Cannot get more than will allowed, however. 28. Gives 
 right of action to child born after making the will or to subscribing 
 
Fiduciary Accounting 
 
 witness as provided by previous sections. 29. Personal or real prop- 
 erty shall not lapse if given to a direct lineal descendant or brother 
 or sister of testator, if such direct lineal descendant or brother or 
 sister has a lineal descendant who shall take property as if legatee or 
 devisee had survived the testator and had died intestate. 30. Clerk 
 of county, or register of deeds in city, and surrogate, to receive wills 
 delivered by persons and to give written receipt. 31. Sealing and 
 indorsing wills received for safe keeping, as provided in section 30. 
 
 32. Such wills to be delivered only to testator in person, or upon written 
 order proved by oath of subscribing witness, or after his death to 
 persons named in indorsement, or, if no indorsement, and if deposited 
 with any other officer than a surrogate, to surrogate of the county. 
 
 33. Opening wills received by surrogate for safe keeping. Deposit 
 under previous sections, to be opened, etc. 34. Wills, except in cases 
 mentioned in statute, revoked only by other will or by writing declaring 
 revocation or alteration executed with same formalities, or unless 
 "burnt, torn, cancelled, obliterated or destroyed, with the intent and 
 for the purpose of revoking the same, by the testator himself, or by 
 another person in his presence, by his direction and consent; and 
 when so done by another person the direction and consent of the 
 testator and the fact of such injury or destruction shall be proved 
 by at least two witnesses. 35. Subsequent marriage of testator and 
 birth of issue revokes will disposing of testator's whole estate, if wife 
 or such issue shall survive testator, unless such issue shall have been 
 provided for or mentioned in will, 36. Will executed by unmarried 
 woman revoked by her subsequent marriage. 37. Agreement for 
 valuable consideration to convey property devised or bequeathed by 
 a will previously made not deemed revocation of previous devise or 
 bequest; property passes to devisee or legatee subject to the same 
 remedies on the agreement that would have lain against the heirs or 
 next of kin of testator had the property descended to them. 38. Giarge 
 or incumbrance upon real or personal estate does not revoke any 
 previous will disposing of same estate; property passes, subject to 
 such charge or incumbrance. 39. Any instrument that alters testa- 
 tor's interest in specified property does not revoke his will previously 
 made disposing of such property, unless testator declares such to be 
 his intention in such instrument; legatee or devisee acquires same 
 interest that would have descended to heir or next of kin. 40. But 
 if provisions of instruments by which alteration is made are wholly 
 inconsistent with previous devise or bequest, instrument operates as 
 revocation (unless provisions depend upon condition which is not 
 performed, or contingency not happened). 41. A former will is not 
 revived by the revocation of another made subsequently, unless it 
 appears by the terms of such revocation that it was his intention to 
 revive the former will; or unless he duly republishes it. 42. A 
 will of real property which has been duly proved may be recorded 
 as a deed of real property. An executor or administrator with will 
 annexed must cause copy of will to be recorded within twenty days 
 
 30 
 
Fiduciary Accounting 
 
 after letters are issued to him. An exemplification of record of such 
 will may be recorded in office of clerk or register of any county. 
 Such record must be received in evidence as original will. 43. Record 
 or exemplification of will must be indexed by clerk or register as a 
 deed would be. 44. (Relates to recording wills proved in another 
 state or foreign country.) 45. (See section 44.) 46. Title of bona 
 fide purchaser from heir of testator is good against devisee unless 
 will shall be probated or established within four years from death 
 of testator; if devisee is under legal disability at time of death of 
 testator, or will shall have concealed by heir of testator, term of 
 four years shall not begin to run until one year after removal of such 
 legal disability or delivery of will to devisee or to proper surrogate. 
 47. Testamentary disposition of real estate is regulated by laws of 
 place where real estate is situated, without regard to residence of 
 decedent; testamentary disposition of personality governed by laws 
 of domicile of testator; but testator resident of United States may 
 by declaration in his will elect that it be construed and regulated 
 by laws of this state. 
 
 ARTICLE III. Sect. 80. (i) This section defines real property 
 generally as all interest in lands held by decedent; "inheritance" means 
 real property descended according to provisions of Article III. (2) 
 Where inheritance shall have come to the intestate "on the part of 
 the father or mother," this includes all inheritance which shall have 
 come from that parent or from any relatives on that parent's side. 
 (3) When a person is described as "living" it means living at the time 
 of death of intestate; when described as "having died," it means that 
 he died before such intestate. (4) Article does not affect a limitation of 
 estate by deed or will or tenancy by the courtesy or dower. 81. 
 (Descent, or hereditary succession, is the title whereby a person, on 
 the death of his blood relative, acquires his estate by right of repre- 
 sentation. Sections 82-88, inclusive, cover Statute of Descent.) 89, 
 Estate of illegitimate intestate, dying without issue entitled to inherit, 
 passes to his mother; if she be dead, to her relatives. Illegitimate 
 issue inherit from mother only in case there are no legitimate issue. 
 90. Relatives of the half-blood and their descendants inherit equally 
 with those of the whole-blood ; unless the inheritance came to intestate 
 by descent or gift from an ancestor, in which case all those who are 
 not of the blood of such ancestor shall be excluded from such inheri- 
 tance. 91. When the inheritance shall have come to the intestate 
 from a deceased husband or wife, should there be no person to inherit 
 under the preceding sections, then such real property of such intestate 
 shall descend to the heirs of such deceased husband or wife. 92. In 
 cases not provided for, the inheritance shall descend according to 
 common law. 93. A posthumous child inherits as if born in the 
 lifetime of intestate. 94. When one person alone inherits he holds 
 the estate solely; two or more heirs hold as tenants in common, in 
 proportion to their respective interests. 95. Alienism of ancestor no 
 bar to inheritance. 96. "Advancements" being gifts by an intestate 
 
 31 
 
Fiduciary Accounting 
 
 to a child by settlement or portion, including estates or interests given 
 by a parent to a descendant, by virtue of a beneficial power or power 
 in trust. The law demands that the value of such advancements shall 
 be reckoned in appraising the intestate's estate and in estimating the 
 share of the descendant's inheritance. 97. When an advancement 
 consisted of real property, adjustment must be out of real property; 
 advancement of personal property, adjustment of personalty; if either 
 is insufficient, adjustment is made out of the other. 98. Treats of the 
 Statute of Distributions. 99. Repeats the provisions of section 96, 
 with regard to advancements of personalty. 100. The provisions 
 as to distribution apply to property of married women leaving descend- 
 ants. Husband of such deceased intestate is entitled to same share 
 that a widow would receive of her husband's personalty. loi. 
 Devisees and heirs are liable for debts of decedent to the extent of 
 their respective inheritances. 102. Liability of heir or devisee not 
 affected by preceding section where will makes specific provisions for 
 payment of debt. 103. Husband liable as administrator for debts of 
 wife to the extent of assets received by him. 104. Incorporates pro- 
 visions of section 2513 CCP., defining terms frequently used in 
 Decedent Estate Law. 
 
 EXECUTORS, ADMINISTRATORS AND TESTAMENTARY 
 
 TRUSTEES 
 
 ARTICLE IV. Sect. iio. Executor may sell property situated in 
 New York State as he deems most advantageous to those interested 
 therein, iii. Trust funds may be invested in the same kind of securi- 
 ties as are authorized investments for deposits of savings banks and 
 in bonds and mortgages on real estate worth fifty per cent more than 
 the amount loaned thereon. The holder of trust funds may require 
 such personal bonds of guaranty of payment as may seem prudent, 
 the expense of premiums on such guarantees not exceeding one-half 
 of one per cent per annum, or par value of investments, to be paid 
 out of income. No trustee shall purchase securities hereunder from 
 himself. 112. The law no longer recognizes an executor de son tort; 
 any individual interfering without authority with the property of 
 deceased is liable as wrongdoer. 113. No executor shall be held on 
 his promise to meet the indebtedness of estate of deceased, unless 
 the promise be in writing. 114. The executors or administrators of a 
 deceased person who, as executor administrator, misappropriated the 
 funds of his testator or intestate, shall be liable for their testator's 
 (or intestate's) wrongdoing. 115. When the administration of the 
 effects of a deceased person has been begim by one executor, and 
 passes on to another executor to complete, the second executor shall 
 have all legal rights in the prosecution or defense of any action 
 concerning the estate that the original executor (or administrator, 
 or intestate) would have had, 116. All actions on account and upon 
 
 32 
 
Fiduciary Accountiug 
 
 contract may be maintained by and against executors as by or against 
 their respective testators. 117. Administrators have the same legal 
 rights and liabilities as to debts owing to or by the decedent as execu- 
 tors. 118. Administrators or executors shall have actions of trespass 
 for damage done to the realty or personalty of the deceased in his 
 lifetime. 119. Actions of trespass shall lie against executors and 
 administrators for damage to personalty or realty done by the deceased 
 in his lifetime. 120. Executors or administrators shall be empowered 
 to institute or defend actions in tort arising out of the acts of their 
 respective decedents, in the same manner as actions upon contract. 
 This section shall not extend to actions for personal injuries (except 
 for injuries resulting in death under Section 3343 Code Civ. Pro.). 
 121. The executor of an executor has no right to enter into the 
 affairs involving the estate of the former testator. 122. This section 
 explains by what standards the estate of a deceased person shall be 
 appraised. 
 
 33 
 
Fiduciary Accounting 
 
 IMPORTANT SECTIONS OF THE CODE OF CIVIL 
 PROCEDURE 
 
 Sect. 217. GENERAL JURISDICTION OF SUPREME COURT. 
 The general jurisdiction in law and equity, which the supreme court 
 of the state possesses, under the provisions of the Constitution, includes 
 all the jurisdiction which was possessed and exercised by the supreme 
 court of the colony of New York, at any time, and by the court of 
 chancery in England, on the fourth day of July, seventeen hundred 
 and seventy-six; with the exceptions, additions and limitations created 
 and imposed by the constitution and laws of the state. Subject to 
 those exceptions and limitations, the supreme court of the state has 
 all the powers and authority of each of those courts, and exercises 
 the same in like manner. 
 
 Sect. 383. WITHIN THREE YEARS. 
 
 1. An action against a sheriff, coroner, constable, or other officer, 
 for the non-payment of money collected upon an execution. 
 
 2. An action against a constable, upon any other liability incurred 
 by him, by doing an act in his official capacity, or by the omission of 
 an official duty ; except an escape. 
 
 3. An action upon a statute, for a penalty or forfeiture, where the 
 action is given to the person aggrieved, or to that person and the people 
 of the State ; except where the statute imposing it prescribes a different 
 limitation. 
 
 4. An action against an executor, administrator, or receiver, or 
 against the trustee of an insolvent debtor, appointed, as prescribed by 
 law, in a special proceeding instituted in a court or before a judge, 
 brought to recover a chattel, or damages for taking, detaining or in- 
 juring personal property, by the defendant, or the person whom he 
 represents. 
 
 5. An action to recover damages for a personal injury resulting 
 from negligence. 
 
 Sect. 755- ACTION, ETC., WHEN NOT TO ABATE. An 
 action does not abate by any event, if the cause of action survives or 
 continues. A special proceeding does not abate by any event, if the 
 right to the relief sought in such special proceeding survives or con- 
 tinues, but this provision as to a special proceeding applies only to 
 cases where a party dies after this act takes effect. 
 
 Sect. 811. PARTY NEED NOT JOIN; WHEN ONE SURETY 
 IS SUFFICIENT. Where a provision of this act requires a bond 
 or undertaking with sureties, to be given by, or in behalf of, a party 
 or other person, he need not join with the sureties in the execution 
 thereof, unless the provision requires him to execute the same; and 
 the execution thereof by one surety is sufficient, although the word 
 "sureties" is used, unless the provision expressly requires two or 
 more sureties ; and the execution of any such bond or undertaking 
 
 34 
 
Fiduciary Accounting 
 
 by any fidelity or surety company authorized by the laws of this State 
 to transact business, shall be equivalent to the execution of said bond 
 or undertaking by two sureties ; and such company, if excepted to, 
 shall justify through its officers or attorney in the manner required 
 by law of fidelity and surety companies. Any such company may 
 execute any such bond or undertaking as surety by the hand of its 
 officers, or attorney, duly authorized thereto by resolution of its board 
 of directors, a certified copy of which resolution, under the seal of 
 said company, shall be filed with each bond or undertaking. 
 
 Sect. 812. FORM OF UNDERTAKING; AFFIDAVIT OF 
 SURETIES; APPROVAL. A bond or undertaking, executed by a 
 surety or sureties, as prescribed in this act, must where two or more 
 persons execute it, be joint and several in form; and, except when 
 executed by a fidelity or surety company, or when otherwise expressly 
 prescribed by law, it must be accompanied with the affidavit of each 
 surety, subjoined thereto, to the effect that he is a resident of and a 
 householder or a freeholder within the State, and is worth the penalty 
 of the bond or twice the sum specified in the undertaking, over all 
 the debts and liabilities which he owes or has incurred, and exclusive 
 of property exempt by law from levy and sale under an execution. A 
 bond or undertaking given by a party without a surety must be accom- 
 panied by his affidavit to the same effect. The bond or undertaking, 
 except as otherwise expressly prescribed by law, must be approved by 
 the court before which the proceeding is taken, or a judge thereof, 
 or the judge before whom the proceeding is taken. The approval must 
 be endorsed upon the bond or undertaking. The surety or sureties 
 or the representatives of any surety or sureties upon the bond here- 
 tofore or hereafter executed, of any trustee, committee, guardian, as- 
 signee, receiver, executor, administrator, or other fiduciary, shall be 
 entitled as a matter of right to be, and shall be, discharged from 
 liability, as hereinafter provided, and to that end may on notice to 
 the principal named in such bond, apply to the court that accepted 
 such bond, or to the court of which the judge that accepted such 
 bond was a member, or to any judge thereof, praying to be relieved 
 from liability as such surety or sureties for the act or omission of 
 such principal occurring after the date of the order relieving such 
 surety or sureties hereinafter provided for, and that such principal 
 be required to account and give new sureties. Such notice of such 
 application may be served on said principal personally within or with- 
 out the State, or, not less than five days prior to the date on which 
 such application is to be made, unless it satisfactorily appears to the 
 court, or a judge thereof, that personal notice cannot be given with 
 due diligence within the state, in which case notice may be given in 
 such manner as the court or a judge thereof directs. Pending the 
 hearing of such application the court or judge may restrain such prin- 
 cipal from acting except to preserve the trust estate until further order. 
 Upon the hearing of such application, if the principal does not file a 
 new bond, in the usual form, to the satisfaction of the court or judge, 
 
 35 
 
Fiduciary Accounting 
 
 the court or judge must make an order requiring the principal to 
 file a new bond within such reasonable time, not exceeding five days, 
 as the court or judge in such order fixes. If such new bond shall be 
 filed upon such hearing or within the time fixed by said order, the 
 court or judge must thereupon make a decree or order requiring the 
 principal to account for all his acts and proceedings to and including 
 the date of such order, and to file such account within a time fixed, 
 not exceeding twenty days, and releasing the surety or sureties making 
 such application from liability upon the bond for any act or default 
 of the principal subsequent to the date of such decree or order. If 
 the principal fail so to file such new bond within the time specified, 
 a decree or order must be made revoking the appointment of such 
 principal or removing him, and requiring him to so account, and file 
 such account within twenty days. If the principal fail to file his 
 account as in this section provided, such surety or sureties, or repre- 
 sentatives thereof, may make and file such account with like force and 
 effect as though made and filed by such principal, and upon the settle- 
 ment thereof credit shall be given for all commissions, costs, disburse- 
 ments and allowances to which the principal would be entitled were 
 he accounting, and allowance shall be made to such surety or sureties, 
 or representative for the expense incurred in so filing such account 
 and procuring the settlement thereof. And after the filing of an 
 account as required, or permitted, in this section, the court or judge 
 must, upon the petition of the principal, or surety or sureties, or the 
 representatives of any such surety or sureties, issue an order requiring 
 all persons interested in the estate or trust funds to attend a settle- 
 ment of such account, at a time and place therein specified, and upon 
 the trust fund or estate being found, or made good, and paid over or 
 properly secured, the surety or sureties shall be discharged from 
 any and all further liability, and the court or judge shall settle, de- 
 termine and enforce the rights and liabilities of all parties to the 
 proceedings, in like manner and to the same extent as in actions for 
 an accounting in the supreme court. And upon demand made in 
 writing by the principal, such surety or sureties, or representatives 
 thereof, shall return any compensation, that has been paid for the 
 unexpired portion of such suretyship. 
 
 Sect. 813. WHEN SEVERAL SURETIES MAY JUSTIFY. 
 But where the penalty of the bond, or twice the sum specified in the 
 undertaking, is five thousand dollars, or upwards, the court or judge 
 may, in its or his discretion, allow the sum in which a surety is 
 required to justify to be made up by the justification of two or more 
 sureties, each in a smaller sum. But in that case a surety cannot 
 justify, in a sum less than five thousand dollars, and when two or 
 more sureties are required by law to justify, the same person cannot 
 so contribute to make up the sum for more than one of them. It shall 
 be lawful for any party of whom a bond or undertaking is required 
 to agree with his sureties for the deposit of any or all moneys for 
 which such sureties are or may be held responsible with a trust com- 
 
 36 
 
Fiduciary Accounting 
 
 ^ 
 
 pany authorized by law to receive deposits, if such deposit is otherwise 
 proper, and for the safekeeping of any or all other depositable assets 
 for which such sureties may be held responsible, with a safe deposit 
 company authorized by law to do business as such, in such a manner 
 as to prevent the withdrawal of such moneys and assets, or any part 
 thereof, except with the written consent of such sureties, or an order 
 of the court made on such notice to them, as it may direct. 
 
 Sect. 829. WHEN PARTY, ETC., CANNOT BE EXAMINED. 
 Upon the trial of an action, or the hearing upon the merits of a 
 special proceeding, a party or person interested in the event, or a 
 person from, through or under whom such a party or interested person 
 derives his interest or title by assignment or otherwise, shall not be 
 examined as a witness in his own behalf or interest, or in behalf of 
 the party succeeding to his title or interest, against the executor, 
 administrator or survivor of a deceased person, or the committee of 
 a lunatic, or a person deriving his title or interest from, through or 
 tinder a deceased person or lunatic, by assignment or otherwise, con- 
 cerning a personal transaction or communication between the witness 
 and the deceased person or lunatic, except where the executor, admin- 
 istrator, survivor, committee or person so deriving title or interest is 
 examined in his own behalf, or the testimony of the lunatic or deceased 
 person is given in evidence concerning the same transaction or com- 
 munication. A person shall not be deemed interested for the purposes 
 of this section by reason of being a stockholder or officer of any 
 banking corporation which is a party to this action or proceeding, or 
 interested in the event thereof. 
 
 Sect. 836. APPLICATION OF THE LAST THREE SEC- 
 TIONS. The last three sections apply to any examination of a 
 person as a witness, unless the provisions thereof are expressly waived 
 ■upon the trial or examination by the person confessing, the patient or 
 the client. But a physician or surgeon or a professional or registered 
 nurse may, upon a trial or examination, disclose any information as 
 to the mental or physical condition of a patient who is deceased, which 
 he acquired in attending such patient professionajly, except confidential 
 communications, and such facts as would tend to disgrace the memory 
 of the patient, when the provisions of section 834 have been expressly 
 waived on such trial or examination by the personal representatives 
 of the deceased patient, or if the validity of the last will and testament 
 of such deceased patient is in question, by the executor or executors 
 named in said will, or the surviving husband, widow, or any heir at 
 law or any of the next of kin of such deceased, or any other party 
 in interest. But nothing herein contained shall be construed to dis- 
 qualify an attorney in the probate of a will heretofore executed or 
 offered for probate, or hereafter to be executed or offered for probate, 
 from becoming a witness as to its preparation and execution, in case 
 such attorney is one of the subscribing witnesses thereto. In an 
 action for the recovery of damages for a personal injury, the testimony 
 of a physician or surgeon, or of a professional or registered nurse at- 
 
 Z7 
 
Fiduciary Accounting 
 
 tached to any hospital, dispensary or other charitable institution, as to 
 information which he acquired in attending a patient in a professional 
 capacity at such hospital, dispensary, or other charitable institution, 
 shall be taken before a referee appointed by a judge of the court in 
 which such action is pending; provided, however, that any judge of 
 such court, at any time, in his discretion, may, notwithstanding such 
 deposition, order that a subpoena issue for the attendance and examina- 
 tion of such physician or surgeon, or professional or registered nurse, 
 upon the trial of action. In such cases a copy of the order shall be 
 served, together with the subpoena. Sections 872, 873, 874, 875, 876, 879, 
 880, 884 and 886 of this code apply to the examination of a physician 
 or surgeon, or a professional or registered nurse, as prescribed in 
 this section. The waivers herein provided for must be made in open 
 court on the trial of the action, or proceeding, and a paper executed 
 by a party prior to the trial, providing for such waiver, shall be 
 insufficient as such a waiver. But the attorneys for the respective 
 parties may, prior to the trial, stipulate for such waiver, and the same 
 shall be sufficient therefor. 
 
 Sect. 1652. ACTION BY HEIR, DEVISEE, OR GRANTOR. 
 An heir or devisee may maintain an action for waste committed in 
 the time of his ancestor or testator, as well as in his own time. The 
 grantor of a reversion may maintain an action for waste committed 
 before he aliened the same. 
 
 Sect. 1653. ACTION AGAINST GUARDIAN. Such an action 
 may also be maintained against a guardian by his ward, either before 
 or after the termination of the guardianship, for waste committed 
 upon the real property of the ward during the guardianship. 
 
 Sect. 1819. ACTION BY LEGATEE, ETC. If, after the expira- 
 tion of one year from the granting of letters testamentary or letters 
 of administration, an executor or administrator refuses, upon demand, 
 to pay a legacy, or distributive share, the person entitled thereto may 
 maintain such an action against him as the case requires. But for 
 the purpose of computing the time, within which such an action must 
 be commenced, the cause of action is deemed to accrue, when the 
 executor's or administrator's account is judicially settled, and not 
 before. 
 
 Sect. 1822. LIMITATION OF ACTION ON REJECTED 
 CLAIM. Where an executor or administrator disputes or rejects a 
 claim against the estate of a decedent, exhibited to him, either before 
 or after the commencement of the publication of a notice requiring 
 the presentation of claims, as prescribed by law, unless a written con- 
 sent shall be filed by the respective parties with the surrogate that 
 said claim may be heard and determined by him upon the judicial 
 settlement of the accounts of said executor or administrator, as pro- 
 vided by section 2743, the claimant must commence an action for 
 the recovery thereof against the executor or administrator, within six 
 months after the dispute or rejection, or, if no part of the debt is 
 then due, within six months after a part thereof becomes due; in 
 
 38 
 
Fiduciary A ccou nting 
 
 default whereof, he, and all the persons claiming under him, are 
 forever barred from maintaining such an action thereupon, and from 
 every other remedy to enforce payment thereof out of the decedent's 
 property. 
 
 Sect. 1835. WHEN COSTS AWARDED AGAINST EXECU- 
 TOR, ETC. Where a judgment for a sum of money only is rendered 
 against an executor or administrator, in an action brought against him 
 in his representative capacity, costs shall not be awarded against him, 
 except as prescribed in the next section. 
 
 Sect. 1836. COSTS; WHEN AWARDED, ETC Where it ap- 
 pears in a case specified in the last section that the plaintiff's demand 
 was presented within the time limited by a notice published as pre- 
 scribed by law, requiring creditors to present their claims, and that 
 the payment thereof was unreasonably resisted or neglected, or that 
 the defendant did not file the consent provided in section eighteen 
 hundred and twenty-two at least ten days before the expiration of 
 six months from the rejection thereof, the court may award costs 
 against the executor or administrator, to be collected either out of 
 his individual property or out of the property of the decedent, as the 
 court directs, having reference to the facts which appear upon the 
 trial. Where the action is brought in the supreme court, or any 
 county court, the facts must be certified by the judge or referee before 
 whom the trial took place. 
 
 Sect. 1837. WHEN ACTION LIES AGAINST NEXT OF KIN, 
 LEGATEES, ETC. An action may be maintained, as prescribed in 
 this article, against the surviving husband or wife of a decedent, and 
 the next of kin of an intestate, or the next of kin or legatees of a 
 testator, to recover, to the extent of the assets paid or distributed to 
 them, for a debt of the decedent, upon which an action might have 
 been maintained against the executor or administrator. The neglect 
 of the creditor to present his claim to the executor or administrator 
 within the time prescribed by law for that purpose does not impair 
 his right to maintain such an action. 
 
