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. visions relating to a testamentary trustee. termediate accounting; when voluntary. -; when compulsory. tition to compel payment of debt, legacy, etc. ; proceedings upon return of citation. -; other persons interested to be cited. hen surrogate may compel judicial settlement. ho may apply therefor. oceedings upon return of citation. licial settlement on petition of trustee. rtain provisions of title fourth made applicable. rogate to determine controversies; proportion may be retained. ect of decree. signation of trust. ition for security from testamentary trustee. urity; how given. noval of testamentary trustee. pointment of successor. ceedings where testamentary trustee is also executor or adinistrator. lication of this title. Am'd, 1885.] Intermediate accounting; when ee created by any last will and testament, or apany competent authority to execute any trust created will and testament, may at any time file an intermet, and may also annually render and finally judicially counts before the surrogate of the county having jurise estate or trust, in the manner provided by law for icial settlement of the accounts of executors and adand may for that purpose obtain and serve in the r the necessary citations requiring all persons internd such final settlement; and the decree of the surich final settlement may be appealed from in the ided for an appeal from a decree of a surrogate's final settlement of the accounts of an executor or , and the like proceedings shall be had on such apuch annual accountings of such trustees, the surrowhom such accounting may be had shall allow to r trustees the same compensation for his or their vay of commission, as are allowed by law to execuinistrators, besides their just and reasonable ex1; and also the additional allowance provided for in y-five hundred and sixty-two of this act; the decree te on such final annual settlement of an account prothis section, or the final determination, decree or he appellate tribunal in case of appeal, shall have the d effect as the decree or judgment of any other court jurisdiction on the final settlement of such accounts, itters relating to such trust which shall have been such accounts, or litigated or determined on such 66, ch. 115 (6 Edm. 700), and L. 1867, ch. 782, § 1 (7 Edm. 1. 482 (9 Edm. 94); L. 1885, ch. 518. when compulsory. tition of a person interested, absolutely or continestate or fund in the hands of a testamentary trus tee, 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. Based on L. 1866, ch. 115 (6 Edm. 700), and L. 1867, ch. 782, § 1 (7 Ed 167); L. 1871, ch. 482 (9 Edm. 94); L. 1885, ch. 518. § 2804. Petition to compel payment of debt, legacy, etc. Where a person is entitled by the terms of the will to the payment of money, or the delivery of personal property by a testamentary 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 truste may be cited to show cause why such a decree should not be mad If the petitioner is so entitled, only upon the happening of a con tingency, 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. Id. § 2805. Id.; proceedings upon return of citation. Upon the return of a citation, issued as prescribed in the last section, if the testamentary trustee files a written answer, dal verified, setting forth facts, which show that it is doubtil 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; other wise, 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 testaj mentary trustee, who is unable to deliver personal property, which the petitioner is entitled, to pay the value thereof. Id. § 2806. Id.; other persons interested to be cited. Where it appears, upon the presentation of a petition as pre scribed 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 truste the citation must also be directed to those persons. Where th fact appears, upon the return of the citation, or upon the hearing and it also appears presumptively that the petitioner is entitled a decree, all the persons, whose rights may be so affected, mis be brought in by supplemental citation before a decree is made. Id. § 2807. When surrogate may compel judicial settlemesti In either of the following cases, the surrogate's court may, fret time to time, compel a judicial settlement of the account of a te tamentary trustee: 1. Where one year has expired since the will was admitted probate. 2. Where the trustee has been removed, or, for any other son, his powers have ceased. 3. Where the trusts, or one or more distinct and separate trus" created by the terms of the will, have been executed, or are res! cuted; so that the persons beneficially interested are, by of the will, or by operation of law, entitled to receive y or other personal property from the trustee. Who may apply therefor. on, praying for a judicial settlement, as prescribed in ection, and that the testamentary trustee may be cited ause, why he should not render and settle his account, resented, by any person beneficially interested in the of any of the trusts; or by any person in behalf of an beneficially interested; or by a surety in the bond of entary trustee, given as prescribed in this title, or by epresentative of such a surety. Upon the presentation ition, the surrogate must issue a citation accordingly, account of the testamentary trustee has been judied, within a year before the petition is presented; in e, the surrogate may, in his discretion, entertain, or entertain, the petition. 'roceedings upon return of citation. 2727 and 2728 of this act apply to the proceedings ation, issued as prescribed in the last section, and to entary trustee to whom the citation is directed. Judicial settlement on petition of trustee. e year has expired since the probate of the will, or trusts, or one or more distinct and separate trusts, the will, have been, or are ready to be, fully executed, tary trustee may present to the surrogate's court a ly verified, setting forth the facts, and praying that I may be judicially settled; and that all the persons titled, absolutely or contingently, by the terms of the operation of law, to share in the fund, or in the property held by the petitioner, as a part of his be cited to attend the settlement. Thereupon the ust issue a citation accordingly. Sections 2729, 2730, I this act apply to the proceedings upon the return of ssued as prescribed in this section, and to the testaustee whose account is to be settled. Any person, t named in the citation, who is beneficially interested e or fund which came to the petitioner's hands, or eeds thereof, or in the application of that estate or the proceeds thereof, is entitled to appear upon the thus make himself a party to the special proceeding. Certain provisions of title fourth made ар 734 to 2737, both inclusive, sections 2739 to 2741, ve, and sections 2743, 2744, and 2746 of this act, d regulate the like matters, where a testamentary unts, as prescribed in this title; except as otherwise n the next two sections. To each account, filed as à this title, must be annexed an affidavit, in the form n section 2733 of this act, for the affidavit to be the account of an executor or administrator; except pression, "the trusts created by the will". with lescription of the trust, as is necessary to identify it, must be substituted in place of the words, the decedent ". "the estate of § 2812. Surrogate to determine controversies; proportion may be retained. 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. Effect of decree. A decree, made upon a judicial settlement of the account of a testamentary trustee, as prescribed in this title, or the judgment rendered upon an appeal from such a decree, has the same force. as a judgment of the supreme court to the same effect, as against each 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. L. 1866, ch. 115 (6 Edm. 700). § 2814. Resignation of trust. A testamentary trustee may, at any time, present to the surro gate's court a written petition, duly verified, praying that his account may be judicially settled; that a decree may thereupon be made, allowing him to resign 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 petition 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. The 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 s 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, |