quires, as prescribed in title first of chapter twelfth of this act, with respect to an appeal from a judgment. New. See 1317, 1319, 1320, 1323, ante. Baily e. Hilton, 14 Hun, 3; Wright v. Wright, 3 Redf. 325; id. 362; Marvin v. Marvin, 11 Abb. N. S. 97, ct. app.; Marsh v. Avery, 8 Week. Dig. 477; Gilman v. Gilman, 3 Hun, 22; Mead v. Mead, 11 Barb. 661; Horn v. Pulman, 72 N. Y. 269; 10 Hun, 471; McDonough v. Loughlin, 20 Barb. 238; Sutton . Ray, 72 N. Y. 482. -- § 2588. Award of jury trial upon reversal in probate cases. Where the reversal or modification of a decree by the appellate court is founded upon a question of fact, the appellate court must, if the appeal was taken from a decree made upon a petition to admit a will to probate, or to revoke the probate of a will, make an order, directing the trial, by a jury, of the material questions of fact, arising upon the issues between the parties. Such an order must state, distinctly and plainly, the questions of fact to be tried; and must direct the trial to take place, either in a circuit court, specified in the order; or in the county court of the county of the surrogate; or, in the city and county of New-York, in the court of common pleas. After the trial, a new trial may be granted, as prescribed in section 2548 of this act. 2 R. S. 66, 57, 58 (2 Edm. 67); 2 R. S. 609, 93 (2 Edm. 632). Sutton v. Ray, 72 N. Y. 482; Webster v. Cole, 17 Hun, 507; Dorrn v. McGourkey, 9 Week. Dig. 5, ct. app.; Patchen v. Devin, 37 Barb. 430; Howland . Taylor, 53 N. Y. 627; Devin v. Patchin, 26 id. 441. § 2589. Costs of appeal. The appellate court may award to the successful party the costs of the appeal; or it may direct that they abide the event of a new trial, or of the subsequent proceedings in the surrogate's court. In either case, the costs may be made payable out of the estate or fund, or personally by the unsuccessful party, as directed by the appellate court; or, if such a direction is not given, as directed by the surrogate. 2 R. S. 608, 296 (2 Edm. 692); 2 R. S. 67, 61 (2 Edm. 632): 2 R. S. 67. 261 (2 Edm. 67). Brockway v. Jewett, 16 Barb. 590; Macgregor r. Buell, 17 Abb. 31; Lawrence v. Lindsey, 70 N. Y. 566; Morgan v. Morgani Abb. N. S. 40. ARTICLE FIFTH. PROVISIONS RELATING GENERALLY TO LETTERS; AND GENERALLY TO EXECUTORS, ADMINISTRATORS, GUARDIANS, AND TESTAMENTARY TRUSTEES. SEC. 2590. Requisites of letters. 2391. Their effect. 2592. Priority among different letters. 2593. Time, how reckoned upon successive letters. 2594. Official oaths of executors, etc. 2595. Deposit of securities to reduce penalty of bond. 2596. Sureties liable for money, etc., received in another capacity. 2597. When new bond or new sureties may be required. 2598. Id.; how principal may be required to give a new bond, etc. 2600. Sureties may apply to be released, as to future breaches. 2602. Surrogate may direct as to custody, where co-executors, 2603. Effect and contents of decree revoking letters. 2604. The last section qualified. 2605. Successor may be appointed, and may compel accounting, etc. 2606. Accounting by executor, etc., of deceased executor. 2607. When bond may be prosecuted. 2608. Successor may prosecute official bond. 2609. Action on official bond when no successor appointed. 2610. Application of this article to executors, etc., heretofore appointed. 2590. Requisites of letters.-Letters testamentary, letters of administration, and letters of guardianship must be in the name of the people of the State. Where they are granted by a surrogate, or by an officer or person appointed by the board of supervisors, temporarily acting as surrogate, they must be tested in the name of the officer granting them, signed by him, or by the clerk of the surrogate's court, and sealed with the seal of the surrogate's court. Where they are issued out of another court, they must be tested in the name of the judge holding the court, signed by the clerk thereof, and sealed with its seal. 2 R. S. 80, 255 (2 Edm. 81); see 2485, 2486, 2490, 2491, 2492 and 2494, ante. Roderigas v. East R. Sav. Inst., 63 N. Y. 460. § 2591. Their effect. Subject to the provisions of the next section, regulating the priority among different letters, letters testamentary, letters of administration, and letters of guardianship, granted by a court or officer, having jurisdiction to grant them, as prescribed in this chapter, are conclusive evidence of the authority of the persons to whom they are granted, until the decree granting them is reversed upon appeal, or the letters are revoked, as prescribed in this chapter. 2 R. S. 80, 56 (2 Edm. 82). Roderigas v. East R. Sav. Inst., 63 N. Y. 460; Same v. Same, 76 N. Y. 316. § 2592. Priority among different letters.