 Sect. 1861. WHEN ACTION TO ESTABLISH WILL An 
 action to procure a judgment establishing a will, may be maintained, by 
 any person interested in the establishment thereof, in either of the 
 following cases : 
 
 1. Where a will of real or personal property, or both, has been 
 executed, in such a manner and under such circumstances that it 
 might, under the laws of the state, be admitted to probate in a surro- 
 gate's court; but the original will is in another state or country, under 
 such circumstances that it cannot be obtained for that purpose ; or has 
 been lost or destroyed, by accident or design, before it was duly proved 
 and recorded within the state. 
 
 2. Where a will of personal property, made by a person who 
 resided without the state, at the time of the execution thereof, or at 
 the time of his death, has been duly executed, according to the laws 
 of the state or country in which it was executed, or in which the 
 
 39 
 
Fiduciary A ceo un ting 
 
 testator resided at the time of his death, and the case is not one, 
 where the will can be admitted to probate in a surrogate's court 
 under the laws of the state. 
 
 Sect. 1867. ARTICLE APPLIES TO ALL WILLS. The pro- 
 visions of this article apply as well to wills made before, as to those 
 made after, this article takes effect. 
 
 Sect. 1870. NEXT OF KIN DEFINED. The term, "next of 
 kin," as used in this title, includes all those entitled, under the pro- 
 visions of law relating to the distribution of personal property, to 
 share in the unbequeathed assets of a decedent after payment of 
 debts and expenses, other than a surviving husband or wife. 
 
 Sect. 2472. GENERAL JURISDICTION OF SURROGATE. 
 Each surrogate must hold, within his county, a court, which has, in 
 addition to the powers conferred upon it, or upon the surrogate, by 
 special provision of law, jurisdiction as follows : 
 
 1. To take the proof of wills; to admit wills to probate; to revoke 
 the probate thereof; and to take and revoke probate of heirship. 
 
 2. To grant and revoke letters testamentary and letters of admin- 
 istration, and to appoint a successor in place of a person whose letters 
 have been revoked. 
 
 3. To direct and control the conduct, and settle the accounts, of 
 executors, administrators and testamentary trustees; to remove testa- 
 mentary trustees, and to appoint a successor in place of a testamentary 
 trustee so removed. 
 
 4. To enforce the payment of debts and legacies; the distribution 
 of the estates of decedents ; and the payment of delivery, by executors, 
 administrators and testamentary trustees, of money or other property 
 in their possession belonging to the estate. 
 
 5. To direct the disposition of real property, and interests in 
 real property of decedents, for the payment of their debts and funeral 
 expenses, and the disposition of the proceeds thereof. 
 
 6. To administer justice, in all matters relating to the affairs of 
 decedents according to the provisions of the statutes relating thereto. 
 
 7. To appoint and remove guardians for infants; to compel the 
 payment and delivery by them of money or other property belonging 
 to their wards; and, in the cases specially prescribed by law, to direct 
 and control their conduct and settle their accounts. 
 
 8. To settle the accounts of a father, mother, or other relative, 
 having the rights, powers and duties of a guardian in socage, and to 
 compel the payment and delivery of money or other property belonging 
 to the ward. This jurisdiction must be exercised in the cases in the 
 manner prescribed by statute. 
 
 Sect. 2472a. JURISDICTION OF SURROGATE'S COURT TO 
 ASCERTAIN TITLE TO LEGACIES, ETC. The surrogate's court 
 has also jurisdiction upon a judicial accounting or proceeding for the 
 payment of a legacy to ascertain the title to any legacy or distributive 
 share, to set off a debt against the same, and for that purpose ascertain 
 whether the debt exists, to affect the accounting party with a con- 
 
 40 
 
Fiduciary Accounting 
 
 structive trust, and to exercise all other power, legal or equitable, 
 necessary to complete disposition of the matter. He must order the 
 trial of any controverted question of fact of which either party has 
 constitutional right of trial by jury and seasonably demands the same. 
 Sect. 2476. WHEN JURISDICTION EXCLUSIVE. The surro- 
 gate's court of each county has jurisdiction, exclusive of every other 
 surrogate's court, to take the proof of a will, and to grant letters 
 testamentary thereupon, or to grant letters of administration, as the 
 case requires, in either of the following cases: 
 
 1. Where the decedent was, at the time of his death, a resident 
 of that county, whether his death happened there or elsewhere. 
 
 2. Where the decedent, not being a resident of the state, died 
 within that county, leaving personal property within the state, or 
 leaving personal property which has, since his death, come into the 
 state and remains unadministered. 
 
 3. Where the decedent, not being a resident of the state, died 
 without the state, leaving personal property within that county, and 
 no other; or leaving personal property which has, since his death, 
 come into that county, and no other, and remains unadministered. 
 
 4. Where the decedent was not, at the time of his death, a resident 
 of the state, and a petition for probate of his will, or for a grant of 
 letters of administration, under subdivision second or third of this 
 section, has not been filed in any surrogate's court; but real property 
 of the decedent, to which the will relates, or which is subject to 
 disposition under title fifth of this chapter, is situated within that 
 county, and no other. 
 
 Sect. 2481. INCIDENTAL POWERS OF SURROGATES. A 
 surrogate, in court or out of court, as the case requires, has power : 
 
 1. To issue citations to parties in any matter within the jurisdic- 
 tion of his court; and, in a case prescribed by law, to compel the 
 attendance of a party. 
 
 2. To adjourn, from time to time, a hearing or other proceeding 
 in his court; and where all persons who are necessary parties have 
 not been cited or notified, and citation or notice has not been waived 
 by appearance or otherwise, it is his duty, before proceeding further, 
 so to adjourn the same, and to issue a supplemental citation, or require 
 the petitioner to give an additional notice, as may be necessary. 
 
 3. To issue, under the seal of the court, a subpoena, requiring 
 the attendance of a witness residing or being in any part of the state; 
 or a subpoena duces tecum, requiring such attendance, and the pro- 
 duction of a book or paper material to an inquiry pending in the 
 court. 
 
 4. To enjoin, by order, an executor, administrator, testamentary 
 trustee, or guardian, to whom a citation or other process has been 
 duly issued from his court, from acting as such, until the further order 
 of the court. 
 
 5. To require, by order, an executor, administrator, testamentary 
 trustee, or guardian, subject to the jurisdiction of his court, to perform 
 
 41 
 
Fiduciary Accounting 
 
 any duty imposed upon him, by statute, or by the surrogate's court, 
 under authority of a statute. 
 
 6. To open, vacate, modify, or set aside, or to enter, as of a former 
 time, a decree or order of his court; or to grant a new trial or a new 
 hearing for fraud, newly discovered evidence, clerical error, or other 
 sufficient cause. The powers, conferred by this subdivision, must be 
 exercised only in a like case and in the same manner, as a court of 
 record and of general jurisdiction exercises the same powers. Upon 
 an appeal from a determination of the surrogate, made upon an appli- 
 cation pursuant to this subdivision, the general term of the supreme 
 court has the same power as the surrogate; and his determination 
 must be reviewed, as if an original application was made to that term. 
 
 7. To punish any person for a contempt of his court, civil or 
 criminal, in any case, where it is expressly prescribed by law that a 
 court of record may punish a person for a similar contempt, and in 
 like manner. 
 
 8. Subject to the provisions of law, relating to the disqualification 
 of a judge in certain cases, to complete an unfinished business, pending 
 before his predecessor in the office, including proofs, accountings and 
 examinations. 
 
 9. To complete, and certify and sign in his own name, adding 
 to his signature the date of so doing, all records of papers left uncom- 
 pleted or unsigned by any of his predecessors. 
 
 ID. To exemplify and certify transcripts of all records of his 
 court, or other papers remaining therein. 
 
 11. With respect to any matter not expressly provided for in the 
 foregoing subdivisions of this section, to proceed, in all matters subject 
 to the cognizance of his court, according to the course and practice 
 of a court, having, by the common law, jurisdiction of such matters, 
 except as otherwise prescribed by statute; and to exercise such inci- 
 dental powers, as are necessary to carry into effect the powers expressly 
 conferred. 
 
 12. A surrogate, or a clerk of the surrogate's court, has power 
 to administer oaths, to take affidavits and the proof and acknowledg- 
 ment of deeds, and all other instruments, in writing, and certify the 
 same, with the same force and effect as if taken and certified by a 
 county judge. 
 
 Sect. 2514. DEFINITION OF EXPRESSIONS USED IN THIS 
 CHAPTER. In construing the provisions of this chapter, the following 
 rules must be observed, except where a contrary intent is expressly 
 declared in the provision to be construed, or plainly apparent from 
 the context thereof: 
 
 1. The word, "intestate" signifies a person who died without 
 leaving a valid will; but where it is used with respect to particular 
 property, it signifies a person who died without effectually disposing 
 of that property by will, whether he left a will or not. 
 
 2. The word, "assets" signifies personal property applicable to 
 the payment of the debts of a decedent, 
 
 42 
 
Fiduciary Accounting 
 
 3. The word, "debts" includes every claim and demand, upon 
 which a judgment for a sum of money, or directing the payment of 
 money, could be recovered in an action; and the word, "creditor" 
 includes every person having such a claim or demand, any person 
 having a claim for expense of administration, or any person having 
 a claim for funeral expenses. 
 
 4. The word, "will" signifies a last will and testament, and in- 
 cludes all the codicils to a will. 
 
 5. The expression, "letters of administration," includes letters 
 of temporary administration. 
 
 6. The expression, "testamentary trustee," includes every person, 
 except an executor, an administrator with the will annexed, or a 
 guardian, who is designated by a will, or by any competent authority, to 
 execute a trust created by a will; and it includes such an executor or 
 administrator, where he is acting in the execution of a trust created 
 by the will, which is separable from his functions as executor or 
 administrator. 
 
 7. The word, "surrogate," where it is used in the text, or in a 
 bond or undertaking, given pursuant to any provision of this chapter, 
 includes every officer or court vested by law with the functions of 
 surrogate. 
 
 8. The expression, "judicial settlement," where it is applied to 
 an account, signifies a decree of a surrogate's court, whereby the 
 account is made conclusive upon the parties to the special proceeding, 
 either for all purposes, or for certain purposes specified in the statute; 
 and an account thus made conclusive is said to be "judicially settled." 
 
 9. The expression, "intermediate account," denotes an account 
 filed in the surrogate's office, for the purpose of disclosing the acts of 
 the person accounting, and the condition of the estate or fund in 
 his hands and not made the subject of a judicial settlement. 
 
 10. The expression, "upon the return of a citation," where it is 
 used in a provision requiring an act to be done in the surrogate's 
 court, relates to the time and place at which the citation is returnable, 
 or to which the hearing is adjourned; includes a supplemental citation, 
 issued to bring in a party who ought to be, but has not been cited; 
 and implies that, before doing the act specified, due proof must be 
 made, that all persons required to be cited have been duly cited. 
 
 11. The expression, "person interested," where it is used in con- 
 nection with an estate or a fund, includes every person entitled, either 
 absolutely or contingently, to share in the estate or the proceeds thereof, 
 or in the fund, as husband, wife, legatee, next of kin, heir, devisee, 
 assignee, grantee, or otherwise, except as a creditor. Where a pro- 
 vision of this chapter prescribes that a person interested may object 
 to an appointment, or may apply for an inventory, an account, or 
 increased security, an allegation of his interest, duly verified, suffices, 
 although his interest is disputed, unless he has been excluded by 
 a judgment, decree or other final determination, and no appeal there- 
 from is pending. 
 
 43 
 
Fiduciary Accounting 
 
 12. The term, "next of kin," includes all those entitled, under 
 the provisions of law relating to the distribution of personal property, 
 to share in the unbequeathed residue of the assets of a decedent 
 after payment of debts and expenses, other than a surviving husband 
 or wife. 
 
 13. The expression, "real property," includes every estate, interest 
 and right, legal or equitable, in lands, tenements, or hereditaments, 
 except those which are determined or extinguished by the death of 
 a person seized or possessed thereof, or in any manner entitled thereto, 
 and except those which are declared by law to be assets. The word, 
 "inheritance" signifies real property, as defined in this subdivision, 
 descended as prescribed by law. The expression, "personal property," 
 signifies every kind of property, which survives a decedent, other than 
 real property, as defined in this subdivision, and includes a right of 
 action conferred by special statutory provision upon an executor or 
 administrator. 
 
 Sect. 2544- WITNESS TO WILL NOT DISQUALIFIED. A 
 person is not disqualified or excused, from testifying respecting the 
 execution of a will by a provision therein, whether it is beneficial to 
 him or otherwise. 
 
 Sect. 2562. ADDITIONAL ALLOWANCE ON TRIAL AND 
 SETTLING ACCOUNTS. In addition to the sums specified in the 
 last two sections, the surrogate may, in his discretion, allow to an 
 executor, administrator, guardian, or testamentary trustee, upon a 
 judicial settlement of his account, or on an intermediate accounting 
 required by the surrogate, such a sum, as the surrogate deems reason- 
 able, for his counsel fees and other expenses, not exceeding ten dollars 
 for each day occupied in the trial, and necessarily occupied in prepar- 
 ing his account for settlement, and otherwise preparing for the trial. 
 
 Sect. 2563. ALLOWANCE ON SALE OF REAL ESTATE. 
 Upon the disposition of real property of a decedent, as prescribed in 
 title fifth of this chapter, the executor, administrator, or freeholder, 
 disposing of the property, must be allowed by the surrogate, out of 
 the proceeds of the sale brought into court, his expenses; and he 
 may be allowed, out of the proceeds a reasonable sum for his own 
 services, not exceeding five dollars for each day, actually and neces- 
 sarily occupied by him in disposing of the property, and such a further 
 sum as the surrogate thinks reasonable, for the necessary services of 
 his attorney and counsel therein. 
 
 Sect. 2564. WHEN ALLOWANCE IS IN LIEU OF COMMIS- 
 SIONS. The allowances specified in the last section are in lieu of 
 commissions. 
 
 Sect. 2583. DECREE REVOKING PROBATE OR LETTERS, 
 ETC, NOT STAYED. An appeal from a decree revoking the probate 
 of a will, or revoking letters testamentary, letters of administration, 
 or letters of guardianship; or from a decree or an order, suspending 
 an executor, administrator, or guardian, or removing or suspending 
 a testamentary trustee, or a freeholder, appointed to execute a decree, 
 
 44 
 
F id u c ia ry A c com it in g 
 
 as prescribed in title fifth of this chapter, or appointing a temporary 
 administrator, or an appraiser of personal property, does not stay the 
 execution of the decree or order appealed from. 
 
 Sect. 2594. OATHS OF EXECUTORS, ADMINISTRATORS 
 AND GUARDIANS. The official oath or affirmation of an executor, 
 administrator, or guardian, to the effect that he will well, faithfully, 
 and honestly discharge the duties of his office, describing it, must be 
 filed with the surrogate before letters are issued to him. The oath 
 may be taken before any other officer, within or without the state, 
 who is authorized to take an affidavit, to be used in the supreme court. 
 Where it is taken without the state, it must be certified as required 
 by law, with respect to an affidavit to be used in the supreme court. 
 
 Sect. 2595. DEPOSIT OF SECURITIES TO REDUCE PEN- 
 ALTY OF BOND. In a case where a bond, or new sureties to a bond, 
 may be required by a surrogate from an executor, administrator, guar- 
 dian, or other trustee, if the value of the estate or fund is so great 
 that the surrogate deems it inexpedient to require security in the full 
 amount prescribed by law, he may direct that any securities for the 
 payment of money belonging to the estate or fund be deposited with 
 him, to be delivered to the county treasurer, or be deposited subject 
 to the order of trustee, countersigned by the surrogate, with a trust 
 company duly authorized by law to receive the same. After such 
 deposit has been made, the surrogate may fix the amount of the bond 
 with respect to the value of the remainder only of the estate or 
 fund. A security thus deposited shall not be withdrawn from the 
 custody of the county treasurer or trust company, and no person 
 other than the county treasurer or the proper officer of the trust 
 company, shall receive or collect any of the principal or interest 
 secured thereby, without the special order of the surrogate entered in 
 the appropriate book. Such an order can be made in favor of the 
 trustee appointed, only where an additional bond has been given by 
 him, or upon proof that the estate or fund has been so reduced by 
 payments or otherwise, that the penalty of the bond originally given 
 will be sufficient in amount to satisfy the provisions of law relating 
 to the penalty thereof, if the security so withdrawn is also reckoned 
 in the estate or fund. 
 
 Sect. 2602. ON DISAGREEMENT OF EXECUTORS, ETC, 
 SURROGATE DIRECT CUSTODY OR DEPOSIT. Where two 
 or more co-executors 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, 
 
 45 
 
Fiduciary Accounting 
 
 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. 
 
 Sect. 2605. SUCCESSOR MAY BE APPOINTED; POWERS; 
 MAY COMPEL ACCOUNTING. 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, admin- 
 istrator, 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, con- 
 ferred by the letters, had expired by its own limitation. 
 
 Sect. 2606. ACCOUNTING BY EXECUTORS, ETC., OF DE- 
 CEASED EXECUTOR. Where an executor, administrator, guardian 
 or testamentary trustee dies, the surrogate's court has the same juris- 
 diction, 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 a guardian's ward of the legal representative of a deceased 
 ward, or a surety upon the official bond of the decedent, or the legal 
 representative of a deceased surety, to compel the executor or adminis- 
 trator of the decedent to account, which it would have against the 
 decedent if his letters have been revoked by a surrogate's decree. And 
 an executor or administrator of a deceased executor, administrator, 
 guardian, or testamentary trustee may voluntarily account for the acts 
 and doings of the decedent, and for the trust property which had 
 come into his possession or into the possession of the decedent. And 
 on the death, heretofore or hereafter, of any executor, administrator, 
 guardian or testamentary trustee, while an accounting by or against 
 him, as such, was or is pending before a surrogate's court, such court 
 may revive said proceeding against his executor, administrator or 
 successor and proceed with such accounting and determine all ques- 
 tions and grant any relief that the surrogate would have power to 
 determine or grant in case such decedent had not died or in a case 
 where the executor or administrator of said last mentioned decedent, 
 acting at the time of such revival, had voluntarily petitioned for an 
 accounting as provided for in this section. On a petition filed either 
 by or against an executor or administrator of a deceased executor, 
 
 46 
 
Fiduciary Accounting 
 
 administrator, guardian or testamentary trustee, or on a revival and 
 continuation of an accounting pending by or against such decedent 
 at the time of his death, the successor of such decedent and all persons 
 who would be necessary parties to a proceeding commenced by such 
 decedent for a judicial settlement of his accounts shall be cited and 
 required to attend such settlement. The surrogate's court may at 
 any time on its own motion or on the motion of any party to any 
 one of two or more of such proceedings, consolidate said proceedings, 
 but without prejudice to the power of the court to make any subse- 
 quent orders in either of them. With respect to the liability of the 
 sureties in and for the purpose of maintaining an action upon the 
 decedent's official bond, a decree against his executor or adminis- 
 trator, rendered upon such an accounting, has the same effect as if 
 an execution issued upon a surrogate's decree against the property 
 of decedent had been returned unsatisfied during the decedent's life- 
 time. So far as concerns the executor or administrator of decedent, 
 such a decree is not within the provisions of section twenty-five hun- 
 dred and fifty-two of this act. The surrogate's court has also juris- 
 diction to compel the executor or administrator, or successor of any 
 decedent, at any time to deliver over any of the trust property which 
 has come to his possession or is under his control, and if the same 
 is delivered over after a decree, the court must allow such credit upon 
 the decree as justice requires. 
 
 Sect. 2612. PERSONS INCOMPETENT TO SERVE AS EX- 
 ECUTORS. No person is competent to serve as an executor who, 
 at the time the will is proved, is : 
 
 1. Incapable in law of making a contract. 
 
 2. Under the age of twenty-one years. 
 
 3. An alien not an inhabitant of this state; or 
 
 4. Who shall have been convicted of an infamous crime, or 
 
 5. Who, on proof, is found by the surrogate to be incompetent 
 to execute the duties of such trust by reason of drunkenness, dis- 
 honesty, improvidence or want of understanding. If any such person 
 be named as the sole executor in a will, or if all the persons named 
 therein as executors be incompetent, letters of administration, with the 
 will annexed must be issued as in the case of all the executors 
 renouncing, A surrogate, in his discretion, may refuse to grant 
 letters testamentary or of administration to a person unable to read 
 and write the English language. 
 
 Sect. 2613. SUPPLEMENTARY LETTERS; EXECUTORS 
 NOT NAMED IN LETTERS NOT TO ACT; POWER OF EXEC- 
 UTOR BEFORE LETTERS OF ADMINISTRATION WITH THE 
 WILL ANNEXED. If the disability of a person under age, or an 
 alien named as executor in a will, be removed before the execution 
 of the provisions of such will is completed, he shall be entitled, on 
 application, to supplementary letters testamentary, to be issued in 
 the same manner as the original letters, and authorized to join in 
 the execution of the will with the persons previously appointed. A 
 
 47 
 
Fiduciary Accounting 
 
 person named in a will as executor, and not named as such in the 
 letters testamentary or in letters of administration with the will 
 annexed, shall be deemed to be superseded thereby, and shall have 
 no power or authority whatever as such executor until he appears 
 and qualifies. An executor named in a will has no power to dispose 
 of any part of the estate of the testator before letters testamentary 
 are granted, except to pay funeral charges, nor to interfere with 
 such estate in any manner further than is necessary for its preserva- 
 tion. Where letters of administration with the will annexed are 
 granted, the will of the deceased shall be observed and performed ; 
 and the administrators, with such will, have the rights and powers 
 and are subject to the same duties as if they had been named executors 
 in the will. 
 
 Sect. 2615. WHO TO BE CITED THEREUPON. The follow- 
 ing persons must be cited upon a petition, presented as prescribed in 
 the last section: 
 
 1. If the will relates exclusively to real property, the husband or 
 wife, if any, and all the heirs of the testator. 
 
 2. If the will relates exclusively to personal property, the hus- 
 band or wife, if any, and all the next of kin of the testator. 
 
 3. If the will relates to both real and personal property, the 
 husband or wife, if any, and all the heirs, and all the next of kin of 
 the testator. 
 
 4. Any person designated in the will as executor. 
 
 Sect. 2617. PERSONS NOT CITED MAY APPEAR. Any per- 
 son, although not cited, who is named as a devisee or legatee in the will 
 propounded, or as executor, trustee, devisee or legatee in any other 
 paper purporting to be a will of the decedent, or who is otherwise 
 interested in sustaining or defeating the will, may appear, and, at 
 his election, support or oppose the application. A person so appearing 
 becomes a party to the special proceeding. But this section does not 
 affect a right or interest of such a person unless he so becomes a 
 party. And in case the will propounded for probate is opposed, due 
 and timely notice of the hearing of the objections to the will shall 
 be given, in such manner as the surrogate shall direct, to all persons 
 in being, who would take any interest in any property under the 
 provisions of the will, and to the executor or executors, trustee or 
 trustees named therein, if any, who have not appeared in the pro- 
 ceeding, and any decree in the proceeding shall not affect the right 
 or interest of any person unless he shall be notified. 
 
 Sect. 2619. ABSENT WITNESSES. The death, absence from 
 the state, lunacy, or other incompetency of a witness, required to be 
 examined as prescribed in this or the last section, or proof that such 
 witness cannot, after due diligence, be found within the state or 
 elsewhere, must be shown by affidavit, or other competent evidence, 
 to the satisfaction of the surrogate, before dispensing with his testi- 
 mony. Where a witness, being within the state, is disabled from 
 attending, by reason of age, sickness or infirmity, his disability must 
 
 48 
 
Fiduciary Accounting 
 
 be shown in like manner ; and in that case, the testimony of the witness, 
 where it is required, and he is able to testify, must be taken in the 
 manner, prescribed by law, and produced before the surrogate as part 
 of the proofs. 
 
