§ 2798. [Am'd, 1893.] Surplus money on foreclosure and other sales; when paid to surrogate. Where real property, or an interest in real property, liable to be disposed of as prescribed 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 paying such money. If the sale was made pursuant to the directions 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 expenses, must, within thirty days after the receipt of the money from which it accrues, be so paid over by the person receiving that money. L. 1893, ch. 686. See § 2408. See also Rule 61. § 2799. [Am'd, 1881, 1904.] Id.; how distributed. Where money is paid into a surrogate's court, as prescribed in the last section, and a petition 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 decree may provide that the money be paid to the executor or administrator to be applied by him 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 disposition of the decedent's property is not made thereupon, a verified petition, praying for a decree, directing the distribution 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 decree should not be made. Service of the citation may be made upon all the persons designated therein. by publishing the same in two newspapers designated as prescribed in article first of title second of this chapter, at least once in each of the four successive weeks immediately preceding 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. L. 1867, ch. 658, § 2 (7 Edm. 142), am'd; L. 1870, ch. 170 (7 Edm. 664); L. 1904, ch. 750. In effect Sept. 1, 1901. § 2800. [Am'd, 1905.] Right of dower to be considered in sale. Where the widow of the decedent, or a party to the proceeding, has an existing right of dower in the real estate directed to be sold the court must consider and determine whether a more SURROGATES' COURTS. advantageous sale can be made of such real estate by including c. 18, t. 5 the sale of such right of dower; and, if it shall be determined by the court that a larger sum will be realized on such sale, applicable to the payment of debts and funeral expenses, by including in such sale the right of dower, the interest of the party entitled thereto shall pass thereby; and the purchaser, his heirs and assigns, shall hold the property free and discharged from any claim by virtue of that right. The regulations and provisions of article two title one of chapter fourteen of this act, prescribing the rules of practice in relation to the right of dower in actions for the partition of real estate, so far as the same may be applicable, shall govern and control the disposition of moneys realized on such sale which shall belong to the owner of said right of dower. L. 1905, ch. 430. In effect May 16, 1905. § 2801. [Am'd, 1894, 1904.] Restitution for assets subsequently discovered. 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 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. L. 1894, ch. 735; L. 1904, ch. 750. In effect Sept. 1, 1904. 794-802 TITLE VI. Provisions relating to a testamentary trustee. Sec. 2802. Intermediate accounting; when voluntary. 2803. Id.; when compulsory. 2804. Petition to compel payment of debt, legacy, etc. 2806. Id.; other persons interested to be cited. 2807. When surrogate may compel judicial settlement. 2809. Proceedings upon return of citation. 2810. Judicial settlement on petition of trustee. 2811. Certain provisions of title fourth made applicable. 2812. Surrogate to determine controversies; proportion may be retained. 2813. Effect of decree. 2814. Resignation of trust. 2815. Petition for security from testamentary trustee. 2816. Security; how given. 2817. Removal of testamentary trustee. 2818. Appointment of successor. 2819. Proceedings where testamentary trustee is also executo. or ad ministrator. 2820. Application of this title. § 2802. [Am'd, 1885.] Intermediate voluntary. accounting; when Any trustee created by any last will and testament, or ap pointed 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 executors 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. Based on L. 1866, ch. 115 (6 Edm. 700), and L. 1867, ch. 782, § 1 (7 Edm. 167); L. 1871, ch. 482 (9 Edm. 94); L. 1885, ch. 518. § 2803. Id.; when compulsory. Upon the petition of a person interested, absolutely or contingently, in the estate 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 Edm 82 (9 Edm. 94); L. 1885, ch. 518. 167); L. 1871, ch § 2804 etition to compel payment of debt, legacy, etc. aere a person is entitled by the terms of the will to the payent 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 t 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. 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, 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; 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 testamentary trustee, who is unable to deliver personal property, to 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 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 supplemental citation before a decree is made. Id. § 2807. When surrogate may compel judicial settlement. | In either of the following cases, the surrogate's cont may, from time to time, compel a judicial settlement of the account of a tes tamentary trustee: 1. Where one year has expired since the will was achitted to probate. 2. Where the trustee has been removed, or, for any son, his powers have ceased. oth res 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 804 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. Who may apply therefor. A petition, praying for a judicial settlement, prescribed in the last section, and that the testamentary trustee ay be cited to show cause, why he should not render and settle his count, 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. Proceedings upon return of citation. Sections 2727 and 2728 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. Judicial settlement on petition of trustee. 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 2729, 2730, and 2731 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 beneficially 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. Certain provisions of title fourth made ар plicable. Sections 2734 to 2737, both inclusive, sections 2739 to 2741, both inclusive, and sections 2743, 2744, and 2746 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 2733 of this act, for the affidavit to be annexed to the account of an executor or administrator: except that the expression, "the trusts created by the will". with such other description of the trust, as is necessary to identify |