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 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.

See 2802, note, and L. 1870, ch. 339, 3. Wood v. Wood, 5 Paige, 326; Craig . Craig, 3 Barb, Ch. 76; Youngs r. Youngs, 53 N. Y. 613; Crugere. Halladay, 1 Paige, 314; Ex parte Bernstein, 3 Redf. 20; Matter of Robinson, 37 N. Y. 261.

2815. Petition for security from testamentary trustee. 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.

See note to 2802, ante.

2816. Security; how given. The security, given as prescribed in the last 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.

See notes to sections 2802, 2595, 2601, 2603, 2604, 2607 and 2645, ante.

$2817. Removal of testamentary trustee. 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 provision of law, relating to the discharge of his duty.

See notes to sections referred to last above, and 2 R. S. 730, ch. 1, 170. Bronson v. Bronson, 48 How. 481; Matter of Morgan, 63 Barb. 621; s. c., 66 N. Y. 618; Matter of Wadsworth, 2 Barb. Ch. 381; Blake v. Sands, 3 Redf. 168.

2818. Appointment of successor. Where 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 successor; unless such an

appointment would contravene the express terms of the will. Where a decree, removing the trustee, or discharging him upon his resignation, does not designate his successor; or the person designated therein does not qualify, the successor must be appointed and must qualify, as prescribed by law for the appointment and qualification of an administrator with the will annexed.

See note to 2802, ante; L. 1870, ch. 359, 3: 1 R. S. 730, ch. 1, 68, 71. Shook r. Shook, 19 Barb. 653; Ross v. Roberts, 2 Hun, 90; 63 N. Y. 652; Dunning t. Ocean Nat. Bank, 6 Lans, 296; 61 N. Y. 497; De Peyster ɛ. Glendenning, 8 Paige, 295; 26 Wend, 21; Matter of Van Schoonhoven, 5 Paige, 559 Matter of Crossman, 20 How. 350; Williams v. Conrad, 30 Barb. 524; De Peyster v. Ferrers, 11 Paige 13; Milbank v. Crane, 25 How, 193; Bronson v. Bronson, 48 id. 481; Holden v. N. Y. & E. Bank, 72 N. Y. 26; Curtis v. Smith, 60 Barb. 9; Leggett v. Hunter, 19 N. Y. 445; 25 Barb. 81.

2819. Proceedings where testamentary trustee is also executor or administrator.- 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 proceed. ings upon the petition for the revocation of the letters, as the surrogate directs.

See notes to 2 2802 and 2688, ante. Quackenboss v. Southwick, 41 N. Y. 117.

§ 2820. Application of this title. 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.

See note to 2802, ante.

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. Settlement of his accounts.

3. Guardians appointed by will or deed.

ARTICLE FIRST.

APPOINTMENT, REMOVAL, AND RESIGNATION OF A GENERAL GUARDIAN.

SEC. 2821. Power of court to appoint guardians.

2822. Petition for appointment, by infant over fourteen.

2823. Contents of petition; citation.

2824. Id.; where petitioner is a married woman.

2825. Appointment of guardian.

2826. Guardian to be nominated by infant.

2827. Appointment of temporary guardian for infant under fourteen.

2828. Term of office of temporary guardian.

2829. Inquiry as to value of property.

2830. Qualification of guardian of property.

2831. Id.; of guardian of person.

2832. When letters may be revoked for misconduct, etc.

2833. Citation; hearing; decree.

2834. Suspension of guardian; effect thereof.

2835. Application by guardian for revocation of letters.

2836. Proceedings thereupon.

2837. Ward or new guardian may require accounting.

2838. Application for ancillary letters to foreign guardian.
2839. Proceedings thereupon.

2840., Effect of such letters.

2841. Application of the last section to former guardians.

2821. Power of court to appoint guardians.-The surrogate's court has the like power and authority to appoint a general guardian, of the person or of the property, or both, of an infant, which the chancellor had, on the thirty-first day of December, eighteen hun

dred and forty-six. It has also power and authority to appoint a general guardian, of the person or of the property, or both, of an infant whose father or mother is living, and to appoint a general guardian, of the property only, of an infant married woman. Such power and authority must be exercised in like manner as they were exercised by the court of chancery, subject to the provisions of this act. The same person may be appointed guardian of an infant in both capacities; or the guardianship of the person and of the property may be committed to different persons.

2 R. S. 151,26 (2 Edm. 157); L. 1870, ch. 341 (7 Edm. 716); L. 1871, ch. 703 (9 Edm. 132). People ex rel. Kearney, 31 Barb, 430; 19 How. 493; Kearney v. Brooklyn Ind. School, 1 Redf. 292; Ex parte Harbeck, 16 AEK, N.S. 214; Ex parte Dawson, 3 Brad. 130; 2850, post; Williams r. Storrs, 6 Johns. Ch. 353; Genet v. Tallmadge, 1 id. 3; Byrne r. Van Hoesen, 5 Johns. 66; Holmes v. Seely, 17 Wend. 75; Jackson v. Sears, 10 Johns, 435; Thacher r. Henderson, 63 Barb. 271; Emerson v. Spicer, 46 N. Y. 34; 55 Barb. 428; 38 How. 114; Sylvester v. Ralston, 31 Barb, 256; see Fonda v. Van Horne, 15 Wend. 631; Putnam v. Ritchie, 6 Paige, 390; Field r. Schieffelin, 7 Johns. Ch. 150; Otis . Thompson, Hill & Denio's Supp.11; Combs v. Jackson, 2 Wend. 153; Morehouse v. Cooke, Hopk, 226; In re Hubbard, 10 Week. Dig. 482.

2822. Petition for appointment, by infant over fourteen.-In either of the following cases, an infant of the age of fourteen years or upwards, may present, to the surrogate's court of the county in which he resides; or, if he is not a resident of the State, to the surrogate's court of the county in which any of his property, real or personal, is situated; a written petition, duly verified, setting forth the facts upon which the jurisdiction of the court depends, and praying for a decree appointing a general guardian, either of his person, or of his property, or both, as the case requires; and, if necessary, that the persons, entitled by law to be cited upon such an application, may be cited to show cause, why such a decree should not be made :

1. Where such a general guardian has not been duly appointed, either by a court of competent jurisdiction of the State, or by the will or deed of his father or mother, admitted to probate or authenticated, and recorded, as prescribed in section 2851 of this act.

2. Where a general guardian so appointed has died, become incompetent or disqualified; or refuses to act; or has been removed; or where his term of office has expired.

Where the petitioner is a non-resident married woman,