 Sect. 2620. PROOF OF HANDWRITING. If all the subscribing 
 witnesses to a written will are, or if a subscribing witness, whose testi- 
 mony is required, is dead, or incompetent, by reason of lunacy, or 
 otherwise, to testify, or unable to testify; or if such a subscribing 
 witness is absent from the state; or if such a subscribing witness has 
 forgotten the occurrence, or testifies against the execution of the 
 will; the will may nevertheless be established, upon proof of the 
 handwriting of the testator, and of the subscribing witnesses, and also 
 of such other circumstances, as would be sufficient to prove the will 
 upon the trial of an action. Where a subscribing witness is absent 
 from the state, upon application of either party, the surrogate shall 
 cause the testimony of such witness to be taken by commission, when 
 it is made to appear that by due diligence such testimony may be 
 obtained. Where a written will is proved, as prescribed in this 
 section, it must be filed and remain in the surrogate's office. But 
 when it shall be shown, by affidavit or otherwise, to the satisfaction 
 of the surrogate, that the decedent left real or personal property in 
 another state or territory of the United States or in a foreign country, 
 and that the laws of such state, territory or country require the pro- 
 duction of the original will before the provisions thereof become 
 effective, the surrogate may, at any time after probate, and upon 
 such notice to the parties interested in the estate as he may think 
 proper, cause any original will remaining on file in his office to be 
 sent by post or otherwise to any court which, or to any officer of such 
 state, territory or country who, under the laws thereof, is empowered 
 to receive the same for probate, or deliver such will to any person 
 interested in the probate thereof in such state, territory or country, 
 or to his representative, upon such terms as he shall think proper 
 for the protection of other parties interested in the estate. Where 
 in any matter before the surrogate or in a surrogate's court the 
 testimony of any witness shall be taken by or on commission, the 
 same, together with the commission on which it is taken, shall be 
 duly filed in the office of the surrogate, but need not be recorded. 
 The testimony or other proceeding duly taken to be used before the 
 surrogate or surrogate's court, by a stenographer, shall be filed and 
 need not be recorded. 
 
 Sect. 2635. WILLS TO BE RETURNED AFTER PROBATE. 
 Except where special provision is otherwise made by law, or where 
 the surrogate sends a will into another state or territory or into a 
 foreign country, or delivers it to a party in interest, as provided in 
 section two thousand six hundred and twenty of this act, a written 
 will, after it has been proved and recorded, must be retained by the 
 surrogate, until the expiration of one year after it has been recorded, 
 and, if a petition for the revocation of probate thereof is then filed, 
 
 49 
 
Fiduciary Accounting 
 
 until a decree is made thereupon. It must then be returned, upon 
 demand, to the person who delivered it, unless he is dead, or a lunatic, 
 or has removed from the state; in which case, it may, in the discretion 
 of the surrogate, be delivered to any person named therein as devisee, 
 or to an heir or assignee of a devisee; or, if it relates only to personal 
 property, to the executor, or administrator, with the will annexed, or 
 to a legatee. 
 
 Sect. 2636. WHEN LETTERS TESTAMENTARY MAY BE 
 ISSUED; OBJECTIONS. Where a will, which is admitted to pro- 
 bate, names one or more persons to be ex:ecutor or executors thereof, 
 upon a contingency, the surrogate must inquire into the facts, and, if 
 the contingency has happened, that fact must be recited in the decree. 
 Immediately after a will has been admitted to probate, the person or 
 persons named therein as executors, who are competent by law to 
 serve, and who appear and qualify, are entitled to letters testamentary 
 thereupon; unless, before the letters are granted, a creditor of the 
 decedent, or a person interested in the estate, files an affidavit, specify- 
 ing his demand, or how he is interested, and either setting forth 
 specifically one or more legal objections to granting the letters to one 
 or more of the executors, or stating that he is advised and believes 
 that there are such objections, and that he intends to file a specific 
 statement of the same. Where such an affidavit is filed, the surrogate 
 must stay the granting of letters, at least thirty days, or until the 
 matter is sooner disposed of. A specification or statement of an 
 objection, made as prescribed in this section, must be verified by 
 the oath of the objector, or his attorney, to the effect that he believes 
 it to be true. 
 
 Sect. 2638. WHEN BOND REQUIRED. In either of the fol- 
 lowing cases, a person named as executor in a will, may entitle himself 
 to letters testamentary thereupon, by giving a bond as prescribed by 
 law, although an objection against him has been established to the 
 satisfaction of the surrogate: 
 
 1. Where the objection is, that his circumstances are such, that 
 they do not afford adequate security to the creditors, or persons 
 interested in the estate, for the due administration of the estate. 
 
 2. Where the objection is that he is not a resident of the state; 
 and he is a citizen of the United States. 
 
 But a person against whom there is no objection, except that of 
 non-residence, is entitled to letters testamentary, without giving a 
 bond, if he has an office within the state, for the regular transaction 
 of business in person; and the will contains an express provision, to 
 the effect that he may act without giving security. 
 
 Sect. 2639. RENUNCIATION BY EXECUTOR; RETRAC- 
 TION. A person, named as executor in a will, may renounce the 
 appointment by an instrument in writing, signed by him, and acknowl- 
 edged or proved, and certified, in like manner as a deed to be recorded 
 in the county, or attested by one or more witnesses, and proved to 
 the satisfaction of the surrogate. Such a renunciation may be retracted 
 
 50 
 
Fiduciary Accounting 
 
 by a like instrument, at any time before letters testamentary, or letters 
 of administration with the will annexed, have been issued to any other 
 person in his place; or, after they have been so issued, if they have 
 been revoked, or the person to whom they were issued has died, or 
 become a lunatic, and there is no other acting executor or administrator. 
 Where a retraction is so made, letters testamentary may, in the discre- 
 tion of the surrogate, be issued to the person making it. An instru- 
 ment specified in this section must be filed and recorded in the 
 surrogate's office. 
 
 Sect. 2642. EXCLUSION OF EXECUTOR FAILING TO 
 QUALIFY OR RENOUNCE. If a person named as executor, in a 
 will does not qualify or renounce within thirty days after probate 
 thereof; or if a person, chosen by virtue of a power in the will, does 
 not qualify or renounce within thirty days after the filing of the 
 instrument designating him; or, in either case, if objections are filed,. 
 and the executor does not qualify or renounce within five days after 
 they are determined in his favor or in a case specified in section 
 twenty-six hundred and thirty-eight of this act, within five days after 
 an objection has been established; the surrogate must, upon the appli- 
 cation of any other executor or any creditor or person interested 
 in the estate, make an order requiring him to qualify within a time 
 therein specified ; and directing that in default of so doing, he be deemed 
 to have renounced his appointment. Where it appears by affidavit 
 or other written proof to the satisfaction of the surrogate that such 
 an order cannot, with due diligence, be served personally within the 
 state, upon the person therein named, the surrogate may prescribe the 
 manner in which it must be served, which may be by publication. 
 If the person so appointed executor does not qualify within the 
 time fixed, or within such further time as the surrogate allows for 
 that purpose, an order must be made and recorded, reciting the 
 facts, and declaring that he has renounced his appointment as executor. 
 Such an order may be revoked by the surrogate in his discretion, 
 and letters testamentary may be issued to the person so failing to 
 renounce or qualify, upon his application, in a case where he might 
 have retracted an express renunciation, as prescribed in section twenty- 
 six hundred and thirty-nine of this act. And where any powers to 
 sell, mortgage or lease real estate, or any interest therein, are given 
 to executors as such, or as trustees, or as executors and trustees, and 
 any of such persons named as executors shall neglect to qualify, then 
 all sales, mortgages and leases under said powers made by the execu- 
 tors who shall qualify shall be equally valid as if the other executors 
 or trustees had joined in such sale. 
 
 Sect. 2643. LETTERS OF ADMINISTRATION WITH WILL 
 ANNEXED; WHEN AND TO WHOM. If no person is named 
 as executor in the will, or selected by virtue of a power contained 
 therein; or if, at any time, by reason of death, incompetency adjudged 
 by the surrogate, renunciation in either of the methods prescribed in 
 sections 2639 and 2642 of this act, or revocation of letters, there is na 
 
 51 
 
Fidu ciary Accoun ting 
 
 executor, or administrator with the will annexed, qualified to act; the 
 surrogate must, upon the application of a creditor of the decedent, or 
 a person interested in the estate of the decedent, or having a lien 
 upon any real property upon which the decedent's estate has a lien, and 
 upon such notice to the other creditors and persons interested in the 
 estate, as the surrogate deems proper, issue letters of administration 
 with the will annexed, as follows: 
 
 1. To one or more of the residuary legatees, who are qualified 
 to act as administrators. If any one of such legatees who would 
 otherwise be so entitled is a minor, administration shall be granted 
 to his guardian, if competent. A corporation which is a residuary 
 legatee shall be qualified to act as such administrator, although not 
 specially authorized by its charter or any provision of law. 
 
 2. If there is no such residuary legatee or guardian, or none who 
 will accept, then to one or more of the principal or specified legatees 
 so qualified. If any one of such legatees who would be otherwise so 
 entitled is a minor, administration shall be granted to his guardian, 
 if competent. 
 
 3. If there is no such legatee or guardian, or none who will 
 accept, then to the husband or wife, or to one or more of the next 
 of kin, or to one or more of the heirs or devisees, so qualified. 
 
 4. If there is no qualified person, entitled under the foregoing 
 subdivisions, who will accept, then to one or more of the creditors 
 who are so qualified, except that in the counties of New York and 
 Kings the public administrator shall have preference, after the next 
 of kin, over the creditors and all other persons. 
 
 5. If there is no qualified creditor who will accept, then to any 
 proper person designated by the surrogate. 
 
 Sect. 2645. EXECUTOR OR ADMINISTRATOR TO QUAL- 
 IFY. An executor, from whom a bond is required, as prescribed 
 in this article, or an administrator with the will annexed, must, before 
 letters are issued to him, qualify as prescribed by law, with respect to 
 an administrator upon the estate of an intestate; and the provisions 
 of article fourth of this title, with respect to the bond to be given 
 by the administrator of an intestate, apply to a bond given pursuant 
 to this section ; except that, in fixing the penalty thereof, the surrogate 
 must take into consideration the value of the real property, or the 
 proceeds thereof, which may come to the hands of the executor or 
 administrator by virtue of any provision contained in the will. 
 
 Sect. 2653a. TO ENABLE THE VALIDITY OF THE PRO- 
 BATE OF A WILL TO BE CONCLUSIVELY DETERMINED. 
 Any person interested as devisee, legatee, or otherwise, in a will or 
 codicil admitted to probate in this state, as provided by the code 
 of civil procedure, or any person interested as heir-at-law, next of 
 kin or otherwise, in any estate, any portion of which is disposed of, 
 or affected, or any portion of which is attempted to be disposed of, 
 or affected, by a will or codicil admitted to probate in this state, as 
 provided by the code of civil procedure, within two years prior to the 
 
 52 
 
Fiduciary Accounting 
 
 passage of this act, or any heir-at-law or next of kin of the testator 
 making such will, may cause the validity or invalidity of the probate 
 thereof to be determined in an action in the supreme court for the 
 county in which such probate was had. All the devisees, legatees 
 and heirs of the testator and other interested persons, including the 
 executor, or administrator, must be parties to the action. Upon the 
 completion of service of all parties, the plaintiff shall forthwith file 
 the summons and complaint in the office of the clerk of the court 
 in which said action is begun, and the clerk thereof shall forthwith 
 certify to the clerk of the surrogate's court in which the will has been 
 admitted to probate, the fact that an action to determine the validity 
 of the probate of such will has been commenced, and on receipt of 
 such certificate by the surrogate's court, the surrogate shall forthwith 
 transmit to the court in which such action has been begun a copy 
 of the will, testimony and all papers relating thereto, and a copy of 
 the decree of probate, attaching the same together, and certifying 
 the same under the seal of the court. The issue of the pleadings in 
 such action shall be confined to the question of whether the writing 
 produced is or is not the last will and codicil of the testator, or either. 
 It shall be tried by a jury and a verdict thereon shall be conclusive 
 as to the real or personal property, unless a new trial be granted or 
 the judgment thereon be reversed or vacated. On the trial of such 
 issue the decree of the surrogate admitting the will or codicil to 
 probate shall be prima facie evidence of the due attestation, execution 
 and validity of such will or codicil. A certified copy of the testimony 
 of such of the witnesses examined upon the probate, as are out of the 
 jurisdiction of the court, dead, or have become incompetent since 
 the probate, shall be admitted in evidence on the trial. The party 
 sustaining the will shall be entitled to open and close the evidence 
 and argument. He shall offer the will in probate and rest. The other 
 party shall then offer his evidence. The party sustaining the will 
 shall then offer his other evidence and rebutting testimony may be 
 offered as in other cases. If all the defendants make default in plead- 
 ing, or if the answers served in said action raise no issues then the 
 plaintiff may enter judgment as provided in article two of chapter 
 eleven of the code of civil procedure in the case of similar defaults 
 in other actions. If the judgment to be entered in an action brought 
 under this section is that the writing produced is the last will and 
 codicil, or either, of the testator, said judgment shall also provide 
 that all parties to said action, and all persons claiming under them 
 subsequently to the commencement of the said action, be enjoined 
 from bringing or maintaining any action or proceeding, or from inter- 
 posing or maintaining a defense in any action or proceeding based 
 upon a claim that such writing is not the last will or codicil, or either, 
 of the testator. Any judgment heretofore entered under this section 
 determining that the writing produced is the last will and codicil, 
 or either, of the testator, shall, upon application of any party to said 
 action, or any person claiming through or under them, and upon notice 
 
 53 
 
Fiduciary Accounting 
 
 to such persons as the court at special term shall direct, be amended 
 by such court so as to enjoin all parties to said action, and all 
 persons claiming under the parties to said action subsequently to 
 the commencement thereof, from bringing or maintaining any action or 
 proceeding impeaching the validity of the probate of the said will 
 and codicil, or either of them, or based upon a claim that such writing 
 is not the last will and codicil, or either, of the testator, and from 
 setting up or maintaining such impeachment or claim by way of answer 
 in any action or proceeding. When final judgment shall have been 
 entered in such action, a copy thereof shall be certified and trans- 
 mitted to the clerk of the surrogate's court in which such will was 
 admitted to probate. The action brought as herein provided shall 
 be commenced within two years after the will or codicil has been 
 admitted to probate, but persons within the age of minority, of unsound 
 mind, imprisoned, or absent from the state, may bring such action 
 within two years after such disability has been removed. 
 
 Sect. 2660. WHO ENTITLED TO LETTERS OF ADMINIS- 
 TRATION. Administration in case of intestacy must be granted 
 to the relatives of the deceased entitled to succeed to his personal 
 property, who will accept the same, in the following order : 
 
 1. To the surviving husband or wife. 
 
 2. To the children. 
 
 3. To the father. 
 
 4. To the mother. 
 
 5. To the brothers. 
 
 6. To the sisters. 
 
 7. To the grandchildren. 
 
 8. To any other next of kin entitled to share in the distribution 
 of the estate. 
 
 9. To an executor or administrator of a sole legatee named in 
 a will, whereby the whole estate is devised to such deceased sole legatee. 
 If a person entitled is a minor, administration must be granted to 
 his guardian, if competent, in preference to creditors or other persons. 
 If no relative, or guardian of a minor relative, will accept the same, 
 the letters must be granted to the creditors of the deceased; the 
 creditor first applying, if otherwise competent, to be entitled to prefer- 
 ence. If no creditor applies, the letters must be granted to any other 
 person or persons legally competent. Letters of administration shall 
 also be granted to an executor or administrator of a deceased person 
 named as sole legatee in a will. The public administrator in the 
 city of New York has preference after the next of kin and after an 
 executor or administrator of a sole legatee named in a will whereby 
 the whole estate is devised to such deceased sole legatee over creditors, 
 and all other persons. In other counties, the county treasurer shall 
 have preference next after creditors, over all other persons. If several 
 persons of the same degree of kindred to the intestate are entitled to 
 administration, they must be preferred in the following order: First, 
 men to women; second, relatives of the whole blood to those of the 
 
 54 
 
Fiduciary Accounting 
 
 half blood; third, unmarried women to married women. If there 
 are several persons equally entitled to administration, the surrogate 
 may grant letters to one or more of such persons, and administration 
 may be granted to one or more competent persons, although not 
 entitled to same, with the consent of the person entitled to be joined 
 with such person or persons; which consent must be in writing, and 
 filed in the office of the surrogate. If, in an action, brought or about 
 to be brought, the intestate, if living, would be a proper party thereto, 
 any party to such action, interested in the subject thereof, may apply 
 to the surrogate's court for the granting of letters of administration 
 to himself, or some other qualified person, and upon the jurisdic- 
 tional facts being satisfactorily shown, and no relative, or guardian 
 of a minor relative, and no creditor, county treasurer or public admin- 
 istrator consenting to such administration, some legally competent 
 person must be appointed administrator. 
 
 Sect. 2661. PERSONS INCOMPETENT TO RECEIVE LET- 
 TERS. Letters of administration shall not be granted to a person 
 convicted of an infamous crime, nor to any one incapable by law 
 of making a contract, nor to a person not a citizen of the United 
 States, unless he is a resident of the state, nor to a person under 
 twenty-one years of age, or who is adjudged incompetent by the 
 surrogate to execute the duties of such trust by reason of drunkenness, 
 improvidence or want of understanding. 
 
 Sect. 2664. ADMINISTRATOR'S BOND. A person appointed 
 administrator, before letters are issued to him, must file his official 
 oath, execute to the people of the state, and file with the surrogate, the 
 joint and several bond of himself and two or more sureties, in a 
 penalty fixed by the surrogate, not less than twice the value of the 
 personal property of which the decedent died possessed and of the 
 probable amount to be recovered by reason of any right of action, 
 granted to an executor or administrator, by special provision of law. 
 The sum to be fixed as the amount of the penalty must be ascertained 
 by the surrogate, by the examination on oath of the applicant or 
 any other person, or otherwise, as the surrogate thinks proper. The 
 bond must be conditioned that the administrator will faithfully dis- 
 charge the trust reposed in him as such and obey all lawful decrees 
 and orders of the surrogate's court touching the administration of 
 the estate committed to him. But where a right of action is granted 
 to an executor or administrator from a compromise of the action, 
 and it appears to be impracticable to give a bond sufficient to cover the 
 probable amount to be recovered, the surrogate may, in his discretion, 
 accept modified security, and issue letters limited to the prosecution 
 of such action, but restraining the executor or administrator from 
 a compromise of the action, and the enforcement of any judgment 
 recovered therein, until the further order of the surrogate on addi- 
 tional further satisfactory security. In cases where all the next of 
 kin to the intestate consent, the penalty of the bond need not exceed 
 double the amount of the claims of the creditors, against the estate, 
 
 55 
 
Fiduciary Accounting 
 
 presented to the surrogate, pursuant to a notice to be published twice 
 a week for four weeks in the official state paper, and in two newspapers 
 published in the city of New York, and once a week for four weeks, 
 in two newspapers published in the county where the intestate usually 
 resided, and in the county where he died, reciting an intention to 
 apply for letters under this provision, and notifying creditors to 
 present their claims to the surrogate on or before a day to be fixed 
 in such notice, which shall be at least thirty days after the first 
 publication thereof; but no bond so given shall be for less than five 
 thousand dollars; and such bond may be increased by order of the 
 surrogate for cause shown. Pending such application, no temporary 
 administrator shall be appointed, except on petition of such next of kin. 
 Sect. 2670. WHEN AND HOW TEMPORARY ADMINISTRA-. 
 TORS MAY BE APPOINTED. On the application of a creditor, or 
 a person interested in the estate, the surrogate may, in his discretion, 
 issue to one or more persons, competent and qualified to serve as 
 executors, letters of temporary administration, in either of the follow- 
 ing cases : 
 
 1. When for any cause, delay necessarily occurs in the granting 
 of letters testamentary or letters of administration, or in probating 
 a will. 
 
 2. Where a person, of whose estate the surrogate would have 
 jurisdiction, if he was shown to be dead, disappears or is missing, so 
 that, after diligent search, his abode cannot be ascertained, and under 
 circumstances which afford reasonable ground to believe either that he 
 is dead, or that he has become a lunatic, or that he has been secreted, 
 confined, or otherwise unlawfully made away with; and the appoint- 
 ment of a temporary administrator is necessary for the protection of 
 his property, and the rights of creditors or of those who will be 
 interested in the estate, if it is found that he is dead. An appointment 
 of a temporary administrator, in a case specified in subdivision first 
 must be made by an order. At least ten days' notice of the application 
 for such an order must be given to each party to the proceeding who 
 has appeared, unless the surrogate is satisfied by proof that the safety 
 of the estate requires the notice to be shortened, in which case he 
 may shorten the time of service to not less than two days. Applica- 
 tion for such an appointment, in a case specified in subdivision second, 
 must be made by petition, in like manner as where an application is 
 made for administration in case of intestacy; and the proceedings 
 are the same as prescribed in article fourth of this title, relating to 
 such last mentioned application. Such an application for the appoint- 
 ment of a temporary administrator may also be made, with like effect, 
 and in like manner, as if made by a creditor, by the county treasurer 
 of the county where the person, whose estate is in question, last 
 resided; or, if he was not a resident of the state, of the county where 
 any of his property, real or personal, is situated. A temporary admin- 
 istrator must qualify, as prescribed in article fourth of this title, with 
 respect to an administrator-in-chief. 
 
 56 
 
Fiduciary Accounting 
 
 Sect. 2672. GENERAL POWERS OF TEMPORARY ADMIN- 
 ISTRATOR- A temporary administrator, appointed as prescribed in 
 this article, has authority to take into his possession personal property; 
 to secure and preserve it; and to collect choses in action; and, for 
 either of these purposes, he may maintain any action or special pro- 
 ceeding. An action may be maintained against him, by leave of the 
 surrogate, upon a debt of the decedent, or of the absentee whom he 
 represents, in like manner, and with like effect as if he was an admin- 
 istrator-in-chief, llie surrogate may, by an order made upon at 
 least ten days' notice to all the parties who have appeared in the 
 special proceeding, authorize the temporary administrator to sell, after 
 appraisal, such personal property, specifying it, of the decedent, or of 
 the absentee whom he represents, as it appears to be necessary to sell, 
 for the benefit of the estate; or, if it appears that the safety of the 
 estate requires the notice to be shortened, the surrogate may shorten 
 the notice to not less than two days. The surrogate may, also, by 
 order, authorize him to pay funeral expenses, or any expenses of the 
 administration of his trust, or stenographer's or referee's fees on con- 
 test of a will or administration; and he may also direct the payment 
 of a legacy or other pecuniary provision under a will or a distributive 
 share or just proportionate part thereof, according to section two 
 thousand seven hundred and nineteen of this act as though he were 
 an executor or administrator. 
 
 Sect. 2673. WHEN TEMPORARY ADMINISTRATOR AD- 
 VERTISE FOR CLAIMS. Aftr six months have elapsed, since 
 letters were issued to a temporary administrator, appointed upon the 
 estate, of either a decedent or an absentee, he has the same power, 
 as an administrator-in-chfef, to publish a notice requiring creditors of 
 the decedent or absentee, to exhibit their demands to him. The pub- 
 lication thereof has the same effect, with respect to the temporary 
 administrator, and also an executor or administrator subsequently 
 appointed upon the estate, as if the temporary administrator was the 
 executor or an administrator-in-chief, and the person to whom the 
 subsequent letters are issued was his successor. 
 
 Sect. 2674. WHEN TEMPORARY ADMINISTRATOR AU- 
 THORIZED TO PAY DEBTS. After a year has elapsed, since letters 
 were issued to a temporary administrator, appointed upon the estate, 
 of either a decedent or an absentee, the surrogate may, upon the 
 application of the temporary administrator, and upon proof, to his 
 satisfaction, that the assets exceed the debts, make an order, permitting 
 the applicant to pay the whole or any part of a debt, due to a creditor 
 of the decedent or absentee; or, upon the petition of such a creditor, 
 he may issue a citation to the temporary administrator, requiring him 
 to show cause why he should not pay the petitioner's debt. When such 
 a petition is presented the proceedings are, in all respects, the same 
 as where a creditor presents a petition, praying for a decree directing 
 an executor or administrator to pay his debt, as prescribed in article 
 first of title fourth of this chapter. 
 
 57 
 
Fiduciary Accounting 
 
 Sect. 2675. ID.; AS TO REAL PROPERTY. When a tem- 
 porary administrator is appointed and a proceeding is pending for 
 the probate of a will of real property, or there is a delay in the granting 
 of letters testamentary or administration on such a will or in the 
 qualification of a trustee named therein, the order appointing him 
 may confer upon him the authority to take possession of real property, 
 in the same or another county, which is affected by the will, and to 
 receive the rents and profits thereof. The surrogate may, by an order, 
 confer upon him authority to lease any or all of the real property, for 
 a term not exceeding one year; or to do any other act with respect 
 thereto, except to sell it, which is, in the surrogate's opinion, necessary 
 for the execution of the will, or the preservation or benefit of the real 
 property. For either of these purposes, he may maintain or defend 
 any action or special proceeding. 
 
