3 Dem. 221. 4 Month. L. Bul. 32. 4 Month. L. Bul. 32. § 2806. Where it appears, upon the presentation of a petition as prescribed in the last section but one, that a decree, made pursuant to the prayer thereof, might affect the rights of other persons, with respect to the estate or fund held by the testamentary trustee, the citation must also be directed to those persons. Where that fact appears, upon the return of the citation, or upon the hearing, and it also appears presumptively that the petitioner is entitled to a decree, all the persons, whose rights may be so affected, must be brought in by a supplemental citation, before a decree is made. § 2807. 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. § 2808. A petition, praying for a judicial settlement, as prescribed in the last section, and that the_testamentary trustee may be cited to show cause, why he should not render and settle hls account, may be presented, by any person beneficially interested in the execution of any of the trusts; or by any person in behalf of an infant so beneficially interested; or by a surety in the bond of the testamentary trustee, given as prescribed in this title, or by the legal representative of such a surety. Upon the presentation of the petition, the surrogate must issue a citation accordingly, unless the account of the testamentary trustee has been judicially settled, within a year before the petition is presented; in which case, the surrogate may, in his discretion, entertain, or decline to entertain, the petition. 2809. Sections two thousand seven hundred and twenty-seven and two thousand seven hundred and twentyeight of this act apply to the proceedings upon a citation, issued as prescribed in the last section, and to the testamentary trustee to whom the citation is directed. § 2810. 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 settlement. Thereupon the surrogate must issue a citation accordingly. Sections two thousand seven hundred and twenty-nine, two thousand seven hundred and thirty and two thousand seven hundred and thirty-one of this act apply to the proceedings upon the return of a citation, issued as prescribed in this section, and to the testamentary trustee whose account is to be settled Any person, although not named in the citation, who is benefically 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 proceeding. § 2811. Sections two thousand seven hundred and thirtyfour to two thousand seven hundred and thirty-seven, both inclusive, sections two thousand seven hundred and thirtynine to two thousand seven hundred and forty-one both inclusive, and sections two thousand seven hundred and fortythree, two thousand seven hundred and forty-four, and two thousand seven hundred and forty-six of this act, apply to and regulate the like matters, where a testamentary trustee accounts, as prescribed in this title; except as otherwise prescribed in the next two sections. To each account, filed as prescribed in this title, must be annexed an affidavit, in the form prescribed in section two thousand seven hundred and thirty-three of this act, for the affidavit to be annexed to the account of an executor or administrator; except that the expression, "the trust created by the will", with such other description of the trust, as is necessary to identify it, must be substituted in place of the words, "the estate of the decedent". § 2812. Upon a judicial settlement of the account of a testamentary trustee, a controversy which arises, respecting the right of a party to share in the money or other personal property to be paid, distributed, or delivered over, must be determined in the same manner as other issues are determined. If such a controversy remains undetermined, after the determination of all other questions upon which the distribution of the fund, or the delivery of the personal property depends, the decree must direct that a sum, sufficient to satisfy the claim in controversy, or the proportion to which it is entitled, together with the probable amount of the interest and costs, and, if the case so requires, that the personal property in controversy, be retained in the hands of the accounting party; or that the money be deposited in a safe bank or trust company, subject to the surrogate's order, for the purpose of being applied to the payment of the claim, when it is due, recovered or settled; and that so much thereof, as is not needed for that purpose, be afterwards distributed according to law. § 2813. A decree, made upon a judicial settlement of the account of a testamentary trustee, as prescribed in this 2 How. Pr. N. S. 323. 4 Dem. 162. 1 Dem. 171. 8 Id. 227. title, or the judgment rendered upon an appeal from such decree, has the same force, as a judgment of the supreme court to the same effect, as against cach party who was duly cited or appeared, and every person who would be bound by such a judgment, rendered in an action between the same parties. The § 2814. A testamentary trustee may, at any time, present to the surrogate's court a written petition, duly veri fied, praying that his account may be judicially settled; I that a decree may thereupon be made, allowing him to re sign 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 peti tion 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. surrogate may, in his discretion, entertain or decline to entertain the petition. If he entertains it, the proceedings 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; 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. § 2815. 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. § 2816. The security, given as prescribed in the last 1 Dem. 71 section, must be a bond to the same effect, and in the same form, as an executor's bond. Each provision of this chapter, applicable to the bond of an executor, or to the rights, duties, and liabilities of the parties thereto, or any of them, including the release of the sureties, and the giving of a new bond, apply to the bond so given, and to the parties thereto. 2817. 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 testamentary would not be issued to him, by reason of his personal disqualification 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 execution 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 pro vision of law, relating to the discharge of his duty. § 2818. [Am'd 1884.] 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 suc cessor, unless such an appointment would Contravene the express terms of the will. Where one of two of monc testa mentary trustees dies or becomes a lunatic, or is by dem** of the surrogate's court removed or allowed to jesign, a successor shall not be appointed except where much appoint ment is necessary in order to comply with the express teams of the will, or unless the same court or tha, moprema, kourA shall be of the opinion that the appointment of a would be for the benefit of the cratul que t and until a successor is appointed the remaining Aquela na trustees may proceed and execute the trust me $ully wit such trustee or trustees had not died, bad, ba removed or resigned. Whers a 666444, jemoving a test. or discharging Lim upon Alle 195gulos Gone wol CaSLY MMA, 36 Hun, 122. 3 Dem. 612. 138 N.Y.308. 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. 2819. 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 proceedings upon the petition for the revocation of the letters, as the surrogate directs. 2820. The provisions of this title apply to a trust created by the will of a resident of the State, or relating to real property, situated within the State, without regard to the residence of the trustee, or the time of the execution of the will, TITLE VII. Provisions relating to a guardian. ARTICLE 1. Appointment, removal, and resignation of a general guardian. 2. Supervision and control of a general guardian. Settle ment of his accounts. 3. Guardians appointed by will or deed. ARTICLE FIRST. APPOINTMENT, REMOVAL, AND RESIGNATION OF A § 2821. Power of court to appoint guardians. 2822. Petition for appointment, by infant over fourteen. 2823. Contents of petition; cita tion. 2824. Id.; where petitioner is a married woman. § 2825. Appointment of guardian 2827. Appointment of tempo- rary l |