— The person or persons, to whom letters testamentary, or letters of administration are first issued, from a surrogate's court having jurisdiction to issue them, as prescribed in article first of title first of this chapter, have sole and exclusive authority, as executors or administrators, pursuant to the letters, until the letters are revoked, as prescribed by law; and they are entitled to demand and recover from any person, to whom letters upon the same estate are afterwards issued, by any other surrogate's court, the decedent's property in his hands. But the acts of a person, to whom letters were afterwards issued, done in good faith, before notice of the letters first issued, are valid; and an action or special proceeding, commenced by him, may be continued by and in the name of the person or persons to whom the letters were first issued. 2 R. S. 74, 25 (2 Edm. 75). 2593. Time, how reckoned upon successive letters. Where it is prescribed by law, that an act, with respect to the estate of a decedent, must or may be done within a specified time after letters testamentary or letters of administration are issued, and successive or supplementary letters are issued upon the same estate, the time so specified must be reckoned from the issuing of the first letters, except in a case where it is otherwise specially prescribed by law; or where the first or any subsequent letters are revoked, as prescribed in section 2684 of this act, or by reason of the want of power in the surrogate's court to issue the same, for any cause. New. Slocum v. English, 62 N. Y. 494. 2594. Official oaths of executors, etc.— 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 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. 2 R. S. 71, 77, 13 and 41 (2 Edm. 72, 78); L. 1837, ch. 460, § 59 (4 Edm. 497), amended. $2595. Deposit of securities to reduce penalty of bond. In a case where a bond, or new sureties to a bond, may be required by a surrogate from an executor, administrator, 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 the trustee, countersigned by the surrogate, with a trust company duly authorized by law to receive the same. After such a 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 cus tody 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 trustees 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. New. 2596. Sureties liable for money, etc., received in another capacity.—A person to whom letters are issued, is liable for money or other personal property of the estate, which was in his hands or under his control, when his letters were issued; in whatever capacity it was received by him, or came under his control. Where it was received by him, or came under his control, by virtue of letters previously issued to him, in the same or another capacity, an action to recover the money, or damages for failure to deliver the property, may be maintained upon both official bonds; but, as between the sureties upon the official bond given upon the prior letters, and those upon the official bond given upon the subsequent letters, the latter are liable over to the former. New. Gottsberger v. Taylor, 19 N. Y. 150; s. c., 5 Duer, 566. 2597. When new bond or new sureties may be required. Any person, interested in the estate or fund, may present to the surrogate's court a written petition, duly verified, setting forth that a surety in a bond, taken as prescribed in this chapter, is insufficient, or has removed, or is about to remove, from the State, or that the bond is inadequate in amount; and praying that the principal in the bond may be required to give a new bond, in a larger penalty, or new or additional sureties, as the case requires; or, in default thereof, that he may be removed from his office, and that letters issued to him may be revoked. Where the bond so taken is that of a guardian, the petition may also be presented to any relative of the infant. When the bond is that of an executor or administrator, the petition may also be presented by any creditor of the decedent. If it appears to the surrogate, that there is reason to believe that the allegations of the petition are true, he must cite the principal in the bond to show cause, why the prayer of the petition should not be granted. L. 1837, ch. 460, 22 25, 26 (4 Edm. 492), amended; L. 1862, ch. 229; L. 1837, ch. 460, 35 (4 Edm. 493). Scofield v. Churchill, 72 N. Y. 565. 2598. Id.; how principal may be required to give a new bond, etc.-Upon the return of a citation, issued as prescribed in the last section, the surrogate must hear the allegations and proofs of the parties; and if the objections, or any of them, are found to be valid, he must make an order, requiring the principal in the bond to give new or additional sureties, or a new bond in a larger penalty, as the case requires, within such a reasonable time, not exceeding five days, as the surro |