 Sect. 2676. POWERS OF TEMPORARY ADMINISTRATOR 
 OF ABSENTEE. A temporary administrator, appointed upon the 
 estate of an absentee, has all the powers and authority enumerated 
 in the last section, with respect to the real property of the absentee. 
 His acts, done in pursuance of that authority, bind the absentee, if 
 he is living, or his heir or devisee, if he is dead, in the same manner 
 as the acts of an executor or administrator bind his successor. 
 
 Sect. 2677. TEMPORARY ADMINISTRATOR OF ABSENTEE 
 MAY PROVIDE FOR HIS FAMILY. Upon proof, satisfactory to 
 the surrogate, that the wife or any infant child of an absentee, upon 
 whose estate a temporary administrator has been appointed, is in 
 such circumstances, as to require provision to be made out of the 
 estate for his or her maintenance, clothing, or education, the surrogate 
 may make an order, directing the temporary administrator to make 
 such provision therefor, as the surrogate deems proper, out of any 
 personal property in his hands, not needed for the payment of debts. 
 
 Sect. 2678. TEMPORARY ADMINISTRATOR TO DEPOSIT 
 MONEY. A temporary administrator, appointed as prescribed in 
 this article, must, within ten days after any money belonging to the 
 estate comes into his hands, deposit it as prescribed in this section. 
 Where he was appointed by the surrogate's court of any county except 
 New York, it must be deposited with a person, with a bank or in a 
 domestic incorporated trust company, designated by the surrogate; 
 but a natural person so designated as depositary must first file in the 
 surrogate's office a bond to the surrogate in a penalty fixed by him, 
 executed by the depositary and two sureties, and conditioned to render 
 a faithful account and pay over all money received by him upon the 
 direction of any court of competent jurisdiction. Where the tempo- 
 rary administrator was appointed by the surrogate of the county of 
 New York, the money must be deposited in a domestic incorporated 
 trust company, having its principal office or place of business in the 
 city of New York, and either specially approved by the surrogate 
 or designated in the general rules of practice as a depositary of funds 
 paid into court. 
 
 58 
 
Fiduciary Accounting 
 
 Sect. 2679. PROCEEDINGS TO COMPEL DEPOSIT. If a 
 temporary administrator neglects to make a deposit, as prescribed in 
 the last section, within the time therein limited, the surrogate must, 
 upon the application of a creditor or person interested in the estate, 
 accompanied with satisfactory proof of the neglect, make an order, 
 directing him to do so forthwith, or to show cause why a warrant 
 of attachment should not issue against him. In the county of New 
 York, the order must be made returnable three days after issuing it; 
 and it must be served upon the temporary administrator, at least two 
 days before the return day thereof, either personally or by leaving a 
 copy thereof within the state, at his dwelling place, or his office for 
 the regular transaction of business in person; or, if it cannot be 
 served in either of those methods, by serving it in such other manner, 
 as the surrogate directs. In any other county, it must be made return- 
 able within a reasonable time, not exceeding fifteen days after issuing 
 it; and it must be served, in like manner, at least ten days before the 
 return day thereof. 
 
 Sect. 2680. HOW MONEY DEPOSITED MAY BE WITH- 
 DRAWN. Money deposited by a temporary administrator, as pre- 
 scribed in this article, cannot be withdrawn, except upon the order 
 of the surrogate, a certified copy of which must be presented to the 
 depositary. Such an order may be made upon two days' notice of the 
 application therefor, given to all the parties to the special proceeding, 
 in which the temporary administrator was appointed, who appeared 
 therein ; but not otherwise. 
 
 Sect. 2685. REVOCATION OF LETTERS FOR ACTS OF 
 EXECUTOR OR ADMINISTRATOR, OR OTHER CAUSES. In 
 either of the following cases, a 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 was not taken by the petitioner, or a person whom he 
 represents, upon the hearing of the application for letters. 
 
 2. Where, by reason of his having wasted or improperly applied 
 the money or other assets in his hands, or invested money in securi- 
 ties 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. 
 
 59 
 
Fiduciary Accounting 
 
 4. Where the grant of his letters was obtained by a false sugges- 
 tion 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 man- 
 agement of his affairs; or that an executor or administrator-in-chief, 
 has been appointed upon his estate; or that a committee of his prop- 
 erty has been appointed by a competent court of the state. 
 
 Sect. 2689. EXECUTOR OR ADMINISTRATOR MAY AP- 
 PLY FOR REVOCATION AND ACCOUNTING. 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 judi- 
 cially 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 pray- 
 ing for a judicial settlement of the account of an executor or admin- 
 istrator. The surrogate may, in his discretion, entertain, or decline to 
 entertain the application. 
 
 Sect. 2690. PROCEEDINGS ON EXECUTOR'S OR ADMIN- 
 ISTRATOR'S APPLICATION; ACCOUNTING. 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 accord- 
 ingly. 
 
 Sect. 2692. WHEN REMAINING EXECUTORS OR ADMIN- 
 ISTRATORS ACT; WHEN SUCCESSORS APPOINTED. \Vhere 
 one of two or more executors or administrators dies, or becomes a 
 
 60 
 
Fiduciary Accounting 
 
 lunatic, or is convicted of an infamous offense, 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 admin- 
 istration of the estate, pursuant to the letters, and may continue any 
 action or special proceeding, brought by or against all. 
 
 Sect. 2693. WHEN SUCCESSOR MUST BE APPOINTED. 
 When all the executors or all the administrators, to whom letters have 
 been issued, die, or become incapable, as prescribed in section two 
 thousand six hundred and ninety-two, 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, and the same security shall be required, 
 as in a case of intestacy, except that the surrogate may, in his discre- 
 tion, in case where the estate has been partially administered upon 
 by the former representative or representatives, fix as the penalty of 
 the bond to be given by such successor or successors, a sum not less 
 than twice the value of the assets of the estate remaining unadmin- 
 istered. 
 
 Sect. 2695. ANCILLARY LETTERS UPON FOREIGN PRO- 
 BATE. Where a will of personal property made by a person who 
 resided without the state at the time of the execution thereof, or at 
 the time of his death, has been admitted to probate within the foreign 
 country, or within the state or territory of the United States, where 
 it was executed, or where the testator resided at the time of his death, 
 the surrogate's court having jurisdiction of the estate must, upon 
 an application made as prescribed in this article, accompanied by a 
 copy of the will, and of the foreign letters, if any have been issued, 
 authenticated as prescribed in section forty-five of the decedent estate 
 law, record the will and the foreign letters, and issue thereupon ancil- 
 lary letters testamentary, or ancillary letters of administration, with 
 the will annexed, as the case requires. 
 
 Sect. 2697. TO WHOM ANCILLARY LETTERS GRANTED 
 Where the will specially appoints one or more persons as the executor* 
 thereof, with respect to personal property situated within the state, 
 the ancillary letters testamentary must be directed to the persons so 
 appointed, or to those who are competent to act and qualify. If all 
 are incompetent, or fail to qualify, or in a case where such an appoint- 
 ment is not made, ancillary letters testamentary, or ancillary letters of 
 administration, issued as prescribed in this article, must be directed 
 to the person named in the foreign letters or to the person otherwise 
 entitled to the possession of the personal property of the decedent, 
 unless another person applies therefor, and files with his petition, an 
 instrument, executed by the foreign executor or administrator, or person 
 otherwise entitled as aforesaid; or, if there are two or more, by all 
 
 61 
 
Fiduciary Accountitig 
 
 who have qualified and are acting; and also acknowledged or proved 
 and certified in like manner as a deed to be recorded in the county, 
 authorizing the petitioner to receive such ancillary letters, in which 
 case the surrogate must, if the petitioner is a fit and competent person, 
 issue such letters directed to him. Where two or more persons are 
 named in the foreign letters, or in an instrument executed as pre- 
 scribed in this section, the ancillary letters may be directed to either 
 or any of them, without naming the others, if the others fail to qualify, 
 or if, for good cause shown to the surrogate's satisfaction, the decree 
 so directs. 
 
 Sect. 2702. POWERS AND DUTIES OF ANCILLARY EXEC- 
 UTORS AND ADMINISTRATORS. The provisions of this chapter, 
 relating to the rights, powers, duties and liabilities of an executor or 
 administrator, apply to a person to whom ancillary letters are granted, 
 as prescribed in this article ; except those contained in title fifth 
 thereof; or where special provision is otherwise made in this article; 
 or where a contrary intent is expressed in, or plainly to be inferred 
 from, the context. 
 
 Sect. 2707. PROCEEDINGS TO DISCOVER PROPERTY 
 WITHHELD. An executor or administrator may present to the 
 surrogate's court, from which letters were issued to him, a written 
 petition duly verified setting forth, on knowledge or information 
 and belief, any facts tending to show that money or other personal 
 property which should be delivered to the petitioner, or included in an 
 inventory or appraisal, is in the possession, under the control or 
 within the knowledge or information of a person who withholds the 
 same from him; or who refuses to impart knowledge or information 
 he may have concerning the same, or to disclose any other fact which 
 will aid such executor or administrator in making discovery of such 
 property, so that it cannot be inventoried or appraised; and praying 
 an inquiry respecting it, and that the person complained of may be 
 cited to attend the inquiry and be examined accordingly, and to 
 deliver the property if in his control. The petition may be accom- 
 panied by an affidavit or other evidence, written or oral, tending to 
 support the allegations thereof. If the surrogate is satisfied, on the 
 papers so presented, that there are reasonable grounds for the inquiry, 
 he must issue a citation accordingly; which may be made returnabla 
 forthwith, or at a future time fixed by the surrogate, and may be 
 served at any time before the hearing. Where the person, or any of 
 the persons, to be cited, does not reside, or is not within the county 
 of the surrogate, the citation, in the surrogate's discretion, may require 
 him to appear at a specified time and place within the county where 
 he resides or is served before the surrogate of that county. 
 
 Sect. 271 i. APPOINTMENT OE APPRAISERS AND AP- 
 PRAISAL. On the application of an executor or administrator, the 
 surrogate, by writing, must appoint two disinterested appraisers, as 
 often as may be necessary, to appraise the personal property of a 
 deceased person, who shall be entitled to receive a reasonable compen- 
 
 62 
 
Fiduciary Accounting 
 
 sation for their services, to be allowed by the surrogate, not exceeding 
 for each the sum of five dollars for each day actually employed in 
 making appraisement, in addition to expenses actually and necessarily 
 incurred. The number of days' service rendered, and the amount of 
 such expenses, must be verified by the affidavit of the appraiser, deliv- 
 ered to the executor or administrator, and adjusted by the surrogate 
 before payment of the fees. The executors and administrators, v^ithin 
 a reasonable time after qualifying, and after giving notice of at least 
 five days to the legatees, and next of kin, residing in the county where 
 the property is situated, and posting a notice in three of the most 
 public places of the town, specifying the time and place at which 
 the appraisement will be made, must make a true and perfect inven- 
 tory of all the personal property of the testator or intestate; and if 
 in different and distant places, two or more such inventories as may 
 be necessary. Before making the appraisement, the appraisers must take 
 and subscribe an oath, to be inserted in the inventory, that they will 
 truly, honestly and impartially appraise the personal property exhibited 
 to them, according to the best of their knowledge and ability. They 
 must, in the presence of such of the parties interested as attend, esti- 
 mate and appraise the property exhibited to them, and set down each 
 article separately with the value thereof in dollars and cents, distinctly, 
 in figures opposite to the articles respectively. Service of the notice 
 above mentioned may be either personal or in the manner prescribed 
 by section 797, subdivision one and section 798 of this act. 
 
 Sect. 2712. WHAT SHALL BE DEEMED ASSETS. The fol- 
 lowing shall be deemed assets and go to the executors or adminis- 
 trators to be applied and distributed as part of the personal property 
 of the testator or intestate, and be included in the inventory : 
 
 1. Leases for years; lands held by the deceased from year to 
 year; and estates held by him for the life of another person. 
 
 2. The interest remaining in him, at the time of his death, in 
 a term of years after the expiration of any estate for years therein, 
 granted by him or any other person. 
 
 3. The interest in lands devised to an executor for a term of 
 years for the payment of debts. 
 
 4. Things annexed to the freehold, or to any building for the 
 purpose of trade or manufacture, and not fixed into the wall of a 
 house so as to be essential to its support. 
 
 5. The crops growing on the land of the deceased at the time of 
 his death. 
 
 6. Every kind of produce raised annually by labor and cultivation, 
 except growing grass and fruit ungathered. 
 
 7. Rent reserved to the deceased which had accrued at the time of 
 his death. 
 
 8. Debts secured by mortgages, bonds, notes or bills; accounts, 
 money, and bank bills, or other circulating medium, things in action, 
 and stock in any corporation or joint-stock association. 
 
 9. Goods, wares, merchandise, utensils, furniture, cattle, provisions, 
 
 63 
 
Fiduciary Accounting 
 
 moneys unpaid on contracts for the sale of lands and every other 
 species of personal property not hereinafter excepted. Things annexed 
 to the freehold, or to a building, shall not go to the executor, but shall 
 descend with the freehold to the heirs or devisees, except such fixtures 
 as are mentioned in the fourth subdivision of this section. The right 
 of an heir to any property, not enumerated in this section, which by 
 the common law would descend to him, is not impaired by the general 
 terms of this section. 
 
 Sect. 2713. EXEMPTION FOR WIDOW AND CHILDREN. 
 If a man having a family die, leaving a widow or minor child or 
 children, following articles shall not be deemed assets, but must be in- 
 cluded and stated in the inventory of the estate without being appraised : 
 
 1. All spinning-wheels, weaving-looms, one knitting-machine, one 
 sewing-machine, and stoves put up or kept for use by his family. 
 
 2. The family Bible, family pictures, and school books, used by or 
 in such family, and books not exceeding in value fifty dollars, which 
 were kept and used as part of the family library. 
 
 3. Sheep to the number of ten, with their fleeces, and the yarn 
 and cloth manufactured from the same; one cow, two swine, and 
 the pork of such swine, and necessary food for such swine, sheep, or 
 cow for sixty days, and all necessary provisions and fuel for such 
 widow, child, or children for sixty days after the death of such 
 deceased person. 
 
 4. All necessary wearing apparel, beds, bedsteads and bedding, 
 necessary cooking utensils, the clothing of the family, the clothes of 
 the widow and her ornaments, proper for her station; one table, six 
 chairs, twelve knives and forks, twelve plates, twelve teacups and 
 saucers, one sugar dish, one milkpot, one teapot and twelve spoons, 
 and other household furniture not exceeding one hundred and fifty 
 dollars in value. 
 
 5. Other necessary household furniture, provisions, or other per- 
 sonal property, in the discretion of the appraisers, to the value of 
 not exceeding one hundred and fifty dollars. 
 
 Such articles and property shall remain in the possession of 
 the widow, if there be one, during the time she lives with and pro- 
 vides for such minor child or children. If she ceases so to do, she 
 'shall be allowed to retain as her own, her wearing apparel, her orna- 
 ments, and one bed, bedstead and the bedding for the same, and the 
 property specified in subdivision five; and the other articles so ex- 
 empted shall then belong to such minor child or children. If she 
 lives with and provides for such minor child or children until it or 
 they become of full age all the articles and property in this section 
 mentioned shall belong to the widow. If there be a widow and no 
 minor child, all the articles and property in this section mentioned shall 
 belong to the widow. If a married woman die, leaving surviving 
 her a husband, or a minor child or children the same articles and 
 personal property shall be set apart by the appraisers, with the same 
 effect for the benefit of such husband or minor child or children. 
 
 64 
 
Fidu cia/ry A c counting 
 
 Sect. 2714. CONTENTS OF INVENTORY. The inventory must 
 contain a particular statement of all bonds, mortgages, notes and other 
 securities for the payment of money belonging to the deceased, known 
 to the executor or administrator; with the name of the debtor in each 
 security, the date, the sum originally payable ; the indorsements thereon, 
 if any, with their dates and the sum which, in the judgment of the 
 appraisers, is collectible on each security; and of all moneys, whether 
 in specie or bank bills, or other circulating medium, belonging to 
 the deceased, which have come to the hands of the executor or 
 administrator, and if none have come to his hands, the fact shall 
 be stated in the inventory. The naming of a person executor in a 
 will does not operate as a discharge or bequest of any just claim 
 which the testator had against him; but it must be included among 
 the credits and effects of the deceased in the inventory, and the 
 executor shall be liable for the same as for so much money in his 
 hands at the time the debt or demand becomes due, and he must 
 apply and distribute the same in the payment of debts and legacies, 
 and among the next of kin, as part of the personal property of the 
 deceased. The discharge or bequest in a will of a debt or demand 
 of the testator against an executor named therein, or against any 
 other person is not valid as against the creditors of the deceased; 
 but must be construed only as a specific bequest of such debt or 
 demand ; and the amount thereof must be included in the inventory 
 and, if necessary, be applied in the payment of his debts; and if not 
 necessary for that purpose, must be paid in the same manner and 
 proportion as other specific legacies. If personal property not men- 
 tioned in any inventory come to the possession or knowledge of 
 an executor or administrator, he must cause the same to be appraised 
 as herein required, and an inventory thereof to be returned within 
 two months after the discovery thereof; and the making of such 
 inventory and return may be enforced in the same manner as in the 
 case of a first inventory. 
 
 Sect. 2717. SALE OF PERSONAL PROPERTY. If an executor 
 or administrator discover that the debts against any deceased person 
 or the legacies bequeathed by him cannot be paid and satisfied without 
 a sale of the personal property of the deceased, the same, so far as 
 may be necessary for the payment of such debts or legacies, must 
 be sold. An administrator may sell the personal property of the 
 intestate at any time when it is necessary to do so for the purpose 
 of distribution. The sale may be public or private, and, except in 
 the city of New York, may be on credit not exceeding one year, with 
 approved security. The executor or administrator is not responsible 
 for any loss happening in the sale, when made in good faith and with 
 ordinary prudence. Articles not necessary for the support and sub- 
 sistence of the family of the deceased, or not specifically bequeathed, 
 must be first sold, and articles so bequeathed must not be sold until 
 the residue of the personal estate has been applied to the payment 
 of debts. 
 
 6s 
 
Fiduciary Accounting 
 
 Sect. 2718. ASCERTAINMENT OF DEBTS. The executor or 
 administrator at any time after the granting of his letters, may insert 
 a notice once in each week for six months in such newspaper or 
 newspapers printed in the county as the surrogate directs, requiring 
 all persons having claims against the deceased to exhibit the same, 
 with the vouchers therefor, to him, at a place to be specified in the 
 notice, at or before a day therein named, which must be at least six 
 months from the day of the first publication of the notice. The 
 executor or administrator may require satisfactory vouchers in support 
 of any claim presented and the affidavit of the claimant that the 
 claim is justly due, that no payments have been made thereon, and 
 that there are no offsets against the same to the knowledge of the 
 claimant. If the executor or administrator doubts the justice of 
 any such claim, he may enter into an agreement in writing with 
 the claimant to refer the matter in controversy to one or more disin- 
 terested persons, to be approved by the surrogate. On filing such 
 agreement and approval in the office of the clerk of the supreme 
 court in the county in which the parties or either of them reside, an 
 order shall be entered by the clerk referring the matter in controversy 
 to the person or persons so selected. On the entry of such order the 
 proceding shall become an action in the supreme court. The same 
 proceeding shall be had in all respects, the referees shall have the 
 same powers, be entitled to the same compensation, and subject to 
 the same control as if the reference had been made in an action in 
 which such court might, by law, direct a reference. In determining 
 the question of costs the referee shall be governed by sections eighteen 
 hundred and thirty-five and eighteen hundred and thirty-six of this 
 act. Judgment may be entered on the report of the referee and such 
 judgment shall be valid and effectual in all respects as if the same 
 had been rendered in a suit commenced by the ordinary process, and 
 the practice on appeal therefrom shall be the same as in other civil 
 actions. If a suit be brought on a claim which is not presented 
 to the executor or administrator within six months from the first 
 publication of such notice, the executor or administrator shall not be 
 chargeable for any assets or moneys that he may have paid in satis- 
 faction of any lawful claims, or of any legacies, or in making distribu- 
 tion to the next of kin before such suit was commenced. 
 
 Sect. 2719. PAYMENT OF DEBTS. Every executor and admin- 
 istrator must proceed with diligence to pay the debts of the deceased 
 according to the following order: 
 
 1. Debts entitled to a preference under the laws of the United 
 States. 
 
 2. Taxes assessed on the property of the deceased previous to his 
 death. 
 
 3. Judgments docketed, and decrees entered against the deceased 
 according to the priority thereof respectively : 
 
 4. All recognizances, bonds, sealed instruments, notes, bills and 
 unliquidated demands and accounts. 
 
 66 
 
Fiduciary Accounting 
 
 Preference shall not be given, in the payment of a debt over other 
 debts of the same class, except those specified in the third class. A 
 debt due and payable shall not be entitled to a preference over a debt 
 not due. The commencement of a suit for the recovery of a debt 
 or the obtaining of a judgment thereon against the executor or 
 administrator shall not entitle such debt to preference over others 
 of the same class. Debts not due may be paid according to the class 
 to which they belong, after deducting a rebate of legal interest on 
 the sum paid for the unexpired term of credit without interest. An 
 executor or administrator shall not satisfy his own debt or claim out 
 of the property of the deceased until proved to and allowed by the 
 surrogate; and it shall not have preference over others of the same 
 class. Preference may be given by the surrogate to rents due or 
 accruing on leases held by the testator at the time of his death, over 
 debts of the fourth class, if it appear to his satisfaction that such 
 preference will benefit the estate of the testator or intestate. The 
 surrogate may authorize the executor or administrator to compromise 
 or compound a debt or claim, on application, and for good and suffi- 
 cient cause shown, and to sell at public auction on such notice as the 
 surrogate prescribes, any uncollectible, stale or doubtful debt or claim 
 belonging to the estate ; but any party interested in the final settlement 
 of the estate may show on such settlement that such debt or claim was 
 fraudulently or negligently compromised or compounded. 
 
 Sect. 2720. APPORTIONMENT OF RENTS, ANNUITIES 
 AND DIVIDENDS. All rents reserved on any lease made after June 
 seventh, eighteen hundred and seventy-five, and all annuities, divi- 
 dends and other payments of every description made payable or 
 becoming due at fixed periods under any instrument executed after 
 such date, or, being a last will and testament that takes effect after 
 such date, shall be apportioned so that on the death of any person 
 interested in such rents, annuities, dividends or other such payments, 
 or in the estate or fund from or in respect to which the same issues 
 or is derived, or on the determination by any other means of the 
 interest of any such person, he, or his executors, administrators or 
 assigns, shall be entitled to a proportion of such rents, annuities, 
 dividends and other payments, according to the time which shall have 
 elapsed from the commencement, or last period of payment thereof, 
 as the case may be, including the day of the death of such person, 
 or of the determination of his or her interest, after making allowance 
 and deductions on account of charges on such rents, annuities, dividends 
 and other payments. Every such person or his executors, adminis- 
 trators or assigns shall have the same remedies at law and in equity 
 for recovering such apportioned parts of such rents, annuities, divi- 
 dends and other payments, when the entire amount of which such 
 apportioned parts form part, become due and payable and not before, 
 as he or they would have had for recovering and obtaining such 
 entire rents, annuities, dividends and other payments, if entitled 
 thereto; but the persons liable to pay rents reserved by any lease or 
 
 67 
 
Fiduciary Accountins: 
 
 t> 
 
 demise, or the real property comprised therein shall not be resorted 
 to for such apportioned parts, but the entire rents of which such appor- 
 tioned parts form parts must be collected and recovered by the person 
 or persons who, but for this section, or chapter five hundred and 
 forty-two of the laws of eighteen hundred and seventy-five, would have 
 been entitled to the entire rents; and such portions shall be recoverable 
 from such person or persons by the parties entitled to the same 
 under this section. This section shall not apply to any case in which 
 it shall be expressly stipulated that no apportionment be made, or to 
 any sums made payable in policies of insurance of any description. 
 
