N.Y. Surrogate's Court Procedure Act § 717: Suspension of powers of fiduciaries in war service 1

§ 717. Suspension of powers of fiduciaries in war service

1. Whenever a fiduciary is engaged in war service, as defined in this

section, such fiduciary or any person interested, may present a petition

to the court having jurisdiction, praying for a decree suspending the

powers of such fiduciary while he is engaged in war service and until

the further order of the court and if his suspension will leave no

person acting as fiduciary or leave the sole beneficiary of a trust as

the only acting trustee thereof, the petition must pray for the

appointment of a successor unless a successor has been named in the will

or lifetime trust instrument and such successor is not engaged in war

service or is not for other reasons unable or unwilling to act as a

fiduciary.

2. For the purposes of this section, a fiduciary is deemed to be

engaged in war service if he is

(a) a member of the military or naval forces of the United States or

any of its allies or if he has been accepted for such service and is

awaiting induction therein, or

(b) engaged in any work abroad in connection with a governmental

agency of the United States or with the American Red Cross Society or

any other body with similar objects, or

(c) interned in an enemy country or is in a foreign country or a

possession, dependency or protectorate of the United States and is

unable to return to this state, or

(d) a member of the merchant marine service or other similar service.

3. Where the application is made by a fiduciary engaged in war

service notice shall be given to the persons and in the manner directed

by the court. Where the application is made by any other person notice

shall be given to the fiduciary and such other persons and in the manner

directed by the court.

4. Upon filing of the petition and proof of service of the notice

prescribed, the court may, notwithstanding any other provision of law,

suspend the fiduciary engaged in war service from the exercise of all

his powers and duties while he remains engaged in war service and until

the further order of the court. The decree may further provide that the

remaining fiduciary, or if there be none, the successor named in the

will or lifetime trust instrument or appointed by the court, is

possessed of and may exercise all the powers and be subject to all the

duties incidental to his office as fiduciary.

5. The compensation of the successor shall be limited to commissions

as computed under 2307, 2308 or 2309, whichever section is applicable to

the fiduciary, upon income received and disbursed, and upon principal

disbursed. Commissions may be allowed also to his successor under the

provisions of those sections, whichever section is applicable to the

successor, if he is entitled to or required to collect the rents of and

manage real property. In the event of the resignation or removal of the

suspended fiduciary under any other section of this act or in the event

of the death of the suspended fiduciary, the foregoing limitations on

the computation of the commissions of his successor shall cease to apply

and the commissions of the successor shall be computed in the same

manner as any other fiduciary.

6. When the suspended fiduciary ceases to be engaged in war service,

he may be reinstated as fiduciary if any of the duties of his office

remain unexecuted, upon application to the court, and upon such notice

as it directs. If the suspended fiduciary is reinstated the court shall

remove his successor and revoke his letters and make such other order or

decree as justice requires, but such removal and revocation of letters

shall not bar the successor from subsequently qualifying as a fiduciary

in accordance with the provisions of the will or lifetime trust

instrument if for any reason thereafter it becomes necessary that a

fiduciary be appointed.