amended; L. 1874, ch. 267. Higby v. Westlake, 14 N. Y. 281; Sears v. Mack's Assignees, 2 Bradf. 394; Horton v. McCoy, 47 N. Y. 21; Couch v. Delaplaine, 2id. 397; Campbell v. Renwick, 2 Bradf. 80; Tappen v. Kain, 12 Johns. 120; Peck v. Mead, 2 Wend. 470: Lawrence v. Elmendorf, 5 Barb. 73.

§ 2794. Dower in lands under contract; how computed. The claim of dower of the decedent's wife, in real property held by the decedent, under a contract for the purchase thereof, which must be satisfied, as prescribed in subdivision third of the last section, extends only to the annual interest, during her life, upon onethird of the balance remaining, after deducting from the money arising upon the sale, all sums due from the decedent, at the time of the sale, for the real property so contracted and sold.

Section 72, R.S. See Hawley v. James, 5 Paige, 318; Hicks v. Stebbins, 3 Lans. 39.

82795. Fund set apart for dower; how invested, etc. -The surrogate must cause a sum set apart for a widow's dower, as prescribed in the last two sections, to be invested by the county treasurer, under the direction of the surrogate, in the public securities of the State, or of the United States, or in permanent mortgage securities, bearing interest payable annually, or oftener. The interest, or other income, must be paid by the county treasurer to the widow, during her life. After her death, the county treasurer, under the direction of the surrogate's court, manifested in an order duly entered, must sell the public securities, or collect the sums loaned upon mortgage, and distribute the proceeds, less the costs and expenses, as prescribed in the last section but one, for the distribution of the remainder of the money, after satisfying the claim for dower.

Id., 22 37 and 46; see 2 2800, post.

§ 2796. [Amended, 1882.] Id.; share belonging to infant, etc.-Where surplus money is distributed to an infant; or where the interest in the property, represented by it, consisted of a precedent estate, and a remainder or reversion; the decree must provide, as the judgment of the supreme court would provide, in an analogous case, for the investment of the money in the public securities of the State, or of the United States, or for the loan thereof, secured by bond, and by mortgage upon unincumbered real property within the State, worth at least, exclusive of buildings thereupon, twice

the sum lent; and for the payment of the income, until the majority of the infant or the determination of the temporary interest; and then, for the payment of the principal to the person or persons entitled thereto. Or where surplus money is distributable to an infant, the decree may, in the discretion of the surrogate, direct that the same be paid to his general guardian upon the latter giving such additional security, if any, as the surrogate directs, or if it is one hundred dollars or less, that it be deposited by the county treasurer in a savings bank or trust company, designated by the surrogate, and that the interest or income thereof be applied to the use of the infant until its majority.

L. 1850, ch. 150, 22 1 and 2 (4 Edm. 508).

§ 2797. Effect upon proceedings under this title, of an action to foreclose, etc. The commencement or pendency of an action or special proceeding, having for its object the sale, either absolutely or contingently, of property liable to be disposed of as prescribed in this title; or the foreclosure, by advertisement, of a mortgage thereupon; or any proceeding to sell such property, taken pursuant to a judgment, or by virtue of an execution, does not affect any of the proceedings taken as prescribed by this title, unless the surrogate so directs. After making a decree directing a mortgage, lease, or sale, the surrogate may, and, in a proper case, he must, stay the order to execute the decree, with respect to the property affected by the action, or special proceeding, or by the. proceedings then pending, until the determination thereof, or the further order of the surrogate with respect thereto. If, in the course thereof, a sale of any of the property has been made, before making the decree in the surrogate's court, the decree must provide for the application of the surplus proceeds belonging to the decedent's estate. If such a sale is made afterwards, the directions contained in the decree, relating to the property sold, are deemed to relate to those proceeds.

New See L. 1867, ch. 658 (7 Edm. 142), amended; L. 1871, ch. 834 (9 Edm. 210). Breevoort v. McJimsey, 1 Edw. Ch. 551; see, also, Hoey v. Kinney, 10 Abb. Pr. 400; see Stilwell v. Swarthout, 10 N. Y. Week. Dig. 369, ct. app., June 1, 1880.

2798. 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 lifetime; 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. 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. The receipt of the surrogate, or the clerk of the surrogate's court, or the county treas urer, as the case may be, is a sufficient discharge to the person paying the money.

Substituted for L. 1867, ch. 658, 21 (7 Edm. 142). See Dunning v. 0. N. Bank, 61 N. Y. 497; Stilwell v. Swarthout, 10 N. Y. Week. Dig. 369.

2799. [Amended, 1881.] Id.; how distributed.— Where money is paid into a surrogate's court, as prescribed in the last section, and a petition for the dispo sition of property, as prescribed in this title, is pending before him; or is presented at any time before the distribution of the money; the money must be distributed 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 distri bution 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 a 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

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 trustee, 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.

Same as last above.

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 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 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 tho petition, the surrogate must issue a citation accordingly. Same as 2802, ante.

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; otherwise, 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.

Same as in 2802, ante.

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.

Same as 2 2802, ante.

2807. When surrogate may compel judicial settlement. In either of the following cases, the surrogate's ourt may, from time to time, compel a judicial settlement of account of a testamentary trustée :

Where one year has expired since the will was admitted robate.

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 sepa rate 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.

See notes to 8 2724 and 2802, ante.

2808. Who may apply therefor. 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 his 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.

See notes to 282726 and 2802, ante. Le Fort v. Delafield, 3 Edw. 32; Rieben v. Hicks, 4 Brad. 136; Knox v. Jones, 47 N. Y. 389; Leitch v. Wells, 48 id. 585.

§ 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.

See note to 2802, ante.

§ 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 veri fied, setting forth the facts, and praying that his ac count may be judicially settled; and that all the persons who are entitled, absolutely or contingently, by