 Sect. 2721. PAYMENT OF LEGACIES. No legacy shall be 
 paid by any executor or administrator until after the expiration of 
 one year from the time of granting letters testamentary or of adminis- 
 tration, unless directed by the will to be sooner paid. If directed to 
 be sooner paid, the executor or administrator may require a bond, 
 with two sufficient sureties, conditioned, that if debts against the 
 deceased duly appear, and there are not other assets to pay the same, 
 and no other assets sufficient to pay other legacies, then the legatees 
 will refund the legacy so paid or such ratable proportion thereof with 
 the other legatees, as may be necessary for the payment of such debts, 
 and the proportional parts of such other legacies, if there be any, and 
 the costs and charges incurred by reason of the payment to such legatee, 
 and that if this probate of the will under which such legacy is paid be 
 revoked, or the will declared void, that such legatee will refund the 
 whole of such legacy, with interest, to the executor or administrator 
 entitled thereto. After the expiration of one year the executors and 
 administrators must discharge the specific legacies bequeathed by will, 
 and pay the general legacies, if there be assets. If there are not 
 sufficient assets, then an abatement of the general legacies must be made 
 in equal proportions. Such payment shall be enforced by the surrogate 
 in the same manner as the return of an inventory, and by a suit 
 on the bond of such executor or administrator whenever directed by 
 the surrogate. 
 
 Sect. 2722. PETITION TO COMPEL PAYMENTS; HEAR- 
 ING; DECREE. 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 
 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 propor- 
 tional 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 pro- 
 vision 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. 
 
 3. By the attorney-general, in any case where a decedent died 
 intestate as to any of his estate, leaving no known heirs or next 
 of kin. 
 
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Fiduciary Accounting 
 
 On the presentation of such a petition, the surrogate must issue 
 a citation accordingly; and on the return thereof, he must make such 
 a decree in the premises as justice requires. But in either of the 
 following cases the decree must dismiss the petition without prejudice 
 to an action or an accounting, in behalf of the petitioner : 
 
 1. Where an 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 on 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. 
 
 Sect. 2723. DECREE FOR PAYMENT OF LEGACY, ETC, 
 ON GIVING SECURITY. In a case specified in subdivision second 
 of the last section, 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, on the return of the citation, 
 that a decree for payment may be made, as prescribed in the last sec- 
 tion ; 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 
 of 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, on the filing of a bond, 
 approved by the surrogate, conditioned as prescribed by law, with 
 respect to a bond which an executor or an administrator with the 
 will annexed may require from a legatee, on payment or satisfaction 
 pf 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. 
 
 Sect. 2725. INTERMEDIATE ACCOUNTING. An executor or 
 administrator at any time, may, voluntarily, file in the surrogate's 
 office an intermediate account, and the vouchers in support of the 
 same. 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 on a judgment against the executor or administrator, has been 
 made by the judgment creditor, as prescribed in section eighteen hun- 
 dred and twenty-six of this act. 
 
 2. On the return of a citation, issued on the petition of a judgment 
 creditor, praying for a decree, granting leave to issue an execution 
 
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Fiduciary Accounting 
 
 on a judgment rendered against the decedent in his lifetime as pre- 
 scribed in section thirteen hundred and eighty-one of this act. 
 
 3. On the return of a citation, issued on the petition of a creditor^ 
 or person entitled to a legacy, or other pecuniary provision, or a 
 distributive share, or of the attorney-general, praying for a decree 
 directing payment thereof, as prescribed in section twenty-seven hun- 
 dred and twenty-two of this act. 
 
 4. Where eighteen months have elapsed since letters were issued, 
 and no special proceeding on a petition for a judicial settlement, of the 
 executor's or administrator's account is pending. 
 
 Sect. 2726. WHEN SURROGATE MAY REQUIRE JUDICIAL 
 SETTLEMENT OE ACCOUNT. In either of the following cases, 
 the surrogate's court may, from time to time, compel a judicial settle- 
 ment 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 the rents, profits or proceeds thereof, 
 pursuant to a power contained in the decedent's will, where one 
 year has elapsed since letters were issued to him. 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. 
 
 Sect. 2727. CITATION : ORDER TO ACCOUNT, AND PRO- 
 CEEDINGS THEREON. A petition praying for the judicial settle- 
 ment of an account, and that the executor and administrator be cited 
 to show cause why he should not render and settle his account, may 
 be presented, in a case prescribed in the last section, by a creditor 
 or person interested in the estate or fund, including a child born after 
 the making of a will; or by any person, in behalf of an infant so 
 interested; or by a surety in the official bond of the person required 
 to account, or the legal representative of such a surety, or by the attorney- 
 general, in any case where the decedent died intestate as to any of 
 his estate, leaving no known heirs or next of kin. On the presentation 
 of such a petition, a citation must be issued accordingly; except that 
 in a case specified in subdivision first of the last section, if the petition 
 is presented within eighteen months after letters were issued, to the 
 executor or administrator, the surrogate may entertain or decline to 
 entertain it, in his discretion. On the return of a citation issued as 
 prescribed in either of the foregoing sections of this article, if the 
 
 70 
 
Fiduciary Accounting 
 
 executor or administrator fails either to appear, or to show good cause 
 to the contrary, or to present in a proper case, a petition as prescribed 
 in the next section, an order must be made, directing him to account 
 within such time, and in such manner as the surrogate prescribes, and 
 to attend, from time to time, before the surrogate, for that purpose. 
 The executor or administrator is bound by such an order, without 
 service thereof. If he disobeys it the surrogate may issue a warrant 
 of attachment against him, and his letters may be revoked, as where 
 a warrant of attachment issued to compel the return of an inventory. 
 If it appears that there is a surplus, distributable to creditors or per- 
 sons interested, the surrogate, may, at any time, issue a supplemental 
 citation, directed to the persons who must be cited, on the petition 
 of an executor or administrator for a judicial settlement of his 
 account, and requiring them to attend the accounting. The pendency 
 of a proceeding against an executor or administrator to compel him 
 to account does not preclude him from presenting a petition as pre- 
 scribed in the next section. If such petition is presented at or before 
 the return of a citation in and as prescribed in either of the fore- 
 going sections of this title, the citation issued thereon need not be 
 directed to petitioner in the special proceeding pending against the 
 executor or administrator, and the two proceedings must be consoli- 
 dated. The surrogate may, in his discretion, and on such terms as 
 may be just, direct the consolidation of any two or more of such 
 proceedings pending before him, and such consolidation does not 
 affect any power of the surrogate which might be exercised in either 
 proceeding. 
 
 Sect. 2728. EXECUTORS, ET CETERA, MAY PETITION FOR 
 JUDICIAL SETTLEMENT ; CITATION THEREUPON. In either 
 of the following cases an executor or administrator may present to 
 the surrogate's court his account and a written petition duly verified, 
 praying that his account may be judicially settled; and that the 
 sureties in his official bond or the legal representatives of such surety 
 and all creditors or persons claiming to be creditors of the decedent, 
 except such, as by vouchers annexed to the account filed, appear to 
 have been paid, and the decedent's husband or wife, next of kin and 
 legatees, if any; or, if either of those persons had died, his executor 
 or administrator, if any, and the attorney-general in a case where 
 decedent died intestate as to any part of his estate, leaving no known 
 heirs or next of kin, shall be cited to attend the settlement ; but where 
 the decedent leaves a will which has been duly admitted to probate, 
 it shall not be necessary to cite the decedent's next of kin, unless 
 they are also legatees: 
 
 1. Where one year has elapsed since letters were issued to such 
 executor or administrator. 
 
 2. Where notice requiring all persons having claims against the 
 deceased to exhibit the same with the vouchers thereof to such 
 executor or administrator has been duly published according to law. 
 If one of two or more co-executors or co-administrators presents his 
 
 71 
 
Fiduciary Accounting 
 
 account and a petition for a judicial settlement of his separate account, 
 it must pray that his co-executors or co-administrators may also be 
 cited. Upon the presentation of accounts and a petition, as prescribed 
 in this section, the surrogate must issue a citation accordingly. On 
 the return of a citation, issued as prescribed in this section, the surro- 
 gate must take the account, and hear the allegations and proofs of the 
 parties respecting the same. Any party may contest the account, with 
 respect to a matter affecting his interest in the settlement and distri- 
 bution of the estate. And any party may contest an intermediate 
 account rendered under section twenty-seven hundred and twenty-five 
 of this act in case the same shall not be consolidated pursuant to 
 section twenty-seven hundred and twenty-seven of this act. A creditor, 
 or a person interested in the estate, although not cited, is entitled to 
 appear on the hearing, and thus make himself a party to the proceeding. 
 When letters issued to an executor or administrator have been revoked, 
 he may present to the surrogate's court a written petition, duly verified, 
 praying that his account be judicially settled, and that his successor, 
 if a successor has been appointed, and the other persons specified in 
 this section be cited to attend the settlement. 
 
 Sect. 2729. AFFIDAVIT TO ACCOUNT; VOUCHERS; EX- 
 AMINATION OF ACCOUNTING PARTY; FUNERAL EX- 
 PENSES. To each account filed with the surrogate, as prescribed in 
 this article, must be appended the affidavit of the accounting party, 
 to the effect that the account contains, according to the best of 
 his knowledge and belief, a full and true statement of all his receipts 
 and disbursements on account of the estate of the decedent; and of 
 all money and other property belonging to the estate, which have 
 come to his hands, or been received by any other person, by his order 
 or authority, for his use; and that he does not know of any error 
 or omission in the account to the prejudice of any creditor of, or 
 person interested in, the estate of the decedent. On an accounting 
 by an executor or administrator, the accounting party must produce 
 and file a voucher for every payment, except in one of the following 
 cases : 
 
 1. He may be allowed, without a voucher, any proper item of 
 expenditure, not exceeding twenty dollars, if it is supported by his 
 own uncontradicted oath, stating positively the fact of payment, and 
 specifying when and to whom the payment was made ; but all the 
 items so allowed against an estate, on all accountings of all the execu- 
 tors or administrators, shall not exceed five hundred dollars. 
 
 2. If he proves, by his own oath or another's testimony, that he 
 did not take a voucher when he made the payment ; or that the voucher 
 then taken by him has been lost or destroyed, he may be allowed 
 any item the payment of which he satisfactorily proves by the testi- 
 mony of the person to whom he made it; or, if that person is dead, 
 or cannot, after diligent search, be found, by any competent evidence, 
 other than his own oath ,or that of his wife. But an allowance cannot 
 be made, as specified in this section, unless the surrogate is satisfied 
 
 72 
 
Fiduciary Accounting 
 
 that the charge is correct and just. The surrogate may at any time 
 make an order requiring the accounting party to make and file his 
 account; or to attend, and be examined under oath, touching his 
 receipts and disbursements; or touching any other matter relating to 
 his administration of the estate, or any act done by him under color 
 of his letters, or after the decedent's death, and before the letters 
 were issued; or touching any personal property, owned or held by 
 the decedent, at the time of his death. No profit shall be made by 
 any executor or administrator by the increase, nor shall he sustain 
 any loss by the decrease, without his fault, of any part of the estate; 
 but he shall account for such increase, and be allowed for such decrease, 
 on the settlement of his accounts. On the judicial settlement of the 
 account of an executor or administrator, the surrogate may allow 
 the accounting party, for property of the decedent perished or lost 
 without the fault of the accounting party. 
 
 3. Every executor or administrator shall pay, out of the first 
 moneys received, the reasonable funeral expenses of decedent, and 
 the same shall be preferred to all debts and claims against the deceased. 
 If the same be not paid within sixty days after the grant of letters 
 testamentary or of administration, the person having a claim for such 
 funeral expenses may present to the surrogate's court a duly verified 
 petition praying that the executor or administrator may be cited 
 to show cause why he should not be required to make such payment, 
 and a citation shall be issued accordingly. If, upon the return of such 
 citation, it shall appear that the executor or administrator has received 
 moneys belonging to the estate which are applicable to the payment 
 of the claims for funeral expenses, the surrogate shall, unless the 
 validity of the claim and the reasonableness of its amount are admitted 
 by such executor or administrator, take proof as to such facts, and 
 if satisfied that such claim is valid shall fix and determine the amount 
 due thereon and shall make an order directing the payment within 
 ten days after the service of such order with notice of entry thereof, 
 upon such executor or administrator of such claim or such proportion 
 thereof as the money in the hands of the executor or administrator 
 applicable thereto, may be sufficient to satisfy. If it shall appear that 
 no money has come into the hands of the executor or administrator 
 the proceeding shall be dismissed without costs and without prejudice 
 to a further application or applications showing that since such dis- 
 missal the executor or administrator has received money belonging 
 to the estate. Such application shall be made upon a duly verified 
 petition stating the facts upon which the belief of the petitioner that 
 there are moneys in the hands of such executor or administrator 
 applicable to the payment of his claim, is based. Upon such further 
 application the issuance of the citation shall be in the discretion of 
 the surrogate and no such application shall be made less than three 
 months after the granting or denial of any previous application. If 
 upon any accounting it shall appear that an executor or administrator 
 has failed to pay a claim for funeral expenses, the amount of which 
 
 73 
 
Fiduciary Accounting: 
 
 has been fixed and determined by the surrogate as above set forth 
 or upon such accounting he shall not be allowed for the payment of 
 any debt or claim against the decedent until said claim has been 
 discharged in full; but such claim shall not be paid before expenses 
 of administration are paid. 
 
 Sect. 2730. COMMISSIONS OF EXECUTOR OR ADMINIS- 
 TRATOR. On settlement of the account of an executor or adminis- 
 trator, the surrogate must allow to him for his services, and if there 
 be more than one, apportion among them according to the services 
 rendered by them respectively, over and above his or their expenses: 
 For receiving and paying out all sums of money not exceeding one 
 thousand dollars, at the rate of five per centum. For receiving and 
 paying out any additional sums not amounting to more than ten 
 thousand dollars, at the rate of two and one-half per centum. For 
 all sums above eleven thousand dollars at the rate of one per centum. 
 In all cases such allowance must be made for their necessary expenses 
 actually paid by them as appears just and reasonable. If the gross 
 value of the personal property of the decedent amounts to one hun- 
 dred thousand dollars or more each executor or administrator is 
 entitled to the full compensation on principal and income allowed 
 herein to a sole executor or administrator, unless there are more 
 than three, in which case the compensation to which three would 
 be entitled must be apportioned among them according to the services 
 rendered by them respectively, and a like apportionment shall be 
 made in all cases where there shall be more than one executor or 
 administrator. Where the will provides a specific compensation to 
 an executor or administrator he is not entitled to any allowance 
 for his services, unless by a written instrument filed with the surrogate, 
 he renounces the specific compensation. Where successive or different 
 letters are issued to the same person on the estate of the same 
 decedent, including a case where letters testamentary, or letters of 
 general administration, are issued to a person who has been previously 
 appointed a temporary administrator, he is entitled to compensation 
 in one capacity only, at his selection, except that where he has received 
 compensation in one capacity he is entitled to the excess, if any, of 
 the compensation allowed by law, above the sum which he has already 
 received in the other capacity. 
 
 Sect. 2742. EFFECT OF JUDICIAL SETTLEMENT OF AC- 
 COUNT. A judicial settlement of the account of an executor or 
 administrator, either by the decree of the surrogate's court, or upon 
 an appeal therefrom, is conclusive evidence, against all the parties who 
 were duly cited or appeared, and all persons deriving title from any 
 of them at any time, of the following facts, and no others : 
 
 1. That the items allowed to the accounting party, for money paid 
 to creditors, legatees, and next of kin, for necessary expenses, and 
 for his services, are correct. 
 
 2. That the accounting party has been charged with all the interest 
 for money received by him, and embraced in the account, for which 
 he was legally accountable. 
 
 74 
 
Fiduciary Accounting 
 
 3. That the money charged to the accounting party, as collected, 
 is all that was collectible, at the time of the settlement, on the debts 
 stated in the account. 
 
 4. That the allowances made to the accounting party, for the 
 decrease, and the charges against him for the increase, in the value 
 of property, were correctly made. 
 
 Sect. 2744. WHEN DECREE MAY ORDER DELIVERY OF 
 SPECIFIC PROPERTY. In either of the following cases, the decree 
 may direct the delivery of an unsold chattel, or the assignment of an 
 uncollected demand, or any other personal property, to a party or 
 parties entitled to payment or distribution, in lieu of the money value 
 of the property : 
 
 1. Where all the parties interested, who have appeared, manifest 
 their consent thereto by a writing filed in the surrogate's office. 
 
 2. Where it appears that a sale thereof, for the purpose of pay- 
 ment or distribution, would cause a loss to the parties entitled thereto. 
 
 The value must be ascertained, if the consent does not fix it, by 
 an appraisement under oath, made by one or more persons appointed 
 by the surrogate for the purpose. 
 
 Sect. 2746. SHARE OF INFANT. When a legacy or distributive 
 share is payable to an infant, the decree may, in the discretion of the 
 surrogate's court, direct it, or so much of it as may be necessary, to 
 be paid to his general guardian, to be applied to his support and edu- 
 cation ; or when it does not exceed two hundred and fifty dollars, the 
 decree may order it to be paid to his father or to his mother or to 
 some competent person with whom the infant resides or who has 
 some interest in his welfare, for the use and benefit of such infant. 
 Such court may, in its discretion, by its decree, direct any legacy 
 or distributive share, or part of a legacy or distributive share, not 
 paid or applied as aforesaid, which is payable to an infant, to be paid 
 to the general guardian of such infant, upon his executing and deposit- 
 ing with the surrogate in his office, a bond running to such infant, 
 with two or more sufficient sureties, duly acknowledged and ap- 
 proved by the surrogate, in double the amount of such legacy or dis- 
 tributive share, conditioned that such general guardian shall faithfully 
 apply such legacy or distributive share, and render a true and just 
 account of the application thereof, in all respects, to any court having 
 cognizance thereof, when thereunto required, the sureties in which 
 bond shall justify as required in this act, unless the surrogate shall 
 determine that the general bond given by the guardian is ample and 
 of sufficient amount to cover such legacy or distributive share. The 
 said court may, in its discretion, from time to time, authorize or direct 
 such general guardian to expend such part of such legacy or distribu- 
 tive share, in the support, maintenance and education of such infant, 
 as it deems necessary. On such infant's coming twenty-one years of 
 age, he shall be entitled to receive, and his general guardian shall pay 
 or deliver to him, under the direction of the surrogate's court, the 
 securities so taken, and the interest or other moneys that may have 
 
 75 
 
Fiduciary Accounting 
 
 been paid to or received by such general guardian, after deducting 
 therefrom such amounts as have been paid or expended in pursuance 
 of the orders and decrees of said court, so made as aforesaid and 
 the legal commissions of such guardian; and the general guardian 
 shall be liable to account in and under the direction of the surrogate's 
 court, to his ward, for the same; in case of the death of said infant^ 
 before coming of age, the said securities and moneys, after making 
 the deductions aforesaid, shall go to his executors or administrators, 
 to be applied and distributed according to law, and the general guardian 
 shall in like manner be liable to account to such administrator or 
 executor. If there be no general guardian, or if the surrogate's court 
 do not order or decree the payment or disposition of the legacy or 
 distributive share in some of the ways above described, then the 
 legacy or distributive share, or part of the same not disposed of 
 as aforesaid, whether the same consists of money or securities, shall, 
 by order or decree of the surrogate's court, be paid and delivered to 
 and deposited in said court, by paying and delivering the same to 
 and depositing it with the county treasurer of the county, to be held, 
 managed, invested, collected, reinvested and disposed of by him, as 
 prescribed and required by section 2537 of this act. The regulations 
 contained in the general rules of practice, as specified in subdivision 
 eight of section four of the State Finance Law, and the provisions 
 of title three of chapter eight of this act apply to money, legacies 
 and distributive shares paid to and securities deposited with the 
 county treasurer, as prescribed in this section; except that the surro- 
 gate's court exercises with respect thereto, or with respect to a security 
 in which any of the money has been invested, or upon which it has 
 been loaned, the power and authority conferred upon the supreme court 
 by section 747 of this act. 
 
 Sect. 2747. LEGACY TO UNKNOWN PERSON PAID TO 
 STATE; HOW OBTAINED BY CLAIMANT. Where the person 
 entitled to a legacy or distributive share is unknown, the decree must 
 direct the executor or administrator to pay the amount thereof into 
 the treasury of the state, for the benefit of the person or persons who 
 may thereafter appear to be entitled thereto. The surrogate, or the 
 supreme court, upon the petition of a person claiming to be so entitled, 
 and upon at least fourteen days' notice to the attorney-general, ac- 
 companied with a copy of the petition, may by a reference, or by 
 directing the trial of an issue by a jury, or otherwise, ascertain the 
 rights of the persons interested, and grant an order directing the 
 payment of any money, which appears to be due to the claimant, but 
 without interest, and deducting all expenses incurred by the state 
 with respect to the decedent's estate. The comptroller, upon the 
 production of a certified copy of the order, must draw his warrant 
 upon the treasury, for the amount therein directed to be paid; which 
 must be paid by the state treasurer, to the person entitled thereto. 
 
 Sect. 2748. UNCLAIMED LEGACY TO BE PAID TO COUNTY 
 TREASURER. The decree must also direct the executor or admin- 
 
 76 
 
Fiduciary Accounting 
 
 istrator to pay to the county treasurer, a legacy or distributive share, 
 which is not paid to the person entitled thereto, at the expiration of 
 two years from the time when the decree is made, or when the legacy 
 or distributive share is payable by the terms of the decree. The money, 
 so paid to the county treasurer, can be paid out by him only by the 
 special direction of the surrogate; or pursuant to the judgment of a 
 court of competent jurisdiction. 
 
 Sect. 2749. WHAT PROPERTY SUBJECT TO THIS TITLE. 
 Real property, of which a decedent died seized, and the interest of a 
 decedent in real property, held by him under a contract for the pur- 
 chase thereof, made either with him, or with a person from whom he 
 derived his interest, may be disposed of, for the payment of his debts 
 and funeral expenses, or for the payment of judgment liens existing 
 thereon at his death, as prescribed in this title ; except where it is 
 devised, expressly charged with the payment of debts or funeral 
 expenses, or is exempted from levy and sale by virtue of an execution, 
 as prescribed in title second of chapter thirteen of this act. The 
 expression, "funeral expenses," as used in this title, includes a reason- 
 able charge for a suitable headstone. 
 
 Sect. 2750. PETITION FOR DISPOSITION OF DECEDENT'S 
 REAL PROPERTY FOR PAYMENT OF HIS DEBTS, ETC. At 
 any time within three years after letters were first duly granted within 
 the state, upon the estate of a decedent, an executor or administrator, 
 whether sole or joined in the letters with another other than a tem- 
 porary administrator, or a person holding a judgment lien upon 
 decedent's real property at the time of his death, or any other creditor 
 of the decedent, other than a creditor by a mortgage, which is a lien 
 upon the decedent's real property, or any person having a claim for 
 the funeral expenses of the decedent, may present to the surrogate's 
 court, from which letters were issued, a written petition, duly verified, 
 praying for a decree directing the disposition of the decedent's real 
 property, or interest in real property, specified in the last section, or 
 so much thereof as is necessary for the payment of his debts or funeral 
 expenses, or, if so decreed as hereinafter provided, for the payment 
 of any judgment liens existing upon such land, or some portion thereof, 
 at decedent's death, by the mortgage, lease or sale at public or private 
 sale thereof; and that the parties named in the petition and all other 
 necessary parties, as prescribed in the subsequent sections of this title, 
 may be cited to show cause why such a decree should not be made. 
 
 Sect. 2774. WHO FORBIDDEN TO PURCHASE. An executor 
 or administrator upon the estate, a freeholder appointed to execute 
 a decree, or a general or special guardian of an infant, who has interest 
 in any of the real property to be sold, shall not, directly or indirectly, 
 purchase, or be, or at any time before confirmation, become interested 
 in a purchase at the sale ; except that a guardian may, when authorized 
 so to do by the order of the surrogate, purchase, in his name of office, 
 for the benefit of his ward. A violation of this section renders the 
 purchase void. 
 
 77 ■ ■ . 
 
Fiduciary Accounting 
 
 Sect. 2801. RESTITUTION FOR ASSETS SUBSEQUENTLY 
 DISCOVERED. Where a decree has been made for the application 
 of the proceeds of real property to the payment of the decedent's 
 debts, or funeral expenses, as prescribed in this title, and assets which 
 should have been applied thereto, are afterwards discovered; or, for 
 any other reason, money or other personal property of the decedent, 
 which should have been applied thereto, afterwards comes to the 
 hands of the executor, administrator, legatee or next of kin, the 
 heir, devise, or other person aggrieved may maintain to procure 
 reimbursement therefrom. 
 
