of this article, if one year has expired since letters were issued to the executor or administrator, he may present a petition as prescribed in the next section. A citation issued upon such a petition, need not be directed to the petitioner in the special proceeding pending against the executor or administrator; but the hearing of that special proceeding must be adjourned, until the return of the citation so issued; whereupon the two special proceedings must be consolidated. The consolidation does not affect any power of the surrogate, which might be exercised in either special proceeding.

2 R. S. 93, part of 360 (2 Edm. 96).

§ 2729. Executor, etc., may petition for judicial settlement; citation thereupon. At any time after the expiration of one year since letters were issued to an executor or administrator, he may present to the surrogate's court a written petition, duly verified, praying that his account may be judicially settled; and that the creditors, or persons claiming to be creditors, of the decedent, and the decedent's husband or wife, next of kin and legatees, if any; or, if either of those persons has died, his executor or administrator, if any; may be cited to attend the settlement. If one of two or more co-executors or co-administrators presents 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 a petition, as prescribed in this section, the surrogate must issue a citation accordingly.

2 R. S. 93, part of 3 60, and ? 70 (2 Edm. 96, 98) L. 1867, ch. 782, 14 (7 Edm. 170); Kellett v. Rathbun, 4 Paige, 102; Fisher v. Banta, 66 N. Y 468, 480, 481.

§ 2730. [Amended, 1881.] Hearing. Upon the return of a citation, issued as prescribed in the last section, the surrogate 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 distribution of the estate; and any party may contest an intermediate account rendered under section two thousand seven hundred and twenty-three of this act in case the same shall not be consolidated pursuant to section two thousand seven hundred and twenty-eight of this act. 2 R. S. 94, 63 (2 Edm. 97); see? 2538, ante. Van Vleck v. Burrows, 6 Barb. 341; Disosway v. Bank of Washington, 24 id. 60. A

2731. Creditor, etc., not cited, may contest. creditor, or a person interested in the estate, althou

not cited, is entitled to appear upon the hearing, and thus make himself a party to the special proceeding.

Id., part of 8 63, amended. Matter of Rich, 3 Redf. 177: Buchan v. Rintoul, 70 N. Y. i.

2732. Executors whose letters have been revoked may petition. Proceedings.-Where 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 may be judicially settled, and that his successor, if a successor has been appointed, and the other persons specified in section 2729 of this act, may be cited to attend the settlement. The provisions of the last three sections apply to, and regulate the proceedings upon, such a petition.

Id., 69, amended. Everts v. Everts, 62 Barb. 577; see Dakin v. Dem. ming, 6 Paige, 95.

2733. Affidavit to be annexed to account. - To each account, filed with the surrogate, as prescribed in this article, must be appended the affidavit of the ac counting party, to the effect that the account contains, according to the best of his knowledge and belief, a fulĺ 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 which have 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. New in form. Williams v. Purdy, 6 Paige, 166; Dayton on Surr., p. 472.

§ 2734. Vouchers to be produced.—Upon an account. ing 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; provided that all the items so allowed against an estate, upon all the account. ngs of all the executors or administrators, shall not ceed 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 testimony 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 that the charge is correct and just.

2 R. S. 92, 54, and part of 55 (2 Edm. 95). Dayton on Surr. 474; Matter of Pollock, 3 Redf. 100; Wilcox v. Smith, 26 Barb. 342; L. 1847, ch. 71; Boughton v. Flint, 74 N. Y. 476; Peck v. Sherwood, 56 id. 615; Broom v. Van Hook, 1 Redf. 444; Metzger v. Metzger, 1 Bradf. 265.

$2735. Accounting party to be examined, etc. The surrogate may, at any time, make an order requir ing 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.

