When any surety upon the official bond of any fiduciary in this state not subject to the provisions of the Probate Code [Chapter 45 NMSA 1978], shall desire to be released from such obligation, such surety may file his application for such release in the court having jurisdiction of such fiduciary and thereupon the clerk of such court shall issue, under the seal thereof, a notice to such fiduciary, requiring him or her to furnish a new bond, with sureties to be approved by the court, within twenty days from the date of the service of said notice. Such notice may be served in the manner provided by law for the service of a summons in civil actions. If such fiduciary shall fail to furnish such bond within the time hereinbefore prescribed he or she may be summarily removed from office, and a new trustee, committee, guardian, assignee, receiver, executor, administrator or other fiduciary forthwith appointed. From and after the time when such new bond is furnished, or such new fiduciary appointed, the surety making such application shall be released from all liability upon the said bond, except for such default or other misconduct on the part of such fiduciary as occurred prior thereto.
It is further provided, that in case of the release or the withdrawal of any surety as provided in this section, and in case the principal shall account in due form of law for all his acts and doings, and all trust funds or estate, then the unearned portion of any premium paid to such surety shall be refunded and repaid by the said surety or such sureties as aforesaid.
History: Laws 1899, ch. 41, § 3; Code 1915, § 508; C.S. 1929, § 17-104; 1941 Comp., § 28-104; 1953 Comp., § 28-1-4; Laws 1975, ch. 257, § 8-118.
Cross references. — For release or reduction of bond in wills and administration, see 45-3-604 NMSA 1978.
For the termination of appointment of personal representatives in wills and administration, see 45-3-608 to 45-3-612, 45-3-618 NMSA 1978.
For termination of guardianship generally, see 45-5-212 NMSA 1978.
For the dismissal of assignees for the benefit of creditors, see 56-9-36 to 56-9-41 NMSA 1978.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 74 Am. Jur. 2d Suretyship §§ 82 to 85.
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