 Sect. 2801a. CONVEYANCE OF REAL ESTATE BY EXEC- 
 UTOR AND ADMINISTRATOR TO HOLDER OF CONTRACT 
 OF SALE MADE BY DECEDENT. When a person dies seized of 
 the legal title to lands in this state, and another person claims to 
 hold the beneficial interest in an executory contract made by the 
 decedent for the sale and conveyance of such lands to the vendee 
 therein named, or to his successors in interest, the execution and 
 delivery of a deed of such real estate by the executor or administrator 
 of the decedent's estate, to the holder of said contract, having the effect 
 of conveying all of the right, title and interest of the decedent at 
 the time of his death in and to said lands, may be authorized and 
 compelled upon the application of such executor or administrator, 
 upon the conditions and in the manner hereinafter provided. Upon 
 receiving written notice of any such claim, subscribed by the claimant 
 and requesting that proceedings be instituted under the provisions of 
 this section, and containing particulars as to the date of the contract, 
 the amount of the purchase price, the time or times when instalments 
 thereof were or will become due and payable, the sum, if any, admitted 
 to be still due or unpaid thereon, a description of the lands in question 
 and a statement of any other condition applying to the vendee, the 
 executor or administrator may, in his discretion, apply to the surrogate 
 from whose court his letters were issued, for an order authorizing 
 and directing him to execute a deed of such lands to the person 
 entitled thereto upon such terms as the court may prescribe. The 
 executor or administrator may, in his discretion, accept from the 
 claimant a deposit of money to secure the estate for any costs and 
 expenses of the application ; such money to be retained by the executor 
 or administrator to the extent of any costs or expenses thus paid 
 or incurred only in the event that the claimant neglects unreasonably 
 to tender performance of his part of the contract, or to be ready 
 and willing to perform, when requested, pursuant to the order, if 
 any, to be entered on such application. The application shall be by 
 petition, duly verified, which shall set forth the facts hereinabove 
 provided to be contained in said notice, and such other facts in relation 
 to said matter as may have come to the knowledge of the executor 
 or administrator, together with the names of the decedent's heirs, 
 devisees and surviving husband or wife, if any, and of all persons 
 claiming under them or either of them, so far as known, and shall 
 pray for a citation to all such heirs, devisees, wife, widow or persons, 
 
 78 
 
Fiduciary Accounting 
 
 requiring them to show cause before said surrogate why an order 
 should not be entered authorizing such conveyance. Upon the return 
 of such citation and after hearing the proofs in support of the petition, 
 or in opposition thereto, the surrogate shall make such order as justice 
 requires. If it is found that the enforcement of said contract at law 
 would be subject to a valid defense, in favor of any party to said 
 proceedings, the petition shall be dismissed. If it is found that such 
 contract is valid and in force and that the vendor had not, in his 
 lifetime, effectually conveyed his interest in said lands in fulfillment 
 thereof, the order shall direct such conveyance to be made by the 
 executor or administrator, upon receiving the balance of the purchase 
 price, when due, if there be any such unpaid balance, which amount 
 shall be specified in the order, or upon the compliance by the claimant 
 with any other condition imposed on him by the contract. Under 
 such order, if the purchase money on the contract is not due and the 
 claimant elects to pay the whole amount thereof, before maturity, 
 the executor or administrator shall receive the same and shall there- 
 upon execute and deliver the deed hereinabove provided for. A 
 conveyance made in pursuance of such order shall be binding on all 
 of said persons in interest who were duly cited in the proceeding. 
 An order dismissing the petition shall not prejudice the right of the 
 claimant under said contract to a civil action for specific performance 
 nor to any other remedy then existing at law or in equity; but the 
 delivery and acceptance of a deed of conveyance executed in pursu- 
 ance of an order granted as prescribed in this section shall be deemed 
 a complete fulfillment of such contract. An order directing a con- 
 veyance under the provisions of this section may be enforced, at 
 the instance of the person entitled to such conveyance, by contempt 
 proceedings in the manner provided for the enforcement of a decree 
 under section twenty-five hundred and fifty-six of this act, provided 
 it is shown that such person tendered performance of his part of 
 the contract, or was ready and able to perform when requested, within 
 a reasonable time after the order was entered. Upon such a proceeding, 
 costs and disbursements may be allowed and included in the order, 
 payable from the estate, in the sums specified in section twenty-five 
 hundred and sixty-one of this act. 
 
 Sect. 2802. VOLUNTARY INTERMEDIATE ACCOUNT. Any 
 trustee created by any last will and testament, or appointed by any 
 competent authority to execute any trust created by such last will 
 and testament, may at any time file an intermediate account, and may 
 also annually render and finally judicially settle his accounts before 
 the surrogate of the county having jurisdiction of the estate or trust, 
 in the manner provided by law for the final judicial settlement of the 
 accounts of executors and administrators, and may for that purpose 
 obtain and serve in the same manner the necessary citations requiring 
 all persons interested to attend such final settlement; and the decree 
 of the surrogate on such final settlement may be appealed from in 
 the manner provided for an appeal from a decree of a surrogate's 
 
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Fiduciary Accounting 
 
 court on the final settlement of the accounts of an executor or adminis- 
 trator, and the like proceedings shall be had on such appeal; in all 
 such annual accounts of such trustees, the surrogate before whom such 
 accounting may be had shall allow to the trustee or trustees the same 
 compensation for his or their services, by way of commission, as are 
 allowed by law to executors and administrators, besides their just 
 and reasonable expenses therein; and also the additional allowance 
 provided for in section twenty-five hundred and sixty-two of this 
 act; the decree of the surrogate on such final annual settlement of 
 an account provided for in this section, or the final determination, decree 
 or judgment of the appellate tribunal in case of appeal, shall have 
 the same force and effect as the decree of judgment of any other 
 court of competent jurisdiction on the final settlement of such ac- 
 counts, and of the matters relating to such trust which shall have been 
 embraced in such accounts, or litigated or determined on such set- 
 tlement. 
 
 Sect. 2803. COMPULSORY INTERMEDIATE ACCOUNT. 
 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. 
 
 Sect. 2807. WHEN JUDICIAL SETTLEMENT COMPELLED. 
 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. 
 
 Sect. 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 settle- 
 ment. 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 testa- 
 
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Fiduciary Accounting 
 
 mentary 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 proceedings. 
 
 Sect. 2814. PETITION TO RESIGN TRUST ; PROCEEDINGS 
 THEREON. A testamentary trustee may, at any time, present to the 
 surrogate's court a written petition, duly verified, praying that his 
 account be judicially settled; that a decree may thereupon be made, 
 allowing him to resign his trust, and discharging 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 must set forth the facts upon which the 
 application is founded; and it must in all other respects, conform 
 to a petition presented for a judicial settlement of the account of 
 a testamentary trustee, as prescribed in this title. The surrogate 
 may, in his discretion, entertain or decline to entertain the petition. 
 If he entertains it, the proceeding 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 peti- 
 tion; and 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 the petitioner's fully accounting, and paying 
 all money belonging to the trust, and delivering all books, papers, and 
 other property of the trust, in his hands, either into the surrogate's 
 court, or as the surrogate directs, a decree may be made, accepting his 
 resignation and discharging him accordingly. 
 
 Sect. 2815. PETITION TO REQUIRE SECURITY FROM 
 TESTAMENTARY TRUSTEE. Any person, beneficially interested in 
 the execution of the trust, may present to the surrogate's court a written 
 petition, duly verified, setting forth, either upon his knowledge, or 
 upon his information and belief, any fact, respecting a testamentary 
 trustee, 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 security, 
 in order to entitle himself to letters ; and praying for a decree, directing 
 the testamentary trustee 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, the 
 surrogate must issue a citation accordingly. Upon the return of the 
 citation, a decree, requiring the testamentary trustee to give such 
 security, may be made in a case where a person so named as executor 
 can entitle himself to letters testamentary, only by giving a bond; but 
 not otherwise. 
 
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Fiduciary Accounting 
 
 Sect. 2817. REMOVAL OF TESTAMENTARY TRUSTEE. In 
 either of the following cases, a person beneficially interested in the 
 execution of the trust, may present to the surrogate's court a written 
 petition, duly verified, setting forth the facts, and praying for a decree 
 removing a testamentary trustee from his trust; and that he may 
 be cited to show cause, why such a decree should not be made : 
 
 1. Where, if he was named in a will as executor, letters testa- 
 mentary would not be issued to him, by reason of his personal dis- 
 qualification or incompetency. 
 
 2. Where, by reason of his having wasted or improperly applied 
 the money or other property in his charge, 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 trust, or dishonesty, drunkenness, 
 improvidence, or want of understanding, he is unfit for the due execu- 
 tion of his trust. 
 
 3. Where he has failed to give a bond, as required by a decree, 
 made as prescribed in the last two sections; or has wilfully refused, 
 or without good cause neglected, to obey, a direction of the surrogate, 
 contained in any other decree, or in an order made as prescribed in 
 this title; or any provision of law, relating to the discharge of his 
 duty. 
 
 Sect. 2818. APPOINTMENT OF SUCCESSOR. When a per- 
 son named in a will as sole testamentary trustee dies prior to the 
 probate of the will, or by an instrument in writing, renounces his 
 appointment, or when, a sole testamentary trustee dies, or becomes a 
 lunatic, or is by a decree of the surrogate's court removed or allowed 
 to resign, and the trust has not been fully executed, the same court 
 may appoint his successor, unless such appointment would contravene 
 the express terms of the will. Where one of two or more persons 
 named in a will as testamentary trustees dies prior to the probate of 
 the will, or by an instrument in writing, renounces his or their appoint- 
 ment, or where one of two or more testamentary trustees dies or 
 becomes a lunatic, or is by a decree of the surrogate's court removed 
 or allowed to resign, a successor shall not be appointed, except where 
 such appointment is necessary in order to comply with the express 
 terms of the will, or unless the same court, or the supreme court, 
 shall be of the opinion that the appointment of a successor would 
 be for the benefit of the cestui que trust. Unless and until a successor 
 is appointed the remaining trustee or trustees may proceed and execute 
 the trust as fully as if such trustee (or trustees) had not died, re- 
 nounced, become a lunatic, been removed or resigned. Where a 
 decree removing a trustee or discharging him upon his resignation 
 does not designate his successor, or the person designated therein does 
 not qualify, the successor must be appointed and must qualify in the 
 manner prescribed by law for the appointment and qualification of an 
 administrator with the will annexed. 
 
 Sect. 2819. PROCEEDINGS WHERE TRUSTEE IS ALSO 
 
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Fiduciary Accounting 
 
 EXECUTOR. Where the same person is a testamentary trustee, and 
 also the executor of the will, or an administrator upon the same estate, 
 proceedings taken by or against him, as prescribed in this title, do 
 not affect him as executor or administrator, or the creditors of, or 
 persons interested in, the general estate, except in one of the following 
 cases : 
 
 1. Where he presents a petition, praying for the revocation of 
 his letters, he may also, in the same petition, set forth the facts, upon 
 showing which he would be allowed to resign as testamentary trustee ; 
 and may thereupon pray for a decree allowing him so to resign, 
 and for a citation accordingly. 
 
 2. Where a person presents a petition, praying for the revocation 
 of letters issued to an executor or administrator; and any of the 
 facts set forth in the petition are made, by the provisions of this title, 
 sufficient to entitle the same person to present a petition, praying for 
 the removal of a testamentary trustee; the petitioner may pray for 
 a decree, removing the person complained of in both capacities, and 
 for a citation accordingly. 
 
 In either case, proceedings upon the petition for the resignation 
 or removal, as the case requires, of the testamentary trustee, and 
 for the judicial settlement of his account, may be taken, as prescribed 
 in this title, in connection with, or separately from, the like pro- 
 ceedings upon the petition for the revocation of the letters, as the 
 surrogate directs. 
 
 Sect. 2822. PETITION FOR APPOINTMENT BY INFANT 
 OVER FOURTEEN. In either of the following cases, an infant of 
 the age of fourteen years or upwards, may present, to the surrogate's 
 court of the county in which he resides ; or, if he is not a resident of 
 the state, to the surrogate's court of the county in which any of his 
 property, real or personal, is situated ; a written petition, duly verified, 
 setting forth the facts upon which the jurisdiction of the court de- 
 pends, and praying for a decree appointing a general guardian, either 
 of his person, or of his property, or both, as the case requires; and, 
 if necessary, that the persons, entitled by law to be cited upon such 
 an application, may be cited to show cause, why such a decree should 
 not be made: 
 
 1. Where such a general guardian has not been duly appointed, 
 either by a court of competent jurisdiction of the state or by the will 
 or deed of his father or mother, admitted to probate or authenticated, 
 and recorded, as prescribed in section twenty-eight hundred and fifty- 
 one of this act. 
 
 2. Where a general guardian so appointed has died, become in- 
 competent or disqualified; or refuses to act; or has been removed; or 
 where his term of office has expired. Where the petitioner is a non- 
 resident married woman, and the petition relates to personal property 
 only, it must affirmatively show that the property is not subject to 
 the control or disposition of her husband, by the law of the petitioner's 
 residence. Where an infant in one of the cases mentioned in this. 
 
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Fiduciary Accounting 
 
 section has refused, or for ten days has failed, to present the petition, 
 the surrogate, upon notice to be given in such manner as he shall 
 direct, to the infant and the persons who would be entitled by law 
 to be cited upon the application of the infant, shall proceed to the 
 appointment of a general guardian of the property of the infant in 
 the same manner as if the infant had duly presented the petition. 
 
 Sect. 2823. CONTENTS OF PETITION; CITATION. A peti- 
 tion, presented as prescribed in the last section, must also state whether 
 or not the father and mother of the petitioner are known to be living. 
 If either of them is known to be living, and the petition does not 
 pray that the father, or, if he is dead, that the mother, may be ap- 
 pointed the general guardian, it must set forth the circumstances which 
 render the appointment of another person expedient; and must pray 
 that the father, or, if he is dead, that the mother of the petitioner 
 may be cited to show cause, why the decree should not be made. A 
 citation, issued to the father of the petitioner, must be served at least 
 ten days before it is returnable. Where the case is within subdivision 
 second of the last section, the petition must pray that the person 
 formerly appointed general guardian may be cited, unless it is shown 
 that he is dead. The surrogate must inquire, and ascertain as far 
 as practicable, what relatives of the infant reside in his county; and he 
 may, in his discretion, cite any relative or class of relatives of the 
 infant, residing in that county or elsewhere, to show cause why the 
 prayer of the petition should not be granted. 
 
 Sect. 2825. SURROGATE'S INQUIRY; APPOINTMENT OF 
 GUARDIAN. Upon the return of the citation, the surrogate must 
 make such a decree in the premises, as justice requires. He may, in 
 his discretion, hear allegations and proofs from a person not a party. 
 Where a citation is not issued, the surrogate must, upon the presenta- 
 tion of the petition, inquire into the circumstances. For the purpose 
 of such an inquiry, or of an inquiry into the amount of security to be 
 required of the guardian, he may issue a subpoena, requiring any person 
 to attend before him, to testify respecting any matter involved therein. 
 If he is satisfied that the allegations of the petition are true in fact, 
 and that the interests of the infant will be promoted by the appoint- 
 ment of a general guardian, either of his person or of his property, 
 he must make a decree accordingly, except that a guardian of the 
 person of a married woman shall not be appointed. In a proper case 
 he may appoint a general guardian in one capacity, without a citation; 
 and issue a citation, to show cause against the appointment of a general 
 guardian, in the other capacity. 
 
 Sect. 2827. APPOINTMENT OF TEMPORARY GUARDIAN 
 FOR INFANT UNDER FOURTEEN. A relative of an infant under 
 fourteen years of age, or any other person in behalf of such infant, 
 may present to the surrogate's court of the county in which the 
 infant resides ; or, if he is not a resident of the state, to the surrogate's 
 court of the county in which any of the infant's property, real or 
 personal, is situated; a written petition, duly verified, setting forth the 
 
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Fiduciary Accounting 
 
 facts, upon which the jurisdiction of the court depends, and praying 
 for a decree appointing a guardian of the person, or of the property, or 
 both, of the infant, to serve until the infant attains the age of fourteen 
 years, and a successor to the guardian is appointed. The cases in 
 which such a guardian may be appointed, the contents of the petition, 
 and the proceedings thereupon are the same, as prescribed in the fore- 
 going sections of this article, with respect to the appointment of a 
 general guardian, upon the petition of an infant of the age of fourteen 
 years or upwards; except that the surrogate must nominate, as well as 
 appoint, the temporary guardian. 
 
 Sect. 2828. TERM OF OFFICE OF TEMPORARY GUARDIAN. 
 The term of office of a guardian, appointed as prescribed in the last 
 section, expires when the infant attains the age of fourteen years. 
 But after the infant attains that age, the person so appointed continues 
 to retain all the powers and authority, and is subject to all the duties 
 and liabilities, of a guardian of the person, or of the property, or 
 both, pursuant to his letters ; until his successor is appointed and has 
 qualified, or until his letters are revoked, for some other cause, by 
 the decree of the surrogate's court; and his sureties are responsible 
 accordingly. 
 
 Sect. 2830. QUALIFICATION OF A GUARDIAN OF PROP- 
 ERTY ; BOND. Before letters of guardianship of an infant's property 
 are issued by the surrogate's court, the person appointed must, besides 
 taking an official oath, as prescribed by law, execute to the infant, and 
 file with the surrogate, his bond with at least two sureties, in a penalty 
 fixed, by the surrogate, not less than twice the value of the personal 
 property, and of the rents and profits of the real property; conditioned 
 that the guardian will, in all things, faithfully discharge the trust 
 reposed in him, and obey all lawful directions of the surrogate touching 
 the trust, and that he will, in all respects, render a just and true 
 account of all money and other property received by him, and of the 
 application thereof, and of his guardianship, whenever he is required 
 so to do, by a court of competent jurisdiction. But the surrogate 
 may, in his discretion, limit the amount of the bond to not less than 
 twice the value of the personal property, and of the rents and profits 
 of the real property for the term of three years. But in case where 
 it appears to be impracticable to give a bond sufficient to cover the 
 whole amount of the infant's personal property, the surrogate may, 
 in his discretion, accept security, to be approved by the surrogate, 
 not less than twice the amount of the particular portion of the 
 infant's property which the guardian will be authorized under the 
 letters to receive; and issue letters thereon limited to the receiving 
 and administering only such personal property for which double the 
 security has been given, and restraining the guardian from receiving 
 any other personal property of the infant until the further order 
 of the surrogate on additional further satisfactory security. 
 
 Sect. 2831. QUALIFICATION OF GUARDIAN OF PERSON. 
 BOND. Before letters of guardianship of an infant's person are 
 
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Fiduciary Accounting 
 
 issued by the surrogate's court, the person appointed must take the 
 official oath, as prescribed by law. The surrogate may also require 
 him to execute to the infant a bond, in a penalty fixed by the surro- 
 gate, and with or without sureties, as to the surrogate seems proper; 
 conditioned, that the guardian will in all things faithfully discharge the 
 trust reposed in him, and duly account for all money or other property 
 which may come to his hands, as directed by the surrogate's court. 
 
 Sect. 2832. WHEN GUARDIAN'S LETTER REVOKED. In 
 either of the following cases, the ward, or any relative or other person 
 in his behalf, or the surety of a guardian, may, at any time, present 
 to the surrogate's court a written petition, duly verified, setting forth 
 the facts, and praying for a decree, revoking letters of guardianship, 
 either of the person, or of the property, or both ; and that the guardian 
 complained of may be cited to show cause, why such a decree should 
 not be made : 
 
 1. Where the guardian is disqualified by law, or is, for any reason, 
 incompetent to fulfill his trust. 
 
 2. Where by reason of his having wasted or improperly applied 
 the money or other property in his charge, or invested money in 
 securities unauthorized by law, or otherwise improvidently managed 
 or injured the real or personal property of the ward, or by reason 
 of other misconduct in the execution of his office, or his 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 an order; or any provision of law, relating to the discharge of his 
 duty. 
 
 4. Where the grant of letters to him was obtained by a false 
 suggestion of a material fact. 
 
 5. Where he has removed, or is about to remove, from the 
 state. 
 
 6. In the case of the guardian of the person, where the infant's 
 welfare will be promoted by the appointment of another guardian. 
 
 Sect. 2842. GUARDIAN MUST FILE ANNUAL INVENTORY 
 AND ACCOUNT. A general guardian of an infant's property, ap- 
 pointed by a surrogate's court, must, in the month of January of 
 each year, as long as any of the infant's property, or of the proceeds 
 thereof, remains under his control, file in the surrogate's court the 
 following papers : 
 
 I. An inventory, containing a full and true statement and descrip- 
 tion of each article or item of personal property of his ward, received 
 by him, since his appointment, or since the filing of the last annual 
 inventory, as the case requires; the value of each article or item so 
 received; a list of the articles or items, remaining in his hands; a 
 statement of the manner in which he has disposed of each article or 
 item, not remaining in his hands; and a full description of the amount 
 and nature of each investment of money, made by him. 
 
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Fiduciary Accounting 
 
 2. A full and true account, in form of debtor and creditor, of 
 all his receopts and disbursements of money, during the preceding 
 year; in which he must charge himself with any balance remaining 
 in his hands, when the last account was rendered, and must distinctly 
 state the amount of the balance remaining in his hands, at the conclu- 
 sion of the year, to be charged to him in the next year's account. 
 
 Sect. 2844. ANNUAL EXAMINATION OF GUARDIAN'S 
 ACCOUNTS. In the month of February of each year and thereafter 
 until completed, the surrogate must, for the purposes specified in 
 the next section, examine, or cause to be examined, under his direc- 
 tion, all inventories and accounts of guardians filed since the first 
 day of February of the preceding year. The examination may be made 
 by the clerk of the surrogate's court, or by a person specially appointed 
 by the surrogate to make it, who must, before he enters upon the 
 examination, subscribe and take before the surrogate, and file with 
 the clerk of the surrogate's court, an oath faithfully to execute his 
 duties, and to make a true report to the surrogate. Where the surro- 
 gate seasonably certifies in writing to the board of supervisors, or, 
 in the county of New York, to the board of aldermen, that the exam- 
 ination required by this section cannot be made by him, or by the 
 clerk of the surrogate's court, or by any clerk employed in his office 
 and paid by the county, the board must provide for the compensation 
 of a suitable person to make the examination. 
 
 Sect. 2845. PROCEEDINGS WHEN ACCOUNTS ARE DE- 
 FECTIVE OR NOT FILED. If it appears to the surrogate, upon 
 an examination made as prescribed in the last section, that a general 
 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 the purpose. 
 
 Sect. 2847. WHEN SETTLEMENT OF GUARDIAN'S AC- 
 COUNTS 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: 
 
 I. By the ward, after he has attained his majority. 
 
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Fiduciary Accounting 
 
 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. 
 
 4. By a surety in the official bond of a guardian whose letters 
 have been revoked; or by the legal representative of such surety. 
 Citation under this subdivision must be directed to both the guardian 
 and the ward. 
 
 Sect. 2850. CITATION AND PROCEEDINGS ON SETTLE- 
 MENT OE ACCOUNTS. Upon the presentation of a petition, as 
 prescribed in either of the last three sections, the surrogate must issue 
 a citation accordingly. Section two thousand seven hundred and 
 twenty-seven, sections two thousand seven hundred and thirty-three 
 to two thousand seven hundred and thirty-seven, both inclusive, and 
 sections two thousand seven hundred and forty-one and two thousand 
 seven hundred and forty-four, of this act, apply to a guardian account- 
 ing 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. A guardian designated in this title is entitled 
 to the same compensation as an executor or administrator. 
 
 Sect. 2851. APPOINTMENT OE TESTAMENTARY GUAR- 
 DIAN TO BE PROVED. A person shall not exercise, within the 
 state, any power of 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 appoint- 
 ment 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. 
 
 Sect. 2852. QUALIFICATION AND LETTERS OF TESTA- 
 MENTARY GUARDIAN; OBJECTIONS; RENUNQATION. 
 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 
 
Fiduciary Accounting 
 
 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. 
 
 Sect. 2853. SECURITY FROM TESTAMENTARY GUAR- 
 DIAN. 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 behalf, 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 informa- 
 tion and belief, any fact, respecting the guardian, the existence of 
 which, if it was interposed as an objection to granting letters testa- 
 mentary 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 presen- 
 tation of such a petition, and proof of the facts therein alleged, to the 
 satisfaction of the surrogate, 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. 
 
 Sect. 2858. REMOVAL OF GUARDIAN. 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 from a guar- 
 dian appointed by will or by deed may remove such a guardian, in 
 any case where a testamentary trustee may be removed, as prescribed 
 in title sixth of this chapter; and the proceedings upon such a petition 
 are the same, as prescribed in that title for the removal of a testa- 
 mentary trustee. Where a citation is issued, upon a petition for the 
 removal of such a guardian, he may be suspended from the exercise 
 of his powers and authority, as if he had been appointed by the surro- 
 gate's court. 
 