2 R. S. 92, 54 (2 Edm. 95), and 2 R. S. 87, 88 25-57, or such thereof as are applicable. Accounts and mode of accounting.- Wilcox v. Smith, 26 Barb. 316; Matter of Jones, 5 N. Y. Leg. Obs. 124; 1 Redf. 263; St. John's Estate, 1 Tuck. 129; Adair v. Brimmer, 74 N. Y. 539; Matter of Hall, 7 Abb. N. C. 149; Peck v. Sherwood, 56 N. Y. 615; Westervelt v. Gregg, 1 Barb. Ch. 469 Smith v. Van Kuren, 2 id. 473; Mount v. Mitchell, 31 N. Y. 356 3 Bainbridge v. McCullough, 1 Hun, 488; Killett v. Rathbun, 4 Paige, 102; Weller v. Suggett, 3 Redf. 249; Hosack v. Rogers, 9 Paige, 451; Matter of Rich, 3 Redf. 177; Upson v. Badeau, 3 Bradf. 13; Martin v. Gage, 9 N. Y. 398; Matter of Pollock, 3 Redf. 100; Merchant v. Merchant, 2 Bradf. 432; Buchan v. Rintoul, 70 N. Y. 1; Boughton v. Flint, 74 id. 476; 5 Abb. N. C. 215; Matter of Douglas, 3 Redf. 538; Montross v. Wheeler, 4 Lans. 99; Dakin v. Demming, 6 Paige, 95; Farnsworth v. Oliphant, 19 Barb. 30; Bloodgood v. Bruen, 2 Bradf. 8; Levy's Estate, 1 Tuck. 148; Stiles v. Burch, 5 Paige, 132; Ballou v. Ballou, 8 Week. Dig. 363; Evertson v. Tappan, 5 Johns. Ch. 497; Stagg . Jackson, 1 N. Y. 206; Hatch v. Bassett, 52 id. 359; Ross v. Roberts, 2 Hun, 90; s. c., 63 N. Y. 652; Horton v. McCoy, 47 id. 21; Estate of Smith, 2 Law Bulletin, 50; St. John v. Voorhies, 19 Abb. 53; Deraismes v. Deraismes, 72 N. Y. 154 ;Mann v. Lawrence, 3 Brad. 424; Woodruff v. Woodruff, 17 Abb. 165; Ginichio v. Porcella, 3 Brad. 277; Everts v. Everts, 62 Barb. 577; Ogilvie v. Ogilvie, 1 Brad. 356; Adam's Estate, 1 Tuck. 109; Thompson's Estate, id. 51; Matter of Saltus, 3 Abb. Ct. App. Dec. 243; 3 Keyes, 500; Van Vleck v. Bur roughs, 6 Barb. 341; Griffith v. Beecher, 10 id. 432; Valentine v. Valentine, 2 Barb. Ch. 430. Assets to be accounted for.- Peck v. Mead, 2 Wend. 470; Mead v. Merritt, 2 Paige, 402; Doolittle v. Lewis, T

Johns. Ch. 45; Decker v. Miller, 2 Paige. 149; Gilman v. Gilman, 2 Lans, 1; Scranton v. Farmers' & M. Bank, 33 Barb. 527: s. C., 24 N. Y. 424; Churchill Prescott, 3 Brad. 233; Halsted v. Hyman, 3 id. 426; Thom son v. Thomson, 1 id. 24: McNabb v. Pond, 4 id. 7; Pitts v. Jamieson, 15 Barb 310; Woodruff's Estate, 1 Tuck. 58; Eyre v. Higbee, 35 Barb. 502; 22 How. 198; Moses e. Murgatroyd, 1 Johns. Ch. 119: Norton v. Norton, 2 Sandf. 296; Hotchkiss v. Auburn & Roch. R. R. Co., 36 Barb. 600; Demarest v. Wynkoop, 3 Johns. Ch. 129, 145; Robinson v. McGregor, 16 Barb, 531; Wadsworth v. Alcott, 6 N. Y. 64 Kohler v. Knapp, I Brad 211; Wyman e. Wyman, 26 N. Y. 253; Johnson v. Corbell, 11 Paige, 265 Mott v. Mott, 11 Barb. 127.

2736. [Amended, 1881.] Compensation of several executors or administrators. Where the value of the personal estate of the decedent amounts to one hundred thousand dollars, or more, over all his debts, each executor or administrator is entitled to the full compensation allowed by law to a sole executor or administrator, unless there are more than three; in which case, the compensation, to which three would be entitled, shall 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.

