payable shall not be entitled to a preference over debts not due. The commencement of a suit for the recovery of a debt or the obtaining a judgment thereon against the executor or administrator shall not entitle such debt to preference over others of the same class. Debts not due may be paid according to the class to which they belong, after deducting a rebate of legal interest on the sum paid for the unexpired term of credit without interest. An executor or administrator shall not satisfy his own debt or claim out of the property of the deceased until proved to and allowed by the surrogate; and it shall not have preference over others of the same class. Preference may be given by the surrogate to rents due or accruing on leases held by the testator or intestate at the time of his death, over debts of the fourth class, if it appear to his satisfaction that such preference will benefit. the estate of the testator or intestate. The surrogate may authorize the executor or administrator to compromise or compound a debt or claim, on application, and for good and sufficient cause shown, and to sell at publicauction, on such notice as the surrogate prescribes, any uncollectible, stale or doubtful debt or claim belonging to the estate; but any party interested in the final settlement of the estate may show on such settlement that such debt or claim was fraudulently or negligently compromised or compounded. Am'd by chap. 686 of 1893. over-192 Alb § 2720. Apportionment of rents, annuities and dividends. rents reserved on any lease made after June seventh, eighteen hundred and seventy-five, and all annuities, dividends and other payments of every description made payable or becoming due at fixed periods under any instrument executed after such date, or, being a last will and testament that takeseffect after such date, shall be apportioned so that on the death of any per son interested in such rents, annuities, dividends or other such payments, or in the estate or fund from or in respect to which the same issues or is derived, or on the determination by any other means of the interest of any such person, he, or his executors, administrators or assigns, shall be entitled to a proportion of such rents, annuities, dividends and other payments, according to the time which shall have elapsed from the commencement or last period of payment thereof, as the case may be, including the day of the death of such person, or of the determination of his or her interest, after making allowance and deductions on account of chargeson such rents, annuities, dividends and other payments. Every such person or his executors, administrators or assigns shall have the same remedies at law and in equity for recovering such apportioned parts of such rents, annuities, dividends and other payments, when the entire amount of which such apportioned parts form part, become due and payable and not before, as he or they would have had for recovering and obtaining such entire rents, annuities, dividends and other payments, if entitled thereto; but the persons liable to pay rents reserved by any lease or demise, or the real property comprised therein shall not be resorted to for such apportioned parts, but the entire rents of which such apportioned parts form parts, must be collected and recovered by the person or persons who, but for this section, or chapter five hundred and forty-two of the laws of eighteen hundred and seventy-five, would have been entitled to the entire rents; and such portions shall be recoverable from such person or persons by the parties entitled to the same under this section. This section shall not apply to any case in which it shall be expressly stipulated that no apportionment be made,. or to any sums made payable in policies of insurance of any description. Am'd by chap. 686 of 1893. Tit. 4, Ch. 18. 32 § 2721. Payment of legacies. No legacy shall be paid by any executor or administrator until after the expiration of one year from the time of granting letters testamentary or of administration, unless directed by the will to be sooner paid. If directed to be sooner paid, the executor or administrator may require a bond, with two sufficient sureties, conditioned, that if debts against the deceased duly appear, and there are not other assets to pay the same, and no other assets sufficient to pay other legacies, then the legatees will refund the legacy so paid, or such ratable portion thereof with the other legatees, as may be necessary for the payment of such debts, and the proportional parts of such other legacies, if there be any, and the costs and charges incurred by reason of the payment to such legatee, and that if the probate of the will, under which such legacy is paid, be revoked, or the will declared void, that such legatee will refund the whole of such legacy, with interest, to the executor or administrator entitled thereto. After the expiration of one year, the executors or administrators must discharge the specific legacies bequeathed by the will and pay the general legacies, if there be assets. If there are not sufficient assets, then an abatement of the general legacies must be made in equal proportions. Such payment shall be enforced by the surrogate in the same manner as the return of an inventory, and by a suit on the bond of such executor or administrator whenever directed by the surrogate. Am'd by chap. 686 of 1893. ARTICLE SECOND. ACCOUNTING; AND SETTLEMENT OF THE ESTATE. SECTION 2722. Petition to compel payment; hearing; decree. 2723. Decree for payment of legacy, et cetera, on giving security. 2724. Proceedings for neglect to set apart exempt property; proceedings upon judicial settlement. 2725. Intermediate accounting. 2726. When surrogate may require judicial settlement of account. 