§ 2794. The claim of dower of the decedent's wife, in real property held by the decedent, under a contract for the purchase thereof, which must be satisfied, as prescribed in subdivision third of the last section, extends only to the annual interest, during her life, upon one-third of the balance remaining, after deducting from the money arising upon the sale, all sums due from the decedent, at the time of the sale, for the real property so contracted and sold.

§ 2795. The surrogate must cause a sum set apart for a widow's dower, as prescribed in the last two sections, to be invested by the county treasurer, under the direction of the surrogate, in the public securities of the State, or of the United States, or in permanent mortgage securities, bearing interest payable annually, or oftener. The interest, or other

25 Hun, 69.

S$ 2796-2798 income, must be paid by the county treasurer to the widow, during her life. After her death, the county treasurer, under the direction of the surrogate's court, manifested in an order duly entered, must sell the public securities, or collect the sums loaned upon mortgage, and distribute the proceeds, less the costs and expenses, as prescribed in the last section but one, for the distribution of the remainder of the money, after satisfying the claim for dower.

§ 2796. [Am'd 1882.] Where surplus money is distributable to an infant, or where the interest in the property, represented by it consisted of a precedent estate and a remainder or reversion; the decree must provide, as the judgment of the supreme court would provide, in an analogous case, for the investment of the money in the public securities of the state, or of the United States; or for the loan thereof, secured by bond and by mortgage upon unincumbered real property within the state, worth at least, exclusive of buildings thereupon, twice the sum lent; and for the payment of the income, until the majority of the infant or the determination of the temporary interest; and then, for the payment of the principal to the person or persons entitled thereto. Or where surplus money is distributable to an infant, the decree may, in the discretion of the surrogate, direct that the same be paid to his general guardian upon the latter giving such additional security, if any, as the surrogate directs, or if it is one hundred dollars or less, that it be deposited by the county treasurer in a savings bank or trust company, designated by the surrogate, and that the interest or income thereof be applied to the use of the infant until its majority.

§ 2797. The commencement or pendency of an action or special proceeding, having for its object the sale, either absolutely or contingently, of property liable to be disposed of as prescribed in this title; or the foreclosure by advertisement, of a mortgage thereupon; or any proceeding to sell such property, taken pursuant to a judgment, or by virtue of an execution, does not affect any of the proceedings taken as prescribed by this title, unless the surrogate so directs. After making a decree directing a mortgage, lease, or sale, the surrogate may, and, in a proper case, he must, stay the order to execute the decree, with respect to the property affected by the action, or special proceeding, or by the proceedings then pending, until the determination thereof, or the further order of the surrogate with respect thereto. If, in the course thereof, a sale of any of the property has been made, before making the decree in the surrogate's court, the decree must provide for the application of the surplus proceeds belonging to the decedent's estate. If such a sale is made afterwards, the directions contained in the decree, relating to the property sold, are deemed to relate to those proceeds.

$2798 [4m'd 1893.] Where real property, or an interest in real property, liable to be disposed of as prescribed

§§ 2799-2800
in this title, is sold, in an action or a special proceeding
specified in the last section, to satisfy a mortgage or other
lien thereupon, which accrued during the decedent's life-
time; and letters testamentary or letters of administration,
upon the decedent's estate were, within four years before
the sale, issued from a surrogate's court of the State having
jurisdiction to grant them; the surplus money must be paid
into the surrogate's court from which the letters issued,
pursuant to the provisions of section twenty-five hundred
and thirty-seven of this code, and the receipt of the county
treasurers shall be a sufficient discharge to the person pay-
ing such money. If the sale was made pursuant to the di-
rections contained in a judgment or order the surplus
remaining after payment of all the liens upon the property,
chargeable upon the proceeds, which existed at the time of
the decedent's death, must be so paid. If the sale was made
in any other manner, the surplus exceeding the lien to
satisfy which the property was sold, and the costs and ex-
penses must, within thirty days after the receipt of the
money from which it accrues, be so paid over by the person
receiving that money.