2 R. S. 93, 2 58 (2 Edm. 95), amended; L. 1863, ch. 362 (6 Edm. 127). Manning v. Manning, 1 Johns. Ch. 527: McWhorter e. Benson, Hopk. 28; Vanderheyden e. Vanderheyden, 2 Paige, 287; Collier v. Mun, 7 Abb. N. S. 193; s. c.. 41 N. Y. 143; 1 Tuck. 136; Fisher v. Fisher, 1 Brad. 335; Valentine v. Valentine, 2 Barb. Ch. 430; Mann v. Lawrence, 3 Bradf. 424; Drake v. Price, 5 N. Y. 430; Morgan v. Hannas, 13 Abb. N. S. 361; Hosack v. Rogers, 9 Paige, 461; Wheelwright v. Wheelwright, 2 Redf. 501; Cox . Schermerhorn, 18 Hun, 16; Browning v. Vanderhoven, 55 How. 97: Halsey v. Van Amringe, 6 Paige, 12; Dakin v. Demming, id.. 95; Gillespie v. Brooks, 2 Redf. 349; McMahon v. Allen, 4 E. D. Smith, 519; Cavins v. Chaubert, 9 Paige, 160; Schenck v. Dart, 22 N. Y. 420; Burtis v. Dodge, 1 Barb. Ch. 77; Betts v. Betts, 4 Abb. N. C. 317; Wester field v. Westerfield, 1 Brad. 199; Green v. Sanders, 18 Hun, 308; Matter of Duncan, 3 Redf. 153; Runkle v. Allison, 34 N. Y. 180; Estate of Van Nest, 1 Tuck. 130; White . Bullock, 15 How. 102; Eager v. Roberts, 2 Redf. 247; Lansing v. Lansing, 45 Barb. 182.

2737. When compensation not allowed. But 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 instru. ment filed with the surrogate, he renounces the specific compensation.

Id., 59. Ireland v. Corse, 67 N. Y. 343: Downing v. Marshall, Abb. Ct. App. Dec. 525; Churen v. Eckford, 8 Paige, 412.

§ 2738. One compensation allowed on different let ters.-Where successive or different letters are issued to the same person, upon the estate of the same dece. dent, including a case where letters testamentary or *ters of general administration are issued to a person > has been previously appointed a temporary admin. ' ator, he is entitled to compensation, in one capacity

only, at his election; except that where he has received compensation in one capacity, he is entitled to the ex cess, if any, of the compensation prescribed by law in the other capacity, above the sum which he has already received.

New. Drake v. Price, 5 N. Y. 430; Matter of Carman, 3 Redf. 46% Hall v. Hall, 18 Hun, 358; s. c., 9 Week. Dig. 198.

§ 2739. Surrogate may determine certain claims. Upon a judicial settlement of the account of an execu tor or administrator, he may prove any debt owing to him by the decedent. Where a contest arises between the accounting party and any of the other parties, respecting any property alleged to belong to the estate, but to which the accounting party lays claim; or respecting a debt, alleged to be due by the accounting party to the decedent, or by the decedent to the ac counting party; the contest must be tried and deter mined in the same manner as any other issue, arising in the surrogate's court.

R. S. 88, 33 (2 Edm. 90); L. 1837, ch. 460, 8 37 (4 Edm. 494). Bough. ton v. Flint, 74 N. Y. 476; 5 Abb. N. C. 215; Gardner v. Gardner, 7 Paige, 112; Shakespeare v. Markham, 72 N. Y. 400; Terry v. Dayton, 31 Barb. 519; Adam's Estate, 1 Tuck. 109; Livingston v. Newkirk, 3 Johns. Ch. 312; Smith v. Christopher, 16 Abb. N. S. 332; 3 Hun, 585; 6 T. & C. 288; Kyle v. Kyle, 67 N. Y. 400; Jumel v. Jumel, 7 Paige, 591 Merchant. Merchant, 2 Bradf. 432; Vulte v. Martin, 44 How. Pr. 18; Matter of Flood, 16 Abb. N. S. 407 Hopkins v. Van Valkenburgh, 16 Hun, 3: Leviness v. Casse beer, 3 Redf. 491; Matter of Leslie, id. 280; Everts v. Everts, 62 Barb. 577 Stilwell v. Carpenter, 59 N. Y. 414; Bevan v. Cooper, 72 id. 317.

§ 2740. Effect of the statute of limitations on such claims. From the death of the decedent, until the first judicial settlement of an account of his executor or ad. ministrator, the running of the statute of limitations, against a debt due from the decedent to the accounting party, or any other cause of action, in favor of the lat ter against the decedent, is suspended, unless the ac counting party was appointed upon the revocation of former letters issued to another person; in which case, the running of the statute is so suspended, from the grant of letters to him, until the first judicial settlement of his account. After the first judicial settlement of the account of an executor or administrator, the statute of limitations begins again to run against a debt due to him from the decedent, or any other cause of action in his favor against the decedent.