2604. The last section qualified. The last section does not affect the liability of a person, to whom money or other property has been paid or delivered, as husband, wife, next of kin, or legatee, to respond to the person lawfully entitled thereto, where letters are revoked, because a supposed decedent is living; or because a will is discovered, after administration has been granted in a case of supposed intestacy, or revok. ing a prior will, upon which letters were granted. New. 2605. Successor may be appointed, and may compel accounting, etc.-Where letters have been revoked by a decree of the surrogate's court, that court has, except in a case where it is otherwise specially prescribed by law, the same power to appoint a successor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the successor, or of a remaining executor, administrator, guardian or trustee, to compel the person whose letters have been revoked, to account for, or deliver over money or other property, and to settle his account, which it would have upon the petition of a creditor or person interested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 conferred by the letters, had expired by its own limitation. 2 R. S. 77, 40 (2 Edm. 78); 2 R. S. 153, § 17 (2 Edm. 159); L. i865, ch. 733, 1 (6 Edm. 583). § 2606. [Amended, 1891.] Accounting by executor, etc., of deceased executor.- Where an executor, administrator, guardian or testamentary trustee dies, the surrogate's court has the same jurisdiction, 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, to compel the executor or administrator of the decedent to account, which it would have against the decedent if his letters have been revoked by a surrogate's decree.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 adininistrator of a deceased executor, administrator, guardian or testamentary trustee may voluntarily account for any of the trust property which has come to his possession, and upon his petition such successor or surviving executor, administrator or guardian or other necessary party shali be cited and required to attend such settlement. 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 administrator, 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 decedent's lifetime. So far as concerns the executor or administrator of decedent, such a decree is not within the provisions of section 2552 of this act The surrogate's court has also jurisdiction to compel the executor or administrator 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 each credit upon the decree as justice requires. [In effect Sept. 1, 1891. § 2607. When bond may be prosecuted. Where an execution, issued upon a surrogate's decree, against the property of an executor, administrator, testamentary trustee, or guardian, has been returned wholly or partly unsatisfied, an action, to recover the sum remaining uncollected, may be maintained upon his official bond, by and in the name of the person in whose favor the decree was made. If the principal debtor is a resi dent of the State, the execution must have been issued to the county where he resides. L. 1837, ch. 460, 65 (4 Edm. 498). Browning v. Vanderhoven, 4 Abb. N. C. 166; Scofield v. Churchill, 72 N. Y. 565; Richardson v. West, ct. app., Feb. 1880, 21 Alb. L. J. 396: Townsend v. Whitney, 75 N. Y. 425; People v. Rowland, 5 Barb. 449; People v. Downing, 4 Sandf. 189: Cridler v. Curry, 44 How. 345; Brewster. Balch, 41 N. Y. Super. 63; People ex rel. Laws, 4 Abb. 292; 8. c., 3 id. 450; People v. Corlies, 1 Sandf. 228: People v. Barnes, 12 Wend. 492: Mundorf v. Wangler, 44 N. Y. Super. 495 People v. Guild, 4 Den. 551; Mahoney v. Gunter, 10 Abb. 431; Behrle v. Sherman, 10 Bosw. 292; Field v. Van Cott, 15 Abb. N. S. 319; People v. Dunlap, 13 Johns. 437. 2608. Successor may prosecute official bond.Where letters have been revoked by a decree of the surrogate's court, the successor of the executor, administrator, or guardian, whose letters are so revoked, may maintain an action upon his predecessor's official bond, in which he may recover any money, or the full value of any other property, received by the principal in the bond, and not duly administered by him; and to the full extent of any injury, sustained by the estate of the decedent or of the infant, as the case may be, by any act or omission of the principal. The money, recovered in such an action, is regarded as part of the estate in the hands of the plaintiff, and must be distributed or otherwise disposed of accordingly; except that a recovery for an act or omission, respecting a right of action, or other property, appropriated by law for the benefit of the husband, wife, family, or next of kin of a decedent, or disposed of by a will for the benefit of any person, is for the benefit of the person or persons so entitled thereto. 2 R. S. 85, 21 (2 Edm. 87). Mundorff v. Wangler, 44 N. Y. Super. 495; Richardson v. West, 21 Alb. L. J. 396, ct. app.; People v. Corlies, 1 Sandf. 228. 