2727. Citation; order to account and proceedings thereon. 2728. Executor's petition for judicial settlement, citation and hearing. 2729. Affidavit to account; vouchers; examination of accounting party. 2730. Commissions of executor or administrator. 2731. Determination of claims by surrogate; suspension of statute of limita tions in certain cases. 2732. Order of distribution. 2733. Advancements. 2734. Estates of married women. 2735. Accounting party to be examined, etc. 2736. Compensation of several executors or administrators. 2737. When compensation not allowed. 2738. One compensation allowed on different letters. 2739. Surrogate may determine certain claims. 2740. Effect of the statute of limitations on such claims. 2741. Surrogate may allow for property lost, etc. 2742. Effect of judicial settlement of account. 2743. Decree for payment and distribution. 2744. Id.; when specific property may be delivered. 2745. Id.; when money may be retained. 2746. Id.; share of infant. 2747. Legacy, etc., to unknown persons to be paid into state treasury. § 2722. Petition to compel payment; hearing; decree. In either of the following cases a petition may be presented to the surrogate's court, praying for a decree, directing an executor or administrator to pay the petitioner's claim, and that he be cited to show cause why such a decree should not be made : 1. By a creditor, for the payment of a debt, or of its just proportional part, at any time after six months have expired since letters were granted. 2. By a person entitled to a legacy, or any other pecuniary provision under the will, or a distributive share, for the payment or satisfaction thereof, or of its just proportional part, at any time after one year has expired since letters were granted. On the presentation of such a petition, the surrogate must issue a citation accordingly; and on the return thereof, he must make such a decree in the premises as justice requires. But in either of the following cases the decree must dismiss the petition without prejudice to an action or an accounting, in behalf of the petitioner: 1. When an executor or administrator 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 on information and belief. 2. Where it is not proved, to the satisfaction of the surrogate, that there is money or other personal property of the estate, applicable to the payment or satisfaction of the petitioner's claim, and which may be so applied, without injuriously affecting the rights of others, entitled to priority or equality of payment or satisfaction. Am'd by chap. 686 of 1893. Code, §§ 2717, 2718, consolidated. § 2723. Decree for payment of legacy, et cetera, on giving security. In a case specified in subdivision second of the last section, the surrogate may, in his discretion, entertain the petition, at any time after letters are granted, although a year has not expired. In such a case, if it appears, on the return of the citation, that a decree for payment may be made, as prescribed in the last section; and that the amount of money and the value of the other property in the hands of the executor or administrator applicable to the payment of debts, legacies and expenses, exceed, by at least onethird, the amount of all known debts and claims against the estate, of all legacies which are entitled to priority over the petitioner's claim and of all legacies or distributive shares of the same class; and that the payment or satisfaction of the legacy, pecuniary provision or distributive share, or some part thereof, is necessary for the support or education of the petitioner; the surrogate may, in his discretion, make a decree directing payment or satisfaction accordingly, on the filing of a bond, approved by the surrogate, conditioned as prescribed by law, with respect to a bond which an executor or an administrator with the will annexed may require from a legatee, on payment or satisfaction of a legacy, before the expiration of one year from the time when letters were issued, pursuant to a direction to that effect. contained in the will. Am'd by chap. 686 of 1893. Code, § 2719, unchanged. § 2724. Proceedings for neglect to set apart exempt property; proceedings upon judicial settlement. Where an executor or adminis trator has failed to set apart property for a surviving husband, wife or child, as prescribed by law, the person aggrieved may present a petition to the surrogate's court, setting forth the failure and praying for a decree, requiring such executor or administrator to set apart the property accordingly; or, if it has been lost, injured or disposed of, to pay the value thereof, or the amount of the injury thereto, and that he be cited to show cause why such a decree should not be made. If the surrogate is of the opinion that sufficient cause is shown, he must issue a citation accordingly. On the return of the citation, the surrogate must make such a decree in the premises as justice requires. In a proper case, the decree may require the executor personally to pay the value of the property, or the amount of the injury thereto. The decree, made on a judicial settlement of the account of an executor or administrator, may award to a surviving husband, wife or child, the same relief which may be awarded in his or her favor, on a petition presented as prescribed in this section. Am'd by chap. 686 of 1893. Code, §§ 2720, 2721, consolidated. § 2725. Intermediate accounting. An executor or administrator at any time, may, voluntarily, file in the surrogate's office an intermediate account, and the vouchers in support of the same. In either of the following cases, the surrogate may, in his discretion, make an order, requiring an executor or administrator to render an intermediate account: 1. Where