 Sect. 2859. RESIGNATION OF GUARDIAN. A guardian ap- 
 pointed by will or by deed, may be allowed to resign his trust, by the 
 surrogate's court, having jurisdiction to require security from him. 
 The proceedings for that purpose, and the effect of a decree made 
 thereupon, are the same, as where a guardian appointed by the surro- 
 gate's court presents a petition, praying that his letters may be revoked, 
 as prescribed in article first of this title. 
 
 Sect. 2860. APPOINTMENT OF SUCCESSOR- Where a sole 
 guardian, appointed by will or by deed, has been, by the decree of 
 
 89 
 
Fiduciary Accounting 
 
 the surrogate's court removed or allowed to resign, a successor may 
 be appointed by the same court, with the effect prescribed in section 
 2605 of this act; unless such an appointment would contravene the 
 express terms of the will or deed. 
 
 Sect. 3246. COSTS IN ACTIONS BY AND AGAINST EXECU- 
 TORS, TRUSTEES, ETC. In an action, brought by or against an 
 executor or administrator, in his representative capacity, or the trustee 
 of an express trust, or a person expressly authorized by statute to sue 
 or to be used, costs must be awarded, as in an action by or against 
 a person, prosecuting or defending in his own right, except as other- 
 wise prescribed in sections 1835 and 1836 of this act; but they are 
 exclusively chargeable upon, and collectible from the estate, fund, 
 or person represented, unless the court directs them to be paid, by 
 the party personally, for mismanagement or bad faith in the prosecution 
 or defense of the action. 
 
 Sect. 3320. RECEIVERS' COMMISSIONS ; COST OF BONDS ; 
 TRUSTEES' COMMISSIONS. A receiver, except as otherwise spe- 
 cially prescribed by statute, is entitled, in addition to his necessary 
 expenses, to such commissions, not exceeding five per centum upon 
 the sums received and disbursed by him, as the court by which, or the 
 judge by whom, he is appointed allows. But if in any case the com- 
 missions of a temporary or permanent receiver, so computed, shall 
 not amount to one hundred dollars, said court or judge may, in its 
 or his discretion, allow said receiver such a sum, not exceeding one 
 hundred dollars, for his commissions as shall commensurate with 
 the services rendered by said receiver. Any receiver, assignee, guar- 
 dian, trustee, committee, executor, administrator or person appointed 
 under section one hundred and eleven of the real property law or 
 under section twenty of the personal property law, required by law 
 to give a bond as such may include as a part of his necessary expenses, 
 such reasonable sum, not exceeding one per centum per annum upon 
 the amount of such bond paid his surety thereon, as such court or 
 judge allows. A trustee of an express trust is entitled, and two or 
 more trustees of such a trust are entitled, to be apportioned between 
 or among them according to the services rendered by them respectively, 
 as compensation for services as such, over and above expenses, to 
 commissions as follows : For receiving and paying out all sums 
 of principal not exceeding one thousand dollars, at the rate of five 
 per centum. For receiving and paying out any additional sums of 
 principal not exceeding ten thousand dollars, at the rate of two 
 and one-half per centum. For receiving and paying out all sums of 
 principal over eleven thousand dollars, at the rate of one per centum. 
 And for receiving and paying out income in each year, at the like rates. 
 In all cases a just and reasonable allowance must be made for the 
 necessary expenses actually paid by such trustee or trustees. If the 
 value of the principal of the trust estate or fund equals or exceeds 
 one hundred thousand dollars, each such trustee is entitled to the full 
 commission on principal, and on income for each year, to which a sole 
 
 90 
 
Fiduciary Accounting 
 
 trustee is entitled, unless the trustees are more than three, in which 
 case three full commissions at the rates aforesaid must be apportioned 
 between or among them, according to the services rendered by them 
 respectively. If the instrument creating the trust provides specific 
 compensation for the services of the trustee or trustees, no other 
 compensation for such services shall be allowed unless the trustee or 
 trustees shall, before receiving any compensation for such services, 
 by a written instrument duly acknowledged, renounce such specific 
 compensation. 
 
 91 
 
Fidu ciary Accou nting 
 
 COLLATERAL READING 
 
 The following is a list of books on the general subject, recom- 
 mended to the student who desires to pursue an intensive course of 
 reading; the student must, however, remember that editions not of 
 recent publication must be read in the light of subsequent changes in 
 the law and practice: 
 
 AUTHOR 
 
 Baugh, F. H., and 
 Schmeisser, W. E. 
 
 Fowler, R. P. 
 
 Gottsberger, F. 
 
 Hardcastle, Joseph, 
 
 Heaton, W. C. 
 
 Hill, F. T. 
 Hoes, E. A., Jr. 
 
 Jessup, H. W. 
 
 Loring, A. P. 
 McQellan, R. H. 
 Redfield, A H. 
 Remsen, D. S. 
 Schouler, J. 
 
 Schouler, J. 
 Sprague, C. E. 
 Underbill, H. C. 
 Wolfe, S. H. 
 
 TITLE 
 
 Theory and Practice of Estate Accounting, 
 
 The Law of Decedents' Estates. 
 
 Accountant's Guide for Executors, Adminis- 
 trators, etc. 
 
 Accounts of Executors and Testamentary Trus- 
 tees. 
 
 Procedure and Law of Surrogates' Courts of 
 the State of New York. 
 
 The Care of Estates. 
 
 The American Law Relating to Principal and 
 Income. 
 
 The Law and Practice in the Surrogate Courts 
 in the State of New York. 
 
 A Trustee's Handbook. 
 
 The Executor's Guide. 
 
 Law and Practice of Surrogates' Courts. 
 
 A Treatise on the Law of Wills. 
 
 A Treatise on the Law of Executors and Ad- 
 ministrators. 
 
 A Treatise on the Law of Wills. 
 
 Philosophy of Accounts. 
 
 A Treatise on the Law of Wills. 
 
 Inheritance Tax Calculations. 
 92 
 
Fiduciary Accounting 
 
 QUESTIONS AND PROBLEMS 
 
 I. Define: Executor, administrator, trustee, administrator- 
 cum-textamento-annexo ; administrator de bonis non ; guardian ; 
 guardian pendente lite; testamentary trustee; will; testator; 
 intestate ; assets ; debts ; legacy ; specific legacy ; demonstrative 
 legacy ; general legacy ; lapsed legacy ; residuary legacy ; 
 codicil ; letters of administration ; executor de son tort ; income ; 
 commission ; testamentary trust ; inter vivos trust ; surrogate ; 
 intermediate accounting; final accounting; judicial settlement; 
 property ; real property ; personal property ; heirs-at-law ; next- 
 of-kin ; life tenant ; remainderman ; administrator pendente lite ; 
 dower; estate by courtesy; executrix; administratrix. 
 
 2. What is necessary to the valid execution of a will? 
 Of a codicil? How many witnesses are necessary to the valid 
 execution of a will? Of a codicil? What qualifications as to 
 age does the statute require? Is your answer the same for 
 both real and personal property? 
 
 3. What is an olographic will? A nuncupative will? 
 What are the statutory requirements relative to such wills? 
 Can a legatee be a witness to a will? What are the statutory 
 requirements where corporations, partnerships and non-resi- 
 dents are appointed executors? 
 
 4. W^hat is the source of an executor's authority? Of 
 an administrator's authority? What is meant by the expres- 
 sion, "the executor has qualified" ? 
 
 5. What are the duties of an executor named in a will 
 during the interval between the death of the testator and the 
 issue of letters testamentary? 
 
 6. What procedure should be followed by a person named 
 as executor who does not wish to serve? May an executor 
 resign? If an executor renounces may he retract? 
 
 7. Where more than one executor is named, may all act? 
 If one dies or resigns, what happens? Who should settle the 
 accounts of a deceased executor? Are executors responsible 
 for each other's neglect or default? 
 
 8. Must an executor give bonds? For what reasons may 
 
 93 
 
Fidu ciary Ac conn ting 
 
 an executor be removed? State the statutory requirements 
 relative to surety bonds of executors. Who should pay for 
 the cost of surety bonds ? 
 
 9. When must the several executors act jointly? Are 
 the requirements for joint action the same for trustees? 
 
 10. What is the first duty of an executor? Must an 
 executor file an inventory? Should real property be included 
 in the inventory? State the rule regarding real and personal 
 property located outside the State. What law of place governs 
 in the case of the disposition of real and personal property by 
 will? 
 
 11. What are the executor's duties relative to the follow- 
 ing: Debts due to the estate; debts due by the estate; taxes 
 on the estate? 
 
 12. What form and arrangement should be followed in pre- 
 paring the inventory? 
 
 13. What books of account should an executor keep? 
 What steps would you take in opening a set of books for an 
 executor? How should an executor handle funds in his pos- 
 session ; is an executor responsible for the failure of a bank in 
 which he has deposited funds of the estate? Is the executor 
 responsible for property of the estate stolen from him? To 
 what should he charge such a loss — corpus or income? How 
 should an executor sign checks or papers? 
 
 14. Does a judgment obtained against the executor in his 
 official capacity bind him personally? Does it affect the real 
 property of the estate? Can an executor bind an estate by 
 contracts entered into in his official capacity? Would the 
 answer be the same if (the executor personally made no 
 profits on the transaction? May an executor purchase any 
 property of the testator? Can an executor take credit in his 
 accounting for expenses incurred for the following: counsel 
 fees ; auctioneer in sale of property ; bookkeeper for the estate ; 
 an agent; accountant's service in preparing his accounts? Is 
 an executor responsible for the acts of an agent he employs 
 on estate matters, and how may he protect himself? What 
 general rule may be laid down relating to expenses incurred by 
 an executor in behalf of the estate ? 
 
 15. What is an executor's duty in the matter of debts due 
 to the estate? Is an executor ex-officio a partner in the firm 
 
 94 
 
Fiduciary A c counting 
 
 in which the testator was a partner? Has he a right to 
 examine the books of the partnership? May he sue for an 
 accounting of the testator's interest therein? If this suit or 
 any suit for the recovery of a debt due to the estate should 
 fail, is the executor chargeable for the costs thereof? Are 
 lawsuits brought by the testator in his lifetime to be continued 
 by his personal representative? 
 
 i6. A B dies ; it is found that on the dissolution of a part- 
 nership in which A B was a partner, there is not sufficient 
 firm property to pay the firm debts, but that there are other 
 living solvent partners. What obligations attach to the estate 
 of A B? Suppose that there were no living solvent partners? 
 State the rights of A B's personal creditors and next-of-kin 
 in the above cases? 
 
 17. Upon the dissolution or sale of the business of a co- 
 partnership, is the estate of the deceased partner entitled to 
 share in the profits derived from the sale of the goodwill or 
 firm name? If so, in what proportion — as per capital con- 
 tribution or as per share of profits allowed under the articles 
 of co-partnership? 
 
 18. Can a sole surviving partner of an insolvent firm make 
 a general assignment of its assets without the consent of the 
 executor of the deceased partner? When may an executor 
 compel the surviving partners to pay over to him the interest 
 of the testator in the firm? If the testator made his partners 
 the executors of his will may they purchase the interest of the 
 deceased partner therein? 
 
 19. If the testator should make a person the devisee of his 
 interest in a co-partnership, would such devisee become a 
 partner? Is an executor justified in accepting an informal 
 accounting from surviving partners ? 
 
 20. Jones, an executor, allows the funds of an estate to 
 remain invested in the business of a co-partnership of which 
 the testator was a member; the firm fails subsequently. Is 
 the executor liable? If there was express authority in the will 
 permitting the executor to do this, would your answer be the 
 same? When the articles of co-partnership and the will con- 
 flict in a matter concerning the partnership interest, which 
 governs ? 
 
 21. State the provisions of the code relative to the follow- 
 
 95 
 
Fiduciary Acccunting 
 
 ing matters : appointment of appraisers and appraisal ; con- 
 tents of the inventory; return of the inventory; discovery pro- 
 ceedings; ascertainment of debts. 
 
 22. What are deemed assets ? State the rules for the appor- 
 tionment of rents, annuities and dividends. 
 
 23. The executor is compelled to purchase real estate upon 
 the foreclosure of a mortgage held by the estate ; are the pro- 
 ceeds personalty or realty? The testator contracted to pur- 
 chase realty during his lifetime and paid down part of the 
 price as earnest money; should the executor pay the unpaid 
 balance? When the transaction is completed is such property 
 considered as realty or personalty? The testator contracted 
 to sell realty and part of the purchase price had been paid to 
 him by the purchaser; when the balance due is paid, are the 
 proceeds treated as realty or personalty? If a mortgage held 
 by the estate is foreclosed by the executor and realizes a sur- 
 plus, to whom does surplus belong? If a mortgage on prop- 
 erty of the decedent is foreclosed and realizes a surplus, to 
 what class of property does such surplus belong? 
 
 24. Among the testator's assets is some part-paid stock of 
 the Jones Company; w^ould the estate be liable for the debts 
 of this company ? Can the executor compel a corporation upon 
 receipt of proper credentials to register stock in his official 
 name? Can the executor vote on stock even though the 
 formality of transferring it to his name as executor on the 
 books of the company has not been complied with? 
 
 25. What are the executor's duties in the matter of specific 
 legacies? Must he pay interest on a specific legacy? Can a 
 bequest of money ever be a specific legacy? What happens 
 if the testator has disposed of the specific legacy? What is 
 meant by the term '"increment" when used in connection with 
 a specific legacy? What arrangement is usually made for the 
 collection of the transfer tax on a legacy? Can an executor 
 ever sell a specific legacy, and if so, how must it be sold? 
 
 26. What is meant by a lapsed legacy and how should it 
 be treated? 
 
 2y. Define and differentiate the following terms : Specific 
 legacy ; demonstrative legacy ; general legacy ; absolute ; condi- 
 tional; contingent; general legacy in income. When must an 
 executor pay legacies? If the will provided that a certain 
 
 96 
 
Fiduciary Accoun ting 
 
 legacy be paid immediately upon issuance of letters testamen- 
 tary is the executor bound to do so? 
 
 28. What recourse has legatee to compel the payment of 
 a legacy before the legal time? What is the usual order of 
 payment of legacies ? What happens if there are not sufficient 
 assets to pay all legacies? What recourse has a legatee to 
 compel the payment of a legacy after the legal time? 
 
 29. When paying legatees, what must the executor do in 
 the matter of the inheritance tax? State the treatment in the 
 account of proceedings of payments of the inheritance tax 
 made on legacies where such taxes are not made charges 
 against the estate under the terms of the will. 
 
 30. What transfers are taxable under the Inheritance or 
 Succession Tax? 
 
 31. Is the surrender of a certificate of stock held by a 
 deceased person for issuance in the name of his executor or 
 administrator taxable under the Stock Transfer Tax Law? 
 Are transfers of stock made by an executor or administrator 
 to trustees, legatees, or other persons, taxable under the Stock 
 Transfer Tax Law? If the executor should surrender a cer- 
 tificate of stock for reissue in part to himself, as executor, 
 and in part to a trustee, legatee, or other person, what is the 
 rule as to the payment of the stock transfer tax? 
 
 32. Who is responsible for the payment of the Inheritance 
 or Succession Tax ? What law governs in assessing the tax — 
 the law in effect at date of death, or the law in eflfect at the 
 time of appraisal — for the purpose of determining the amount 
 of the tax ? What liability would an executor incur if he failed 
 to see to the matter of payment of the tax? Is there any 
 advantage in paying this tax at any special time? If so, and 
 such advantage was lost through non-payment, to whom would 
 responsibility attach? 
 
 33. What is the rule for the payment of taxes on realty 
 which the testator died seized of? What is the rule as to the 
 payment of taxes on personalty? When and how are such 
 taxes assessed in the City of New York ? What are the duties 
 and remedies of the executor when assessments are considered 
 too high? What responsibilities arise, and to whom attached, 
 if taxes are not paid promptly? 
 
 34. Are there any other inheritance taxes payable, and, if 
 so, under what conditions are they payable? 
 
 97 
 
Fiduciary Accounting 
 
 35. If the executor is the sole legatee of the testator, does 
 he personally own the decedent's property? If there is prop- 
 erty of the decedent in existence of merely a personal nature, 
 and of value only as heirlooms, or of value only to friends 
 and relatives of the deceased, must the executor sell such 
 property? If there is personal property not specifically be- 
 queathed in the will, how should the executor dispose of it? 
 
 36. What are the functions of an administrator durante 
 minor e aetatef Administrator ad colligendum f 
 
 37. What situation would call for the appointment of an 
 administrator de bonis non cum textamento annex of 
 
 38. What do you understand by redeemable and irredeem- 
 able rents? 
 
 39. What is meant by the term ''advances," and how are 
 such treated in the accounting? 
 
 40. How should the executor proceed to ascertain the debts 
 due by the testator? State the order of priority of the differ- 
 ent classes of debts. What is the executor's duty in the mat- 
 ter of claims he believes to be valid as to proof? If an executor 
 rejects a claim against the estate, and the creditor later recov- 
 ers judgment, is the executor personally liable, and is he allowed 
 to spend the assets in contesting a claim he believes invalid? 
 Within what time must a creditor commence action on a claim 
 rejected by the executor? At what time should the executor 
 commence to pay creditor's claims, and why? What is the 
 procedure in the matter of doubtful claims, and what dispo- 
 sition is made of the costs of such proceedings? Could the 
 executor compromise a debt? 
 
 41. Must the executor take receipts from creditors? What 
 claims against the estate should be paid in cash? 
 
 42. Should the executor pay a debt barred by the Statute 
 of Limitations? Would your answer be different if the testa- 
 tor specified in his will that the debt be paid? When does 
 the Statute of Limitations begin to run? When is a simple 
 contract debt against the decedent barred absolutely? During 
 what period must an action for damages to personal property 
 be commenced? Suppose the executor found a debt due to the 
 testator which he felt was just, and to the best of his knowl- 
 edge and belief would have been paid by the testator if he 
 were alive; however, the executor knows of a technical legal 
 
 98 
 
Fidu ciary Accoun ting 
 
 defense, which, if put forward, would defeat the claim of 
 the creditor; should he pay the debt? What happens to the 
 claim of a creditor not presented to the executor after six 
 months of public advertising ? Could the creditors of an estate 
 ever prevent the payment of a bequest of a debt due by the 
 executor to the estate? Must a creditor always sue to collect 
 a debt due by the estate? When should the executor pay a 
 debt to him by the estate? 
 
 43. What is meant by the term "power of sale"? How 
 may such power be conferred on executors and trustees? 
 What advantage is there, if any, in giving this power of sale 
 to executors? 
 
 44. If a widow is given a bequest in lieu of dower, or an 
 executor in lieu of commissions, must they accept? 
 
 45. What are ancillary letters, and when are they required? 
 
 46. What is the Statute of Distribution? When does it 
 apply ? 
 
 47. What is the Statute of Descent? When does it apply? 
 
 48. What is meant by a voluntary accounting? State the 
 usual procedure of an accounting. What is meant by an 
 intermediate account? When may an executor file his inter- 
 mediate account? When can he be compelled to file it? 
 
 49. Who may object to the executor's accounting? Who 
 bears the expense of the accounting? May one of several 
 executors file a separate account? In a small estate, where 
 all the parties are agreed, and the estate can be settled easily, 
 to the satisfaction of all interested parties, is it necessary or 
 advisable for the executor to file an accounting? 
 
 50. What is meant by the term, "judicial settlement"? 
 When may an executor apply to have his accounts judicially 
 settled? When may he be compelled to have his accounts 
 judicially settled? When the final decree has been issued is 
 it conclusive of all matters mentioned in the account? 
 
 51. Should an executor employ a competent attorney to 
 assist him in the management of the estate ? 
 
 52. Where, under a power of sale in a will, an executor 
 sells real estate, what kind of a deed does he give? Is this 
 a clear title ? When may he sell real estate free of all claims ? 
 May an executor sell real property to pay debts ? 
 
 53. Is the purchaser of personal property protected in 
 
 99 
 
Fiduciary Accounting 
 
 buying from an executor? Would your answer be the same 
 if the executor stole the funds obtained from such sale? 
 
 54. Where there are several executors, which one has 
 possession, physically, of the assets? Can the power of the 
 executor be delegated? 
 
 55. Does the signing by an executor of a document ''as 
 executor" relieve him of personal responsibility in cases where 
 he has exceeded his authority? 
 
 56. May artificial persons act as executors? 
 
 57. A testator bequeathes certain property by will to a 
 corporation; it is found that the corporation holds at present 
 all the property allowed by law. Should the executor pay 
 the bequest? If the gift was made to a corporation, and the 
 exact corporate name was not used by the testator, how should 
 the executor act? If the corporation has gone out of exist- 
 ence prior to the death of the testator, what becomes of the 
 legacy ? Suppose a legacy had been left to an unknown person, 
 what would become of it? 
 
 58. Could a legatee renounce a legacy? The testator gives 
 a legacy to an infant ; to whom should the executor make 
 payment ? 
 
 59. A testator, in making his will, provided that a certain 
 legacy should be made a charge on his real estate ; how would 
 this affect his real property? If the legatee died before pay- 
 ment, what would the situation be? 
 
 60. Does a provision in a will that legatees shall forfeit 
 bequests, in event of a contest by them of the will, usually hold 
 good? 
 
 61. What is meant by abatement? What legacies are sub- 
 ject to abatement? 
 
 62. Explain what is meant by the revocation of a will. 
 What circumstances operate to revoke a will? 
 
 63. What is meant by the term, ''executing a will" ? What 
 in general may be said concerning the competency- of witnesses ? 
 What is the attestation clause? Is it necessary? Must a will 
 be sealed? 
 
 64. What, in general, are the investments which trustees 
 are allowed to make ? Should a trustee who takes over invest- 
 ments, not legal investments for trusts in this state, reinvest 
 such principal? State the general principles governing invest- 
 ments of trustees in mortgages, bonds, stocks, real estate. 
 
 100 
 
Fiduciary Accounting 
 
 65. Where is the property of a trust taxable? When 
 may a trustee voluntarily file his account? When may he 
 be compelled to file an account? When a trustee dies, who 
 settles his accounts? When may a trustee judicially settle his 
 accounts ? Voluntarily ? Involuntarily ? 
 
 66. How does an executor receive his compensation, and 
 on what basis is it calculated? Is the commission the same 
 for administration ? For a trustee ? If there are two or more 
 executors, does each one receive a commission? Where a 
 trustee is also executor, is he entitled to commission in both 
 capacities? Is an executor entitled to any commission before 
 he makes an accounting? Is a trustee entitled to any com- 
 mission before he makes an accounting? 
 
 67. Where a trustee has been guilty of misconduct is he 
 entitled to commission? 
 
 68. Dififerentiate between an executor and trustee. 
 
 69. What is the authority of a general guardian? A spe- 
 cial guardian? Their respective rights and duties? 
 
 70. When must a general guardian file an accounting? 
 What restrictions apply to the investments of guardians ? 
 
 71. Can an executor make investments? Is he required 
 to make investments? Is an executor responsible for loss on 
 investments ? 
 
 72. The residue of a man's personal property is $36,(XX).oo. 
 There remain a widow, three children, and three grandchildren 
 whose parent is dead. What portion of the residue will each 
 person receive? 
 
 73. The residue of a man's personal property is $24,000.00. 
 He leaves a widow and four children to share in the residue. 
 He advanced to one of the children during his lifetime the 
 sum of $6,000.00. What shall each receive? 
 
 74. The residue of a man's estate amounts to $24,000.00. 
 He left no children, grandchildren, or father, but did leave 
 a widow, mother, a brother and a sister, and two nephews 
 whose parent is dead. How is the property to be divided? 
 
 75. The testator of a will left $21,000.00. He leaves a 
 widow and three children. To one of the children he had 
 advanced during his lifetime the sum of $9,000.00. What 
 would each receive? 
 
 76. What is a gift causa mortis f What is necessary to 
 make it effective? 
 
 lOI 
 
Fiduciary Accounting 
 
 yy. What authority has the executor in regard to real es- 
 tate ? When may he rent real estate and collect rents ? When 
 may an executor sell or mortgage real estate, if the will con- 
 tains no express provision to do so? What general rule may 
 be laid down relative to powers of sale of real estate under 
 a will, and what steps should an executor take to protect 
 himself? What is meant by an "executor's deed"? Must all 
 of several executors unite in selling real estate and giving 
 good title? Has the executor an insurable interest in the real 
 estate of the testator? Is it his duty to insure such real prop- 
 erty ? How should executors sign deeds of real estate ? Would 
 the executor's insurable interest in real estate of the decedent 
 depend upon whether the testator was solvent or insolvent? 
 What are the executor's duties relative to leasehold interests 
 of the testator ? How are such leaseholds valued for inventory 
 or tax purposes? What is the rule relative to the apportion- 
 ment of rents? 
 