2609. Action on official bond when no successor is appointed. Where the letters of an executor or administrator have been so revoked, and no successor is appointed, any person aggrieved may, upon obtaining an order from the surrogate, granting him leave so to do, maintain an action upon the official bond of the executor or administrator, in behalf of himself and all others interested; in which the plaintiff may recover any money, or the full value of any other property, received by the principal in the bond, and not duly administered by him, and to the full extent of any injury, sustained by the estate of the decedent, by any act or omission of the principal. The money recovered in such an action must be paid, by the sheriff or other officer who collects it, into the surrogate's court; and the surrogate must distribute it to the creditors or other persons entitled thereto. The proceedings for such a distribution are the same as prescribed in title fifth of this chapter, for the distribution of the proceeds of a sale of real property. New. Hood v. Hood, 19 Hun, 300; People v. Guild, 4 Den. 551; Thayer v. Clark, 48 Barb. 243; People v. Laws, 4 Abb. Pr. 292; Cridler v. Curry, 44 How. Pr. 345; Strong v. Wheaton, 38 Barb. 623 2610. Application of this article to executors, etc., heretofore appointed. The provisions of this article apply to an executor, administrator, or guardian, to whom letters have been issued, and to a testamentary trustee whose trust has been created, before this chapter takes effect; except that it does not affect, in any manner, the liability of the sureties in a bond, executed before this chapter takes effect. New. TITLE III. Granting and revoking probate, letters testamentary, and letters of administration. Foreign wills; ancillary letters. ARTICLE 1. Probate of a will and grant of letters thereupon. 2. Revocation of probate. 3. Probate of heirship. 4. Grant of letters of administration. 5. Temporary administration. 6. Revocation of letters testamentary and letters of administra tion. 7. Foreign wills; ancillary letters. ARTICLE FIRST. PROBATE OF A WILL AND GRANT OF LETTERS THERE UPON. SEO. 2611. What wills may be proved. 2612. Change of residence not to affect validity, etc. 2615. Who to be cited thereupon. 2617. Persons not cited may appear. 2618. Witnesses to be examined; proof required. 2619. Absent, etc., witnesses to be accounted for. 2620. Proof of handwriting. 2621. Proof of lost or destroyed will. 2622. Probate not allowed, unless surrogate satisfied, etc. 2623. Will; when sufficiently proved. 2624. Validity and construction of testamentary provisions. 2625. Surrogate's decision on probate. 2626. Probate; how far conclusive as to personalty. 2627. Id,; as to realty. 2628. When purchaser from heir protected notwithstanding a devise. 2629. Will certified, or record thereof, may be read in evidence. 2630. Recording wills proved elsewhere within the State. 2631, 2632. Records of certain wills heretofore proved; how far evidence. 2633. Id.; as to wills of real property. 2634. Index and fees. 2635. Wills to be returned after probate. 2636. When letters testamentary may be issued. 2638. Bond; when required. 2639. Renunciation; retraction thereof. 2640. Selection of an executor under power. 2641. Objection to such a person; how taken, etc. 2642. Executor failing to qualify or renounce; how excluded. 2643. Letters of administration with will annexed. 2644. Id.; renunciation of exclusion of persons having prior right. 2645. Executor or administrator to qualify. 2646. Effect of certain provisions limited. 2611. 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 proved as prescribed in this article. L. 1876, ch. 118, 1 and 2, amended. Matter of Forman, 54 Barb. 274; 8. C., 1 Tuck, 205; Thompson v. Quimby, 2 Bradf. 449; Matter of Will of Diez, 50 N. Y. 88; s. c.. 56 Barb. 59; 1R. S. 736, 119; Ex parte Day, 1 Bradf. 476: Ex parte McCormick, 2 id. 169; Wood v. Vandenburgh 6 Paige, 277; Matter of Tonnelle, 5 N. Y. Leg. Obs. 254; 8. C., 4 N. Y. 140; Barber v. Barber, 17 Hun, 72; Carle v. Underhill, 3 Bradf. 101; Isham v. Gibbons, 1 id. 69; Collier v. Idley, id. 94; Matter of Roberts' Will, 8 Paige, 446; Moultrie v. Hunt, 23 N. Y. 394; Horton v. McCoy, 47 id. 21; Zimmerman v. Schoenfeldt, 3 Hun, 692; 6 T. & C. 142; Prince v. Hazleton, 20 Johns. 501; Botsford v. Krake, 1 Abb. N. S. 112; Hubbard v. Hubbard, 8 N. Y. 196; 12 Barb. 148; Ex parte Thompson, 4 Bradf. 154. S2612. Change of residence not to affect validity, etc. The right to have a will admitted to probate, the validity of the execution thereof, or the validity or construction of any provision contained therein, is not affected by a change of the testator's residence, made since the execution of the will. Id., 3. Ames v. Duryea, 6 Lans 155; Despard v. Churchill, 53 N. Y. 192: Dupuy v. Seymour, 64 Barb. 156; Jauncey v. Thorne, 2 Barb. Ch. 40; Mills v. Fogal, 4 Edw. 559; Alexander's Estate, 1 Tuck. 114; Isham v. Gibbons, 1 id. 69; Moultrie v. Hunt, 23 N. Y. 394, 418; Dupuy v. Wurtz, 53 id. 556. The last § 2613. Application of last two sections. two sections apply only to a will executed by a person, dying after the eleventh day of April, in the year 1876; and they do not invalidate a will, executed before that date, which would have been valid but for the enactment of those sections, except where such a will is revoked or altered by a will, which they render valid, or capable of being proved as prescribed in this article. Id., 22 4 and 5. 2614. Who may propound will. A person designated in a will as executor, devisee, or legatee, or any other person interested in the estate, or a creditor of the decedent, may present, to the surrogate's court having jurisdiction, a written petition, duly verified, describing the will, setting forth the facts, upon which the jurisdiction of the court to grant probate thereof depends, and praying that the will may be proved, and that the persons, specified in the next section, may be cited to attend the probate thereof. Upon the presentation of such a petition, the surrogate must issue a citation accordingly. L. 1837, ch. 460.4 (4 Edm. 487). Wright v. Flemming, 19 Hun, 370: Carle v. Underhill, 3 Bradf. 101; Van Wert v. Benedict, 1 id. 114; Heer mans v. Hill, 2 Iun, 409; Baily . Stewart, 3 Redf. 212; Hart v. Russell, 9 Week. Dig. 54; Matter of Griswold, 15 Abb. Pr. 299; Thorn v. Sheil, 15 Abb. N. S. 81. § 2615. Who to be cited thereupon. -The following persons must be cited, upon a petition, presented prescribed in the last section: |