an application for an order, permitting an execution to issue on a judgment against the executor or administrator, has been made by the judgment creditor, as prescribed in section eighteen hundred and twentysix of this act. 2. On the return of a citation, issued on the petition of a judgment creditor, praying for a decree, granting leave to issue an execution on a judgment rendered against the decedent in his lifetime, as prescribed in section thirteen hundred and eighty-one of this act. 3. On the return of a citation, issued on the petition of a creditor, or person entitled to a legacy, or other pecuniary provision, or a distributive share, praying for a decree directing payment thereof, as prescribed in section twenty-seven hundred and twenty-two of this act. 4. Where eighteen months have elapsed since letters were isssued, and no special proceeding, on a petition for a judicial settlement, of the executor's or administrator's account is pending. Am'd by chap. 686 of 1893. Code, § 2722, 2723, consolidated. 2726. When surrogate may require judicial settlement of account. In either of the following cases, the surrogate's court may, from time to time, compel a judicial settlement of the account of an executor or administrator. 1. Where one year has expired since letters were issued to him. 2. Where letters issued to him have been revoked, or, for any other reason, his powers have ceased. 3. Where a decree for the disposition of real property, or of an interest in real property, has been made, as prescribed in title fifth of this chapter, and the property, or a part thereof, has been disposed of by him pursuant to the decree. 4. Where he has sold, or otherwise disposed of, any of the decedent's real property, or the rents, profits or proceeds thereof, pursuant to a power contained in the decedent's will, where one year has elapsed since letters were issued to him. The surrogate's court may compel a judicial settlement of the account of a temporary administrator at any time. It may also compel a judicial settlement of the account of a freeholder, appointed to dispose of a decedent's real property, or interest in real property, as prescribed in title fifth of this chapter, in like manner as where the same has been disposed of by the executor or administrator. Am'd by chap. 686 of 1893. SS 2724, 2725, consolidated. A § 2727. Citation; order to account and proceedings thereon. petition, praying for the judicial settlement of an account, and that the executor or administrator be cited to show cause why he should not render and settle his account, may be presented, in a case prescribed in the last section, by a creditor or a person interested in the estate or fund, including a child born after the making of a will; or by any person, in behalf of an infant so interested; or by a surety in the official bond of the person required to account, or the legal representative of such a surety. On the presentation of such a petition, a citation must be issued accordingly; except that in a case specified in subdivision first of the last section, if the petition is presented within eighteen months after letters were issued to the executor or administrator, the surrogate may entertain or decline to entertain it, in his discretion. On the return of a citation issued as prescribed in either of the foregoing sections of this article, if the executor or administrator fails either to appear, or to show good cause to the contrary, or to present in a proper case, a petition as prescribed in the next section, an order must be made, directing him to account within such a time, and in such a manner as the surrogate prescribes, and to attend, from time to time, before the surrogate, for that purpose. The executor or administrator is bound by such an order, without service thereof. If he disobeys it the surrogate may issue a warrant of attachment against him, and his letters may be revoked, as where a warrant of attachment is issued to compel the return of an inventory. If it appears that there is a surplus, distributable to creditors or persons interested, the surrogate, at any time, may issue a supplemental citation, directed to the persons who must be cited, on the petition of an executor or administrator for a judicial settlement of his account, and requiring them to attend the accounting. On the return of a citation issued as prescribed in either of the foregoing sections of this article, if one year has expired since letters were issued to the executor or administrator, he may present a petition as prescribed in the next section. A citation issued on such a petition need not be directed to the petitioner in the special proceeding pending against the executor or administrator; but the hearing of that proceeding must be adjourned until the returu of the citation so issued; when the two proceedings must be consolidated. The consolidation does not affect any power of the surrogate, which might be exercised in either proceeding. Am'd by chap. 686 of 1893. Code, § 2726, 2727 and 2728, consolidated. § 2728. Executor, etc., may petition for judicial settlement; citation thereupon. In either of the following cases an executor or administrator may present to the surrogate's court his account and a written petition duly verified, praying that his account may be judicially settled; and that the sureties in his official bond or the legal representatives of such surety and all creditors or persons claiming to be creditors of the decedent, except such, as by vouchers annexed to the account filed, appear to have been paid and the decedent's husband or wife next of kin and legatees, if any; or, if either of those persons has died, his executor or administrator, if any, may be cited to attend the settlement: |