 78. Is a local assessment apportionable between life tenant 
 and remainderman? Explain. 
 
 79. A policy of insurance contains a clause exempting the 
 company from liability if the insured premises remain idle 
 or vacant 20 days without the permission of the company, 
 indorsed, in writing, on the policy. A policyholder applies 
 to the agent who issued the policy for such permission, and 
 the agent gives permission orally, saying that the written 
 consent of the company is not necessary. The insured build- 
 ing burns. The owner sues the company. In whose favor 
 should judgment be rendered? Why? 
 
 80. When a fund is directed to be invested, and the inter- 
 est, dividends and income applied to the use of the beneficiary 
 for Hfe, does a profit realized on the sale of stock in which 
 a portion of such fund is invested belong to the life tenant, as 
 income, or go to the body of the estate? State the general 
 rules of law which govern? 
 
 81. An estate with a life tenancy consists in part of shares 
 in a certain corporation that has voted to increase its capital 
 stock. Would the proceeds of a sale of the right to subscribe 
 for the estate's quota of this new issue go to the life tenant 
 or to the body of the estate? Explain. 
 
 82. In what case may the executor recover damages from 
 
 102 
 
Fiduciary Accounting 
 
 one who has neghgently inflicted personal injuries upon the 
 testator? Does the amount become a part of the estate, and 
 to whom should the executor make payment? 
 
 S^. James Brown, executor of the will of George Brown, 
 deceased, is preparing to file his first and final account, and 
 has the following accounts on his books, representing the com- 
 pleted transactions of his executorship : 
 
 DEBTOR CREDITOR 
 
 $10,000 P.R.R. 43/^s (appraisal) $10,500.00 
 
 Income $450.00 
 
 $10,000 Market St. Ry. 4s (appraisal 
 
 and sale) 10,000.00 10,500.00 
 
 Income 200.00 
 
 $5,000 B. & O. 3>^s (cost) 4,900.00 
 
 Income i5-00 87.50 
 
 Co-partnership of Brown & Davis 
 
 (proceeds) 30,000.00 
 
 Interest on bank balances 250.00 
 
 Furniture (appraisal and sale) 800.00 1,000.00 
 
 Horses, carriages, etc. (appraisal and 
 
 sale) 1,600.00 1,500.00 
 
 Decedent's debts, funeral exp., etc. . 3,500.00 
 
 Safe deposit box rent 10.00 
 
 Counsel fee and court costs 2,185.13 
 
 Estate of George Brown, deceased 
 
 (appraisal) 22,900.00 
 
 James Brown, account distribution . . . 3,000.00 
 George Brown, Jr., account distribut'n 3,000.00 
 John Brown, account distribution .... 3,000.00 
 
 $42,510.13 
 Cash 24,377.37 
 
 $66,887.50 $66,887.50 
 
 Prepare the summary account of the executor. The heirs 
 are James Brown, George Brown, Jr., and John Brown, to 
 whom, under the will, the executor is directed to distribute the 
 estate in equal shares. 
 
 103 
 
Fiduciary A ccoun ting 
 
 84. Frederica Ward dies, leaving one daughter, Doris, and 
 two sons, Henry and Arthur, all of age, surviving her. Her 
 will directs that after the discharge of all claims on her 
 estate there shall be placed in trust for Frederica Winter, the 
 child of her deceased sister, $50,000.00, the income of which 
 is to be used for the child's support by the guardian appointed 
 under the trust, and the principal to be paid over to her when 
 she becomes of age. The remainder of the estate is to be 
 divided equally among the testator's three children. 
 
 The estate consists of cash in a trust company, $12,500.00; 
 bonds and mortgages on real estate, $250,000.00; registered 
 municipal bonds, $90,000.00 ; household furniture, appraised at 
 $20,130.00; horses and carriages, appraised at $3,000.00; cloth- 
 ing, appraised at $2,200.00; and jewelry, appraised at $7,400.00. 
 
 One of the aforesaid mortgages, $51,000.00 at 5%, is in 
 arrears of interest for one year, and foreclosure proceedings 
 are commenced by the executor, with the result that on imme- 
 diate settlement the estate realizes the principal, and interest 
 so in arrears, and the trust fund is paid over to the guardian 
 of Frederica Winters. The February and August semi-annual 
 instalments of interest at 5% on the two remaining mortgages 
 of $100,000.00 each, and the January and July interest on the 
 registered 4% bonds, are all duly received, and the bonds are 
 forthwith sold for $90,190.00. 
 
 The executor then pays $30,000.00 to Doris, and $10,000.00 
 each to Henry and Walter, respectively, on account of their 
 interests. Doris takes, as part of her legacy, household furni- 
 ture, $5,000.00; clothing, $900.00; and all the jewelry at the 
 appraised valuation. Each of the sons takes, as part of his 
 legacy, one of the remaining bonds and mortgages. 
 
 On the sale of the remaining effects, the furniture realizes 
 $15,000.00, the clothing $1,000.00, and the horses and car- 
 riages $3,200.00. There is also received from the trust com- 
 pany, for interest on deposit, $350.00. The executor expended 
 for probate, $150.00; funeral, $600.00; monument, $1,000.00; 
 tax on personal estate, $350.00; counsel fees, $1,500.00; fire 
 insurance, $32.00; and sundry claims against the estate, $7,- 
 201.00. The allowance for executor's fees was fixed by the 
 will at $2,500.00. 
 
 Prepare a summary accounting, 'showing the cash in hands 
 of executor and the amount payable to each of the heirs. N 
 
 104 
 
Fiduciary Accounting 
 
 u; 
 
 85. John Smith died July i, 1909, leaving a will in which 
 he devised to his widow one-half of the principal of his 
 personal property and one-half the income from all sources, 
 and the balance of the estate to his executors, in trust for cer- 
 tain annuitants. At the time of his death his estate consisted 
 of the following items : 
 
 1,000 shares Clarion Co. stock, at 200 $200,000.00 
 
 5,000 shares Penn. R. R. stock, at 70 350,000.00 
 
 10,000 shares U. S. Steel Pfd., at 90 900,000.00 
 
 $1,450,000.00 
 Interest in firm of Smith & Jones, as shown by 
 
 the books of said firm, July i, 1909 185,000.00 
 
 A total of $1,635,000.00 
 
 At said date, July i, 1909, the assets and liabilities of the 
 firm of Smith & Jones were as follows : 
 
 Assets : 
 
 Merchandise $50,000.00 
 
 Accounts receivable 175,000.00 
 
 Real estate 300,000.00 
 
 Ground rents 30,000.00 
 
 Mortgages 160,000.00 
 
 Cash 35,000.00 
 
 $750,000.00 
 
 Liabilities : 
 
 Smith $185,000.00 
 
 Jones 235,000.00 
 
 Clarion Co 330,000.00 
 
 $750,000.00 
 
 The decedent's estate was not appraised until January i, 
 191 o, at which time his interest in the firm of Smith & Jones 
 was appraised at $140,000.00, the assets and liabilities of the 
 firm being as follows : 
 
 105 
 
Fiduciary Accoun ting 
 
 Assets : 
 
 Accounts receivable $160,000.00 
 
 Real estate 200,000.00 
 
 Ground rent 20,000.00 
 
 Mortgages 100,000.00 
 
 Liabilities : 
 
 Smith $140,000.00 
 
 Jones 140,000.00 
 
 Clarion 200,000.00 
 
 $480,000.00 
 
 $480,000.00 
 
 In his account, filed in surrogate's court, the executor 
 charged himself in the principal account with the sum of 
 $1,590,000.00, the value of decedent's stocks, and the appraised 
 value of his interest in the partnership; also with the sum 
 of $100,000.00 for profits on the 1,000 shares of stock of the 
 Clarion Co., accumulated during the lifetime of the decedent, 
 and he claimed credit for $299,463.92, paid on account of 
 ^^ decedent's debts, which sum included $100,000.00 due the 
 Clarion Co. on account of unpaid subscription to the 1,000 
 shares of the stock of the said company and $51,236.08 for 
 commissions, leaving a balance of $1,339,300.00 due the estate, 
 consisting of — 
 
 Cash $574,300.00 
 
 5,000 shares U. S. Steel Pref 450,000.00 
 
 1,000 shares Clarion Co. stock 200,000.00 
 
 ^ Unconverted assets of partnership 115,000.00 
 
 $1,339,300-00 
 
 The executor charged himself in the income account with 
 receipts amounting to $92,550.00, no part of which was derived 
 from the partnership, and claimed credit for $14,625.00 for 
 expenses and commissions, leaving a balance of $77,925.00 due 
 to the estate. 
 
 In the adjudication of the account the surrogate deducted 
 $40,000.00 from the principal account of personal property 
 and transferred it to the principal account of real estate; and 
 
 106 
 
Fiduciary Accounting 
 
 he awarded the balance of personalty, after deducting $105,- 
 000.00 for unconverted assets reserved for future accounting, 
 one-half to the widow, all of which she received with the excep- 
 tion of $50,000.00 cash, and one-half to the accountants in 
 trust for the annuitants ; and he awarded the principal of the 
 realty, amounting to $40,000.00, $20,000.00 in trust to the 
 widow to receive the income, and $20,000.00 to the accountants 
 in trust for the annuitants, and he also awarded to the widow 
 income amounting to $38,962.50 and the same amount to the 
 annuitants. 
 
 After the filing of the executor's account, it was ascertained 
 that of the profits of the partnership between the date of 
 Smith's death and the date of appraisement $10,000.00 was 
 derived from the sale of real estate. 
 
 The executors now desire to file a second account, and it 
 appears that since the filing of the first account the trans- 
 actions of the partnership of Smith and Jones in liquidation 
 have been as follows : 
 
 Accounts receivable, charged to profit and loss as 
 
 worthless $50,000.00 
 
 Amount collected on accounts receivable, charged 
 to profit and loss as worthless prior to 
 testator's death 15,000.00 
 
 Amount of interest collected on accounts 
 
 receivable 4,500.00 
 
 Expenses of liquidation 3,000.00 
 
 It also appears that the amount of $200,000.00 appraised 
 January i, 191 o, as a liability of the firm of Clarion Company 
 has been transferred on the books of the firm in equal parts 
 to the credit of the separate accounts of Smith and Jones, each 
 of whom owned 1,000 shares full paid stock of said company 
 (the entire issue) on account of profits on said stock accrued 
 prior to the filing of the account. 
 
 Finally it appears that the present value of the interest of 
 decedent's estate in the partnership, consisting of unconverted 
 assets is $50,000.00. 
 
 Taking into consideration the facts disclosed in connection 
 with the first adjudication and the subsequent changes in the 
 
 107 
 
Fiduciary Accounting 
 
 condition of the estate set forth above, state a second account 
 for the executors. 
 
 86. B dies March 23, 1905, leaving an estate consisting of 
 > the follovv^ing property in charge of his executors, X, Y and Z : 
 
 Cash in bank $io,ooo.(X) 
 
 Accounts receivable from 
 I, 
 
 2 
 
 3 
 4 
 
 5 
 6 
 
 7 
 8 
 
 9 
 10 
 
 $2,000.00 
 3,000.00 
 1,000.00 
 3,000.00 
 1,000.00 
 4,000.00 
 2,000.00 
 3,000.00 
 4,000.00 
 1,000.00 
 
 $24,000.00 
 
 Stocks and Bonds: 
 
 1. 100 shares Union Bank 
 
 (par value, $100.00) $12,000.00 
 
 2. 40 shares Traders Bank 
 
 value, $100.00) 12,000.00 
 
 3. $1,000.00 C. & O., 4's — 
 
 J, & J 1 ,050.00 
 
 4. $5,000.00 P. R. R., 6's — 
 
 M. & S 4,500.00 
 
 ^5. $10,000.00 N. Y. C, 3>^'s 
 
 —J- & J 10,450.00 
 
 $40,000.00 
 
 and three parcels of unimproved real estate. 
 
 Three of his heirs are also indebted to him for money 
 loaned : 
 
 108 
 
Fiduciary Accounting 
 
 C $5,cxx).oo 
 
 D 6,000.00 
 
 E 7,000.00 
 
 $18,000.00 
 
 The will directs the executors to dispose of the real estate, 
 convert the other assets and distribute the funds, to-wit: 
 
 Widow one-half 
 
 fc 1 
 
 Children^ D ^one-sixth each 
 
 lE J 
 
 Up to April 30, 1906, the executors collected all the accounts 
 receivable with the exception of items No. 3, No. 6 and No. 
 10, on which they realize only $4,500.00, the balance being 
 uncollectible. 
 
 Bonds No. 3 and No. 5 matured January i, 1906, and bond 
 No. 4 matured March i, 1906, and were redeemed at par. 
 Stock No. 2 is sold at $325.00 and Stock No. i at $125.00, 
 both sales taking place on April 15, 1905. 
 
 The real estate is sold for cash, $5,000.00; and mortgages, 
 $10,000.00. Interest has been received on bank balances, 
 $300.00 ; accounts receivable, $50.00 ; and on each of the bonds 
 at the regular interest periods in full : 
 
 The executors pay decedent's debts and funeral expenses, 
 $1,000.00. Counsel fees, $500.00; safe deposit box rent, 
 $To.oo; and office expenses incident to collection of income, 
 $500.00. The executors waive their claim to commissions, but 
 ask for an allowance to cover expenses incurred by them of 
 $75.00 each. 
 
 State the executors' first and final account and prepare a 
 statement for the purpose of guiding the court in directing a 
 distribution to be made to the heirs. 
 
 109 
 
GLOSSARY 
 
 ADMINISTRATOR, a person appointed by the surrogate to 
 manage and distribute the personal estate of a decedent who left 
 no will or of a testator who named an executor unwilling or un- 
 able to serve. TEMPORARY ADMINISTRATOR, a person 
 appointed to take charge of an estate pending the appointment of 
 an executor or a permanent administrator. ADMINISTRATOR 
 WITH WILL ANNEXED (administrator cum testamento 
 annexo), a person appointed by the surrogate to take the place of 
 an executor who has been removed or who has died, resigned or 
 renounced, or to act as executor of a will where the will itself 
 names no executor. ADMINISTRATOR DE SON TORT (an 
 administrator of his own wrong) is one who without legal authority 
 interferes with the management and distribution of an estate at 
 his own peril. 
 
 ADVANCEMENTS, a portion of real or personal property 
 advanced to a child of the testator in the latter's lifetime, clearly 
 not a gift, such advance to be reckoned in the distribution of the 
 estate. 
 
 AMORTIZATION is the extinguishment of a debt by means of 
 a sinking fund, and in fiduciary accounting means the extinguish- 
 ment of the premiums paid by the trustees on bonds bought out of 
 corpus funds so that at the maturity of the bond the premium paid 
 will not be lost and become a charge against corpus, but that 
 during the life of the bond the life tenant shall receive only the 
 effective interest, that is, interest only on the amount invested and 
 not the fixed rate specified in the bond; the difference being the 
 amortization. ^. 
 
 AMOUNT is the principal and interest taken together. ^ 
 
 ANNUITY is a series of payments of like amount per annum 
 made at regular periods; JOINT LIFE ANNUITY is one which is 
 payable as long as the parties continue to live and ceases as soon 
 as one of the lives makes its exit. 
 
 ANCILLARY LETTERS, testamentary or of administration, 
 as the case requires, are issued when a decedent, either leaving a 
 will of personal property proved without this state, or dying in- 
 testate not a resident of this state, leaves personal property within 
 this state to be administered. 
 
 ASSETS, personal property applicable to the payment of the 
 debts of a decedent. 
 
 ASSIGNMENT, a transfer of rights or interests. 
 
 Ill 
 
Glossary 
 
 ATTESTATION CLAUSE, the certificate signed by the wit- 
 nesses reciting the formalities that were performed at the execution 
 of the will. ( 
 
 BENEFICIARY, the person entitled to receive the benefit of 
 a trust; also called "the cestui que trust." 
 
 BEQUEST, identical in meaning with the word "legacy" q. v. 
 
 CODICIL, an amendment or postscript to a wiil; it may re- 
 voke or modify any of the provisions of the will. 
 
 COMMISSION, the remuneration allowed by law to the 
 executor, administrator or trustee for managing and administering 
 an estate. 
 
 CORPUS, the body or principal of the estate. 
 
 CREDITOR, every person having a claim or demand upon 
 which a judgment for a sum of money, or directing the payment 
 of money, could be recovered in an action; any person having a 
 claim for expenses of administration, or any person having a claim 
 for funeral expenses. 
 
 CURTSEY is a life estate to which by common law, as modi- 
 fied by the Married Women's Acts, a man is entitled on the death 
 intestate of his wife in the land or tenements of which she was 
 seized in possession, in fee simple at the time of her death, pro- 
 vided they had lawful issue born alive which might have been 
 capable of inheriting the estate. 
 
 DEBTS, every claim and demand upon which a judgment for 
 a sum of money, or directing the payment of money, could be 
 recovered in an action. 
 
 DEVISE, a gift of real property by will 
 
 DOWER, an estate for the term of her life, passing by operation 
 of law to the widow of a decedent in the third part of all the lands 
 whereof he was seized of an estate of inheritance at any time during 
 the marriage. The term dower, though properly applicable only 
 to real property, is sometimes loosely applied in wills or contracts 
 to a widow's share in the personal property of her husband. 
 
 EXECUTOR, the person named by the testator in his will to 
 whom he has confided the duty of carrying out the provisions of 
 the will and who has been duly approved by the surrogate. 
 
 EXECUTRIX, a woman who acts in the same capacity as an 
 executor. 
 
 EXECUTOR DE SON TORT, a person who without authority 
 wrongfully takes upon himself the character of an executor and 
 meddles in any way with the assets formerly of a deceased person. 
 
 FORCE OF MORTALITY, "the proportion of persons at age 
 who would die in a year if the intensity of mortality remained con- 
 stant for a year and if the number of persons under observation 
 also remained constant, the places of those who die being constantly 
 occupied by fresh lives." (Wolfe's Inheritance Tax Calculations). 
 
 GUARDIAN AD LITEM, a guardian appointed by the court 
 to represent an infant in a legal action; also in certain legal pro- 
 
 1X2 
 
Glossary 
 
 ceedings called special guardian; such guardian may only represent 
 the infant's interests in court in the particular action or matter in 
 which he is appointed. 
 
 GUARDIAN, GENERAL, a person charged with the care of 
 the person or property or both the person and property of an 
 infant; he is appointed either by will or deed or by the court on 
 the nomination of proper parties. When appointed by will he is 
 generally referred to as "testamentary guardian." 
 
 HEIRS-IN-LAW, relatives of the deceased who succeed to 
 the real property of a person who leaves no will. 
 
 INCOME, in fiduciary accounting, that which is derived as 
 earnings from the corpus or principal of the estate. 
 
 INFANT, any person under 21 years of age. 
 
 INTERMEDIATE ACCOUNT, an account rendered by an 
 executor or administrator intending to disclose the acts of the 
 person accounting, and the condition of the estate at that time, 
 but not made the subject of judicial settlement. 
 
 INTESTATE, a person who leaves no valid will; or property 
 not effectively disposed of by will, whether the deceased left a 
 will or not. 
 
 JUDICIAL SETTLEMENT, signifies the decree of the surro- 
 gate whereby the executor's account is made conclusive in certain 
 respects upon the parties. 
 
 LEASEHOLD INTEREST, a ground rent from the viewpoint 
 of the lessee — see rents. 
 
 LEGACY, a gift of personal property by will; a DEMON- 
 STRATIVE LEGACY is one mentioning unidentified articles to 
 be taken out of a large identified mass, such as a bequest of money 
 or the like payable out of a particular fund or security; a GEN- 
 ERAL LEGACY is one payable out of the general assets of the 
 estate and is a gift of money or property in quantity and not 
 specified in any distinct way; a RESIDUARY LEGACY is a gift 
 of the residue of the personal property remaining after all other 
 legacies provided for in the will have been paid; a SPECIFIC 
 LEGACY is a gift of specific property or identified article which 
 has been clearly distinguished from all others of the same kind. 
 LEGACY LAPSED is one which fails by reason of the death of 
 the legatee before the death of the testator where no other words 
 are found in the will to prevent such a lapse; it pre-supposes the 
 existence of such legacy and of a legatee. ADEEMED, by the 
 destruction of the subject matter in the lifetime of the testator. 
 
 LEGATEE, a person to whom is given a bequest of personal 
 property by will. 
 
 LETTERS OF ADMINISTRATION, the credentials of an 
 administrator; the expression includes letters of temporary admin- 
 istration; see letters testamentary. 
 
 LETTERS TESTAMENTARY, the written authority or 
 credentials of an executor issued by the surrogate and which,. 
 
Glossary 
 
 together with the will, constitute the source of the executor's 
 authority. 
 
 LIFE TENANT, the one who receives the income derived from 
 corpus held in trust, or who is entitled to the use of property for 
 the term of his life. 
 
 MORTGAGEE, a person loaning on mortgage. 
 
 MORTGAGOR, a person making a mortgage. 
 
 NEXT OF KIN, all persons entitled under the provisions of 
 law relating to the distribution of personal property to share in 
 the unbequeathed personal property of a decedent after the pay- 
 ment of debts and expenses, other than a surviving husband or 
 wife. 
 
 POWER OF SALE, authority given by will to the personal 
 representative or trustee to sell property of the testator. 
 
 PRESENT WORTH (THE) of a future sum is a smaller 
 sum which put at interest will amount to the future sum. 
 
 PROBATE, the proving to a court of competent authority the 
 genuineness of a will and its execution in compliance with the 
 requirements of the statute, so that it may become effective and 
 authority be thereby given to the executor. 
 
 PROPERTY, PERSONAL, practically everything except real 
 property and includes any right of action conferred by law upon 
 an executor or administrator. 
 
 PROPERTY, REAL, includes every estate, interest and right, 
 legal or equitable, in lands, tenements, or hereditaments, except 
 those which are determined or extinguished by the death of a person 
 seized or possessed thereof, or in any manner entitled thereto, and 
 except those declared by law to be assets. 
 
 RATIO OF INCREASE. Add 1 to the interest rate and the 
 result is the ratio of increase. 
 
 REMAINDERMAN, the one to whom the corpus of the fund 
 goes upon the death of the life tenant, or at the expiration of such 
 life tenant's interest in the trust. 
 
 GROUND RENTS, where a person owns a piece of ground or 
 land in fee simple and conveys the same unto some party, reserving 
 to himself a certain fixed rent at certain intervals as a consideration 
 for making such a conveyance — see "redeemable" and "irredeem- 
 able" rents. IRREDEEMABLE RENTS, see ground rents, those 
 which do not give the lessee the privilege to redeem. REDEEM- 
 ABLE RENTS, see ground rents, ground rents that can be re- 
 deemed or bought in by the lessee from the party to whom the 
 land was conveyed, at such a sum as is provided for in the original 
 lease. This is usually done by giving a certain rate per centum 
 at which the same is to be redeemed. 
 
 RENUNCIATION, the written formal declination of an 
 executor or trustee to serve as such. 
 
 TESTATOR, a male person making a will. 
 
 TESTATRIX, a female person making a will. 
 
 114 
 
Glossary 
 
 TRANSFER TAX (sometimes called inheritance or succession 
 tax), a tax imposed on the transfer of property passing by will or 
 intestacy. 
 
 TRUST, in general, the relation existing when property is 
 transferred by the owner to another, or set apart by himself to be 
 held for the benefit of some person other than the holder. With 
 respect to real property, the meaning of the term has been by 
 statute limited and restricted, and has become highly technical; 
 TESTAMENTARY TRUST, one created under a will; INTER 
 VIVOS TRUST, a trust created between living persons. 
 
 TRUSTEE, a person holding legal title to property under an 
 obligation to apply it according to terms of the trust for another 
 person, the beneficiary, q. v. TESTAMENTARY TRUSTEE, a 
 trustee nominated in a will to execute a trust, and includes every 
 person except an executor, an administrator with the will annexed, 
 or a guardian who is designated by will or by any competent 
 authority, and it includes such executor or administrator where he 
 is acting in the execution of a testamentary trust separate from his 
 functions as executor or administrator, 
 
 WILL, a person's solemn declaration in legal form to take 
 effect at his death, revocable during life, making a disposition of 
 some or all of his property, or appointing an executor, or both. 
 The word "will" signifies a person's last will and testament and 
 includes all codicils. NUNCUPATIVE WILL, an unwritten or 
 oral will disposing of personal property; soldiers in actual military 
 service or mariners at sea only may make oral wills. HOLOGRAPH 
 WILL, one written entirely in the handwriting of the testator. 
 
 115 
 
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