§ 2799. [Am'd 1881.] Where money is paid into a sur-
rogate's court, as prescribed in the last section, and a peti-
tion for the disposition of property, as prescribed in this
title, is pending before him; or is presented at any time
before the distribution of the money; the money must be
distributed as if it was the proceeds of the decedent's real
property, sold pursuant to the decree. If such a petition
is not pending or presented, or if a decree for the disposi-
tion of the decedent's property is not made thereupon, a
verified petition, praying for a decree, directing the distri-
bution of the money among the persons entitled thereto,
may be presented by any of those persons.
Each person,
who would be entitled to share in the distribution of the
proceeds of a sale, must be cited to show cause, why such
a decree should not be made. Service of the citation may
be made upon all the persons designated therein, by pub-
lishing the same in two newspapers designated as pre-
scribed in article first of title second of this chapter, at least
once in each of the four successive weeks immediately pre-
ceding the return day thereof, except that personal service
must be made upon the husband, wife, heirs and devisees
of the decedent, and also upon every other person claiming
under them, or either of them, who resides in this State.
Upon the return of the citation, the rights and priorities
of the persons interested must be established, and a decree
for distribution must be made, as if it was the proceeds of
real property sold.

§ 2800. Except as otherwise specially prescribed in this title, a security taken or an investment made, pursuant to any provision thereof, must be taken or made in the name of the county treasurer, adding his official title, and his

4 Redf. 509. 11 Abb. N.

C. 225.

139 N.Y. 341.

136 N.Y, 106.

successors in office. Each security so taken, and all the
papers connected therewith, or with such an investment,
and each lease, taken as prescribed in this title, must be
immediately delivered to the surrogate for his approval;
and, when approved by him, must be delivered to the
county treasurer, who must, from time to time, collect the
money due thereupon, and apply it, under the direction of
the surrogate, as prescribed by law for that purpose, or for
the application of the money represented by the security.
§ 2801. [Am'd 1891.] 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, or
judgment liens established and ordered paid, 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, devisee or other person aggrieved may maintain an
action to procure reimbursement therefrom.

TITLE VI.

Provisions relating to a testamentary trustee.

§ 2802. Intermediate accounting;

when voluntary.

2803. Id.; when compulsory.
2804. Petition to compel pay-
ment of debt, legacy,
etc.

2805. Id.; proceedings upon re-
turn of citation.

2806. Id.; other persons inter-
ested to be cited.

2807. When surrogate may com-
pel judicial settle-
ment.

2808. Who may apply therefor.
2809. Proceedings upon return
of citation.

2810. Judicial settlement

petition of trustee.

on

2811. Certain provisions of title

fourth made applicable.

§ 2802. [Am'd 1885.] 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 ex ecutors 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 court on the final settlement of the accounts of an executor or administrator, and the

like proceedings shall be had on such appeal; in all such annual accountings 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 or judgment of any other court of competent jurisdiction on the final settlement of such accounts, and of the matters relating to such trust which shall have been embraced in such accounts, or litigated or determined on such settlement.

§ 2803. Upon the petition of a person interested, abso- 94 N. Y. 558. lutely 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.

§ 2804. Where a person is entitled, by the terms of the will, to the payment of money, or the delivery of personal property, by a testamenta y trustee, he may present to the surrogate's court a written petition, duly verified, setting forth the facts which entitle him to the payment or delivery, and praying for a decree, directing payment or delivery accordingly; and that the testamentary trustee may be cited to show cause, why such a decree should not be made. If the petitioner is so entitled, only upon the happening of a contingency, or after the expiration of a certain time, he must show in his petition, that his right to the money or other property has become absolute. Upon the presentation of the petition, the surrogate must issue a citation accordingly.

94 N. Y. 558.

52 Hun, 88.

Week.

§ 2805. Upon the return of a citation, issued as pre- 16 scribed in the last section, if the testamentary trustee files Dig. 345. a written answer, duly verified, setting forth facts, which show that it is doubtful, whether the petitioner's claim is valid and legal, and denying its validity or legality, absolutely or upon his information and belief, a decree must be made, dismissing the petition, without prejudice to an action in behalf of the petitioner for an accounting; otherwise, the surrogate must hear the allegations and proofs of the parties, and must make such a decree in the premises, as justice requires. In a proper case, the decree may require the testamentary trustee, who is unable to deliver personal property to which the petitioner is entitled, to pay the value thereof.